text:
    Matthew MILLER v. STATE of Mississippi.
    No. 2010-CT-00901-SCT.
    Supreme Court of Mississippi.
    Aug. 9, 2012.

      Marcie Tanner Southerland, Vicksburg, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. Matthew Miller was tried and convicted of aggravated assault and forcible rape of his girlfriend’s minor daughter, and he appealed. We assigned this case to the Court of Appeals, and that court affirmed Miller’s convictions and sentences. Having granted Miller’s petition for writ of certiorari, we find reversible error in the trial judge’s failure to recuse himself after having served as the county prosecuting attorney in an earlier youth-court shelter hearing regarding the minor victim’s custody as a result of the events giving rise to the criminal charges which are the subject of today’s appeal. Thus, we are constrained to reverse the judgment of the Court of Appeals which affirmed Miller’s convictions and sentences, as well as the trial court’s judgment, and we remand this case to the Circuit Court for the Second Judicial District of Hinds County for a new trial.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Because of the disposition of today’s case, we need not discuss in detail the sordid facts leading up to Miller’s indictment for the crimes of aggravated assault and forcible rape. A more detailed version of the facts may be found in the opinion of the Court of Appeals. Miller v. State, 94 So.3d 1155, 1158-59, ¶¶2-9, (Miss.Ct.App.2011), reh’g denied (Mar. 13, 2012).

¶ 3. Succinctly stated, Abby, the minor daughter of Miller’s girlfriend, Melissa, had her sixteenth birthday on January 21, 2008, less than a week prior to the events which are the subject of today’s appeal. On Sunday evening, January 27, 2008, Miller and Abby were alone at Melissa’s home. Miller had been living in the home for about eight years, and he had been Melissa’s boyfriend since Abby was around four years of age. According to Abby, she regarded Miller as her stepfather and they had a father-daughter relationship. That night, Miller asked Abby to help him capture a horse that had gotten away, and Abby agreed. Abby knew that Miller kept horses, and did not consider the request to be odd. According to Abby, later that evening, under the pretense of looking for the escaped horse in rural Hinds County, Miller beat her and forcibly raped her. Suffice it to state here that the legally sufficient evidence presented at trial supported the jury’s verdicts finding Miller guilty of the crimes of aggravated assault and forcible rape of Abby. At trial, Miller’s theory of the case was that Abby falsely accused him of rape to get back at her mother, who would not let Abby have boys over to see her. In his testimony, Miller claimed that he and Abby had consensual sex. But he denied ever striking Abby. Instead, Miller contended that Abby had propositioned him and had been injured when she suddenly leapt from his vehicle.

¶ 4. Before trial, Judge Malcolm 0. Harrison denied Miller’s ore tenus motion for Judge Harrison to recuse himself. The basis of the recusal motion was that Judge Harrison had served as youth-court prosecutor at the shelter hearing concerning Abby’s custody. This shelter hearing was held as a result of the criminal acts described supra. Judge Harrison determined that, since the youth-court matter was civil, not criminal; since Miller was not a party to that case; and since the youth court considers only the best interest of the child, recusal was not required in Miller’s criminal trial concerning the felony charges which had brought about the youth-court shelter hearing.

¶ 5. Judge Harrison presided over Miller’s criminal trial, and the jury found Miller guilty of aggravated assault and forcible rape. Thereafter, Judge Harrison sentenced Miller to twenty years in the custody of the Mississippi Department of Corrections for the aggravated-assault conviction, and to thirty years in the custody of the Mississippi Department of Corrections for the forcible-rape conviction, with the sentences to be served consecutively. Once Miller appealed, we assigned this case to the Court of Appeals, which affirmed Miller’s convictions and sentences. Miller, 94 So.3d at 1173, ¶ 67. After the motion for rehearing was denied by the Court of Appeals, Miller filed his petition for writ of certiorari, which we granted.

DISCUSSION

¶ 6. In his petition for writ of cer-tiorari, Miller raises the sole issue of whether Judge Harrison abused his discretion by failing to recuse himself. Miller had made an ore tenus motion for Judge Harrison’s recusal four days before trial, noting that, before his appointment to the circuit court by Governor Barbour, Judge Harrison had served as Hinds County prosecuting attorney. In that capacity, Judge Harrison had appeared as a youth-court prosecutor in the shelter hearing in which Abby was removed from her mother’s care (the mother, Melissa, was still living with Miller). As a result, Miller argues that Judge Harrison was disqualified from serving as judge at Miller’s trial.

¶ 7. “No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.” Miss. Const, art. 6, § 165. Furthermore, Mississippi Code of Judicial Conduct 3(E) states in relevant part that:

(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it[.]

Mississippi Code of Judicial Conduct Canon 3(E); Miss.Code Ann. § 9-1-11 (Rev.2002). “When the conduct of a judge is being examined according to the dictates of a canon of the Code of Judicial Conduct, ‘the Canon enjoys the status of law such that we enforce it rigorously, notwithstanding the lack of a litigant’s specific demand.’ ” Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990) (quoting Collins v. Dixie Transport, Inc., 543 So.2d 160, 166 (Miss.1989)). This Court has defined a “matter” broadly — it includes “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.” James v. Mississippi Bar, 962 So.2d 528, 534 (Miss.2007).

¶ 8. “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Jenkins, 570 So.2d at 1192 (citing Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986)). “Where one actively engages in any way in the prosecution and conviction of one accused of a crime, he is disqualified from sitting as a judge in any matter which involves that conviction.” Banana v. State, 638 So.2d 1329, 1330 (Miss.1994) (citing Moore v. State, 573 So.2d 688, 689 (Miss.1990) (citation omitted)). However, “[w]hen a judge is not disqualified under the constitutional or statutory provisions[,] the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.” Tubwell v. Grant, 760 So.2d 687, 689 (Miss.2000) (citations omitted).

¶ 9. The Court of Appeals found that, since the youth-court hearing was a civil matter and Miller was not a party to it, Judge Harrison’s participation as a county prosecutor did not amount to active participation in Miller’s criminal prosecution. Miller, 94 So.3d 1160-61, ¶¶ 15-21. The Court of Appeals largely relied on Jenkins, 570 So.2d at 1192, and Banana, 638 So.2d at 1330, in which trial judges who had been prosecutors at the time of the indictment of the defendants at issue were disqualified due to their participation in the matter. The Court of Appeals distinguished those cases, since Judge Harrison was the county prosecutor, not an official of the district attorney’s office, and Miller was not a party to the youth-court hearing. Miller, 94 So.3d 1160-61, ¶¶ 18-20. The Court of Appeals found that Judge Harrison did not serve as a lawyer in the matter in controversy under the meaning of the Code of Judicial Conduct. Id. at 1161, ¶ 20.

¶ 10. We respectfully disagree with the Court of Appeals majority. This Court has defined “matter” broadly, and Judge Harrison, as county prosecutor, participated in the youth-court shelter hearing involving the same abuse, victim, and perpetrator at issue in the subject criminal trial, to the extent that he signed an order finding jurisdiction and removing the child.

¶ 11. Both the Court of Appeals majority and the dissent by Judge Carlton considered the duties of the youth court at a shelter hearing, in determining whether Abby’s shelter hearing constituted the same “matter” as the criminal trial of Miller. Miller, 94 So.3d at 1160, ¶¶ 15-17; 1170-72, ¶¶ 61-66 (Carlton, J., dissenting, joined by Irving, P.J.). We do the same here, and we quote here from Judge Carlton’s dissent, with which we agree:

Judges should recuse themselves in proceedings when impartiality might reasonably be questioned and also when necessary to avoid the appearance of impropriety. The exhibits introduced at the shelter hearing reflect that the current trial judge had previously served as a youth court prosecutor in the matter in controversy. The signed order from the shelter hearing shows various factual determinations made by the youth court based upon the petition filed and the evidence presented as to whether the abuse occurred as well as regarding who had perpetrated the offenses against the child. The trial judge’s error cannot be dismissed solely because the matter involved different cause numbers. Disqualifying prior participation occurs even in different cases if the underlying substantive matters in controversy were the same and involved the same parties. Disqualification due to participation in the same “matter” includes matters like other proceedings, investigations, and claims. It does not require the participation to be in the same case or cause number. See generally M.R.P.C. 1.12,1.18 cmts.
The shelter-hearing order in the record bears the current trial judge’s name as the prosecuting attorney at the shelter hearing. In that order, the youth court adjudicated that: the youth court possessed subject matter jurisdiction; the child was an abused child; and the child’s removal and placement of the child with a relative. The shelter order also contains a no-contact order against Miller pertaining to the child victim in this case, and the order shows that the youth court ordered the Department of Human Services to continue its investigation. The shelter-hearing exhibits in the record also include an invoice billed to the trial judge in this appeal in his capacity as the youth court prosecutor for the child’s medical records in the amount of $65.27; Miller’s Miranda waiver and consent form; and an affidavit from an individual that conducted an educational and intelligence test on Miller explaining the results.

Miller, 94 So.3d at 1170, ¶¶ 60-61 (Carlton, J., dissenting). The above quotation from Judge Carlton’s dissent excludes three footnotes in which Judge Carlton relied on Haralson v. Haralson, 483 So.2d 378 (Miss.1986); J.N.W.E v. W.D.W., 922 So.2d 12 (Miss.Ct.App.2005); and James, 962 So.2d at 534. Judge Carlton also explained that the invoice billed to Judge Harrison ultimately was paid by the district attorney’s office.

¶ 12. Judge Carlton also pointed out that youth court “[proceedings commence when a report or complaint of a child within the jurisdiction of the youth court requires an action by the youth court or by the chancery court or by a referee appointed pursuant to section 48-21-111 of the Mississippi Code or by a designee appointed pursuant to the Mississippi Youth Court Law when acting in a judicial capacity.” Uniform Rule of Youth Court Practice 2(b). “Rule 8(c) is to assure, consistent with Rule 2 of these rules, that chancery court procedures for investigating charges of abuse or neglect are consistent with those applicable to youth court.... Upon the intake officer recommending that a petition be filed, and the court ordering that a petition be filed, the prosecutor must file the petition or request the court to dismiss the proceedings or to handle the cause informally.” Uniform Rule of Youth Court Practice 8(c), cmt. See also Uniform Rule of Youth Court Practice 8(b) (child-protection proceedings); Uniform Rule of Youth Court Practice 8(c) (chancery court proceedings); Uniform Rule of Youth Court Practice 8, cmt. The youth-court prosecutor prepares the petition and filings, unless someone else is designated to do so, and the issues therein must be adjudicated by the youth court. See Uniform Rule of Youth Court Practice 20. See also Uniform Rule of Youth Court Practice 14(b) (entry of appearance); Uniform Rule of Youth Court Practice 24(b)(4)-(5) (The court, at the adjudicatory hearing, verifies information, explains the parties’ rights, and requires an adjudication involving questions of fact and jurisdiction); Uniform Rule of Youth Court Practice 25(b) (providing the requirements for the content of the adjudication order). Mississippi statutes and the Uniform Rules of Youth Court Practice also required the youth court at a shelter hearing to consider additional matters of its jurisdiction, necessitating in this case a factual determination of whether Miller served as a caregiver, and the youth court also possessed the additional consideration of whether removal served the child’s best interest. Miller, 94 So.3d at 1171, ¶¶ 63-64 (Carlton, J., dissenting)

¶ 13. The trial judge in today’s case erred in concluding that the youth court considers only the best interest of the child. Mississippi statutes require youth courts to make various factual adjudications in child-protection proceedings, and the matters before the youth court in a shelter hearing for child protection concerns much more than just the issue of the child’s best interest. First and foremost, the youth court must find jurisdiction to exist, and jurisdiction existed in this ease upon the determination of the child as an abused child in accordance with Mississippi Code Section 43-21-105(m) (Supp.2011), which defines abused child as follows:

“Abused child” means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon the child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury[,] or other maltreatment. However, physical discipline, including spanking, performed on a child by a parent, guardian!,] or custodian in a reasonable manner shall not be deemed abuse under this section.

Therefore, the very first issue the youth court was required to address in the shelter hearing went to the heart of the substantive issue of Miller’s guilt. Since he was a nonfamily member, for youth-court jurisdiction to exist over the child as an “abused child,” the court had to determine if Miller had been responsible for her care at any time and whether he had abused her.

¶ 14. After the court determined that the child fell within the court’s jurisdiction as an abused child at the hands of someone responsible for her care, then the youth court had to address whether it was in the child’s best interest to place her in foster care. Rule 16 of the Uniform Rules of Youth Court Practice specifies the various determinations required in child-protection shelter proceedings in order to take children into custody. Shelter hearings determine: probable cause the child is within the jurisdiction of the court; probable cause that custody is necessary; whether the effect of the child continuing to reside within the child’s own home would be contrary to the welfare of the child; whether placement of the child in foster care is in the best interest of the child; and whether reasonable efforts to maintain the child in her own home fail to apply. See Uniform Rule of Youth Court Practice 16(b)(4).

¶ 15. We agree with Judge Carlton’s dissent that the shelter hearing involved “the same victim, the same abuse and offenses, and the same perpetrator” as prosecuted in the case before the circuit court. Miller, 94 So.3d at 1124-25, ¶ 68 (Carlton, J., dissenting). Today’s appeal involves the same matter in controversy in which Judge Harrison served as a lawyer. Furthermore, Judge Harrison may also have personal knowledge of disputed evidentia-ry facts concerning the proceeding, due to his participation in the youth-court shelter hearing addressing the same facts. As a result, we find that Judge Harrison has manifestly abused his discretion by failing to recuse himself. Clearly, by serving as the presiding judge in the circuit-court criminal trial involving the same victim, the same offenses and the same perpetrator as in the youth-court proceedings in which he served as the prosecutor, the trial judge in today’s case placed himself in a situation in which his impartiality might be questioned by a reasonable person knowing all the circumstances. Miss. Code of Judicial Conduct Canon 8E(1).

CONCLUSION

¶ 16. For the reasons discussed, the Court of Appeals’ judgment affirming the circuit court’s judgment of conviction for aggravated assault and forcible rape and the respective sentences of twenty years and thirty years to be served consecutively in the custody of the Mississippi Department of Corrections is reversed, as is the trial court’s judgment, and this case is remanded to the Circuit Court for the Second Judicial District of Hinds County for a new trial consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

      . We use a pseudonym, Abby, to protect the identity of the minor victim. The Court of Appeals likewise referred to the minor victim as Abby.

      . Melissa also is a pseudonym.

      . From the record, there appears to be no dispute over the fact that defense counsel first learned through supplemental discovery provided on the day the ore tenus motion for recusal was made that Judge Harrison had been involved in the previous shelter hearing concerning Abby.


source: Caselaw Access Project

author: GRIFFIS, P.J., IRVING, P.J., MAXWELL, J.,

license: Public Domain

text:
    Ruth Agnes CROSTHWAIT, Appellant v. SOUTHERN HEALTH CORPORATION OF HOUSTON, INC. d/b/a Trace Regional Hospital and Marcia Morgan, Appellees.
    No. 2010-CA-00526-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.
    Rehearing Denied Sept. 20, 2011.

      William C. Walker Jr., attorney for appellant.

      John G. Wheeler, Bethany Carol Bryant, attorneys for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Ruth Agnes Crosthwait fell and broke her hip while an inpatient at Trace Regional Hospital. She brought a lawsuit against Southern Health Corporation of Houston, Inc., which owns and operates the hospital, and Marcia Morgan, a registered nurse who is employed by the hospital. Crosthwait alleged that the hospital negligently caused her to fall after a shower in her hospital room. Crosthwait couched her claim as one for “ordinary” negligence, rather than for malpractice. The hospital contended that Crosthwait’s claim was for medical malpractice, in substance, and it sought summary judgment because Crosthwait failed to offer presuit notice, failed to consult with an expert prior to filing suit, and failed to support her claim with expert testimony. The Chickasaw County Circuit Court granted summary judgment to the hospital, and Crosthwait appeals.

FACTS

¶ 2. Crosthwait was admitted to Trace Regional Hospital on May 22, 2008, for treatment of fluctuating blood sugar stemming from diabetes. Crosthwait was eighty-two years of age. She lived alone and generally could walk without assistance, but she sometimes used a quad cane when walking outside. Crosthwait’s attending physician instructed her to ring a bell to have a nurse assist her when she used the restroom, which was attached to her hospital room. Over the course of her stay, Crosthwait followed her doctor’s instructions. The nurses had observed Crosthwait, but they did not physically assist her.

¶ 3. On the afternoon of May 24, Crosth-wait was preparing to leave the hospital, and she decided to take a shower. Crosth-wait called for Morgan, who assisted her with undressing. Crosthwait walked into the bathroom unassisted. Morgan offered Crosthwait a shower stool, which she accepted. Morgan then left and returned with a chair, which she placed in the shower. Morgan then turned on the shower for Crosthwait. While Crosthwait showered, Morgan told Crosthwait she would have to leave to attend another patient. After some time, Morgan returned and turned off the shower. During the shower, the bathroom floor became wet. What happened next was disputed.

¶ 4. According to Crosthwait, water had puddled on the bathroom floor during the shower because the shower curtain was not closed. Crosthwait felt Morgan had been gone for a long time, and Crosthwait had been unable to turn off the water herself or move around in the shower because of the size of the shower chair. When Morgan returned, Crosthwait asked her to turn the water off, which she did. Crosthwait then asked Morgan for a towel, and Morgan handed her one. Crosthwait’s shoes had been on the bathroom floor during the shower, and they were wet. Crosthwait tried to put on the wet shoes, but she could not. She asked Morgan to get some dry shoes, apparently referring to another pair of shoes she had brought with her to the hospital. Morgan stated that she did not have any shoes for Crosthwait. Morgan offered Crosthwait a single towel, which Crosthwait used to dry herself. When Crosthwait was preparing to leave the bathroom, Morgan was standing in the doorway between Crosthwait’s hospital room and the hallway outside. Crosthwait stated, “I need some help — I’ve got to get out of here,” several times, but Morgan did not offer to assist her. Crosthwait then tried to walk back to her bed, but she slipped and fell while passing through the doorway between the bathroom and the hospital room.

¶ 5. Morgan stated in her deposition that she laid two towels on the floor before Crosthwait started showering. After the shower, Morgan helped Crosthwait dry herself, and Morgan used several more towels to dry the floor. Crosthwait refused to use her shoes, even after Morgan had dried them, so Morgan attempted to lead her back to the bed without them. Morgan took one hand, and Crosthwait used her quad cane with the other. While passing through the doorway from the restroom to the hospital room, which was not wide enough for both women to walk side by side, Crosthwait fell.

¶ 6. It was undisputed that the fall caused Crosthwait significant injury, including a broken hip and a loss of mobility and independence. Crosthwait filed suit against the hospital and Morgan. Crosth-wait’s complaint alleged that the following were the proximate causes of her fall and injuries:

(a) Failure to properly assist [Crosth-wait] in taking a shower, including failure to provide an appropriate shower stool and failure to prevent excessive water from accumulating on the floor outside the shower;
(b) Failure to assist [Crosthwait] in getting out of the shower;
(c) Failure to assist [Crosthwait] as she stepped on the floor while exiting the shower;
(d) Failure to provide [Crosthwait] with proper footwear before she stepped on the wet floor when exiting the shower;
(e) Failure to wipe up the wet floor before [Crosthwait] exited the shower; [and]
(f) Failure to do other reasonable acts necessary to prevent [Crosthwait’s] fall.

¶ 7. After discovery was completed, the hospital filed a motion for summary judgment. The hospital argued that Crosth-wait’s action was for medical malpractice and that summary judgment was proper because, among other things, Crosthwait needed expert testimony to establish the duty of care owed to her by the hospital and to show whether that duty had been breached. Crosthwait responded that the claim was for ordinary negligence, for which expert testimony was not required. The circuit court granted summary judgment to the hospital, and Crosthwait appeals.

STANDARD OF REVIEW

¶ 8. We review a trial court’s grant of summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the nonmoving party must be given the benefit of doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). “A fact is material if it tends to resolve any of the issues properly raised by the parties.” Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 398 (¶ 16) (Miss.2006) (citation and quotations omitted).

DISCUSSION

¶ 9. It is axiomatic that to recover for negligence, a plaintiff must prove the elements of a negligence claim, which are: (1) duty, (2) breach of duty, (3) causation, and (4) damages. See, e.g., Fisher v. Deer, 942 So.2d 217, 219 (¶ 6) (Miss.Ct.App.2006) (citation omitted). Duty and breach of that duty establish the negligence, while causation and damages are required to show that the plaintiff is entitled to recover for harm resulting from the negligent act. Id.

¶ 10. Malpractice is a special kind of negligence claim that involves professional services. Malpractice claims generally must be supported by expert testimony to “identify and articulate the requisite standard that was not complied with [and] establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Hubbard v. Wansley, 954 So.2d 951, 957 (¶ 12) (Miss.2007) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). The only exception to the expert-testimony requirement is where the alleged professional negligence is within the scope of a layman’s common knowledge. Powell v. Methodist Health Care-Jackson Hosps., 876 So.2d 347, 348 (¶ 4) (Miss.2004).

1Í11. On appeal, Crosthwait contends that she did not have to offer expert testimony because her claim is only for “ordinary” negligence, not malpractice. To distinguish between malpractice claims and ordinary negligence, a court should consider: “(1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of professional judgment beyond the realm of common knowledge and experience.” 65 C.J.S. Negligence § 160 (2010). While Crosthwait disagrees, this Court finds that her claim arose in the course of professional medical services. Although showering was not necessarily a medical procedure, in this case, Crosthwait was an inpatient at the hospital. Crosthwait’s attending physician had instructed her to seek a nurse’s assistance when using the restroom. When Morgan assisted Crosthwait, she was acting as a registered nurse attending to a patient in her care. Thus, the real question presented by this appeal is whether Crosthwait’s claim raises questions of Morgan’s professional judgment outside a layman’s common knowledge. If so, Crosthwait failed to meet her burden of proof because she did not offer expert testimony establishing Morgan’s duty of care or a breach of that duty.

¶ 12. “Our 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) (quoting Erby v. N. Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995)). Examples of the layman’s exception would be a case involving “the unauthorized and unexplained leaving of an object inside a patient during surgery,” id. at 698 (¶ 11), or a patient being given the wrong medication. Smith ex rel. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 181 (¶ 11) (Miss.2007).

¶ 13. Crosthwait attempts to remove her claim from the realm of medical malpractice by focusing on two alleged negligent acts: Morgan’s selection of the shower stool, which Crosthwait contends was too large for the shower, with arms that prevented the shower curtain from being closed, and Morgan’s failure to dry the floor before Crosthwait tried to walk across it. Crosthwait argues that these claims, despite the hospital setting, are “ordinary” acts that a layman can understand are negligent without expert testimony. Crosthwait analogizes her claim to an “ordinary slip and fall.”

¶ 14. The selection of a shower stool is clearly outside a layman’s common knowledge. Crosthwait argues that the choice was negligent because the stool prevented the shower curtain from being fully closed. But it is apparent that the stool would not be selected simply to fit in the shower, since its primary purpose would be to provide adequate support for Crosthwait while she showered. A nurse would have to evaluate Crosthwait’s need for support and choose a stool that would satisfy it. If anything, the nurse would have to balance Crosthwait’s needs against the danger posed by the stool not fitting easily in the shower. This calls for professional judgment, and the layman’s exception does not apply to “situations involving judgment calls made by professionals.” Smith, 952 So.2d at 181 (¶ 11).

¶ 15. In Bell v. West Harrison County District, 523 So.2d 1031, 1032 (Miss.1988), Doris Bell was injured when she fell from her hospital bed. She claimed that her fall was a result of the nurse’s failure to raise the rails on the bed. Id. In an issue related to the proper statute of limitations, Bell argued that the nurse’s failure to raise the rails was an act of ordinary negligence that did not involve medical or professional services. Id. at 1032-33. The Mississippi Supreme Court disagreed, stating:

A nurse’s decision as to whether or not bed rails should be utilized entails a degree of knowledge concerning the subject patient’s condition, medication, history, etc. The rails themselves are but another instrumentality by which the safety of patients may be insured. This plainly calls for the rendition of a medical or professional service, even under the most basic rationale. The failure to raise Mrs. Bell’s bed rails may have been a negligent omission on the part of the nurse, but if it were, it was negligence inherently connected with the providing of a professional medical service.

Id. at 1033.

¶ 16. The dissent argues that Crosth-wait does not allege her injury occurred based on the negligent use of a medical device; therefore, her claim is distinguishable from Bell. But Crosthwait testified that Morgan recommended that she utilize a shower stool after Crosthwait entered the shower. Just as in Bell, this decision required that Morgan have a degree of knowledge as to Crosthwait’s medical condition. Morgan decided to have Crosth-wait use the stool even after the stool did not properly fit in the shower, and the shower curtain could not be closed causing the bathroom floor to become wet. Such a decision fell within Morgan’s professional service as a nurse.

¶ 17. Crosthwait’s second contention, that Morgan should have dried the floor for her, is more difficult. It is true, as Crosthwait argues, that a layman can recognize that a wet floor presents some risk of slipping. And the dissent contends that Crosthwait’s injury did not involve an assessment of Crosthwait’s condition. But whether a wet floor creates an unreasonable danger depends on the person trying to walk across it — a healthy individual might be able to dry the floor herself/himself after bathing or safely cross the floor even if it is wet, while a person in poor health might not be able to do either. What assistance Crosthwait needed depended, again, on an evaluation of her medical condition. That required the exercise of professional judgment. Morgan had to considered Crosthwait’s condition in determining the level of assistance Crosth-wait would need to exit the shower and walk across a wet floor.

¶ 18. In support of her argument, Crosthwait cites the following exchange from Morgan’s deposition:

Q. Now, did you need some special knowledge to know how to put those towels down? Did you have to be a nurse to know how to put the towels down?
A. No.
Q. Okay, did you have to be a nurse to know how to try to lead [Crosth-wait] out and not fall?
A. No.
Q. Did you have to know anything as a nurse to do anything that you did in connection with this incident of getting her in and out of the shower?
A. No.

Crosthwait contends that this amounts to an admission that professional judgment is not at issue. We do not agree. The first questions asked Morgan whether one needed to be a nurse to know “how” to place towels on a floor, which is not relevant to the issue at hand. The remaining two questions concern Morgan’s version of the events, but Crosthwait’s allegations of negligence are based on her own account, which is significantly different. Crosth-wait’s complaint is principally addressed to what she alleges Morgan had a duty to do, not what she actually did, according to Crosthwait. Crosthwait suggests in her briefs on appeal that the difference between the accounts is immaterial since both agree Crosthwait fell; but the fact that Morgan failed to prevent Crosthwait from falling is not proof of negligence, in and of itself. Moreover, the final question is vague and was properly objected to by the hospital’s counsel.

¶ 19. After reviewing the record in this case, this Court finds that Crosthwait alleged malpractice and that expert testimony was required to support the cause of action. Consequently, the circuit court did not err in granting summary judgment to the hospital. We therefore affirm.

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

MYERS, ISHEE AND CARLTON, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J. MAXWELL, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., IRVING, P.J., AND ROBERTS, J. BARNES AND RUSSELL, JJ., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 21. I agree with the dissent by Judge Maxwell. However, I write separately to express my view that even if the actions of Nurse Morgan could be considered in the realm of professional actions or services, expert testimony was not required to establish that she was negligent in refusing or failing to assist her elderly patient traverse the admittedly wet floor. While expert testimony is generally required to prove negligence in medical malpractice cases, there is a recognized exception to this rule: the layman’s exception. Coleman v. Rice, 706 So.2d 696, 698-99 (¶¶ 10-11) (Miss.1997). The layman’s exception is applied in situations “where a layman can observe and understand the negligence as a matter of common sense and practical experience.” Id. at 698 (¶ 10) (quoting Erby v. N. Miss. Med. Ctr., 654 So.2d 495, 500 (Miss.1995)). While the exception is generally applied in situations where a physician or medical staff member has left a foreign object in a patient, I see no reason why it would not apply here on the unique facts of this case. A layman certainly can observe and understand Nurse Morgan’s negligence as a matter of common sense and practical experience. It does not take a medical expert to testify that a nurse commits a negligent act when she refuses to assist or refuses to obtain assistance for an elderly patient who is attempting to traverse a wet floor in order to return to bed. Therefore, for this additional reason, I dissent.

LEE, C.J., JOINS THIS OPINION.

MAXWELL, J.,

dissenting:

¶ 22. Not every act or omission by a medical professional is a professional act. With that in mind, I find it important that Crosthwait does not allege Nurse Morgan failed to assess and meet her medical needs. Instead, Crosthwait complains that, in assisting her with her shower, Morgan created a peril — a wet bathroom floor. And Morgan, allegedly knowing that approximately an inch of water had pooled on the bathroom floor, failed to attempt to dry the floor or respond to repeated requests to assist the eighty-two year old barefooted Crosthwait across the wet floor. Because I find Crosthwait brings an ordinary negligence claim, not a medical-malpractice action, I respectfully dissent.

FACTS

¶ 23. At this summary-judgment stage, many of the facts forming Crosthwait’s theory are sharply contested by the hospital. But it is undisputed that Crosthwait, while a patient at Trace Regional Hospital, was under doctor’s orders to call for assistance when going to and from the bathroom. During the course of her stay, Crosthwait called for assistance and made many uneventful bathroom trips. Before leaving the hospital, Crosthwait wanted to take a shower and called for Morgan’s assistance. Crosthwait and Morgan have differing accounts of what happened next.

¶ 24. Crosthwait’s deposition testimony reflects that Morgan helped her undress and turned on the shower. Because of the height of the shower faucet, Morgan suggested a shower chair. Crosthwait testified the chair did not fit in the shower. After several placements, Morgan ultimately positioned the chair so that a portion of it and Morgan stuck out of the shower. Morgan then left to give another patient an insulin shot. Crosthwait testified that, because of the protruding chair, the shower curtain did not close. And during the five minutes Morgan was gone, the continuous running water began pooling on the bathroom floor. Crosthwait cannot remember whether she or Morgan turned off the shower. But she recalls Morgan returned to the bathroom and handed her a towel, which Crosthwait used to dry herself. Crosthwait asked Morgan for rubber-soled shoes because her leather-soled shoes had been left in the bathroom during the shower and were soaked. Morgan replied that the hospital did not have any. Crosthwait testified that Morgan stood outside the bathroom and did not respond to her repeated requests to help her out of the bathroom. So the barefoot Crosthwait attempted to leave unassisted. She began to fall, at which point, Morgan grabbed her arm and tried to prevent her fall.

¶ 25. Morgan’s account differs. The treating physician’s notes reflect that when Crosthwait “was about to take a bath [she] apparently slid down from the bed towards the floor and she was witnessed by the nurse.” But Morgan could not recall telling the doctor that Crosthwait had slid from the bed to the floor. Instead, Morgan’s deposition testimony clearly established that Crosthwait’s injury occurred from a fall after her shower.

¶ 26. Morgan testified in her deposition that before turning on the shower she placed towels on the floor. After situating Crosthwait on the shower stool and turning on the shower, Morgan left to give another patient an insulin shot. Morgan returned and turned off the shower. She then placed two more towels on the floor. As she was physically assisting Crosthwait out of the bathroom, Crosthwait fell.

¶ 27. If Crosthwait’s allegations are considered under ordinary negligence standards, I find these factual disputes preclude summary judgment. So the proper starting point is to determine whether her claim sounds in ordinary negligence or medical malpractice.

LAW AND DISCUSSION

¶ 28. In previous cases addressing this distinction, this court has emphasized the “main issue [is] whether the tort ‘arises out of the course of medical, surgical or other professional services.’ ” Chitty v. Terracina, 16 So.3d 774, 779 (¶ 12) (Miss.Ct.App.2009) (quoting Miss.Code Ann. § 15-1-36(2) (Rev.2003)); see Bell v. W. Harrison County Dist., 523 So.2d 1031, 1032 (Miss.1988) (addressing “arising out of’ language in section 15-1-36). We have also looked for guidance in addressing that issue to Louisiana’s six-factor test from Coleman v. Deno, 813 So.2d 303, 315-16 (La.2002). Chitty, 16 So.3d at 778; Howell v. Garden Park Cmty. Hosp., 1 So.3d 900, 903-04 (¶¶ 7-8) (Miss.Ct.App.2009). Among Coleman’s considerations are whether the alleged wrong (1) is treatment related or caused by want of professional skill, (2) involved an assessment of the patient’s condition, or (3) was within the scope of activities a hospital is licensed to perform. Coleman, 813 So.2d at 315— 16. Coleman also includes in its test the question of whether expert testimony would be required to establish the standard of care. Id. at 315.

¶ 29. Using Coleman as a guide, I do not find Crosthwait alleges an injury “arising out of the course of medical, surgical or other professional services where expert testimony is [required].” Miss.Code Ann. § 11-1-58(1). Although her doctor determined her medical condition required asking for assistance to the bathroom, Crosthwait does not allege her injury was caused by her doctor’s failure to properly assess her medical needs. And Crosthwait does not contend her injury was caused by medical treatment or Morgan’s want of professional skills.

¶ 30. The majority frames Crosthwait’s allegations as claiming Morgan negligently made two professional assessments: (1) Crosthwait’s medical condition necessitated an ill-fitting stool to take a shower, and (2) Crosthwait, based on her medical condition, did not need assistance across a wet bathroom floor. The majority finds that expert testimony is needed to determine whether both assessments were negligent.

¶ 31. I disagree. The injury here did not involve a negligent assessment of Crosthwait’s condition. Rather, Crosth-wait alleges her injury arose out of a dangerous condition created by Morgan — a wet bathroom floor. And drying a wet floor or ensuring hospital patients traverse safely through a known, dangerous condition does not fall within the scope of either a hospital’s licensed activities or Morgan’s professional services. Instead, it falls within the standard of reasonable care incumbent on hospitals and, for that matter, any business.

¶ 32. Morgan admitted in her deposition that she did not “have to know anything as a nurse to do anything that [she] did in connection with this incident of getting [Crosthwait] in and out of the shower.” Because Morgan’s testimony illustrates she was not drawing on any medical skills during the shower incident, I am left wondering what type of medical expert the majority would have Crosthwait offer to establish the appropriate standard of care. In this case, I simply find a jury does not require expert testimony to determine what a reasonable person in Morgan’s position would have done in these circumstances.

¶ 33. This case is certainly distinguishable from cases this court and the Mississippi Supreme Court have found to fall ■within medical-malpractice statutes and require expert testimony. In Chitty, the plaintiffs claim arose out of what she alleged was an unnecessary biopsy and a fraudulent diagnosis of cancer. Chitty, 16 So.3d at 775-76 (¶ 4). So the rendering of a profession medical services itself was the source of the alleged injury. Id. at 779 (¶ 13). And expert testimony was required to determine whether a reasonable dermatologist would have performed a biopsy. Id. Here, Crosthwait was not undergoing a medical procedure. Cf. Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101-02 (Iowa 1971) (holding that a hospital’s giving showers to its patients is not a professional activity).

¶ 34. Howell involved a patient’s fall. Howell, 1 So.3d at 901-02 (¶ 2). But in Howell, the patient fell from a piece of medical equipment — an X-ray table — during the performance of a medical procedure — a cervical X-ray requiring the plaintiff to lie in an inverted position. Id. Because the plaintiff alleged her injury arose out of the hospital’s failure to inspect and maintain its medical equipment, this court determined the jury required expert testimony regarding the specialized knowledge of how to safely X-ray patients. Id. at 902-04 (¶¶ 4, 8).

¶ 35. In Lyons, a patient fell while being assisted from the restroom. Lyons v. Biloxi H.M.A., Inc., 925 So.2d 151, 152-53 (¶¶ 5-10) (Miss.Ct.App.2006). Although more factually similar than Howell, Lyons is distinguishable on the determinative issue — the allegation of what caused the injury. The plaintiff in Lyons alleged the defendant failed to give her the requisite amount of assistance to the bathroom commensurate with her known medical condition, a hip replacement performed two days earlier. Id. at 152-53 (2, 10). The plaintiff alleged, based on her hip surgery, the physical therapists assisting her should have known she could not hold a standing position while waiting for a wheelchair. Id. at 154 (¶ 16). Further, as in Howell, Lyons’s injury occurred while physical therapists were using a type of medical equipment known as a “gait belt.” Id. at 155 (¶ 19). Because the plaintiff challenged what the physical therapists should have known about her medical condition and took issue with the medical equipment they should have used to transport her, this court found expert testimony was necessary to establish the standard of care. Id. at 155 (¶ 19).

¶ 36. The majority relies on Bell. As in Lyons, the plaintiff in Bell alleged her fall from her hospital bed arose out of a failed assessment of her medical condition. Bell, 523 So.2d at 1032-33. The plaintiff claimed the nurse was negligent in failing to use bed rails because a reasonable nurse would have known the sedative effect of the drugs she administered to the plaintiff. Id. at 1032. And a reasonable nurse would have used bed rails to prevent the sedated plaintiff from falling. Id. The Mississippi Supreme Court determined that “[a] nurse’s decision as to whether or not bed rails should be utilized entails a degree of knowledge concerning the subject patient’s condition, medication, history, etc” Id. at 1033 (emphasis added). Because the plaintiff was alleging a want of professional judgment, her claim fell within the statutory definition of professional malpractice, requiring an expert to testify about what a reasonable nurse should have known about the plaintiffs condition. Id. at 1032-33.

CROSTHWAIT’S CLAIM

¶ 37. In contrast, Crosthwait does not contend her injury arose based on an erroneous assessment of her medical or physical condition or the failure to provide adequate medical services based on that condition. With respect to the majority, unlike Bell, where the plaintiff alleged the nurse should have used bed rails, Crosth-wait is not claiming she fell because Morgan should have used a better fitting or more appropriate shower chair based on her medical condition. And, unlike the plaintiff in Lyons, who claimed the physical therapists should have known she could not stand, Crosthwait is not claiming Morgan should have made the medical assessment she could not walk on her own. Nor does she allege her injury occurred based on negligent use or non-use of a medical device. In contrast to the X-ray table in Howell, Crosthwait did not fall off the shower chair.

¶ 38. Crosthwait instead complains Morgan took the unreasonable action of allowing a bathroom floor to pool with water and then failed to attempt to provide her safe passage out of the bathroom. She alleges an ordinary, reasonable person, knowing the floor was wet and Crosthwait was barefoot, would have provided her physical assistance or dried the floor. A medical expert is not needed to address what a reasonable hospital employee should have done in the face of such a dangerous condition, as it was not a medical danger Crosthwait claims Morgan should have been aware of and prevented. Cf. Bell, 523 So.2d at 1032.

¶ 39. Other jurisdictions’ treatment of claims involving falls in hospital bathrooms further convinces me Crosthwait’s complaint falls within the ambit of ordinary negligence, not medical malpractice. E.g., Washington Hosp. Ctr. v. Martin, 454 A.2d 306, 308-09 (D.C.1982) (determining the plaintiffs claim that the hospital negligently left him unattended in the bathroom, resulting in his fall and injury, was an “ordinary” negligence case, requiring no expert testimony because the issue was not whether the doctor or nursing staff failed to exercise professional judgment); Brown v. Tift County Hosp. Auth., 280 Ga.App. 847, 635 S.E.2d 184, 186-87 (2006) (reversing summary judgment for the defendant and finding plaintiffs claim — that the therapist who left her unattended in the shower after plaintiff twice complained she was slipping — sounded in ordinary negligence); Self v. Executive Comm. of the Ga. Baptist Convention Ga., Inc., 245 Ga. 548, 266 S.E.2d 168, 169 (1980) (finding the plaintiffs action was for ordinary negligence, not medical malpractice, based on her allegation that the decedent’s injury was caused by the hospital’s negligence in failing to properly repair a leaking bathroom fixture, of which it had notice); Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 141 (Iowa Ct.App.1993) (holding that the hospital’s taking the plaintiff to the bathroom “was nonmedical or routine”); Kastler, 193 N.W.2d at 102 (holding that a hospital’s giving showers to its patients is not a professional activity); see also St. Mary Med. Ctr. v. Bakewell, 938 N.E.2d 820, 822 (Ind.Ct.App.2010) (finding plaintiffs claim that her injury was caused by the hospital’s negligent maintenance of its shower could proceed as an ordinary premises-liability claim, although originally brought as a medical-malpractice claim).

¶ 40. These cases underscore the “mere fact that a patient falls in a hospital” does not in itself determine that a claim is for medical malpractice. See Martin, 454 A.2d at 309. Instead, the controlling question is whether professional skill and judgment were required.

¶ 41. Because I find Crosthwait’s allegations sound in ordinary negligence, I would reverse.

¶ 42. The trial court granted summary judgment for failure to comply with the medical-malpractice statutes and failure to provide expert testimony. Finding such procedures and testimony unnecessary to make a prima facie case, I would remand this matter for a jury to determine whether Morgan breached her duty of ordinary care and, if so, whether such breach was the proximate cause of Crosthwait’s injuries. Therefore, I dissent.

LEE, C.J., AND ROBERTS, J., JOIN THIS OPINION. IRVING, P.J., JOINS WITH SEPARATE WRITTEN OPINION.

      . The hospital's attorney objected to the "form” of each question, but for clarity, we have not included the objections.

      . Id. at (¶ 11).

      . Mississippi Code Annotated section 11 — 1— 58(1) (Supp.2010) uses the same "arising out of the course of medical, surgical or other professional services” language to determine whether the prerequisite of an expert consultation applies to an action against a healthcare provider.


author: GRIFFIS, P.J.,

text:
    CITY OF CLEVELAND, Mississippi, Appellant v. MID-SOUTH ASSOCIATES, LLC, Appellee.
    No. 2010-CA-00971-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Oct. 11, 2011.
    Thomas L. Kirkland Jr., Andy Lowry, Ridgeland, attorneys for appellant.

      John L. Maxey II, William Holcomb Hussey, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. The City of Cleveland, Mississippi appeals the judgment of the Chancery Court of DeSoto County denying the City’s request for attorneys’ fees related to Mid-South Associates, LLC’s attempt to relocate a nursing home. The City claims it is owed attorneys’ fees under the statutory requirements of Mississippi Code Annotated section 41-7-201 (2)(f) (Rev.2009). We find no error and affirm the chancellor’s judgment to deny the City’s request for attorney’s fees.

FACTS

¶ 2. In 2006, Mid-South filed an application for a Certificate of Need (“CON”) with the Mississippi Department of Health in an effort to relocate seventy-five nursing-home beds from Bolivar County to De-Soto County. The City, which is located in Bolivar County, joined the action in opposition to Mid-South’s request. The CON was denied.

¶ 3. Mid-South appealed the Health Department’s decision to the Chancery Court of DeSoto County. The chancellor reversed the denial of the CON. The Health Department and the City then appealed the chancellor’s decision to the Mississippi Supreme Court. That appeal was deflected to this Court, and we reversed the chancellor’s judgment and reinstated the Health Department’s denial of the CON. Miss. State Dep’t of Health v. Mid-South Assoc., 25 So.3d 358 (Miss.Ct.App.2009). On January 21, 2010, the supreme court denied Mid-South’s request for certiorari review. Id.

¶ 4. On January 27, 2010, the City filed a motion in the chancery court seeking statutory attorney’s fees and costs under section 41-7-201 (2)(f), which states, in part: “The [chancery] court, as part of the final order, shall make an award of costs, fees, reasonable expenses and attorney’s fees incurred in favor of appellee payable by the appellant(s) should the court affirm the order of the State Department of Health.”

¶ 5. The City argued that since the Health Department’s decision was ultimately affirmed by this Court’s reversal of the chancellor’s reversal, the Mississippi Legislature intended for attorneys’ fees to be awarded in this situation. The chancellor, applying the precise language of the statute, held that she could not award attorney’s fees because she had reversed, and not affirmed, the Health Department’s decision.

¶ 6. The chancellor further found that she had no jurisdiction to award attorney’s fees because this Court did not remand the case for such an award. Instead, this Court reversed the judgment and rendered an opinion that reinstated the Health Department’s decision. Accordingly, the chancellor found that she had no authority to reopen the case for an award of attorney’s fees. The City now appeals the chancellor’s judgment.

STANDARD OF REVIEW

¶ 7. This appeal concerns the interpretation of a statute, which is a question of law that we review de novo. Finn v. State, 978 So.2d 1270, 1272 (¶ 6) (Miss.2008).

ANALYSIS

¶ 8. The question here is whether the City is entitled to an award of attorney’s fees under section 41-7-201 (2)(f). There are two instances where the Legislature has made it explicitly clear that attorney’s fees must be awarded following an unsuccessful appeal of the Health Department’s decision on a CON.

¶ 9. First, if a party appeals a CON decision to the chancery court and the chancery court fails to act on the appeal within 120 days of the Health Department’s final decision, the chancery court’s inaction acts as an affirmance. If this constructive affirmance is upheld by the supreme court on appeal, the supreme court must award attorney’s fees to the appellee. Section 41-7-201 (2)(c) provides in part:

The chancery court shall give preference to any such appeal from a final order by the State Department of Health in a certificate of need proceeding, and shall render a final order regarding such appeal no later than one hundred twenty (120) days from the date of the final order by the State Department of Health. If the chancery court has not rendered a final order within this 120-day period, then the final order of the State Department of Health shall be deemed to have been affirmed by the chancery court, and any party to the appeal shall have the right to appeal from the chancery court to the Supreme Court on the record certified by the State Department of Health as otherwise provided in paragraph (g) of this subsection. In the event the chancery ' court has not rendered a final order within the 120-day period and an appeal is made to the Supreme Court as provided herein, the Supreme Court shall remand the case to the chancery court to make an award of costs, fees, reasonable expenses!,] a/nd attorney’s fees incurred in favor of appellee payable by the appellants) should the Supreme Court affirm the order of the State Department of Health.

(Emphasis added).

¶ 10. Second, if a party appeals a CON decision to the chancery court and the chancery court affirms the Health Department’s final decision, the chancery court shall award attorney’s fees. Section 41-7-201(2)(f) provides:

The court, as part of the final order, shall make an award of costs, fees, reasonable expenses and attorney’s fees incurred in favor of appellee payable by the appellant(s) should the court affirm the order of the State Department of Health.

¶ 11. The Legislature has also given the chancery court discretion to award attorney’s fees as a part of its final ruling on an appeal of a CON. Section 41 — 7—201 (2)(f) provides:

The court may dispose of the appeal in termtime or vacation and may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part and may make an award of costs, fees, expenses!,] a/nd attorney’s fees, as the case may be....

(Emphasis added).

¶ 12. There is no provision in the statute concerning an award of attorney’s fees when, as here, the chancellor reversed the Health Department’s decision and the chancellor was then reversed on appeal. Consequently, the City must depart from the clear language of the statute and argue the intention behind such language. The City argues that the purpose of the statute is to limit an unnecessary appeal of the Health Department’s decision by mandating an award of attorneys’ fees when the Health Department’s decision is ultimately upheld. Thus, the City claims that, while the procedural path of this case is not included in the language of the statute, it falls within the Legislature’s intent to award attorney’s fees when the Health Department’s decision is upheld.

¶ 13. The supreme court has stated the following rule regarding the interpretation of a statute:

We will not engage in statutory interpretation if a statute is plain and unambiguous. However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. In either case, the ultimate goal of this Court is to discern the legislative intent. The best evidence of legislative intent is the text of the statute; the Court may also look to the statute’s historical background, purpose, and objectives. If a statute is ambiguous, it is this Court’s duty to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.

Buffington v. Miss. State Tax Comm’n, 43 So.3d 450, 454 (¶ 13) (Miss.2010) (citation omitted).

¶ 14. It is undisputed that the language of the statute is plain and unambiguous. The statute is not silent on the issue of attorney’s fees; instead, it explicitly provides for an award of attorney’s fees in the situations discussed above. Again, we are left with the City’s claim that the Legislature clearly intended to award attorney’s fees in all instances where the Health Department’s decision is ultimately upheld.

¶ 15. However, our rules of statutory construction insist that the best evidence of the Legislature’s intent is the text of the statute. Here, the Legislature enacted section 41-7-201, which delineates the procedure used to appeal a final decision pertaining to a CON. Attorney’s fees are mandatory in some cases, discretionary in some cases and, as here, not specifically addressed. Looking at the language of the statute, we cannot say that this was an oversight on the part of the Legislature.

¶ 16. Nor can we determine, as the City argues, that the Legislature’s failure to include a mandatory award of attorney’s fees for this procedural path works an absurd result. The City argues in its brief that the intention of the Legislature is to prevent the unnecessary appeal of the Health Department’s decision. But it is entirely possible that the Legislature did not intend to discourage an appeal that initially showed some level of merit. The statute mandates an award of attorney’s fees where the appeal of the Health Department’s decision showed no merit at the first level of review — the decision was either affirmed by the chancellor or affirmed by the supreme court upon the chancellor’s inaction in the matter.

¶ 17. Here, the chancellor found that Mid-South’s appeal of the Health Department’s decision had merit; therefore, the appeal passed through the first level of review before it was reversed by this Court. Although this distinction has no effect on the ultimate outcome in the case, it is possible that the Legislature considered the distinction when it determined which type of appeal to discourage by mandating attorney’s fees.

¶ 18. We find that the language of section 41-7-201 is clear and unambiguous. There is no provision for attorney’s fees when, as here, this Court reverses the chancellor’s reversal of the Health Department’s decision. We are bound to follow the clear language of the statute as it is our best guide to the Legislature’s intent. Accordingly, we find that the chancellor properly denied the City’s motion for attorney’s fees because there was no statutory basis for the award.

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

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


author: CARLTON, J.,

text:
    Sam GREEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00518-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2011.
    Rehearing Denied May 8, 2012.
    Certiorari Denied Aug. 16, 2012.
    William L. Maxey, George T. Holmes, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P. J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Sam Green appeals his conviction in the Grenada County Circuit Court of armed robbery and his sentence of twenty-five years in the custody of the Mississippi Department of Corrections. Green argues that the weight of the evidence did not support the jury’s verdict. Finding no error, we affirm.

FACTS

¶ 2. On October 7, 2008, two men robbed the Pacesetter Conoco convenience store and service station in Grenada, Mississippi. The Pacesetter cashier working at the time of the robbery, Joyce Naramore, reported to the Grenada Police Department that one of the robbers held a shotgun on her while the other emptied the cash register. Naramore described both robbers as black males, and she described the man with the shotgun as the taller of the two men. Naramore also described the man with the shotgun as having lighter skin than the other man. After emptying the cash register, the robbers left.

¶ 3. Neal Anderson, a local resident living on the street behind the Pacesetter, testified that on the night of the robbery, he noticed a small green Honda parked in front of his house. Anderson testified that he approached the car, and he made inquiries as to the two occupants in the car. The occupants told Anderson that they were having trouble, and they said help was on the way. Shortly thereafter, Anderson said he saw two men running towards the Honda; one had a shotgun and fell down while running to the car, but he eventually made it to the car with the gun. The Honda drove off with four passengers, and Anderson called 911 to report the incident.

¶ 4. Anderson’s description of the green Honda led police officers from the Grenada Police Department to be on the lookout for, and to ultimately stop, a car meeting that description. When the police stopped the green Honda, two occupants fled, and the other two were taken into custody. One of those arrested was Arlena Harper, who owned the Honda. The police took Anderson to the green Honda, and Anderson identified it as the one he had observed parked behind the Pacesetter.

¶ 5. Harper’s boyfriend, Ladarius Woo-dall, was subsequently arrested and charged with the armed robbery at the Pacesetter. Woodall implicated his half-brother, Marquis Wiggins; Harper; and Green in the robbery. Harper and Woo-dall testified against Green at trial.

¶ 6. At trial, both witnesses described for the jury how all four of the suspects retrieved a shotgun and planned the robbery of the Pacesetter while parked in Harper’s Honda behind the Sonic Drive-In adjacent to the Pacesetter. Both Harper and Woodall stated that Wiggins drove the Honda. Woodall testified that he, Green, and Wiggins all went into the store at various intervals to check it out prior to the robbery. Woodall and Harper testified that Wiggins refused to go into the store to commit the robbery, so Woodall and Green entered the store to commit the robbery, and Wiggins remained in the Honda as the get-away driver. Woodall stated that he and Green entered the Pacesetter, and Green held the shotgun on the clerk while Woodall jumped on the counter and emptied the cash drawer. Harper testified that after robbing the Pacesetter, Woodall and Green ran back to the car. At one point while running back to the car, Green fell with the shotgun. Once back in the car, Harper said that Woodall and Green started counting money from the robbery.

¶ 7. Woodall and Harper testified that later, they decided to go to another store, but on the way, the police stopped them. Woodall and Green managed to run away from the officers, and they made it to Woodall’s sister’s house. Woodall and Green finished splitting the robbery proceeds between themselves there. Woodall and Green were eventually arrested and indicted on the charge of armed robbery.

¶ 8. A jury trial was held in the Grenada County Circuit Court on January 19-20, 2010. At trial,' Naramore identified Green as the robber with the shotgun. Green’s father testified on his behalf and stated that Green was not a violent person. The defense attempted to introduce favorable character evidence that Green was a special-education student. However, the circuit court excluded this evidence after objections by the State.

¶ 9. The jury convicted Green of armed robbery, and the circuit judge sentenced Green to twenty-five years in the custody of the Mississippi Department of Corrections. Green subsequently filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial, which the circuit judge denied. Green now appeals, claiming that the jury's verdict is contrary to the weight of the evidence.

STANDARD OF REVIEW

¶ 10. In Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005), the supreme court discussed appellate review of the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

(Citations and internal quotations omitted).

DISCUSSION

¶ 11. On appeal, Green claims that Woodall and Harper provided unreliable testimony to accuse him of robbing the Pacesetter, and he asserts the circuit court erred in failing to grant his motion for a JNOV due to the insufficiency of the evidence to support his conviction. Green argues that Harper and Woodall were romantically involved, and he asserts that Wiggins was Woodall’s half-brother. Green argues that he served as the “most convenient scapegoat” to take the blame for the robbery. Green claims that Woo-dall, who testified under a plea deal, gave conflicting statements. Green claims that Woodall’s conflicting statements began when Woodall denied being in Grenada on the night of the robbery, and then they continued when Woodall later admitted to committing the robbery. Green claims that Harper, upon her arrest, also denied being in Grenada, and she tried to pin the robbery on someone else. Green alleges that Harper later changed her story, and Green claims that Harper and Woodall provided false facts to implicate Green in the robbery.

¶ 12. Green cites to Jones v. State, 368 So.2d 1265 (Miss.1979), wherein the Mississippi Supreme Court reversed and discharged the defendant, Jones, after determining that his conviction for grand larceny was based on the unreliable testimony of an accomplice who had negotiated a plea bargain. Green claims that like Jones, the co-defendants’ testimonies were uncorroborated and presented conflicting stories. We note that the Jones court reiterated the general rule that the testimony of an accomplice “must be viewed with great caution and suspicion. Where the testimony is uncorroborated, it must also be reasonable, not improbable, self-contradictory[,] or substantially impeached.” Id. at 1267. The Jones court also stated that “while a conviction may be sustained on the uncorroborated testimony of an accomplice, ... such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unim-peached witnesses.” Id. at 1268 (citing Creed v. State, 179 Miss. 700, 705, 176 So. 596, 597 (1937)).

¶ 13. In Jones, the supreme court noted that Jones’s conviction was based upon the uncorroborated testimony of a convicted felon and confessed accomplice, whose sentence was deferred pending Jones’s trial. Id. at 1269. However, the record before us in the present case provides testimony from numerous witnesses who identified Green as the robber. Besides the testimonies of Harper and Woodall, Naramore, the Pacesetter cashier working the night of the robbery, provided an in-court identification of Green as the armed robber. In addition, Anderson’s testimony corroborated Harper and Woodall’s testimonies that the taller of the two male robbers running from the Pacesetter, whom Harper and Woodall identified as Green, possessed the shotgun, and testified that this taller male robber fell while fleeing the crime scene in route to the green Honda.

¶ 14. Our supreme court has established that “the jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984); see also Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001). Additionally, we recognize that the jury is the judge of the weight and credibility of the testimony, and the jury is “free to accept and reject all or some of each witness’s testimony.” Tyler v. State, 478 So.2d 315, 317 (Miss.1985). On our review of the record, viewing the evidence in the light most favorable to the verdict, we find that sufficient evidence, in addition to the accomplices’ testimonies, exists in the record to support the jury’s findings. This issue lacks merit.

¶ 15. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

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