author: BARNES, J., for the Court:

text:
    Marie STEVENS and William Edward Bohannon, Appellants v. Josie SMITH and Bennie Bohannon, Appellees.
    No. 2010-CA-00886-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2011.

      Jason D. Herring, Henderson M. Jones, Tupelo, attorneys for appellants.
    Duncan L. Lott, attorney for appellees.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J., for the Court:

¶ 1. The parties in this case are the children of Audrey and William Delbert Bohannon, both deceased. Josie Smith and Bennie Bohannon filed suit in the Circuit Court of Prentiss County against their siblings, Marie Stevens and William Edward Bohannon (Edward), claiming conversion of their interest in two jointly owned savings accounts and a jointly owned certificate of deposit (CD). The trial court granted summary judgment in favor of Josie and Bennie, finding that their siblings had deprived them of their ownership interest in the funds through conversion. Marie and Edward timely appealed. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. The facts in this case are not in dispute. Before their parents’ death, the four parties had opened two savings accounts and a CD for the benefit of their parents: a savings account with First American National Bank (First American) and a savings account and CD with Farmers & Merchants Bank (Farmers & Merchants). Each of these three funds was in the name of all four siblings. Each account required the signature of any two of the four parties to withdraw funds.

¶ 3. The parties’ parents, Audrey and William, passed away in October 12, 2002, and March 3, 2006, respectively. On February 24, 2006, Marie and Edward withdrew $18,230.87 from the CD and $4,881.01 from the savings account, both at Farmers & Merchants. Then, on March 2, 2006, the day before their father passed away, Marie and Edward also withdrew $8,664.14 from the savings account at First American. Marie and Edward placed these funds in “a safe place,” stating they were going to use the money for repairs on a house previously owned by their father, in which all of the siblings have an ownership interest. However, Marie and Edward admitted that, upon the death of their parents, the money was to belong to all four of the siblings.

¶ 4. In June 2006, Josie and Bennie filed a complaint against Marie and Edward for conversion of their interest in the jointly held savings accounts and CD. Discovery ensued, and the parties’ depositions were taken. Marie and Edward admitted that the three funds were jointly held by all of the siblings and that each sibling possessed an equal ownership interest in the accounts. All of the parties also agreed the accounts were set up for the benefit of their parents and would be divided equally upon the deaths of their parents. It was also undisputed that Marie and Edward possessed lawful authority to make the withdrawals from the three joint funds.

¶ 5. In July 2008, Marie and Edward filed a motion for summary judgment, claiming that they had absolute authority to withdraw funds from the accounts at issue; thus, there could be no conversion as a matter of law. Josie and Bennie filed a response and counter-motion for summary judgment claiming they have an ownership interest in the funds at issue that was being wrongfully withheld from them. The trial court held a hearing on the motions, and an order was subsequently entered stating the parties agreed that no genuine issues of material fact remained and the parties now sought judgment as a matter of law. The trial court denied Marie and Edward’s motion for summary judgment and granted Josie and Bennie’s counter-motion for summary judgment, finding Marie and Edward had deprived Josie and Bennie of their ownership interests in the funds by conversion. A judgment of $13,457.50 was entered against Marie and Edward.

¶ 6. Marie and Edward timely appealed raising two issues: (1) the trial court should have upheld Marie’s and Edward’s right and authority to dispose of the entire balance of the savings accounts and CD, and (2) the trial court should have examined the intent of the parties in establishing these three funds before finding a claim for conversion as a matter of law.

STANDARD OF REVIEW

¶ 7. This Court applies a de novo standard of review to the trial court’s grant or denial of a motion for summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 15) (Miss.2006). Summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at (¶ 16) (quoting M.R.C.P. 56(c)). The trial court must review the evidence in the light most favorable to the nonmoving party. Id.

ANALYSIS OF THE ISSUES

I. Jointly Held Accounts

¶ 8. Marie and Edward assert that the trial court erred in granting summary judgment as a matter of law on the conversion claim because they had the right and authority to dispose of the entire balance of the subject accounts as they saw fit, regardless of whether they were joint account holders with their siblings, Josie and Bennie. The parties agree that there is no factual dispute in this case — the only issues remaining are legal. It is also undisputed that Marie and Edward had lawful authority to make the withdrawals from the accounts. At issue, however, is whether Marie and Edward had lawful authority to deprive Josie and Bennie of their ownership interest in the accounts by depositing the withdrawn funds in an account that was inaccessible to Josie and Bennie. We agree with the trial court’s finding that Marie and Edward did not have this authority.

¶ 9. To establish the tort of conversion, “there must be proof of a wrongful possession, or the exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized and injurious use, or of a wrongful detention after demand.” Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 772-73 (¶ 10) (Miss.2004) (quoting Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (¶ 20) (Miss.1998)). The intent required does not have to be that of a wrongdoer. Id. at 774 (¶ 15) (citing First Investors Corp. v. Rayner, 738 So.2d 228, 235 (¶ 28) (Miss.1999)). Regarding joint accounts, it is well settled in Mississippi that joint-account holders have given each other absolute authority over an account “and the unconditional power to withdraw all or any part of the account.” Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So.2d 1061, 1066 (¶ 9) (Miss.Ct.App.2001) (citing Deposit Guar. Nat’l Bank v. Pete, 583 So.2d 180, 184 (Miss.1991)).

¶ 10. The parties’ deposition testimony established the following details about the accounts. Edward verified his signature on the account card for the savings account at Farmers & Merchants. Edward did not have any involvement in establishing the CD; however, he was involved in establishing the savings account at First American. Edward verified his signature and the signature of Josie on this account, which was opened in November 1998. Edward stated that all of the parties have an interest in their parents’ house and that it needs repairs in order to obtain a sale price close to its potential value, and he proposed repairing it prior to Josie and Bennie’s instant lawsuit. Marie did not have any involvement in establishing any of the accounts. She testified that Josie and Bennie deleted her name from a separate joint account not subject to this lawsuit and withheld the proceeds from her. Therefore, Marie withdrew funds from the accounts at issue and put the money in “a safe place.”

¶ 11. Josie verified her signature on the savings account card at Farmers & Merchants. Josie was involved in establishing all three accounts, which were all jointly owned among the siblings with rights of survivorship. The signature of two account holders was required for withdrawal on each account. Josie stated that her father allowed her to withdraw money from his checking account, which is not at issue in this lawsuit, to help her out. Bennie also testified that all three accounts were jointly owned by him and his siblings with rights of survivorship. He stated that he and Josie had written checks from his father’s checking account for personal use and that his father helped him out financially.

¶ 12. From the evidence presented, Marie and Edward, as joint-account holders, had the absolute right to withdraw all or part of the funds from the accounts in February and March 2006. Further, there is no dispute that they utilized the correct procedure in doing so; the banks only required two of the four account holders’ signatures. However, when they placed the funds “in a safe place” of a separate account inaccessible to Josie and Bennie, they effectively deprived Josie and Bennie of their ownership interest in the funds. As the trial court noted, “the act of withdrawal did not eliminate the Plaintiffs’ ownership interest in the funds.” The exercise of dominion over the funds by Marie and Edward, and not the withdrawals, deprived Josie and Bennie of their right to an equal interest in the funds and, thus, constituted conversion.

¶ 13. In Drummonds v. Drummonds, 248 Miss. 25, 156 So.2d 819 (1963), the Mississippi Supreme Court stated that joint accounts are presumed to be vested in the names of the account depositors as equal contributors and owners in the absence of evidence to the contrary; however, intent of the parties is the controlling factor. Id. at 31, 156 So.2d at 821. The court explained the nature of joint-tenancy accounts as follows:

The peculiar features of a joint and several bank account make it difficult, if not impossible, in most cases, to determine what portion of the account belongs to each depositor. A long series of deposits which cannot be traced to their source, and a similar series of withdrawals which cannot be traced to their destination, are normally involved. This defect is inherent in the severalty feature of such bank accounts wherein each depositor is allowed to treat joint property as if it were entirely his own. A joint bank account of this kind is generally a creature of contract between parties avowedly indifferent to the exact percentage of ownership between themselves. It is said that the law should take them at their word and give effect to their contract without making detailed evidentiary inquiries to establish factual ownership. The prevailing view seems to be, however, that while joint accounts are presumed to be vested in the names as given in the deposit as equal contributors and owners in the absence of evidence to the contrary, the intention of the parties is the controlling factor, and where a controversy arises as to the ownership thereof evidence is admissible to show the true situation.

Id. (quoting 10 Am.Jur.2d Banks 374 (1963)) (emphasis added); see also Harrell v. Harrell, 231 So.2d 793, 795-96 (Miss.1970) (quoting 10 Am.Jur.2d Banks 374 (1963)) (joint accounts presumed to be vested in names of depositors “as equal contributors and owners” but “controlling factor” is “intention of parties”).

¶ 14. Marie and Edward cite to Oliver v. Oliver, 812 So.2d 1128 (Miss.Ct.App. 2002) and DeJean v. DeJean, 982 So.2d 443 (Miss.Ct.App.2007) in support of their argument that the claim for conversion was not warranted, as Marie and Edward had the right and authority to dispose of the entire balance of the subject accounts. We find their reliance on these cases misplaced. In Oliver, the plaintiff, Roger Oliver, claimed conversion of funds held in joint tenancy with rights of survivorship among himself, his step-mother Helen Oliver, and his deceased father, B.A. Oliver. Oliver, 812 So.2d at 1130 (¶ 1). Oliver claimed that he owned an undivided one-half interest in the account at issue after his father’s death and that his step-mother in effect converted his one-half interest by withdrawing all of the funds. Id. at 1133 (¶ 16). This Court affirmed the chancellor’s finding that Roger did not have an ownership interest in the account because this was not the parties’ intent.

¶ 15. If Marie and Edward are correct, the analysis in Oliver would have ended once Helen withdrew the funds, because the court would have had no need to examine the parties’ intent. However, Oliver goes on to examine the chancellor’s finding of the intent between the parties regarding the ownership of the joint funds. The chancellor found that Roger had no ownership interest in the account as long as his father and step-mother were alive; he was added to the account as a “mere accommodation.” Evidence showed Roger had not contributed to the account, and it had been treated as a primary checking account by his father and step-mother. Id. at 1133 (¶ 18). Further, there was no affirmative evidence that the funds would be treated any differently after his father’s death. Id. at 1134 (¶ 18). This Court upheld the chancellor’s ruling that Oliver had no equitable claim to any of the jointly held funds during the life of Helen, even though he held a right of survivorship. Id. at 1138— 34 (¶¶ 17-18). The Court explained:

Whether ownership in the account would have passed to Roger Oliver at the time of Helen Oliver’s death by the contractually-created right of survivorship existing between them is a question not before us. That question has been rendered moot by (a) Helen Oliver’s exercise of her absolute right, as joint tenant, to dispose of the entire balance of the account and (b) the chancellor’s conclusion that Roger Oliver had no equitable claim to compel Helen Oliver to account for any portion of the funds so disbursed. The presumption of equal ownership mentioned in the Harrell v. Harrell decision was, in the chancellor’s view, overcome by affirmative evidence demonstrating a contrary intent between the signatories to the account. We do not find that to be manifestly in error and, therefore, we affirm the chancellor on this issue.

Id. at 1134 (¶ 19) (emphasis added). We find Marie and Edward’s citation to Oliver only addresses the first half of the inquiry — Helen’s absolute right to dispose of the entire balance of the bank account, but had Helen not been able to disprove the presumption of equal ownership, she would have been liable to Roger for an accounting.

¶ 16. Marie and Edward also cite DeJe-an. In DeJean, a brother, Patrick DeJean, and sister, Julia Mae DeJean, jointly owned a CD with rights of survivorship. DeJean, 982 So.2d at 445 (¶ 1). Julia Mae instructed the bank to redeem the CD with the proceeds reissued to a new CD in her and two other relatives’ names, Heywood and Christine DeJean. Before the new CD was issued, Julia Mae died. Id. at 446 (¶ 1). Patrick filed a petition for declaratory judgment against Heywood and Christine DeJean and Hancock Bank, seeking to be declared the sole owner of the original CD, and the return of funds transferred to the new CD. After trial, judgment was entered in favor of Christine and Heywood. Id. at (¶2). On appeal, Patrick argued, inter alia, that the original CD was not redeemed before his sister’s death; therefore, he was the sole owner by survivorship. Alternatively, he contended that he should be granted an equitable division of the new CD based upon the source of funding in the original CD, which was a family inheritance. Id. at 449 (¶ 14). In a five-to-four decision, this Court affirmed the chancellor’s determination that the CD had been redeemed prior to Julia Mae’s death, and we further held that Patrick was not recognized as half owner of the new CD. Id. at 447-48, 450 (¶¶ 6, 14). In its second holding, this Court relied upon Drummonds, stating: “When an account is held jointly in the name of one depositor or another, each depositor is allowed to treat joint property as if it were entirely his own.’ Id. at 450-51 (¶ 14) (quoting Drummonds, 248 Miss, at 31, 156 So.2d at 821) (emphasis added). The Court held that since Julia Mae had a right to redeem the CD without Patrick’s consent, Patrick was not entitled to be awarded one-half interest in the new CD. Id.

¶ 17. Marie and Edward interpret De-Jean to stand for the proposition that the first party to remove the funds is the sole owner, and the inquiry ends there. We disagree. We interpret DeJean in accord with Smith v. Smith, 656 So.2d 1143 (Miss.1995).

¶ 18. In Smith, the husband filed a complaint for divorce together with a complaint for a temporary restraining order (TRO) requiring the wife to redeposit $38,750 she had withdrawn from a joint account established by her husband with his non-marital assets. Id. at 1146. An initial TRO was granted, and the wife redeposited approximately $32,500 into the account, having spent the remainder. The final order, issued by a different chancellor, found that the wife was “entitled to withdraw the $32,500.00 from the joint savings account” and denied all relief, thereby reversing the effect of the TRO. Id. On appeal, the supreme court affirmed, holding that since the husband had given the wife authority to withdraw the funds by placing her name on the joint account, he was not entitled to a TRO requiring the wife to return the funds. The supreme court continued, however, that it was resolving only the issue of the injunction and not ownership of the funds. The court noted that the husband “may be entitled to establish his interest in the proceeds of the account and establish a debt owing from [his wife] to him in proceedings brought for that purpose.” Id. at 1148. Thus, while there was an absolute right of joint-account owner to withdraw funds from the account, that right did not resolve the “ownership” of the funds so withdrawn.

¶ 19. Similar to the issue of the TRO in Smith, the DeJean Court was asked to determine whether Patrick was to be declared half owner of the new CD held by Christine and Heywood. This Court relied on Drummonds and held he was not. De-Jean, 982 So.2d at 449-50. The issue of whether Julia Mae (or her estate) would have been accountable to Patrick for his equitable share of the original CD was not an issue before the Court. In the case before us, the trial judge did not seek out the funds held by Marie and Edward in the “safe place” and give Josie and Bennie an ownership in that account; instead, he awarded Josie and Bennie a judgment against Marie and Edward in the amount of $13,447.50. We find this result to be in keeping with Smith.

¶ 20. Accordingly, we agree with the trial court that the unauthorized exercise of dominion by Marie and Edward over all of the funds from the three accounts constituted conversion as a matter of law, because they deprived Josie and Bennie of their ownership interest in the accounts.

II. Intent

¶ 21. Marie and Edward make the alternative argument that if we find they were not allowed to treat the subject funds “as their own,” summary judgment was still improper, as the trial court should have examined the parties’ intent in establishing and maintaining the three accounts to determine the percentage of ownership split between the four parties. Additionally, Marie and Edward maintain that the trial court should have taken into consideration the parties’ understanding regarding the whole of their parents’ estate to resolve the issue of conversion.

¶ 22. Marie and Edward cite to Drum-monds in support of their argument: “The prevailing view seems to be, however, that while joint accounts are presumed to be vested in the names as given in the deposit as equal contributors and owners ... the intention of the parties is the controlling factor, and where a controversy arises as to the ownership thereof evidence is admissible to show the true situation.” Drummonds, 248 Miss. at 31, 156 So.2d at 821 (quoting 10 Am.Jur.2d § 374). Here, however, unlike Drummonds, there is no conflict in the evidence about what ownership interest each party had — it is undisputed all four parties had an equal ownership interest. Further, as stated earlier, testimony shows that when the accounts were set up, the intent of the siblings was to have an equal share in the funds after their parents passed away. The suggestion by Marie and Edward to examine the “whole of the parents’ estate” is not possible since no estate proceedings have been opened for either parties’ deceased parents. The evidence is clear and undisputa-ble that each party was to have an equal ownership interest in the accounts. Further, there was no testimony that the intent of the parties was to review the entire estate. There was no evidence offered to overcome the presumption of equal ownership; the undisputed facts establish that the parties’ intent was in conformity with that presumption. This issue is without merit.

CONCLUSION

¶ 23. The trial court did not err in granting summary judgment in favor of Josie and Bennie. The parties agreed that there was no dispute as to the facts of the case. As a matter of law, Marie and Edward deprived Josie and Bennie of their ownership interests in the accounts, thereby committing the tort of conversion. Therefore, we affirm the judgment of the trial court.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF PRENTISS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIN, P.JJ., MYERS, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . At the time of Marie and Edward’s motion for summary judgment, no estate proceedings had ever been opened for either deceased parent.

      . This amount represents a one-half interest in the withdrawals by Marie and Edward of $18,230.87 from the CD at Farmers & Merchants, and $8,664.14 from the savings account at First American, but it excludes a one-half interest in the $4,881.01 withdrawn from the savings account at Farmers & Merchants. This may be a mathematical error on the part of the trial court; Josie and Bennie have not, however, cross-appealed on this issue.

      . The dissent in DeJean would have reversed on the issue of whether the original CD was redeemed before Julia Mae died and, thus, did not reach the issue of whether the chancellor should have granted Patrick an equitable division of the new CD. Id. at 453 (¶ 30) (Roberts, J., dissenting).

      . Further research indicates Mississippi is in accord with other states regarding joint accounts and conversion claims. Tennessee, Florida, and Idaho have all found a claim for conversion in circumstances similar to the instant case. In Knight v. Lancaster, 988 S.W.2d 172, 176 (Tenn.Ct.App.1998), evidence did not overcome the presumption that joint-tenancy accounts between a brother and sister were owned equally. The Tennessee court held that "[ejven though a joint tenant may withdraw the entire fund, one who does withdraw funds in excess of his moiety is liable to the other joint tenant for the excess so withdrawn.” Id. at 175. In Joseph v. Chanin, 940 So.2d 483, 486-87 (Fl.Dist.Ct. App.2006), a beneficiary of a decedent’s joint account was found liable for conversion when she refused to return money over which she was exercising dominion. The court acknowledged that in a joint-tenancy checking account with right of survivorship, each person was presumed to have an equal share in ownership, but one joint tenant may bring a conversion action against another tenant who wrongfully appropriates more than his share of the funds from the joint account. Id. at 486. Likewise, in Erhardt v. Leonard, 104 Idaho 197, 657 P.2d 494, 496 (Id.Ct.App. 1983), a grandmother successfully sued her grandson for conversion of a joint savings account, when he withdrew the entire balance of the account without his grandmother’s permission or knowledge. The court addressed the ownership of the funds and the effect of the grandson’s withdrawal on that ownership. Id. at 497. In finding a claim for conversion, the court determined that the grandson was a non-contributing party and that the grandmother only had made contributions to the account; thus, the grandson’s withdrawal of the funds was an invasion of her property. Id. at 497-98.


source: Caselaw Access Project

author: IRVING, P. J., for the Court:

license: Public Domain

text:
    BEAUMONT HOMES, LLC, Appellant v. COLONIAL/JORDAN PROPERTIES, LLC, SMCDC, Inc., Mark S. Jordan, and Dee C. Denton, Appellees. Beaumont Homes, LLC, Appellant v. Colonial/Jordan Properties, LLC, Appellee.
    Nos. 2009-CA-01173-COA, 2010-CA-00810-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2011.
    Ken R. Adcock, Ridgeland, attorney for appellant.

      Samuel L. Anderson, Matthew W. Van-derloo, Ridgeland, Clyde X. Copeland, attorneys for appellees.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   IRVING, P. J., for the Court:

¶ 1. This appeal arises out of a real-estate contract between Beaumont Homes, LLC and Colonial/Jordan Properties, LLC. The Madison County Chancery Court granted summary judgment in favor of Colonial/Jordan and granted Colonial/Jordan’s motion for attorneys’ fees. Feeling aggrieved, Beaumont appeals and argues that the chancery court erred in granting summary judgment and in awarding attorneys’ fees.

¶ 2. Finding no error, we affirm.

FACTS

¶ B. On September 16, 2005, Beaumont entered into a contract with Colonial/Jordan for the purchase of land “as is.” Beaumont intended to build a house on the property. However, following the sale, Beaumont learned that the Madison County Board of Supervisors had placed a temporary moratorium on the issuance of building permits for the property due to past problems with flooding.

¶ 4. On October 2, 2006, Beaumont filed suit against Colonial/Jordan, alleging breach of contract, negligence, misrepresentation/negligent misrepresentation, fraudulent concealment, and breach of fiduciary duties and the duty of good faith and fair dealing, for failure to disclose the flooding problems on the property and the temporary moratorium on the issuance of building permits.

¶ 5. On April 30, 2009, Colonial/Jordan filed a motion for summary judgment, which the chancery court granted on June 22, 2009. On June 29, 2009, Colonial/Jordan filed a motion for attorneys’ fees, which the chancery court granted on March 1, 2010. On May 6, 2010, the chancery court entered an order assessing attorneys’ fees at $5,000.

¶ 6. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Summary Judgment

¶ 7. Beaumont argues that there is a genuine issue of material fact regarding whether Colonial/Jordan had a duty to disclose the property’s flooding problems and the moratorium on the issuance of building permits. When reviewing a grant of summary judgment, the standard of review is de novo. O.W.O. Invs., Inc. v. Stone Inv., Co., 32 So.3d 439, 446 (¶ 18) (Miss.2010). Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)).

¶ 8. The sales contract contained an “as is” provision in Section 5(d), which states:

Buyer accepts said lot “as and where is” and in its present condition with respect to suitability for Buyer’s purposes, location, and physical conditions, including, without limitation, soil types, fill material, and bearing capacity, and Buyer also hereby releases Seller from any and all claims for damages as a result of the location and condition of said lot, including, without limitation, damages which hereafter may be suffered by Buyer or their heirs, successors, and assigns as a result of movement of soil, the natural flow of storm water, the overflow of established drainage ways, or the failure to maintain said drainage ways by the person or agencies responsible therefor.

This Court has previously held that an “as is” clause in a contract exempts a seller from liability pertaining to the condition of the property. Crase v. Hahn, 754 So.2d 471, 475 (¶ 8) (Miss.Ct.App.1999). There is no contention that Beaumont, a sophisticated party in the business of purchasing and developing real estate, did not understand the terms of the contract. Therefore, Beaumont is bound by the mutually agreed upon terms of the contract, which absolve Colonial/Jordan of any liability pertaining to the condition of the property.

¶ 9. Furthermore, because the sale involved real property without a dwelling, the statutory disclosure requirements that accompany land sales do not apply. Consequently, Beaumont’s claim that Colonial/Jordan had a duty to disclose prior flooding problems or the moratorium on the issuance of building permits is without merit. As such, the chancery court did not err in granting Colonial/Jordan’s motion for summary judgment given that Beaumont agreed to purchase the property “as is” and that Colonial/Jordan had no duty to disclose either the property’s flooding problems or the moratorium on the issuance of building permits.

2. Attorneys’Fees

¶ 10. Beaumont argues that the chancery court erred in awarding attorneys’ fees because the issue was raised for the first time in a post-trial motion. Furthermore, Beaumont contends that the chancery court was without jurisdiction to grant the award because Beaumont had already filed its appeal.

¶ 11. A chancery court’s decision to award attorneys’ fees is reviewed for abuse of discretion. Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 518 (¶ 70) (Miss.2007). The real-estate contract between Colonial/Jordan and Beaumont contained the following provision regarding attorneys’ fees:

If it shall become necessary to insure the performance of this Contract for either party to initiate litigation, then the party adjudged at fault agrees to pay reasonable attorney’s fees, court costs, and other expenses incident to such litigation.

Colonial/Jordan submitted an affidavit in support of attorneys’ fees totaling $43,854.20; however, the chancery court found that Colonial/Jordan was entitled to only $5,000 in attorneys’ fees.

¶ 12. The Mississippi Supreme Court has held that an inquiry into whether a party is entitled to attorneys’ fees cannot commence until a party has prevailed. Cruse v. Nunley, 699 So.2d 941, 946 (¶ 19) (Miss.1997). Furthermore, “the fact that the fee request was made after the entry of judgment is not a proper basis for denying the fee award.” Id. at (¶ 20). Therefore, Beaumont’s argument that the chancery court erred in awarding attorneys’ fees because Colonial/Jordan raised the issue of attorneys’ fees for the first time in a post-trial motion is without merit.

¶ 13. Finally, this Court has held that under Rule 4(d) of the Mississippi Rules of Appellate Procedure, a timely notice of appeal is suspended pending the disposition of post-trial motions. Phelps v. Phelps, 937 So.2d 974, 977 (¶ 10) (Miss.Ct.App.2006). “Upon their disposition, [a party’s] notice of appeal is revived.... ” Id.

¶ 14. Colonial/Jordan filed its motion for attorneys’ fees on June 29, 2009. Beaumont filed its first notice of appeal, which related to the chancery court’s grant of summary judgment, on July 16, 2009. The chancery court entered its order awarding attorneys’ fees of $5,000 on May 6, 2010. Therefore, Colonial/Jordan’s motion for attorneys’ fees was a pending post-trial motion at the time the first notice of appeal was filed. Thus, the chancery court maintained its jurisdiction over the post-trial motion for attorneys’ fees, even though Beaumont had filed its notice of appeal from the chancery court’s decision granting summary judgment. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . The chancery court granted Colonial/Jordan’s motion for attorneys’ fees subsequent to Beaumont’s initial notice of appeal of the grant of summary judgment. Therefore, Beaumont filed a second notice of appeal of the award of attorneys’ fees. Beaumont then filed a motion to consolidate the two appeals, which was granted.

      . Beaumont, also filed suit against SMCDC, Inc., the managing member of Colonial/ Jordan; Mark Jordan, SMCDC’s president; and Dee Denton, a real-estate broker and agent for Colonial/Jordan.

      . Mississippi Code Annotated section 89-1-501(1) (Rev.2011) states that:
      The provisions of [sjections 89-1-501 through 89-1-523 apply only with respect to transfers by sale, exchange, installment land sale contract, lease with an option to purchase, any other option to purchase or ground lease coupled with improvements, of real property on which a dwelling unit is located, or residential stock cooperative improved with or consisting of not less than one (1) nor more than four (4) dwelling units, when the execution of such transfers is by, or with the aid of, a duly licensed real[-]estate broker or salesperson.
      (Emphasis added). Additionally, section 89-l-501(2)(h) states that "[t]ransfers of real property on which no dwelling is located” are "specifically excluded from the provisions of [s]ections 89-1-501 through 89-1-523.”

      . Rule 4(d) provides:
      If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of facts, whether or not granting the motion would alter the judgment; (3) under Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions.

      . On May 17, 2010, Beaumont filed a second notice of appeal related to the award of attorneys' fees.


author: MAXWELL, J., for the Court:

text:
    Virgil Germaine WOODS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00611-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Virgil Germaine Woods, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J., for the Court:

¶ 1. Virgil Woods appeals the Warren County Circuit Court’s summary dismissal of his motion for post-conviction relief (PCR), in which Woods challenged the validity of his guilty plea to armed robbery and his thirty-five-year sentence. Because (1) Woods fails to demonstrate any conduct by his counsel rendered his plea involuntary, and (2) his sentence does not offend the Eighth Amendment, we affirm.

STANDARD OF REVIEW

¶ 2. In considering the dismissal of a PCR motion, we review the trial court’s findings of fact for clear error and its determinations of law de novo. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). The PCR movant has the burden to show by a preponderance of the evidence he is entitled to relief. Miss. Code Ann. § 99-39-23(7) (Supp.2011). The trial court may summarily dismiss a PCR motion without holding an evidentia-ry hearing where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Staggs v. State, 960 So.2d 563, 565 (¶ 2) (Miss.Ct.App.2007) (quoting Miss. Code Ann. § 99-39-11(2) (Rev.2000)). We will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim proeedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009).

ANALYSIS

¶ 3. Woods pled guilty to armed robbery on June 16, 2008. The circuit court sentenced him to thirty-five years’ imprisonment without eligibility for parole. On January 21, 2010, Woods filed his PCR motion, which the circuit court summarily dismissed. On appeal, Woods argues: (1) his counsel misinformed him that if he pled guilty, his sentence would not exceed ten years’ imprisonment; and (2) his sentence constitutes cruel and unusual punishment.

I. Procedural Bar

¶4. Though Woods vaguely mentions multiple alleged errors, he failed to raise most of these errors in his PCR motion — a procedural bar to our consideration of these issues on appeal. See Foster v. State, 716 So.2d 538, 540 (¶ 9) (Miss.1998). We only address the issues Woods has properly raised.

II. Strickland

¶ 5. To prevail on a claim of ineffective assistance of counsel, Woods must show: (1) his counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To perform deficiently, an attorney must fail to meet “an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistanee[.]” Id. at 689, 104 S.Ct. 2052.

¶ 6. To establish prejudice, Woods must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 7. “[Wjhere a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trialt.]” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App.2011) (citing Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). “This ‘waiver includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.’ ” Id. (quoting United States v. Cavitt, 550 F.3d 430, 441 (5th Cir.2008)).

III. Voluntariness of Plea

¶ 8. A guilty plea is binding if entered voluntarily, knowingly, and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A guilty plea is deemed to meet this standard “where the defendant [was] advised concerning the nature of the charge ... and the consequences of the plea.” Id. The PCR mov-ant has the burden to show by a preponderance of the evidence that his plea was involuntary. Sayles v. State, 35 So.3d 567, 569 (¶ 7) (Miss.Ct.App.2010).

¶ 9. In assessing the voluntariness of a plea, the thoroughness of the trial court’s interrogation during' the plea colloquy “is the most significant evidence of all.” Gardner v. State, 531 So.2d 805, 809-10 (Miss.1988). A trial court’s explanation to a defendant of his rights and the consequences of his plea may be sufficient to render the plea voluntary. Id. A defendant’s “[s]olemn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978).

IV. Counsel’s Advice on Potential Sentence

¶ 10. Woods first argues he pled guilty without understanding his potential sentence. Woods claims his counsel improperly advised him that if he pled guilty, he would receive a sentence of no more than ten years’ imprisonment. Woods was sentenced to thirty-five years without eligibility for parole. Woods claims that had he known he could be subjected to such a harsh sentence, he would have insisted on going to trial.

¶ 11. Mississippi Code Annotated section 97-3-79 (Rev.2006) provides that a defendant found guilty of armed robbery:

shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

In the absence of a jury-imposed life sentence, section 97-3-79 affords a trial court discretion to sentence the defendant within the allowable range — no less than three years nor more than “a definite term reasonably expected to be less than life.” Payton v. State, 897 So.2d 921, 950 (¶ 110) (Miss.2003); see also Lindsay v. State, 720 So.2d 182, 185 (¶ 9) (Miss.1998); Jack v. State, 878 So.2d 1078, 1080 (¶ 8) (Miss.Ct.App.2004). Woods was twenty-one years of age when he pled guilty. He does not contend his thirty-five-year sentence exceeds his life expectancy, nor has he included in the record any documentation showing that to be the case. Under Mississippi Code Annotated section 47-7-3(l)(d)(ii) (Rev.2011), Woods is ineligible for parole. See Wells v. State, 936 So.2d 479, 480 (¶ 5) (Miss.Ct.App.2006).

¶ 12. To enter a voluntary plea, the defendant must be informed of the minimum and maximum penalties he faces. See Bowen v. State, 995 So.2d 844, 846 (¶ 8) (Miss.Ct.App.2008) (citing Alexander, 605 So.2d at 1172). In dismissing Woods’s PCR motion, the circuit judge reviewed the transcript from Woods’s plea hearing and found Woods had been properly advised of his potential sentence. Specifically, the judge found that during Woods’s plea colloquy, Woods had acknowledged his understanding of the court’s authority to sentence him to any term of years less than life imprisonment. Woods was informed this maximum available sentence would be calculated based on his life expectancy. According to the judge, Woods also voluntarily assented to his lack of eligibility for parole.

¶ 13. Because Woods has failed to include the guilty-plea transcript in the record, we are unable to find he has demonstrated clear error in the circuit judge’s factual findings. Based on the facts found by the circuit court, we can only conclude Woods’s in-court affirmations — including his sworn acknowledgment that he understood his sentence— rendered his plea voluntary. Deficiencies in the record are not held against the State, but rather the appellant, whose duty it is to ensure the record supports his assignments of error. Bailey v. State, 65 So.3d 349, 351 (¶ 6) (Miss.Ct.App.2011). Further, because Woods relies on nothing more than his own affidavit to dispute the trial judge’s findings, he is entitled to no relief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (holding an ineffective-assistance-of-eounsel claim only supported by the movant’s own affidavit is without merit).

V. Eighth Amendment

¶ 14. Woods argues his thirty-five-year sentence for armed robbery is excessive and violates the Eighth Amend-merit’s guarantee against cruel and unusual punishment. See U.S. Const, amend. VIII; see also Miss. Const, art. 3, § 28 (containing similar provision).

¶ 15. An appellate court generally will not disturb a sentence where it does not exceed the statutory maximum. Long v. State, 52 So.3d 1188, 1197 (¶ 31) (Miss.2011) (citing Cummings v. State, 29 So.3d 859, 861 (¶ 4) (Miss.Ct.App.2010)). But “if a sentence is grossly disproportionate to the crime committed, it may be reviewed on Eighth Amendment grounds.” Trotter v. State, 9 So.3d 402, 412 (¶ 26) (Miss.Ct.App.2008) (citing Ford v. State, 975 So.2d 859, 869 (¶ 39) (Miss.2008)). Woods does not allege the circuit court miscalculated his life expectancy or that his sentence falls outside the sentencing range defined by statute. See Miss.Code Ann. § 97-3-79. He instead contends his sentence is excessive because he is a “first-time offender.”

¶ 16. In Reed v. State, 506 So.2d 277, 282 (Miss.1987), the Mississippi Supreme Court held a life sentence was not grossly disproportionate to the crime of armed robbery. See also Logan v. State, 661 So.2d 1137, 1138 (Miss.1995) (finding twenty-three-year sentence for armed robbery, with ten mandatory years under former sentencing scheme, did not constitute cruel and unusual punishment); cf. Wells, 936 So.2d at 481 (¶¶ 6-8) (finding a mandatory twenty-five-year sentence was not excessive because the sentence was “within the limits provided by statute”). Further, the supreme court has held that the fact that a defendant is a first-time felony offender does not preclude a maximum sentence. Nichols v. State, 826 So.2d 1288, 1292 (¶ 18) (Miss.2002). Based on our precedent, we find no inference of dispro-portionality is raised by Woods’s sentence.

¶ 17. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR.

      . "[P]rior to the enactment of section 47-7-3(l)(d)(ii), persons convicted of armed robbery could be eligible for parole after serving ten years of their sentence. However, it is clear that such felons are now completely ineligible for parole.” Wells, 936 So.2d at 480 (¶ 5).

      . We note Woods failed to make a specific request for transcripts or records along with his present PCR motion. See Fleming v. State, 553 So.2d 505, 506 (Miss.1989) (explaining a request for court records is not cognizable as its own independent action).


author: CARLTON, J., for the Court:

text:
    Lorri L. WRIGHT, Individually and on behalf of Nicholas Seidl and John Seidl and Nicholas Seidl, Individually, Appellants v. LEE COUNTY, Mississippi, by and through its BOARD OF SUPERVISORS, Appellee.
    No. 2010-CA-01380-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Daniel M. Czamanske Jr., Joseph Har-land Webster, attorneys for appellants.
    William C. Murphree, Gary L. Carna-than, Tupelo, attorneys for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court:

FACTS

¶ 1. On June 26, 2005, Nicholas Seidl drove his Jeep on County Road 100 in Lee County, Mississippi, which has a posted speed limit of fifty-five miles per hour. Nicholas’s brother, John Seidl, was also in the car. While Nicholas was driving, the vehicle’s right front tire dropped off the right edge of the paved surface. Nicholas was ejected from the vehicle, resulting in injuries that left him a paraplegic. John remained in the vehicle, and he sustained a broken leg.

¶ 2. Deputy Rick Payne of the Lee County Sheriffs Department arrived on the scene and investigated the accident. According to Deputy Payne’s report, the two right tires of Nicholas’s vehicle went off the right side of County Road 100, and the vehicle traveled fifty to seventy-five feet up the ditch off of the road, and then it rolled over twice and re-entered the road. Various reports listed that the distance from the shoulder to the pavement edge, otherwise known as the pavement differential, measured anywhere from five to eight and one-half inches, depending on where the measurements were taken.

¶ 3. At the time of the accident, Tim Allred served as the Lee County road manager. Allred testified by deposition that at the time of the accident, no written policies or procedures for maintaining county roadways existed. Allred testified that for Lee County, the “maximum acceptable distance from the shoulder to the pavement edge,” also known as the “differential,” was three to four inches, and that would just be a temporary distance until the County could come back and work on the roadway. Further, he stated that the Lee County Board of Supervisors (Lee County) requires all roads to have shoulders.

¶ 4. Michael Derrick Barrentine, a civil engineer, testified that County Road 100 violated both the Lee County standard and National standard for allowable pavement heights at the scene of the accident. He testified that for a road with a speed limit of fifty-five miles per hour, a pavement differential greater than two inches constitutes a dangerous condition.

¶ 5. Lorri Wright initiated this action individually and on behalf of Nicholas and John, her sons, and filed a complaint on September 20, 2006, against Daimler-chrysler Corporation and Lee County. On October 20, 2008, Daimlerehrysler was dismissed with prejudice after reaching a settlement with Wright. After a trial held in the Lee County Circuit Court on July 12, 2010, Lee County moved for a directed verdict. The circuit judge granted Lee County’s motion and entered an order dismissing the action after finding that Lee County had engaged in a discretionary function and had immunity under Mississippi Code Annotated section 11-46 — 9(d) (Supp. 2010). Wright filed an appeal on August 24, 2010. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. On appeal, this Court employs a de novo review of a trial court’s decision to grant a motion for a directed verdict. Alfa Mut. Ins. Co. v. Cascio, 909 So.2d 174, 177 (¶ 11) (Miss.Ct.App.2005). Upon review, we view the evidence in the record in the same light as the trial court. Id.

¶ 7. In Thomas v. Smith, 786 So.2d 418, 419 (¶ 2) (Miss.Ct.App.2001), this Court stated that the standard to be applied by the trial court in considering a motion for a directed verdict is as follows:

The trial court may direct a verdict for the defendant at the close of the plaintiffs proof under authority of Mississippi Rule of Civil Procedure 50(a) if, in the opinion of the court, the plaintiff has failed to present credible evidence to establish the necessary elements of his right to recover. Hall v. Miss[.] Chem. Express, Inc., 528 So.2d 796, 798 (Miss.1988). The court must consider all evidence then before it in the light most favorable to the plaintiff and must concede to the plaintiff all favorable inferences that could reasonably be said to arise from that evidence. Benjamin v. Hooper Electronic Supply Co., Inc., 568 So.2d 1182, 1187 (Miss.1990). Only if, viewed in that light, the court determines that the matter is so overwhelmingly in favor of the defendant that no reasonable juror could find for the plaintiff, should the court direct a defendant’s verdict. Id,.

DISCUSSION

I. Whether the circuit court erred in finding that the maintenance and/or creation of a shoulder on County Road 100 was a discretionary function under section 11-46-9.

¶ 8. As her first assignment of error, Wright argues that the circuit court erred in determining that the maintenance and creation of a shoulder on County Road 100 constituted a discretionary function under section 11-46-9. The principal statutory law relevant to this case falls under the Mississippi Torts Claim Act (MTCA) pursuant to section ll-46-9(l)(a-y) (Supp. 2010). Under the MTCA, any governmental entity enjoys sovereign immunity, and no aggrieved party can sue an employee in his individual capacity unless the employee acted outside the scope of his employment. Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 413 (¶ 12) (Miss.Ct.App.2003). However, the Mississippi Legislature provided that under certain circumstances, a person damaged because of a governmental employee’s act could sue the government entity for money damages. Specifically, section 11^46-9(l)(d) provides that the state has not waived its immunity for any act “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]”

¶ 9. In Dancy v. East Mississippi State Hospital, 944 So.2d 10, 16 (¶ 18) (Miss.2006) (citation omitted), the Mississippi Supreme Court stated that two questions must be answered when determining whether governmental conduct is discretionary: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, eeonomie[,] or political policy alternatives.”

¶ 10. Regarding the first question, this Court must first determine whether the function is discretionary or ministerial. Id. at (¶ 19). The court in Dancy explained that a duty is discretionary if such duty requires an official to use her own judgment and discretion in order to carry out the duty. Id. (citation omitted). However, a duty is ministerial, as opposed to discretionary, “if it is imposed by law and its performance is not dependent on the employee’s judgment.” Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 968 (¶ 20) (Miss.Ct.App.2009) (citation omitted).

¶ 11. Turning to the second question, “if the act at issue does require discretion or judgment, then for sovereign immunity to be triggered under the discretionary exemption, the act must also have been subject to some form of public policy analysis.” Id. at 968-69 (¶ 21). In Dancy, 944 So.2d at 18 (¶ 23), the supreme court stated that “when established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a[g]overnment agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.”

¶ 12. Wright admits that section 11-46-9(l)(d) provides immunity for a governmental entity’s performance of, or failure to perform, discretionary functions or duties. However, Wright argues that the circuit court erred in holding that since Lee County, in maintaining County Road 100, engaged in activity involving choice or judgment regarding social, economic, or political activity, such maintenance constituted a discretionary function. Wright argues that based on Allred’s testimony that all Lee County roads were required to have a shoulder and that the maximum pavement differential was three to four inches, such road maintenance is not discretionary; rather, it is mandatory.

¶ 13. However, this Court recognizes that prior to the enactment of the MTCA, the supreme court ruled that road maintenance is a discretionary function. Brazeale v. Lewis, 498 So.2d 321, 323 (Miss.1986). Additionally, post-MTCA, this Court has continued to follow the supreme court’s precedent in holding that road maintenance is a discretionary function. Jones v. Miss. Transp. Comm’n, 920 So.2d 516, 518-19 (¶ 4) (Miss.Ct.App.2006). Since Mississippi case law clearly establishes that road maintenance is a discretionary function, we therefore find that the circuit court properly granted Lee County’s motion for a directed verdict based on the discretionary exception from liability pursuant to section ll-46-9(l)(d). This issue lacks merit.

II. Whether, pursuant to the MTCA, a governmental entity can ever exercise its discretion in such a way as to create or allow a dangerous condition to exist.

¶ 14. Wright next argues that the conduct of Lee County cannot be discretionary because section 11^46-9(1)0) does not allow entities to create statutorily or allow a dangerous condition to go unnoticed. Wright claims that since no evidence was presented at trial to contradict the claims that Lee County had notice of the dangerous condition of County Road 100, Lee County is liable under 11 — 46—9(1 )(v). Section ll-46-9(l)(v) states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care[.]

¶ 15. However, the trial transcript reflects that when ruling on Lee County’s motion for a directed verdict, the circuit judge stated:

For the same reasons that [Wright] asserts that this is a dangerous circumstance permitted by the negligent maintenance by [Lee County], it is, in fact, an open and obvious circumstance. So under [section ll-46-9(l)(v) ], I believe that even that does not give the plaintiff any relief.

¶ 16. Wright also points to the concept of “Frasier’s Octopus,” which, when applied to the present case, explains that the exemptions in section 11^46-9 “are disjunctive in nature, and thus, ‘like an octopus’s arms; even if one does not get you, another one may.’” Knight, 10 So.3d at 971 (¶32). Wright argues that this concept does not apply to the present case, and she asserts that “exceptions to the exemptions” exist under section 11-46-9. Wright submits that an act, or failure to act, is either exempt from immunity or it is exempt from the exemptions.

¶ 17. However, in Knight, 10 So.3d at 971 (¶ 33) (citing Willing v. Estate of Benz, 958 So.2d 1240, 1255 (¶40) (Miss.Ct.App. 2007)), this Court clarified that “Frasier’s Octopus” does apply in cases involving section 11-46-9, stating: “[a]s established by precedent of both this Court and the supreme court, where any of the immunities enumerated in section 11-49-9(1) apply, the government is completely immune from the claims arising from the act or omission complained of.”

¶ 18. Additionally, in Mississippi Department of Mental Health and Ellisville State School v. Shaw, 45 So.3d 656, 660 (¶ 19) (Miss.2010), our supreme court held that even if the governmental entity abuses its discretion in creating a dangerous condition, the governmental entity still has immunity.

¶ 19. As a result, we find that the circuit court did not err in granting Lee County’s motion for a directed verdict.

¶ 20. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Pursuant to the Mississippi Torts Claim Act, there was no jury.

      . The record reflects that no post-trial motions were filed.


author: ISHEE, J., for the Court:

text:
    Sandy BALL, Appellant v. ASHLEY FURNITURE INDUSTRIES and Employee Insurance of Wausau, Appellees.
    No. 2010-WC-01627-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Lawrence J. Hakim, Batesville, Charlie Baglan, attorneys for appellant.
    Ginger M. Robey, Oxford, attorney for appellees.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court:

¶ 1. In October 2003, Sandy Ball slipped and fell while working for her employer, Ashley Furniture Industries, in Ecru, Mississippi. Ball filed a petition to controvert in April 2004 with the Mississippi Workers’ Compensation Commission (the Commission) against Ashley Furniture Industries and its carrier, Employee Insurance of Wausau (collectively referred to as Ashley Furniture), claiming injuries to her chest and right knee that she sustained from her fall. In November 2004, Ball filed for workers’ compensation benefits to cover a requested surgery to her right knee. Ashley Furniture denied the benefits, and Ball asked that the Commission compel Ashley Furniture to pay for the surgery and rehabilitation for her knee. Ashley Furniture contested the motion, claiming that Ball suffered from a preexisting, degenerative condition which was temporarily aggravated by her fall in October 2003, but the aggravation ceased in December 2003. Ball did not contest the preexisting, degenerative condition, but she argued that the aggravation was permanent and required ongoing treatment provided by Ashley Furniture. After discovery was conducted and evidence was submitted, the parties agreed to waive their right to a hearing and allow an administrative judge (AJ) to review the evidence and rule on the case. The AJ determined that Ball had a preexisting, degenerative condition in her right knee that was temporarily aggravated by her fall in October 2008. The AJ further determined that Ball’s work-related injury ceased in December 2003, and Ashley Furniture was not responsible for treatment of Ball’s injury after December 2008. Ball was then granted a review of the AJ’s order by the Commission, which affirmed the AJ’s decision in December 2008. Ball appealed the Commission’s findings to the Pontotoc County Circuit Court. The circuit court affirmed the Commission’s findings in September 2010. Aggrieved, Ball now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In October 2003, Ball suffered injuries to her chest and right knee after she slipped and fell while working for Ashley Furniture. She went to the emergency room the day after her fall, where she was told that her chest was bruised and that there were no obvious fractures or abnormalities in her knee. Shortly thereafter, she met with Dr. Johnny Mitias, alleging continued right-knee pain. Dr. Mitias became Ball’s treating physician. On December 23, 2003, Dr. Mitias reviewed an MRI of Ball’s knee; he determined that she suffered from early patellofemoral compartment degeneration, a preexisting, degenerative condition in her right knee. In his report, Dr. Mitias stated that Ball’s condition would continue to worsen due to the degenerative process. He further stated that her right-knee pain was not wholly or directly related to her work injury. Dr. Mitias concluded his December 23, 2003 report by releasing Ball to regular duty with a zero-percent-impairment rating. In April 2004, Ball filed a petition to controvert with the Commission against Ashley Furniture for workers’ compensation payments due to her ongoing disability in her right knee.

¶ 3. Ball returned to Dr. Mitias in October 2004 with another complaint of pain in her right knee, at which point Dr. Mitias discussed the possibility of surgery. However, Ball’s medical insurance had changed since her last visit to Dr. Mitias, and Dr. Mitias referred her to Dr. William Rice for further treatment. Thereafter, Ball requested that Ashley Furniture cover the costs of surgery on her right knee, which Ashley Furniture denied. In November 2004, Ball filed a motion to compel medical treatment, requesting that the Commission order Ashley Furniture to pay for the surgery.

¶ 4. In its response, Ashley Furniture did not dispute that Ball had suffered a work-related injury to her right knee. However, based on Dr. Mitias’s reports, Ashley Furniture argued that Ball’s injury was a temporary aggravation of the preexisting condition in her right knee, as opposed to Ball’s assertion that she had suffered a permanent aggravation of a preexisting condition. Ashley Furniture further claimed that because Dr. Mitias had released Ball back to work with a zero-percent-impairment rating on December 23, 2003, Ball was no longer entitled to benefits from Ashley Furniture, including the proposed surgery, after December 23, 2003.

¶ 5. After a hearing on the motion, the AJ issued an order on June 10, 2005, holding the issue in abeyance pending Dr. Mi-tias’s deposition. The parties then conducted discovery, including Dr. Mitias’s deposition. On February 2, 2006, the Commission scheduled a hearing on the merits to take place on May 9, 2006. During a prehearing conference with the AJ on May 5, 2006, counsel for both parties agreed that the sole issue in controversy was whether Ball had sustained a temporary or a permanent aggravation of her preexisting condition. The parties further agreed that this issue would be resolved by Dr. Mitias’s testimony as Ball’s treating physician. Ball’s counsel then suggested that a hearing was unnecessary and that the case should be decided by the AJ based on Dr. Mitias’s deposition and Ball’s medical records. Ashley Furniture’s counsel agreed to submit the case to the AJ for a final determination. Subsequently, the parties agreed to close the record in the case on May 5, 2006, and the pending hearing was cancelled.

¶ 6. However, the record indicates that Ball’s counsel later refused to sign the proposed stipulation waiving the hearing, and her counsel attempted to submit an additional written medical opinion and additional medical records from Dr. Rice. The opinion and records had never been filed with the Commission, and they did not include a medical-records affidavit, contrary to the requirements of the Commission’s Procedural Rules. Accordingly, in November 2006, Ashley Furniture’s counsel moved to strike the medical records because they were untimely and did not comply with the procedural rules. Ashley Furniture also requested that the Commission enforce the parties’ agreement regarding the waiver of a hearing and the submission of the issues for a determination on the merits.

¶ 7. After consideration of Ashley Furniture’s motion and Ball’s response, the AJ granted the motion to strike and compel in March 2007. In her order, the AJ reiterated the parties’ prior agreement at the prehearing conference that the issue as to whether or not Ashley Furniture was required to provide further medical treatment to Ball was dispositive since Ball’s case hinged on whether she suffered a temporary or a permanent aggravation of the preexisting, degenerative condition in her right knee. After reviewing the evidence, the AJ issued an order on July 18, 2008, wherein she concluded that the injury was a temporary aggravation of Ball’s preexisting, degenerative condition and that the temporary aggravation ended on December 23, 2003, when Dr. Mitias released Ball back to work with a zero-percent-impairment rating. Accordingly, the AJ determined that Ashley Furniture was not responsible for providing Ball any benefits after December 23, 2003, including the proposed surgery.

¶ 8. Thereafter, Ball appealed the AJ’s order to the Commission. The Commission granted Ball’s request and scheduled a hearing on the matter. After hearing oral arguments from both parties and reviewing the evidence, the Commission affirmed the AJ’s order in December 2008. Ball then appealed the Commission’s findings to the circuit court. On September 23, 2010, the circuit court issued a lengthy order affirming the Commission’s findings. Aggrieved, Ball now appeals, claiming the following: (1) the Commission committed prejudicial and reversible error in upholding the AJ’s finding that Ashley Furniture was not responsible for Ball’s medical treatments to her right knee after December 23, 2003; (2) the Commission’s order is not based upon substantial evidence because the AJ’s ruling was founded on inapplicable law; (3) the Commission failed to resolve all issues of doubt in the medical testimony submitted; and (4) the Commission improperly upheld the AJ’s decision to exclude the written medical opinion and medical records from Dr. Rice. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 9. “The ... Commission sits as the ‘ultimate finder of facts’ in deciding compensation cases, and therefore, ‘its findings are subject to normal, deferential standards upon review.’ ” Pilate v. Int’l Plastics Corp., 727 So.2d 771, 774 (¶ 12) (Miss.Ct.App.1999) (quoting Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). This Court will only reverse the findings of the Commission if the findings are “clearly erroneous.” J.R. Logging v. Halford, 765 So.2d 580, 583 (¶ 13) (Miss.Ct.App.2000) (citing Evans v. Cont’l Grain Co., 372 So.2d 265, 269 (Miss.1979)). A finding is clearly erroneous if, “although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the [Workers’ Compensation] Act.” Id. However, “this Court reviews matters of law de novo, while according the interpretation of the Commission great weight and deference.” Natchez Equip. Co., Inc., 623 So.2d at 273 (citation omitted).

DISCUSSION

I. Ashley Furniture’s Responsibility for Ball’s Medical Treatment

¶ 10. Ball first argues that the Commission was clearly erroneous in affirming the AJ’s finding that Ashley Furniture was no longer responsible for Ball’s medical treatments after December 23, 2003, and in ruling that Ball had suffered a temporary aggravation of a preexisting, degenerative condition. We disagree.

¶ 11. Ball’s treating physician, Dr. Miti-as, determined that Ball suffered from a preexisting, degenerative condition in her right knee. The record reflects that on December 23, 2003, Dr. Mitias stated:

At this point[,] I told Ms. Ball that there is really not much we can do about this. I told her that [the pain in her right knee] will continue to slowly, but surely[J worsen due to the fact that this is just a degenerative process. It really doesn’t have that much to do with her injury. I’ll see her back on [an as-needed] basis. She is released to regular duty with a 0% impairment rating.

¶ 12. The AJ also reviewed Dr. Mitias’s deposition, noting that “[Dr. Mitias] confirmed that [Ball’s] current problems were not related to her work injury but to a degenerative process,” and “the problem she had was an architectural problem in the way she was made. It had nothing to do with her work injury.” When asked about the aggravation caused to Ball’s preexisting condition due to her work injury, Dr. Mitias stated:

With this type of problem, I think she could have bumped it at home, could have, you know, taken a step off a curb on a street, I mean, it was going to be a problem eventually, even — maybe the next day or two days or two years. It is very — it is extremely variable when this starts to be a problem for them, but, you know, just because she really fell at work, I mean, we got her back to her baseline, which is where I think she would have been regardless[,] and at that point you have to say that’s all you can do.

Dr. Mitias concluded that Ball’s work injury was a temporary aggravation of her preexisting condition.

¶ 13. In her order, the AJ conducted an extensive analysis of Ball’s medical records and Dr. Mitias’s opinions. Because the AJ based her decision on the strong evidence of Ball’s treating physician’s remarks and Ball’s medical records, we cannot say that the Commission was clearly erroneous in affirming the AJ’s findings. This issue is meritless.

II. Applicability of Case Law Regarding Preexisting Condition

¶ 14. Ball next asserts that the Commission erred by upholding the AJ’s decision because the decision was improperly-based on Rathborne, Hair & Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So.2d 674 (1959), and should have been based on Hedge v. Leggett & Platt, Inc., 641 So.2d 9 (Miss.1994). Rathbome provides well-settled workers’ compensation law regarding the compensability of work-related aggravations of preexisting conditions as follows:

The rule in this [s]tate is that when a pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable. A corollary to the rule just stated is that when the effects of the injury has [sic] subsided, and the injury no longer combines with the disease or infirmity to produce disability, any subsequent disability attributable solely to the disease or infirmity is not compensable.

Rathborne, 237 Miss. at 594, 115 So.2d at 676.

¶ 15. Ball asserts that Rathbome’s applicability is “based upon whether or not the injured worker is able to return to work following recovery from the work injury,” pursuant to M.T. Reed Const. Co. v. Garnett, 249 Miss. 892, 164 So.2d 476 (1964). However, we cannot find error in the AJ’s application of Rathbome to Ball’s case. While it is important to determine a claimant’s ability to work after recovery from an injury, Dr. Mitias’s opinion clearly indicates that Ball was fully able to return to work on December 23, 2003, with a zero-pereent-impairment rating. Dr. Miti-as’s deposition testimony and Ball’s medical records reflect that while Ball injured her right knee on the job, she made a full recovery back to her “baseline” medical condition, which included her preexisting, degenerative condition. Dr. Mitias also testified that any loss of functional ability suffered by Ball would be the natural result of the degenerative condition present in Ball’s right knee prior to the accident, and not due to the accident itself. As such, this issue has no merit.

III. Resolution of Doubt in the Medical Testimony

¶ 16. In her order, the AJ determined the following:

1. [Ball] suffered from a preexisting condition and had an aggravation of the preexisting condition while working for [Ashley Furniture]. In Dr. Mitias’[s] deposition, both parties had an opportunity to develop the doctor’s opinion. Under questioning from [Ball’s] counsel, Dr. Mitias indicated that [Ball’s] right knee problems were aggravated by the work injury and that she did suffer a temporary increase in pain and symptoms from the work injury.
2. [Ball’s] aggravation was temporary and [Ashley Furniture is] not responsible for benefits after December 23, 2003. In his note of December 23, 2003, Dr. Mitias indicated that [Ball’s] problem was degenerative[,] and “it really doesn’t have that much to do with her injury.” In his deposition, Dr. Mitias consistently and repeatedly testified that it was probable [Ball] would have been in the same condition in 2004 due to the degenerative condition, regardless of whether the work injury had ever occurred.
3. The effects of the aggravation have subsided, and the aggravation is no longer combining with the disease or infirmity to produce disability. Therefore, [Ball’s] subsequent disability is attributable solely to the degenerative condition^] and [it] is not compensable. [Ashley Furniture is] not responsible for the proposed surgery, since Dr. Mitias clearly testified that the surgery was not necessitated by the work injury.

¶ 17. Ball now argues that the AJ failed to resolve any doubt or ambiguity in the medical testimony in favor of Ball because Dr. Mitias purportedly did not completely rule out Ball’s work injury as a contribution to her current condition. However, having reviewed all applicable testimony and evidence, we cannot say that any doubt or ambiguity in the medical testimony existed. On the contrary, a thorough review of the record supports the AJ’s conclusion that the medical evidence fully supported a finding that Ball’s disability in her right knee is not causally related to her fall at work.

¶ 18. Dr. Mitias stated in clear unequivocal terms that Ball suffers from a preexisting, degenerative condition which was only temporarily aggravated by her fall at work and which was resolved as of December 23, 2003. Dr. Mitias further testified that “the problem [Ball] had was an architectural problem in the way she was made. It had nothing to do with her work injury.” As such, Dr. Mitias did, in fact, rule out any contribution from Ball’s work injury to her current condition.

¶ 19. Furthermore, with regard to Ball’s contention that Dr. Mitias left open the possibility of a connection between her fall at work and her current disability, the Mississippi Supreme Court has held that credible evidence with probative value is evidence “which can be stated with reasonable medical certainty.” Magnolia Hosp. v. Moore, 320 So.2d 793, 799 (Miss.1975). Although Dr. Mitias might not have used the phrase “reasonable medical certainty” in his statement that “[Ball’s disability] had nothing to do with her work injury,” the supreme court clarified its holding in Magnolia by stating that to exclude medical testimony because it does not include the words “reasonable medical certainty” would be a “semantic trap and the failure to voice it is not used as a basis for exclusion without analysis of the testimony itself.” Catchings v. State, 684 So.2d 591, 597 (Miss.1996) (citing LeMaire v. United States, 826 F.2d 949, 954 (10th Cir.1987)).

¶ 20. Accordingly, we fail to see any doubt or ambiguity in Dr. Mitias’s testimony that would indicate Ball’s current alleged disability has any possible connection to Ashley Furniture. We find this issue is without merit.

IY. Exclusion of Medical Evidence from Dr. Rice

¶ 21. Finally, Ball argues that the AJ’s exclusion of Dr. Rice’s handwritten medical opinion and his medical records on Ball was erroneous. The Commission’s Procedural Rule 9 governs the introduction of evidence and discovery. The subsection under Procedural Rule 9 titled “Medical Records and Affidavits” controls, among other things, the admissibility of medical evidence at a hearing as a substitute for the live testimony of a physician. Procedural Rule 9 outlines several requirements that a party must fulfill in order to admit medical evidence, including medical opinions and medical records. In particular, Procedural Rule 9(l),(3)-(4) demands that a party moving to admit medical evidence is required to give the opposing party written notice at least thirty days prior to a scheduled hearing, and the moving party must attach a sworn statement from either the physician or the physician’s medical-records custodian stating that the requisite-attached medical record is a true and correct copy of a medial record kept in the regular course of the physician’s practice. Furthermore, Procedural Rule 9(7) states: “The Commission intends for [Procedural Rule 9] to pertain to narrative notes and reports composed and generated by the physician in the ordinary course of medical practice.”

¶ 22. Here, Ball blatantly failed to meet the requirements of Procedural Rule 9 in her attempted admission of new medical evidence from Dr. Rice. On August 9, 2006, Ball’s counsel stated that he was developing new medical evidence from Dr. Rice and would submit the same to the AJ. Accordingly, Ball’s counsel sought to introduce Dr. Rice’s medical evidence well after the parties’ initially scheduled hearing of May 9, 2006. In fact, Ball failed to disclose the mere existence of medical evidence from Dr. Rice at the prehearing conference on May 5, 2006. It was not until after the hearing had been cancelled and the parties and the AJ had agreed that a determination would be made based only on Ball’s then-submitted medical records and Dr. Mitias’s deposition that Ball moved to admit Dr. Rice’s handwritten notation dated May 22, 2006, and the medical records from his one-time evaluation of Ball on November 19, 2004.

¶ 23. Additionally, Ball did not include a sworn statement from either Dr. Rice or his medical-records custodian affirming that the opinion and the records were true and correct copies of medical records kept in the regular course of Dr. Rice’s practice. As stated in the AJ’s order, the “report was not associated with any specific treatment provided [to Ball] and constituted inadmissible hearsay.”

¶ 24. Moreover, the parties had agreed to close the record in the case on May 5, 2006, and they had also agreed that the AJ would only consider the medical records already submitted, as well as Dr. Mitias’s deposition testimony. The AJ determined that Dr. Rice’s medical evidence was contrary to the agreement reached by the parties on May 5, 2006, and were therefore inadmissible. We agree and find that the Commission properly upheld the AJ’s exclusion of Dr. Rice’s medical evidence from the record. This issue is without merit.

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

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


author: LEE, C.J., for the Court:

text:
    Shirley BULLOCK, Individually and o/b/o All Wrongful Death Beneficiaries of Larry Bullock, Appellant v. Dr. Michael PATTERSON, Southern Bone & Joint Specialists, P.A. and Wesley Medical Center, Appellees.
    No. 2010-CA-01137-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.

      Isaac K. Byrd Jr., Suzanne Griggins Keys, Jackson, attorneys for appellant.
    Stuart Bragg Harmon, J. Robert Ramsay, Hattiesburg, attorneys for appellees.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J., for the Court:

PROCEDURAL HISTORY

¶ 1. Larry Bullock was admitted to Wesley Medical Center in Hattiesburg, Mississippi, for neck surgery. Within twelve hours of being discharged from the hospital, a hematoma developed in Larry’s neck, and he died from constriction of his airway. Larry’s wife, Shirley Bullock, filed a suit in the Jefferson Davis County Circuit Court alleging negligence against Dr. Michael Patterson, an employee of Southern Bone & Joint Specialists, P.A.; Wesley Medical Center (Wesley) and certain members of its staff; and other parties who have since been dismissed.

¶ 2. Dr. Patterson filed a motion to exclude the testimony of Shirley’s proposed expert and a motion for summary judgment. Wesley also filed a motion for summary judgment. The trial court granted both motions for summary judgment, finding that Shirley failed to prove causation. Shirley then filed a motion to reconsider, which was denied by the trial court.

¶ 3. Shirley now appeals, arguing the following issues: (1) the trial court erred in granting summary judgment in favor of Dr. Patterson and Southern Bone & Joint Specialists; and (2) the trial court erred in granting summary judgment in favor of Wesley. Finding no error, we affirm.

FACTS

¶ 4. After suffering a heart attack in 2003, Larry received a stent and was prescribed Plavix, an anticoagulant that works to inhibit blood clots in stent patients. In 2007, Larry was admitted to Wesley for neck surgery unrelated to his heart condition. Dr. Patterson performed the surgery. The day before surgery, Dr. Patterson stopped Larry from taking Plavix. The day of the surgery, ten units of platelets were administered to reverse the effects of the Plavix. After the surgery, Dr. Patterson verbally advised Larry to withhold Plavix for two days. However, Dr. Kurt Bruckmeier, an internist at Wesley, made the final decision regarding Larry’s home medications. Dr. Bruckmeier instructed Larry to resume taking Plavix the next day following his hospital discharge. Nurse Martha Kerr instructed the Bullocks at discharge and gave them the medication sheet prepared by Dr. Bruckmeier. The Bullocks were told to notify a physician of any complications.

¶ 5. The evening after Larry returned home he began having shortness of breath. Larry told Shirley that he needed to go to the emergency room. Shirley testified that Larry complained of difficulty swallowing, choking, and feeling like his throat was “closing off.” She testified that his neck was visibly swollen. Shirley immediately drove Larry to the nearest hospital, Jefferson Davis Community Hospital/Prentiss Regional Medical Center. Dr. James Locke examined Larry. Dr. Locke ordered that Larry be transported by ambulance back to Wesley. En route, Larry’s airway continued to become more restricted. The ambulance personnel attempted to intubate Larry, but were unsuccessful. Realizing Larry would not make it to Wesley in the ambulance, they decided to transfer him to Wesley by helicopter. The ambulance met the helicopter in Sumrall, Mississippi. The flight crew successfully intubated Larry. However, Larry was pronounced dead upon arrival at Wesley.

STANDARD OF REVIEW

¶ 6. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

I. DR. PATTERSON AND SOUTHERN BONE & JOINT

¶ 7. Shirley argues that genuine issues of material fact exist regarding the negligence of Larry’s orthopedic surgeon, Dr. Patterson, such that summary judgment was not appropriate.

¶ 8. First, Shirley claims that Dr. Patterson told Larry the neck surgery was necessary because a minor accident could result in paralysis. Shirley’s expert, Dr. Raymond Vance, testified that Larry’s condition was not so urgent that he needed surgery the next day. Thus, Shirley argues Dr. Patterson was negligent in his recommendation for surgery. Second, Shirley argues that Dr. Patterson deviated from the standard of care in failing to discontinue Larry’s use of Plavix for five to seven days before surgery. Further, she alleges that Dr. Patterson was negligent in his instructions regarding when Larry should resume taking Plavix.

¶ 9. Dr. Vance testified that Dr. Patterson should have postponed Larry’s surgery for seven days while Larry ceased taking Plavix and the failure to wean Larry from Plavix was a deviation from the standard of care. However, Dr. Vance went on to state that the administration of the ten units of platelets prior to surgery was effective in reversing the effects of the Plavix that Larry had taken prior to the surgery and that no damage was caused by the decision to proceed with the surgery. Dr. Vance testified that at the time of discharge, approximately sixteen hours after surgery, Larry was stable both he-modynamically and with regard to coagula-bility.

¶ 10. With regard to the resumption of Plavix, Dr. Patterson submitted an affidavit which stated that he typically relies “upon Dr. Bruckmeier’s experience as an internist and defer[s] to Dr. Bruckmeier on the timing of a patient’s resumption of his/her home medications.” Dr. Patterson consulted with Dr. Bruckmeier prior to Larry’s discharge. Dr. Bruckmeier instructed Larry to resume Plavix the day after discharge to avoid the risk of blood clots or stroke. When asked his expert opinion on the administration of Plavix, Dr. Vance testified that this was outside his area of expertise. Dr. Vance opined that Dr. Patterson deviated from the standard of care by not consulting with Larry’s cardiologist about the resumption of Plavix after surgery. However, he testified that he could not give an opinion as to whether the timing of the resumption of Plavix as ordered was a deviation from the standard of care in light of Larry’s cardiac history.

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

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

Delta Reg’l Med. Ctr. v. Venton, 964 So.2d 500, 504 (¶ 8) (Miss.2007). The “general rule is that medical negligence may be established only by expert medical testimony, with an exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.” Coleman v. Rice, 706 So.2d 696, 698 (¶ 10) (Miss.1997) (citations omitted). “The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert. The expert must articulate an objective standard of care.” Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 10) (Miss.2009). “Not only must [an] expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” McDonald v. Mem’l Hosp. at Gulfport, 8 So.3d 175, 180 (¶ 12) (Miss.2009) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)).

¶ 12. The expert testimony presented by Shirley failed to show that any alleged breach of duty on behalf of Dr. Patterson was the proximate cause of Larry’s death. When questioned on the matter, Shirley testified that she could not remember whether or not Dr. Patterson gave Larry any instructions regarding Plavix. Further, no evidence was presented that Dr. Patterson’s recommendation regarding the use or non-use of Plavix contributed to Larry’s death. On the contrary, Dr. Richard Douglas Zane, an emergency-medicine physician, testified for the plaintiffs that Larry died because Dr. Locke deviated from the standard of care in not assessing Larry’s airway at Jefferson Davis Community Hospital. Dr. Zane opined that Dr. Locke acted negligently in transferring Larry by ambulance without first intubat-ing him to protect his airway. Dr. Zane testified that if Larry would have been intubated in the ambulance within the first few minutes of its departure, as Larry himself requested, then Larry would have survived.

¶ 13. We find that this issue is without merit.

II. WESLEY

¶ 14. Shirley claims that Dr. Bruckmeier and Nurse Kerr, employees of Wesley, were negligent in their treatment of Larry. Specifically, she alleges that Dr. Bruckmeier deviated from the standard of care in recommending that Larry resume taking Plavix. Nurse Kerr gave the Bullocks instructions at discharge which stated that Larry should avoid lifting, bending, neck flexing, and head turning. She also instructed that the Bullocks should keep the incision clean and dry, with a light dressing, and notify a physician if Larry experienced any numbness, tingling, fever, or any worsening condition. Shirley argues that Nurse Kerr deviated from the standard of care in her involvement with the home medication and failed to give proper discharge instructions.

¶ 15. Shirley bore the burden of proving that Dr. Bruckmeier’s or Nurse Kerr’s actions were the proximate cause of Larry’s injuries. Shirley’s expert, Dr. Vance, testified that Dr. Bruckmeier deviated from the standard of care by failing to consult a cardiologist before recommending that Larry resume taking Plavix. However, Dr. Vance also testified that he was not a cardiologist or an expert in that field.

¶ 16. As to the actions of Nurse Kerr, Shirley argues that she would have taken Larry to the emergency room sooner if she had received proper discharge instructions after Larry’s surgery. However, Shirley testified that she took Larry to the emergency room immediately when he began to have trouble breathing. Shirley alleges no other wrong doing on the part of Nurse Kerr that was connected with Larry’s death. Shirley’s own expert, Dr. Zane, testified that “had Mr. Bullock been intu-bated by Dr. Lock[e], I do not believe he would have passed away.”

¶ 17. “The law dealing with the duty to foresee the imprudent acts of others appears under the general rubric of the jurisprudence of ‘intervening cause.’ ” Southland Mgmt. Co. v. Brown ex rel. Brown, 730 So.2d 43, 46 (Miss.1998). In Southland, the Mississippi Supreme Court cited the Second Restatement of Torts, which defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Id. (citing Restatement (Second) of Torts § 440 (1965)). Under this theory, an original actor’s negligence may be superseded by a subsequent actor’s negligence, if the subsequent negligence was unforeseeable. Southland Mgmt. Co., 730 So.2d at 46 (Append. A).

¶ 18. We find that the actions taken the day after Larry’s surgery were superseding intervening causes of his death. The evidence showed that, regardless of the actions surrounding Larry’s initial surgery, the actions of Dr. Locke and the ambulance personnel were superseding intervening causes of Larry’s death. No evidence was presented that the actions of Dr. Patterson, Dr. Bruckmeier, or Nurse Kerr amounted to a prima facie case of medical malpractice. This issue is without merit.

¶ 19. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P. JJ., MYERS, ISHEE, CARLTON AND RUSSELL, JJ., CONCUR. BARNES, ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.