author: ISHEE, J.,

text:
    Frankie CONKLIN, Appellant v. BOYD GAMING CORPORATION d/b/a Sam’s Town Casino, Appellee.
    No. 2010-CA-01642-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.

      John H. Cox III, Greenville, attorney for appellant.
    Scott Burnham Hollis, Robert T. Jolly, Olive Branch, attorneys for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal arises from a September 20, 2010 order of the Circuit Court of Tunica County, granting Boyd Gaming Corporation d/b/a Sam’s Town Casino’s (Boyd) motion to dismiss due to discovery violations by Frankie Conklin. Conklin brings two issues for our review: (1) whether the trial court erred in finding Conklin knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd’s ability to defend the action and (2) whether the trial court erred by dismissing the action instead of imposing a less harsh sanction, if necessary. We find the trial court did not abuse its discretion in dismissing the complaint. We affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 10, 2005, Conklin visited Sam’s Town Casino in Tunica County, Mississippi. He had attended a coaches’ meeting at the hotel and casino. Following the meeting, as Conklin walked toward the front of the casino atrium, he slipped on an accumulation of water and fell. According to the accident report, Conklin hit his knee and the back of his head, but he had pain only in his knee. He had a small cut on his knee with slight swelling. A casino employee was dispatched to aid Conklin. The employee bandaged Conk-lin’s knee, wrapped the injury with an Ace bandage, and applied a cold pack. Conklin then went to the Tunica Regional Clinic to receive follow-up treatment; he then returned to the hotel for the rest of the night.

¶ 3. On or about December 20, 2005, Conklin sought additional treatment at St. Francis Hospital when his ankle began to abscess, which he described as swollen with puss around it. He was admitted to the hospital and received intravenous (IV) antibiotics. Conklin was then discharged and given an oral antibiotic. On or about January 8, 2006, Conklin was re-admitted to St. Francis due to ongoing pain in his right leg. Dr. Margarita Lamothe examined Conklin and determined he had developed an abscess, which required a surgical incision and drainage. Conklin was then placed on continuous suppressive antibiotic therapy for the treatment of cellulitis.

¶ 4. On December 9, 2008, Conklin filed a complaint in the trial court alleging negligence against Boyd for injuries he had sustained during the fall. On January 20, 2009, Boyd filed an answer and affirmative defenses to Conklin’s complaint. Discovery then took place. On June 16, 2010, Conklin filed a motion to amend the complaint seeking leave of court to more properly plead the allegations of his injuries and his requests for damages. On July 8, 2010, Boyd filed a motion to dismiss pursuant to Mississippi Rule of Civil ProceL dure 37 and alleged Conklin had committed perjury and fraud during discovery by knowingly and intentionally giving false statements regarding his prior medical condition of cellulitis.

¶ 5. During the course of discovery, Boyd found that Conklin had been diagnosed and treated previously for cellulitis. It was discovered that on or about August 9, 2005, Conklin sought treatment at St. Francis for pain and swelling in his lower right leg. The notes from his physical exam indicate a clinical impression (diagnosis) of cellulitis. He was also given a venous-doppler exam, which found “vari-cosities, otherwise normal right lower extremity venous[-]doppler study.” Conklin was released from the hospital and prescribed an antibiotic to treat the cellulitis. He failed to disclose his hospital visit or diagnosis during discovery.

¶ 6. Following a hearing on the motion to dismiss, the trial court found that Conk-lin had failed to disclose relevant information regarding previous treatment of the leg at issue, and this omission prejudiced Boyd during its trial preparation. Based on those reasons, the trial court dismissed Conklin’s complaint with prejudice.

¶ 7. Conklin now appeals claiming the trial court erred by (1) finding he knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd’s ability to defend the action and (2) dismissing the action due to discovery violations instead of imposing a less harsh sanction, if necessary.

STANDARD OF REVIEW

¶ 8. This Court reviews a dismissal of a complaint by the trial court under an abuse of discretion standard. Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997) (citing White v. White, 509 So.2d 205, 207 (Miss.1987)). The decision to impose sanctions for discovery violations is within the trial court’s discretion. Id. Nevertheless, the trial court should only dismiss a cause of action because of discovery violations under the most extreme circumstances. Id. (citation omitted). The appellate court looks to the following four factors adopted by the Mississippi Supreme Court to determine if the dismissal of a complaint is the appropriate remedy for discovery violations:

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Id. (quoting Batson v. Neal Spelce Asscs., 765 F.2d 511, 514 (5th Cir.1985)). We will affirm the trial court’s decision “unless there is a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.’ ” Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)).

DISCUSSION

I. Trial Court’s Findings

¶ 9. Conklin argues the trial court erred by finding he knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd’s ability to defend the action. Conklin claims: (1) his conduct was not intentional or willful, but rather that he did not know what the term “cellu-litis” meant and simply confused the term with “cellulite”; (2) he did not provide information about his August 2005 leg problems because he did not consider the symptoms similar to those resulting from the December 2005 fall; (3) he did not withhold any requested document because he produced all responsive documents and records in his possession and in his counsel’s possession, and he signed numerous medical releases; (4) his answers during his deposition were a result of confusion regarding the questions being asked; and (5) there is no evidence his actions prejudiced Boyd’s defense during trial preparation.

¶ 10. We will begin our analysis by looking at Conklin’s course of conduct during discovery. He had several opportunities during discovery to disclose his August 2005 leg problem, but he never did. His first opportunity was in his response to interrogatories. The relevant interrogatories are as follows:

INTERROGATORY NO. 15. Identify each body part you claim was injured in this accident and describe the nature of the injuries.
RESPONSE: Plaintiff seriously injured his right leg, including numerous abscesses (cellulitis), as a direct result of the negligence of Defendant. Plaintiff was required to undergo surgery to treat the injury to his right leg and has suffered greatly as a result of this injury.
INTERROGATORY NO. 16. Regarding only the body parts you are claiming in this suit were injured, please identify and describe in detail any and all physical injuries, ailments, problems[,] and conditions of any nature whatsoever which you had during the five[-]year period preceding the date of the subject fall.
RESPONSE: Plaintiff has received treatment for high blood pressure and diabetes during the fíve[-]year period preceding the date of the subject fall to the present.

Conklin had a second opportunity to disclose his prior leg problems in his response to Boyd’s request for production of documents. The relevant request is as follows:

REQUEST NO. Up. All medical records, reports, summaries[,] or like documents which in any manner relate to any physical, mental[,] or emotional problems you had concerning the same body part or injuries before and/or after the date of the subject fall, as identified in your response to Interrogatory No. 15, and treatment received for those conditions.
RESPONSE: Plaintiff has no documents responsive to this request.

Finally, Conklin had the opportunity to admit his prior leg problems during his deposition, which he again failed to do. The following are examples of misstatements made throughout his deposition:

Q. In Interrogatory Number 16, we asked[:] “Regarding only the body parts you are claiming in this suit that were injured, please identify and describe in detail any and all physical injuries, ailments, problems and conditions of any nature whatsoever which you had during the five[-] year period preceding the date of the subject fall.” Do you understand the question?
A. Yes.
Q. Your response is[:] “The plaintiff had received treatment for high blood pressure and diabetes during the five[-]year period preceding the date of the subject fall to the present.” That was your answer, if you want to look at it. I just want to verify that.
A. Okay.
Q. All right. And that’s still the case?
A. Yes.
Q. So, other than the left ankle, the migraines, the kidney stones, the gallbladder, the high blood pressure, [and] the diabetes, have you ever sought medical treatment and gone to the ER, the doctor[,] or the hospital for any other type of injuries or ailments—
A. No.
Q. —prior to the accident?
A. No.
Q. So your knee and your ankle were beginning to abscess is the term you used and [the abscess contained puss]?
A. Yes.
Q. Did it hurt?
A. Yes.
Q. And you went to the doctor?
A. Yes.
Q. Had you ever exhibited those types of symptoms before?
A. No.
Q. Did you have any prior problems with your leg prior to the accident?
A. No.

¶ 11. The evidence shows a continuous course of conduct, in which Conklin repeatedly provided false answers regarding prior problems with his leg. We will address each of Conklin’s arguments relating to the false statements, looking only for an abuse of discretion by the trial judge.

¶ 12. Conklin argues on appeal, and he argued at the trial court hearing, that his conduct was not intentional or willful, but rather he did not know what the term “cellulitis” meant and simply confused the term with “cellulite.” He further argues he was never diagnosed with cellulitis during his initial injury and was never told about the condition by healthcare providers. There is ample evidence to show that Conklin was, in fact, diagnosed with celluli-tis in August 2005. The notes from his physical exam on August 9, 2005, show a clinical impression (diagnosis) of cellulitis. The discharge instructions from the hospital visit also show a diagnosis of cellulitis and a prescription of antibiotics for the treatment of that condition. Conklin signed directly below those instructions. Additionally, in Dr. Kashif Latif s medical records, dated September 22, 2005, celluli-tis was listed under “history of present illness.” Finally, the records from his emergency room visit on December 20, 2005, for the treatment of injuries sustained during the fall also show a history of cellulitis. In the Emergency Physician Record, cellulitis was listed under past history, and the phrase “similar symptoms previously” was circled.

¶ 13. Even if Conklin did not know about cellulitis or what that term meant, he should have disclosed the prior issues with his leg during discovery. Conklin alleges he did not disclose problems with his leg because he believed there was a difference between the symptoms he experienced in August 2005 and those injuries he sustained in December 2005. We find it unusual that Conklin acknowledged his diagnosis of high blood pressure and diabetes, but he failed to mention his prior leg problems because he did not find them sufficiently similar. In an appeal akin to the one at hand, the Mississippi Supreme Court refused to reverse a trial court’s dismissal of the complaint based on the plaintiffs claims that he provided false answers because he forgot about his prior injuries. Allen v. National R.R. Passenger Corp., 934 So.2d 1006 (Miss.2006).

¶ 14. In Allen, the supreme court found the trial court’s Rule 37 dismissal appropriate pursuant to Pierce and Batson. Id. at 1013 (¶ 18). During the course of discovery, the plaintiff repeatedly failed to disclose a prior back injury. Id. at 1010 (¶ 11). On appeal, the plaintiff admitted he failed to disclose his earlier injury, but he alleged it was not willful. Id. at 1009 (¶ 7). Instead, the plaintiff claimed he “innocently forgot about the accident”; therefore, the dismissal was not appropriate. Id. The supreme court determined: “The trial court certainly weighed the relevant factors in reaching its conclusion^] and no evidence exists in the record to support a finding of a clear error of judgment or abuse of [discretion] by the trial court.” Id. at 1013 (¶ 19). Accordingly, the supreme court affirmed the dismissal by the trial court. Id.

¶ 15. Just as the supreme court ruled in Allen, we conclude the trial court did not err in finding Conklin knowingly provided false answers. Conklin was asked multiple times about his medical history and previous problems with his leg. The questions Conklin was asked referenced his leg generally and were not limited to symptoms similar to cellulitis. As the trial court noted: “Even if the Court were inclined to believe that the Plaintiff did not understand that he had been diagnosed and treated for cellulitis, the fact that he failed to disclose any previous issue with the leg in question stretches the bounds of credibility.” The evidence supports the trial court’s conclusion that Conklin wilfully provided false answers during discovery.

¶ 16. Likewise, Conklin’s arguments fail regarding his response to Boyd’s request for production of documents and his false answers during his deposition. The numerous medical releases he provided do not remedy the fact that he repeatedly provided false answers during discovery. In addition, any possible confusion about certain questions during his deposition does not account for the repeated false answers and omissions throughout discovery. Finally, Conklin provided no evidence to rebut the trial court’s finding and to show his false answers during discovery were not prejudicial to Boyd during trial preparation. Therefore, this argument also fails.

¶ 17. This Court will affirm a trial court’s decision unless the trial court abused its discretion. Here, there is no evidence the trial court abused its discretion in finding that Conklin knowingly provided false statements during discovery, thereby committing a fraud upon the trial court, and prejudiced Boyd’s ability to defend the action. Accordingly, this issue is without merit.

II. Trial Court’s Imposition of Dismissal of Complaint as a Sanction

¶ 18. As previously stated, the Mississippi Supreme Court has adopted the Fifth Circuit’s four-part test to determine whether a trial court has abused its discretion by dismissing with prejudice. Pierce, 688 So.2d at 1389. We will now apply that four-part test.

A. Wilfulness or Bad Faith

¶ 19. As discussed previously, Conklin’s failure to comply with discovery resulted from wilfulness or bad faith. Conklin had multiple opportunities during discovery to disclose his prior diagnosis of cellulitis, but he failed to do so each time. Even if we were to believe he did not know what “cellulitis” meant, he should have disclosed his prior leg problems. Furthermore, his failure to comply with discovery did not result from an inability to comply. Conk-lin knew he had been treated for problems with his leg prior to the accident, but he chose not to admit this during discovery. In addition, he could have easily retrieved his medical records from the hospital visit, just as opposing counsel did.

B. Less Drastic Sanctions

¶ 20. Conklin argues the trial court should have imposed a less harsh sanction, if necessary. When considering dismissal of the complaint, the trial court attempted to impose a less harsh sanction by asking Conklin to reduce his claim to that of mere exacerbation, which he indicated he would not do. Instead, Conklin asserts that any discrepancies from discovery should be addressed during cross-examination for impeachment purposes. However, because this type of cross-examination may always occur when one party makes inconsistent statements, the deterrent value is minimal. Pierce, 688 So.2d at 1390. In addition, case law has repeatedly upheld dismissals due to discovery violations.

¶ 21. In Pierce, the plaintiff sued several defendants after a ceiling fan located above her bed fell onto her, causing her injuries. Id. at 1387. During discovery and at the first trial, the plaintiff maintained she was in the apartment alone when the accident occurred. Id. However, it was later discovered she was not alone when the accident occurred. Id. at 1388. The trial court found her presentation of false testimony warranted a dismissal with prejudice. Id. On appeal, the supreme court stated: “The other sanctions considered by the trial court would not achieve the deterrent value of the dismissal. Since any other sanction beside dismissal would virtually allow the plaintiff to get away with lying under oath without a meaningful penalty[J” Id. at 1391. Finding the trial court did not abuse its discretion, the supreme court affirmed the dismissal. Id. at 1392.

¶ 22. In Gilbert v. Ireland, 949 So.2d 784, 789 (¶ 10) (Miss.Ct.App.2006), this Court found the trial court erred by not imposing sanctions. The trial court ruled the plaintiff could no longer pursue the claims in which she gave false testimony and failed to comply with discovery. Id. Therefore, the trial court only prevented her from giving false testimony again. Id. “Courts are obligated to ensure that such efforts are not only cut short, but that the penalty will be sufficiently severe to dissuade others from following suit.” Id. (quoting Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 994 (¶ 18) (Miss.1999)). This Court said: “Without sanctions that extract a penalty, litigants actually have an incentive to bring false claims.” Id. Finding the appropriate sanction for the plaintiffs conduct was dismissal of the action, this Court reversed and rendered. Id. at 792 (¶ 21).

¶ 23. Similar to this Court’s reasoning in Gilbert, the trial court in this case stated: “If the Court were to overlook the Plaintiffs discoveries [sic] violations and allow this case to proceed, the Plaintiff would be in the same place he would have been had the disclosures been timely made.” Because the deterrent value of Rule 37 could not be achieved by a less harsh sanction, dismissal was the appropriate action.

C. Prejudice to Boyd’s Defense During Trial Preparation

¶ 24. The trial court determined Conk-lin’s failure to disclose his prior condition prejudiced Boyd’s defense during trial preparation and completely changed the posture of the litigation. There is no evidence to indicate the trial court erred in finding Conklin’s conduct prejudiced Boyd during trial preparation. Furthermore, prejudice to the defendant during trial preparation is a consideration, not a requirement, in determining whether dismissal is appropriate.

D. Neglect Attributable to Attorney or Grounded in Confusion or Misunderstanding

¶ 25. There is no indication or evidence that the discovery violations are attributable to Conklin’s attorney. In addition, the violations are not grounded in confusion or misunderstanding of the trial court’s orders. Conklin argues he failed to mention his prior leg problems because he did not find them sufficiently similar to the problems arising from his December 2005 injuries. He also argues that he was confused about certain deposition questions. As noted above, Conklin was asked multiple times and in several different variations about any prior leg problems. He had several opportunities to disclose his prior leg problems, but he failed to do so every time. The trial court did not err in finding Conklin’s complete failure to disclose his prior leg problems was not attributable to confusion or misunderstanding.

¶ 26. To reverse the trial court’s decision, this Court must have a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Pierce, 688 So.2d at 1388 (quoting Cooper, 568 So.2d at 692). We find the trial court weighed the relevant factors, and no evidence exists to find the trial court committed a clear error of judgment in reaching its conclusion. This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author:
      LEE, C.J.,
      CARLTON, J.,

license: Public Domain

text:
    John REYNOLDS, Appellant v. CITY OF WATER VALLEY, Mississippi, Appellee.
    No. 2010-KM-00900-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Tommy Wayne Defer, Water Valley, attorney for appellant.
    Daniel M. Martin, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On January 8, 2009, John Reynolds was convicted in the Water Valley Municipal Court of driving under the influence (DUI), first offense, and ordered to pay a $1,000 fine and court costs. Reynolds appealed to the Yalobusha County Circuit Court for a de novo trial. At his bench trial, Reynolds was again found guilty and ordered to pay a $1,000 fine, court costs, complete Mississippi Alcohol and Safety Education Program (MASEP) classes, and serve forty-eight hours in jail. The jail time was suspended. Reynolds filed a motion to correct the circuit court’s judgment, a motion for a judgment notwithstanding the verdict (JNOV), and a motion for a new trial. The circuit court denied all of Reynolds’s post-trial motions.

¶ 2. Feeling aggrieved, Reynolds now appeals and raises the following two issues: (1) the circuit court erred in convicting him of DUI, first offense refused test, and (2) the circuit court erred in denying his ore tenus motion to dismiss for lack of probable cause. Finding error, we reverse and render.

FACTS

¶ 3. On the morning of September 6, 2008, at 4:30 a.m., Water Valley Police Officer Christopher Blair was on routine patrol in Water Valley, Mississippi. Officer Blair was stopped at a red light at the intersection of Central Street and North Court Street. While waiting for the light to change, Officer Blair noticed a car stop approximately six-car lengths behind him. When the light changed, both cars proceeded southbound on Central Street. Officer Blair then turned left into a parking lot to perform a security check on the Dollar General business, but he noticed the car continued straight on Central Street. Officer Blair noted the car was a silver Chevrolet Corvette, which he stated was a “very unique car[.]”

¶ 4. After checking the doors, windows, and back of the Dollar General, Officer Blair turned north onto Railroad Street and saw the Corvette driving east on North Court Street. When the Corvette passed him at the intersection of Railroad Street and North Court Street, he noted the car was traveling below the speed limit of twenty-five miles per hour. He also saw that two males were in the Corvette and that the passenger was drinking from a white cup. The passenger pointed at Officer Blair when they drove by his car. Once the passenger pointed to the officer, the Corvette slowed from less than twenty-five miles per hour to approximately five to eight miles per hour. Officer Blair began to follow closely behind the Corvette for a “good little distance” and proceeded to call in the license plate number to dispatch. Dispatch informed Officer Blair that the car belonged to Reynolds and that there were “negative 29s, which means it’s not wanted or stolen out of anywhere.” From there, the two cars continued east on North Court Street to Goode Street. Goode Street is a public street that generally runs north and south. To the south, it runs through the elementary school’s campus. The Corvette turned right (south) onto Goode Street toward the elementary school; Officer Blair turned left (north) which runs into Jones Street.

¶ 5. Officer Blair traveled approximately 150 feet north on Goode Street when he made the decision to turn around and initiate a traffic stop with the Corvette because he believed it suspicious that the Corvette would be going toward the school at 4:30 a.m. The Corvette had turned around in the elementary school’s parking lot and was driving north on Goode Street when the two cars passed each other near the elementary school. After passing each other, Officer Blair turned around, turned on his blue lights, and initiated a traffic stop. In response to Officer Blair, the Corvette immediately pulled over and stopped. Before exiting his patrol car, Officer Blair radioed dispatch requesting additional officers. Officer Blair saw the driver, later determined to be Reynolds, exit the Corvette and hold on to the door for balance. Officer Blair noted that Reynolds had slurred speech, glazed and bloodshot eyes, and smelled of alcohol. With the aid of the two other officers that arrived at the scene, Officer Blair advised Reynolds that he was under arrest for DUI. Reynolds was transported to the Ya-lobusha County Jail where Officer John Hernandez administered Reynolds an In-toxilyzer .test after a twenty-minute period of observation. Reynolds blew into the Intoxilyzer machine, but he stopped blowing before an accurate breath sample could be gathered. As a result, the Intoxilyzer printed out a DUI refusal. Reynolds was taken to the sheriffs department where he was formally charged with DUI.

¶ 6. At the bench trial, the City of Water Valley put on two witnesses: Officers Blair and Hernandez. On cross-examination, Officer Blair admitted that at no time during his contact with the Corvette did he witness any traffic violations or improper driving. Officer Blair also admitted he saw no indication that Reynolds was driving under the influence. Further, on direct examination, Officer Blair testified that he called in the Corvette’s license plate number to dispatch because:

[t]o me, they were acting suspicious, especially when, you know, you’re behind me on one street, I turnfed] around to check a building[,] and then I [saw] that same vehicle, and then when[ ] the passenger pointed at me and they slowed down really slow, you know, five miles to eight miles an hour when the speed limit is [twenty-five], it just threw up red flags saying that, you know, I might just need to check to see. It’s a nice car. It’s a Corvette. I want to see if it might be stolen, so I ran the license plate[,] and it said — a dispatch came back who it belonged to, Mr. John Reynolds and there were negative 29s, which means it’s not wanted or stolen out of anywhere.

Reynolds offered no witnesses, but he did file a motion for a directed verdict and a motion to dismiss on the ground that there was insufficient probable cause for Officer Blair to have initiated a traffic stop. The circuit judge denied both motions and found the City had provided sufficient evidence to support Officer Blair’s stop of Reynolds and subsequent arrest.

STANDARD OF REVIEW

¶ 7. Generally, “[t]he [appellate court] applies a mixed standard of review to Fourth-Amendment claims. Whether probable cause or reasonable suspicion exists is subject to a de novo review.” Eaddy v. State, 63 So.3d 1209, 1212 (¶ 11) (Miss.2011) (internal citation omitted). This Court limits the de novo review of the court’s determination to “historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id. (internal citations omitted).

¶ 8. In the current ease, there is no factual dispute concerning the circumstances of the traffic stop; therefore, we do not need to address whether the circuit court’s determination of the facts was based on substantial evidence. Officer Blair was the only witness presented to testify regarding the circumstances that led to the traffic stop; Reynolds did not testify or present any evidence to the contrary. We will only review the circuit court’s application of the law to the undisputed facts. Thus, our standard of review for the application of the law to the facts receives a de novo review. See Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss.2006).

DISCUSSION

¶9. This case requires that we closely analyze whether a police officer’s investigatory stop was the result of reasonable suspicion based upon specific and articulable facts, which, if taken together with rational inferences from those facts, would result in the conclusion that criminal activity has occurred or is imminent. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McCray v. State, 486 So.2d 1247, 1249-50 (Miss.1986). If it is determined the police officer did not have the requisite reasonable suspicion, then evidence obtained during the investigatory stop, in this case evidence of DUI, is deemed fruit of the poisonous tree and is inadmissable. See Haddox v. State, 636 So.2d 1229, 1233 (Miss.1994). After close review of the record in this ease, we conclude the investigatory stop was not based on specific and articulable facts that a crime had occurred or was imminent.

I.REASONABLE SUSPICION

¶ 10. Reynolds argues his conviction should be reversed because Officer Blair did not have probable cause to conduct the traffic stop that led to his arrest and DUI conviction. He asserts that Officer Blair failed to articulate any illegal activity or traffic violation that gave Officer Blair sufficient probable cause or reasonable suspicion to initiate a traffic stop. We agree.

¶ 11. When he pulled over Reynolds, Officer Blair initiated an investigatory stop pursuant to Terry, 392 U.S. at 8, 88 S.Ct. 1868. An officer may initiate an investigatory stop pursuant to Terry as long as the officer has an “objective manifestation that the person stopped is, or is about to be, engaged in criminal activity[.]” McCray, 486 So.2d at 1249-50 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). In Gonzales v. State, 963 So.2d 1138, 1142 (¶ 14) (Miss.2007), the Mississippi Supreme Court stated:

To determine whether the search and seizure were unreasonable, the inquiry is two-fold: (1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19-20, 88 S.Ct. 1868. In order to satisfy the first prong, the law enforcement officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868.

(Emphasis added). Further, in this Court’s decision in Qualls v. State, 947 So.2d 365, 371 (¶16) (Miss.Ct.App.2007) (quoting Anderson v. State, 864 So.2d 948, 951 (¶ 13) (Miss.Ct.App.2003)), we held “ ‘mere hunches’ or ‘looking suspicious’ [are] insufficient to establish reasonable suspicion for an investigatory stop.”

¶ 12. At the bench trial, Officer Blair testified that Reynolds’s behavior was suspicious and initiated an investigatory stop based upon the following events:

1. Reynolds stopped six-car lengths behind him at the stop light;
2. The car slowed its speed dramatically upon seeing the officer; and
3. The car, although on a public street, was driving toward the elementary school at 4:30 a.m.

The traffic stop ultimately led to Reynolds’s arrest and conviction of DUI. Based on this evidence alone, we find Officer Blair did not have reasonable suspicion sufficient to initiate an investigatory stop under the Terry standard. At the bench trial, Officer Blair testified: Reynolds did not violate any traffic laws; the car had not been reported stolen; and there was not any other suspicious behavior beyond what was previously described. Further, Officer Blair testified that Reynolds did not exhibit any of the usual signs of DUI, such as swerving, failing to dim headlights, or abrupt stopping and starting. He also testified that one reason he was suspicious of the Corvette and decided to initiate the stop was based on the fact that the Corvette was driving toward the elementary school. He testified there “had [been] some break-ins both at the school, high school, [and] other businesses, that’s why I was checking Dollar General, so I wanted to turn around and see why they were at the elementary school.” It is unclear from the record whether the elementary school or the high school had been broken into in the past, when the alleged break-in had occurred, and whether the suspects of the break-in had been apprehended. For example, had the suspects already been apprehended, it might not have been reasonable for Officer Blair to be suspicious of a car driving toward the elementary school. Further, once he turned around, Officer Blair saw that the Corvette had not stopped at the elementary school, nor was it doing anything suspicious at the school, yet he still proceeded to initiate the traffic stop. It was not until after Reynolds had exited the car that Officer Blair began to suspect Reynolds might have been drinking and driving. The supreme court has held that if the seizure was an unlawful exercise of the officer’s authority, then any evidence that results from the unlawful seizure, in this ease evidence of a DUI, is considered fruit of the poisonous tree and should be suppressed. Haddox, 636 So.2d at 1233. Considered as a whole, these acts of “suspicious behavior” do not demonstrate Reynolds had committed any criminal act or that one was imminent. Officer Blair might have been correct under the circumstances in concluding that the Corvette looked suspicious at 4:30 a.m.; however, merely looking suspicious is not sufficient to justify a Terry investigative stop. There was simply no evidence Reynolds had committed any criminal offense or was about to engage in criminal activity. Since Officer Blair lacked the proper reasonable suspicion to initiate a Terry stop, any evidence he found as a result of that stop is considered fruit of the poisonous tree and should have been suppressed at the hearing.

¶ 13. We find that the circuit court erred in finding that reasonable suspicion existed to uphold Officer Blair’s investigatory stop of Reynolds. An investigatory stop based solely on a hunch or looking suspicious is not authorized. Since all of the incriminating evidence against Reynolds was discovered solely as a consequence of the unlawful traffic stop, arrest, and detention, we reverse and render Reynolds’s conviction.

II. DUI REFUSAL

¶ 14. As we have found Reynolds’s DUI conviction was not proper, this issue is moot.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 16. I respectfully dissent. I would affirm John Reynolds’s conviction and sentence.

¶ 17. As stated by the majority, the Yalobusha County Circuit Court found Reynolds guilty of driving under the influence (DUI), first offense. On appeal from the municipal court, the circuit court, after a trial de novo, sentenced Reynolds to pay a $1,000 fíne, court costs, complete Mississippi Alcohol and Safety Education Program classes, and serve forty-eight hours in jail.

¶ 18. Now, on appeal to this Court, Reynolds claims the circuit court erred in convicting him of DUI, first offense refused test, and he also asserts the court erred in denying his ore tenus motion to dismiss the case for lack of probable cause. Before evaluating Reynolds’s alleged error, I must first address the proper standard of review to apply on appeal to his claim of error in the denial of his ore tenus motion to dismiss. A review of the record reflects Reynolds failed to file any motion to suppress based upon a lack of probable cause or to suppress based upon any ground. I further note a review of the record shows that Reynolds raised the issue in his motion before the circuit court for a judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial, wherein he claimed error in the circuit judge’s denial of his ore tenus motion to dismiss for lack of probable cause. When a reviewing a trial court’s denial of a motion to suppress for lack of probable cause or lack of reasonable suspicion, the determination of issues involves a mixed question of law and fact, and the appellate court employs a de novo standard of review. Spurlock v. State, 67 So.3d 811, 813 (¶ 7) (Miss.Ct.App.2011) (citing Dies v. State, 926 So.2d 910, 917 (¶20) (Miss.2006)). However, when reviewing the trial court’s decision to admit or exclude evidence in the absence of a motion to suppress, such as the case before us, then we employ an abuse-of-discretion standard of review on appeal. Id. (citing Chamberlin v. State, 989 So.2d 320, 336 (¶52) (Miss.2008)).

¶ 19. As to a claim of insufficiency of evidence, we apply the following standard:

When determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. Reversal is warranted only when we are convinced that the circuit court has abused its discretion and that allowing the verdict to stand would sanction an unconscionable injustice.

Jones v. State, 958 So.2d 840, 843 (¶ 6) (Miss.Ct.App.2007) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 20. In turning to Reynolds’s argument, I submit the law clearly allows an investigatory stop based upon reasonable suspicion. In Spurlock, 67 So.3d 811, 813 (¶ 9), this Court recognized “the constitutional requirements for an investigative stop are less stringent than those for a full arrest.” (citing Dies, 926 So.2d at 918 (¶ 22)). The Mississippi Supreme Court has found investigative stops permissible, provided that an officer possessed “reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a felony or as long as the officers have some objective manifestation that the person stopped is, or is about to be [,] engaged in criminal activity.” Id. at 814 (¶ 9) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (¶ 16) (Miss.1999)) (emphasis added). In Eaddy v. State, 63 So.3d 1209, 1213 (¶14) (Miss.2011), when distinguishing investigatory stops based upon reasonable suspicion, the Mississippi Supreme Court relied upon the cases of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Walker v. State, 881 So.2d 820, 826 (¶ 10) (Miss.2004);; and Haddox v. State, 636 So.2d 1229, 1234 (Miss.1994). Despite changes to the 7’em/-investigatory-stop doctrine, the Mississippi Supreme Court recognized that no bright-line rule exists for determining whether an investigatory stop is unreasonable. Gonzales v. State, 963 So.2d 1138, 1141-42 (¶ 13) (Miss.2007). Such determination must be made on a case-by-case basis. Floyd, 749 So.2d at 115 (¶ 18).

¶ 21. The law required Officer Christopher Blair to possess reasonable suspicion, not probable cause, to conduct the investigatory stop. See id. However, an investigatory stop may evolve into a seizure, thus, requiring probable cause. In Eaddy, the supreme court explained that the scope of a search or seizure conducted for investigatory purposes, based upon reasonable suspicion, must be limited to the initial circumstances of that called for by the initial police action in conducting the investigatory stop. Eaddy, 63 So.3d at 1213-14 (¶ 16). The court stated: “[W]hen police detention exceeds the scope of the stop, the stop becomes a ‘seizure,’ and the State must show probable cause.” Id. at 1214 (¶ 16) (citations omitted).

¶ 22. In applying this precedent to the case before us, I find no abuse of discretion in the circuit judge’s finding to introduce evidence of the stop and finding that sufficient reasonable suspicion existed in this case supporting Officer Blair’s investigatory Terry stop of Reynolds. A review of the record shows that Officer Blair’s testimony provides sufficient reasonable suspicion, grounded in specific and articulable facts showing objective manifestations that Reynolds was suspected of engaging or suspected of about to be engaged in criminal activity. See Spurlock, 67 So.3d at 813 (¶ 9).

¶ 23. Officer Blair testified that he noticed Reynolds’s vehicle stopped an inappropriately long distance behind his patrol vehicle at a traffic light at 4:30 a.m. Officer Blair next stopped to check the Dollar General store due to recent break-ins, and then he proceeded north up Railroad Street to the intersection of North Court Street, where he stopped. While stopped, Officer Blair saw Reynolds’s vehicle again as the vehicles passed in the opposite lane. The passenger in Reynolds’s vehicle pointed at Officer Blair as the cars passed each other, and Officer Blair could see the passenger drinking out of a white foam cup. At this point, the speed of Reynolds’s car oddly dropped from the speed limit of twenty-five miles per hour to five to eight miles per hour, and no roadway necessity existed to warrant such a dramatic drop in speed as the cars passed. See Byrd v. F-S Prestress, Inc., 464 So.2d 63, 67 (Miss.1985) (The supreme court recognized that driving less than thirty miles an hour on federal-designated Highway 49 constituted negligence on the road, giving rise to civil liability, if no hazard exists that requires such a reduced speed.). Officer Blair checked the vehicle’s plate number because of the suspicious behavior. Reynolds’s vehicle then turned at an intersection toward the elementary school. Officer Blair questioned the suspicious behavior of driving towards the elementary school in the middle of the night, particularly in light of the previous break-ins at that school, the high school, and other businesses. Reynolds’s vehicle turned around, and Officer Blair testified that he then conducted an investigatory Terry stop based upon the foregoing facts giving rise to his reasonable suspicion. As stated, precedent recognizes that reasonable suspicion provides a sufficient basis to support an investigatory stop. Whren, 517 U.S. at 810, 116 S.Ct. 1769; Terry, 392 U.S. at 30-31, 88 S.Ct. 1868; Rainer v. State, 944 So.2d 115, 118 (¶ 6) (Miss.Ct.App.2006). Once Officer Blair conducted the investigatory stop, probable cause arose from the facts herein, under the totality of the circumstances.

¶24. Officer Blair testified that once stopped, Reynolds stepped out of his vehicle and grabbed the door for balance. Officer Blair noticed that Reynolds’s speech was slurred to the point that the officer could not understand what Reynolds was saying. Officer Blair also testified that he could smell the strong odor of intoxicating alcohol emanating from Reynolds from three feet away. Officer Blair explained that Reynolds’s glazed-over eyes were also blood shot, and he continued to show unsteadiness. Officer Blair testified that Reynolds showed the characteristics of being highly intoxicated as evidenced by the aforegoing unsteadiness, odor of alcohol, blood shot and glazed eyes, and slurred speech. Moreover, Officer Blair testified that he had known Reynolds for many years and that Reynolds’s speech was normally different than the slurred speech he displayed on that morning at 4:30 a.m. The passenger, meanwhile, threw his cup on the ground. The passenger also admitted to Officer Blair that he had been drinking whiskey from the cup and that he and Reynolds had both been drinking whiskey all night.

¶ 25. In Shelton v. State, 45 So.3d 1203, 1208-09 (¶ 13) (Miss.Ct.App.2010), this Court upheld a defendant’s conviction for possession of more than five kilograms of marijuana. The Court reasoned that under Mississippi Code Annotated section 63-3-1213 (Rev.2004), the defendant’s vehicle was seen driving in a careless or imprudent manner; therefore, the deputy possessed the authority to stop them. Id. The Court in Shelton found that when the defendant acted nervously, then the deputy’s retrieval of a drug detecting dog was appropriate. Id. at 1209 (¶¶ 14-15). The drug-detecting dog’s positive alerts then created probable cause for the deputy to search the trunk of the rental car. Id.

¶ 26. Similarly, in the case of Adams v. City of Booneville, 910 So.2d 720, 724 (¶ 15) (Miss.Ct.App.2005), this Court determined the officer therein possessed an objective reasonable suspicion that the defendant driver drove carelessly, even though the driver was ultimately acquitted of the careless-driving charge. The opinion in Adams provides insight relevant to the issues before us now. In Adams, this Court found probable cause for the stop because the time of night, 2:30 a.m., was very late; it was New Year’s Eve, when persons were widely known to celebrate with alcohol; and the vehicle was traveling without due regard to speed laws. Id. I note in Adams, this Court found probable cause existed to support the stop. Id. Similarly, in the case before us now, Officer Blair conducted a Terry investigatory stop based on reasonable suspicion, and probable cause to arrest Reynolds arose when the officer engaged Reynolds for the brief investigatory stop based on reasonable suspicion.

¶ 27. Jurisprudence recognizes that law-enforcement officers rely upon their expertise and knowledge of the area in determining whether reasonable suspicion exists. Additionally, the officer must be able to articulate specific facts which, when taken together with rational inferences from those facts reasonably warrant the investigatory stop. Gonzalez, 963 So.2d at 1142 (¶ 14). As stated, in this case, Officer Blair certainly articulated specific facts giving rise to his reasonable suspicion, and the circuit judge appropriately considered these specific facts supporting the officer’s reasonable suspicion along with the rational inference flowing therefrom.

¶ 28. As shown by the record, and utilizing an abuse-of-discretion standard of review, the evidence shows that Officer Blair possessed reasonable suspicion for an investigatory stop. Once stopped for the investigatory detention based on Officer Blair’s reasonable suspicion, Reynolds’s behavior provided ample evidence under the totality of the circumstances in support of probable cause for his arrest. United States v. Arvizu, 534 U.S. 266, 273-77, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (Defendant’s deceleration, as vehicle approached officer, should be assessed by officer in light of his specialized training and familiarity with the area; the court applied the totality-of-circumstance test, with due weight to officer’s factual inferences, to determine whether reasonable suspicion existed to believe the defendant was engaged in illegal activity.).

¶ 29. Thus, I respectfully disagree with the majority’s conclusion that based on this evidence alone, Officer Blair failed to possess reasonable suspicion sufficient to initiate an investigatory stop under Terry. See Miss.Code Ann. § 63-3-1213 (Rev. 2004) (careless-driving statute). Instead, as stated, I concur with the circuit judge’s finding that this evidence indeed provided not only reasonable suspicion sufficient for an investigatory stop, but also sufficient probable cause for the arrest upon conducting the Terry stop.

¶ 30. After reviewing the record, I find no reversible error by the circuit court. Thus, in keeping with our standard of review, I must respectfully dissent.

      . I note that Reynolds only raised and complained of a lack of probable cause to stop his car, but Reynolds's argument fails to raise the issue that Officer Christopher Blair lacked reasonable suspicion sufficient to justify the Terry investigatory stop.

      . See also Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”).

      . Terry, 392 U.S. at 30-31, 88 S.Ct. 1868.

      . See Miss.Code Ann. § 63-3-509(1) (Rev. 2004). Mississippi Code Annotated section 63-3-509(1) provides that in the event of apparent willful disobedience and refusal to comply with minimum speed limits, the continued slow operation by a driver shall be a misdemeanor. See also Netterville v. Crawford, 233 Miss. 562, 103 So.2d 1 (1958); Miss. Code Ann. § 63-3-511 (Rev.2004) (Local authorities may modify speeds on any street, county road, or any portion thereof for safety but no speed limit shall be fixed by any such local authorities at less than fifteen miles per hour.). See also Miss. Att’y Gen. Op. 2001-0574, 2001 WL 1229375, Gordon (Sept. 21, 2001) (Careless driving is not dependant upon whether other cars are present but rather based upon all of the combined factors listed in the statute.).

      . See United States v. Escalante, 239 F.3d 678, 680-81 (5th Cir.2001) (The United States Court of Appeals for the Fifth Circuit held that although a traffic stop for careless driving may be pretextual, the stop does not violate the Fourth Amendment where the officer has probable cause); Martin v. State, 43 So.3d 533, 534-35 (¶¶ 6, 11) (Miss.Ct.App.2010) (Officer had probable cause to execute traffic stop for careless driving; officer testified that the defendant was "bumping” the fog line on the highway.); Adams, 910 So.2d at 725 (¶ 17) (Sufficient probable cause to make stop existed based on careless driving, even though the defendant was later acquitted of the careless-driving charge in the municipal court); Varvaris v. City of Pearl, 723 So.2d 1215, 1216-17 (¶¶ 5-7) (Miss.Ct.App.1998) (Uncorroborated testimony of arresting officer alone was sufficient to support defendant's conviction of careless driving.).

      . See Crowder v. State, 850 So.2d 199, 200 (¶ 5) (Miss.Ct.App.2003).


author: BARNES, J.,

text:
    Troy LUNDQUIST and Jennifer Lundquist, Appellants v. TODD CONSTRUCTION, LLC, Appellee.
    No. 2010-CA-00597-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    T.K. Moffett, Amory, attorney for appellants.
    Bo R. Brock, Tupelo, attorney for appel-lee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. In this personal injury case, Troy and Jennifer Lundquist appeal the Circuit Court of Monroe County’s order dismissing Todd Construction, LLC (Todd Construction) for insufficient service of process. Lacking proper appellate jurisdiction, we dismiss this appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 2:00 p.m. on April 29, 2006, in Monroe County, Mississippi, Troy was traveling on a motorcycle in the outside northbound lane of Highway 45. At approximately the same time, Ronald Denley was driving a vehicle in the inside southbound lane of the same highway. While turning left across the two northbound lanes, Denley5s vehicle collided with Troy’s motorcycle. Both Troy and Denley sustained injuries.

¶ 3. On August 3, 2006, Troy, and his wife at the time, Jennifer, filed suit in the Circuit Court of Monroe County against Denley; Chris Todd, individually, and d/b/a Mississippi Gravel Sales, LLC (Mississippi Gravel); and “John Doe Company, jointly and individually” alleging Denley was negligent. The Lundquists also claimed that Denley was in the scope of his employment with Todd individually and Mississippi Gravel at the time of the accident and that respondeat superior applied. John Doe Company was believed to be another of Todd’s companies where Denley was also employed.

¶ 4. Denley’s and Todd’s depositions conflicted about which business entity Denley was working for at the time of the accident, if any, and whether Denley was an employee or an independent contractor. Testimony showed Denley’s primary employer was Mississippi Gravel, where he ran a bulldozer at a gravel pit, but he claimed “every now and then” he worked for Todd Construction doing “dirt work”— it depended on the nature and location of the work. On the morning of the accident, Denley had been doing his usual work for Mississippi Gravel. By the early afternoon, before the accident occurred, Denley was on his way to another job helping Todd with the flooring of a portable building for Todd’s new office. Denley was unsure if the office was actually for Mississippi Gravel or Todd Construction, or both. The accident occurred while Denley was turning into the business driveway of Todd Construction.

¶ 5. Process was served on Denley on August 12, 2006. Process was subsequently served on Todd, individually, and on Mississippi Gravel, with Todd as its registered agent, on August 16, 2006. In September 2006, an answer was filed for both Todd, individually, and Mississippi Gravel. In May 2007, the Lundquists filed a motion for summary judgment, arguing negligence was inferred under the doctrine of res ipsa loquitur. The trial court granted Todd’s motion to hold the summary-judgment motion in abeyance, and further discovery ensued.

¶ 6. In May 2008, the Lundquists moved to amend their complaint and to add Todd Construction as a party. After the trial court granted the motion, on November 3, 2008, the Lundquists filed an amended complaint substituting Todd Construction for the fictitious defendant “John Doe Company.”

¶ 7. In September 2009, Todd Construction filed a motion to dismiss, claiming insufficient service of process under Mississippi Rules of Civil Procedure 4(h) and 12(b)(5). Under Rule 4(h), the Lundquists had 120 days from November 3, 2008, to serve the first amended complaint on Defendant Todd Construction, but they did not. Todd Construction argued that the Lundquists had, thus, failed to serve Todd Construction properly and had not shown good cause for their failure. Additionally, the statute of limitations had expired on the matter.

¶ 8. In October 2009, Todd responded to the Lundquists’ motion for summary judgment and filed a counter-motion for summary judgment. Also, on October 26, 2009, the Lundquists issued a summons for the first time to Todd Construction. The trial court held a hearing on March 4, 2010, on Todd Construction’s motion to dismiss and the Lundquists’ motion for summary judgment, among other matters. The court granted Todd Construction’s motion to dismiss, finding that no good cause existed for the Lundquists’ failure to serve Todd Construction timely, and issued an order to that effect on March 8, 2010.

¶ 9. At the hearing, the trial court also stated, with regard to the Lundquists’ motion for summary judgment, that the issue of whether or not Denley was an employee acting within the course and scope of his employment during the accident, and for which entity, was not yet resolved. While the trial judge stated this issue should probably be submitted to a jury, he decided to consider it further and did not make a ruling on the summary-judgment motions. On April 7, 2010, the Lundquists appealed the trial court’s March 8, 2010 order dismissing Todd Construction. No further rulings on the summary-judgment motion or disposition of the remaining Defendants appear in the record, nor was the March 8th order certified under Mississippi Rule of Civil Procedure 54(b).

DISCUSSION

¶ 10. While the parties have not raised the issue of whether the trial court’s judgment is appealable, we must address this question on our own initiative. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶4) (Miss.2006) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)).

¶ 11. Rule 54(b) of the Mississippi Rules of Civil Procedure states:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added). According to the comment to Rule 54(b), the rule “gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54(b) cmt. ‘Without the entry of a Rule 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory.” M.W.F., 926 So.2d at 900 (¶ 4) (quoting Owens v. Nasco Int’l, Inc., 744 So.2d 772, 774 (¶ 8) (Miss.1999)).

¶ 12. In the case before us, the Lund-quists’ amended complaint named multiple defendants: Denley, Todd individually and d/b/a Mississippi Gravel, and Todd Construction. When the trial court dismissed Todd Construction from the action, the order did not terminate the action with regard to the remaining Defendants Den-ley, Todd, and Mississippi Gravel. Further, the trial court did not rule upon the Lundquists’ motion for summary judgment or Todd’s counter-motion for summary judgment before the March 8, 2010 order to dismiss Todd Construction was entered. Nor was this order certified as a final judgment under Rule 54(b); thus, the order is interlocutory and not appealable. Accordingly, we dismiss this appeal for lack of jurisdiction.

¶ 13. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Todd claimed Denley was working off a personal loan, a claim which Denley denied.

      . The Lundquists explained at the hearing on the motion in March 2010 that they had not formally served Todd Construction at that time because they were waiting on the leave of court to do so, based on their request for additional time to perfect service of process in response to Todd Construction's motion to dismiss.


author: CARLTON, J.,

text:
    Rafael PEREZ a/k/a Ray Perez and Kathy Perez, Appellants v. The UNIVERSITY OF MISSISSIPPI MEDICAL CENTER and Cardinal Health 109, Inc., Appellees.
    No. 2009-CA-01892-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Wayne E. Ferrell Jr., Jackson, attorney for appellants.
    Walter T. Johnson, Robert H. Pedersen, Joseph George Baladi, Luke Dove, Jackson, attorneys for appellees.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This appeal arises from a medical-malpractice case wherein the Hinds County Circuit Court granted summary judgment in favor of the defendants/appellees, University of Mississippi Medical Center (UMC) and Pharmacy Management Business of Cardinal Health (Cardinal Health). The plaintiff/appellant, Rafael Perez, now appeals to this Court, claiming the circuit court erred in granting summary judgment as a result of the court’s determination that Perez failed to prove causation.

FACTS

¶ 2. In the early 1990s, Perez sustained an eye injury after hot molten steel came in contact with his left eye. The steel extensively damaged the cornea and other parts of his eye. Over the years, Perez underwent several corneal transplants, which ultimately failed due to the extensive damage to his eye. In April 2003, Perez’s physicians attempted another corneal transplant at UMC.

¶ 3. After the surgery, Perez’s physician, Dr. Robert Mallette, prescribed the antibiotic ophthalmic solution Ocuflox, with directions for Perez to administer one drop, four times a day, into his injured eye. Perez took his prescription to the UMC pharmacy to have it filled. However, instead of giving Perez his prescribed medication, Ocuflox, the pharmacy gave him Floxin Otic, with directions for him to administer one drop, four times a day, into the injured eye. Floxin Otic’s active ingredients and solutions are identical to Ocuflox.

¶ 4. Soon after the surgery, ulcers developed on Perez’s injured eye. His eye became infected, and doctors eventually had to remove it. Perez claims that administering Floxin Otic to his eye caused the condition of his eye to worsen and, thus, resulted in the loss of his eye.

¶ 5. Perez filed suit against UMC and Cardinal Health in the circuit court, asserting UMC and Cardinal Health were negligent and had breached their duty by not giving him the exact medication prescribed by his physician. Hartford Accident and Indemnity Company intervened to recover the workers’ compensation benefits it had paid to Perez as a result of Perez’s initial eye injury, which occurred during his employment with Mississippi Steel.

¶ 6. UMC and Cardinal Health filed a motion for summary judgment, claiming Perez failed to prove causation as to his injuries. Specifically, UMC and Cardinal Health maintained that the affidavit of Perez’s expert, Dr. David Berry, lacked sufficiency to prove that the dispensing of Floxin Otic instead of Ocuflox constituted the proximate cause of the harm to Perez’s eye. In support of their motion for summary judgment, UMC and Cardinal Health provided affidavits from three experts, as well as the package inserts for Floxin Otic and Ocuflox. The experts’ affidavits confirmed that the active ingredient in, and solutions for, Floxin Otic and Ocu-flox are medically and therapeutically identical. The experts explained that although Floxin Otic is approved, manufactured, and marketed for use in the ear, “Floxin Otic can be, and is, used interchangeably as an antibiotic for ears and eyes.” Finally, the experts opined that Perez’s eye damage resulted from the initial injury caused by the hot molten steel, and not by his use of Floxin Otic.

¶ 7. Perez, however, relied on Dr. Berry’s affidavit to oppose the summary-judgment motion. In his affidavit, Dr. Berry acknowledged that the active ingredient in Ocuflox is the same as the active ingredient in Floxin Otic, but he contended that the solutions were different. UMC and Cardinal Health argued that Dr. Berry’s affidavit never identified how the solutions were different, and they claimed Dr. Berry never provided any reasons or evidence for his conclusion that use of Floxin Otic in the eye “more probably than not will cause eáustic damage to the eye.”

¶ 8. The circuit court agreed that Dr. Berry’s affidavit failed to sufficiently create a dispute as to causation with the factual foundation presented by UMC and Cardinal Health. The circuit court determined Dr. Berry had failed to identify how the two solutions differed. The circuit court also noted Dr. Berry had failed to explain how and why using Floxin Otic instead of Ocuflox could injure Perez’s eye. The circuit court ultimately held that UMC and Cardinal Health met their summary-judgment burden by showing that no genuine issue of material fact existed since Perez could not prove causation — an essential element of his claim.

¶ 9. On August 21, 2009, the circuit court granted summary judgment in favor of UMC and Cardinal Health. Perez now appeals, claiming the circuit court erred when it granted summary judgment and dismissed Perez’s claims due to the court’s determination that he failed to produce probative evidence to establish the causation element for his negligence claim.

STANDARD OF REVIEW

¶ 10. This Court applies a de novo standard of review to the grant or denial of summary judgment by a trial court. Leffler v. Sharp, 891 So.2d 152, 156 (¶ 9) (Miss.2004). The evidence is considered in the light most favorable to the nonmoving party, and if the evidence shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. M.R.C.P. 56(c); Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997).

DISCUSSION

¶ 11. Perez argues that a genuine issue of material fact exists as to whether the alleged erroneous dispensing of Floxin Otic caused injury to his eye. Perez argues that since Dr. Berry concluded Floxin Otic harmed Perez’s eye, and since UMC’s and Cardinal Health’s experts opined an opposing theory that Floxin Otic did not proximately cause Perez’s injury, then the circuit court in this case was confronted with a “battle of the experts,” which Perez claims a jury must decide. However, the circuit court held that Dr. Berry’s affidavit failed to provide sufficient support or substantiate his conclusions, and it failed to show causation. Thus, the circuit court found that Perez had failed to create a genuine issue of material fact as to causation.

¶ 12. It is well established that “[rjecovery in a negligence action requires proof by a preponderance of the evidence of the conventional tort elements: duty, breach of duty, proximate causation, and injury (i.e., damages).” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). UMC and Cardinal Health submit that causation constitutes an essential element of a negligence claim, and they argue that Dr. Berry’s affidavit was insufficient to create a genuine issue of material fact on the causation element of Perez’s claim.

¶ 13. To survive summary judgment, the plaintiff must rebut the defendant’s claim that no genuine issue of material fact exists “by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of [the] injury.” Id. at 1355. The “party opposing the motion must by affidavit or otherwise set forth specific facts showing that there are indeed genuine issues for trial.” Id. at 1356 (citation omitted). “To have power to generate a genuine issue of material fact,” the affidavit must: (1) be sworn; (2) be made upon personal knowledge; and (3) show that the party providing the factual evidence is competent to testify. Id. In Dalton v. Cellular South, Inc., 20 So.3d 1227, 1234 (¶ 16) (Miss.2009), the Mississippi Supreme Court found an affidavit that lacked “foundation in fact as to how, when, and why” to be conclusory and, thus, insufficient for summary-judgment purposes.

¶ 14. After reviewing the record, we observe that in his affidavit, Dr. Berry-admitted “there is no argument that Ocu-flux and Floxin are in the same family of antibiotics and in fact have the same antimicrobial action in the manner in which they rid the body of ... bacteria.” However, Dr. Berry claimed that this fact does not make the solutions identical. Dr. Berry stated that while the Ocuflux and Floxin solutions were in fact similar, “the preparation itself is different in that [Floxin Otic] is prepared for use in the ear rather than the eye.” Dr. Berry stated that based on the difference in preparation for use, “an otic solution of this medication would be harmful if placed in the eye.” Dr. Berry further opined:

[I]f an otic solution of antibiotics is used in the eye it can and more probably than not will cause caustic damage to the eye.... Mr. Perez had extensive damage to his eye previously unrelated to any use of eye drops which makes it difficult to determine if any further damage was caused by the use of Floxin Otic. However, it would not be unreasonable to expect him to have damage to his eye as a result of the use of Floxin Otic solution.

¶ 15. We agree with the circuit court’s finding that Dr. Berry’s affidavit failed to sufficiently show or state causation. In his affidavit, Dr. Berry provided no evidentia-ry support for his conclusions. The record indeed reflects that the ingredients and formulations listed in the package inserts for Ocuflux and Floxin Otic are practically identical; however, Dr. Berry failed to provide any evidentiary support for his conclusion that the difference in the preparation of the two solutions would cause harm if Floxin Otic is used in the eye instead of the ear. Dr. Berry also never identified how the two solutions differed.

¶ 16. In Hubbard v. Wansley, 954 So.2d 951, 964 (¶ 42) (Miss.2007), the Mississippi Supreme Court affirmed a circuit court’s grant of summary judgment where a plaintiff failed to establish causation between Dr. Wansley’s alleged negligence and the plaintiffs injuries. In opposition to Dr. Wansley’s motion for summary judgment, the plaintiff submitted an affidavit from another physician, but the circuit court held the plaintiff “failed to establish a causal link between [the plaintiffs] injuries and Dr. Wansley’s alleged negligence”; thus, the court granted summary judgment in favor of Dr. Wansley. Id. Additionally, the supreme court has established that “[a] conclusory, self-serving affidavit, unsupported by material facts relevant to the proposition at issue, is insufficient as a basis to grant summary judgment.” Dalton, 20 So.3d at 1233-34 (¶ 14). We find Dr. Berry’s affidavit to be conclusory, as he failed to explain how or why using Floxin Otic instead of Ocuflux could have caused Perez’s eye injury. Therefore, his affidavit is insufficient to prove causation as to Perez’s eye injury.

¶ 17. Taking into consideration all of the evidence presented to the circuit court in this case, we find Perez failed to present evidence sufficient to create a genuine issue of material fact as to causation. Therefore, the circuit court properly granted summary judgment on the issue of causation, as Perez failed to establish a prima facie case. Accordingly, we affirm the circuit court’s grant of summary judgment in favor of UMC and Cardinal Health.

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

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

      . Cardinal Health manages the UMC pharmacy.

      . This statement is from the affidavit of pharmacist Michael Todara.


author: RUSSELL, J.,

text:
    Freddie L. KNOX, Kenyatta Knox, Jeremy Knox, Kishun Knox, Mary L. Knox, Lakidra Ramone Knox, Tyangela Knox, Yolanda Knox, Deliyah Watson, Walter Watson, Natasha Knox, Fredrick Knox and Markeya Knox, Appellants v. George MAHALITC, Appellee.
    No. 2010-CA-01431-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Oby Thomas Rogers, Collins, Eddie Jacob Abdeen, attorneys for appellants.
    Bradley Farel Hathaway, Greenville, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Yolanda Knox and the wrongful-death beneficiaries of Yolanda’s deceased family members (collectively “Knoxes”) appeal from the Washington County Circuit Court’s order granting the motion to dismiss filed by George Mahalitc d/b/a GM Farms (GM Farms). The Knoxes argue the circuit court erred by (1) treating GM Farms’ motion to dismiss as a summary-judgment motion, (2) finding their claim against GM Farms was time-barred, (3) finding their claim did not relate back to the date of the original complaint, and (4) finding they failed to exercise reasonable diligence in bringing the proper defendant into this action in a timely manner.

¶ 2. Upon review, we find that the circuit court’s dismissal order was not a final, appealable judgment under Mississippi Rule of Civil Procedure 54(b). Therefore, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. The Knoxes’ claims arise from a motor-vehicle accident that happened after Yolanda’s vehicle collide with the tractor-trailer truck driven by David McCoy. Initially, the Knoxes filed a complaint against McCoy, Russell Mahalitc d/b/a Magnolia Plantation (Magnolia), and twenty-four fictitious defendants. Magnolia was sued as McCoy’s employer and as the owner of the truck. Magnolia filed a motion for summary judgment arguing that McCoy had worked for GM Farms and that Magnolia had no duty to equip the truck properly. The circuit court agreed and granted Magnolia’s summary-judgment motion. Aggrieved, the Knoxes appealed.

¶ 4. While the Knoxes’ first appeal was pending, the Knoxes turned their focus to GM Farms. Specifically, the Knoxes moved for leave to file an amended complaint against GM Farms, which the circuit court eventually granted over McCoy’s objection. In their amended complaint, the Knoxes asserted claims against McCoy, Magnolia, GM Farms, and twenty-seven fictitious defendants. GM Farms later filed a motion to dismiss the Knoxes’ claims. Ultimately, the trial court granted GM Farms’ motion to dismiss and dismissed the Knoxes’ amended complaint with prejudice. Aggrieved, the Knoxes appealed a second time.

DISCUSSION

¶ 5. GM Farms asserts that this Court does not have jurisdiction over this appeal. Because this case involved multiple parties and claims in the circuit court, we look to Mississippi Rule of Civil Procedure 54(b), which provides:

When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

See also Salts v. Gulf Nat’l Life Ins. Co., 849 So.2d 848, 850-51 (¶8) (Miss.2002) (dismissing appeal where trial court’s order dismissed one of several defendants but omitted any reference to Rule 54(b)). The comment to Rule 54 explains that “[ajbsent a certification under Rule 54(b), any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54 cmt. Therefore, if a court decides to enter a final and appealable judgment, “it must do so in a definite, unmistakable manner.” M.R.C.P. 54 cmt. (emphasis added).

¶ 6. The circuit court’s order from which the Knoxes appealed only dismissed GM Farms and did not mention the other defendants. Because the order of dismissal neither explicitly dismissed all of the defendants in the action nor was certified as a final judgment under Rule 54(b), the appeal is not properly before us. Further, in the absence of a Rule 54(b) certification, the order dismissing GM Farms, but not all of the parties is not a final, appealable judgment. It is interlocutory and not ap-pealable without the supreme court’s permission. M.R.A.P. 5. The Knoxes did not petition for interlocutory review of the order. This appeal is dismissed for lack of jurisdiction.

CONCLUSION

¶ 7. Based on the discussion above, this appeal is dismissed.

¶ 8. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: BOLIN, Justice.

text:
    Ex parte George Fidel MARTINEZ (In re Fidel Martinez v. State of Alabama).
    1061237.
    Supreme Court of Alabama.
    May 29, 2009.
    George Fidel Martinez, pro se.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   On Application for Rehearing

BOLIN, Justice.

This Court’s opinion of February 6, 2009, is withdrawn, and the following is substituted therefor.

On May 14, 2003, George Fidel Martinez was convicted of intentional murder, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced to 30 years’ imprisonment. Martinez appealed, and the Court of Criminal Appeals affirmed his conviction and sentence in an unpublished memorandum. Martinez v. State, 910 So.2d 836 (Ala.Crim.App.2004)(table). That court issued a certificate of judgment on March 10, 2004. On September 28, 2005, Martinez filed a petition for postconviction relief pursuant to Rule 82, Ala. R.Crim. P. On July 13, 2006, the trial court dismissed Martinez’s Rule 32 petition after an evi-dentiary hearing. On April 20, 2007, the Court of Criminal Appeals, applying the limitations period of Rule 32.2(c), Ala. R.Crim. P., affirmed the trial court’s order of dismissal in an unpublished memorandum. Martinez v. State, 9 So.3d 580 (Ala.Crim.App.2007) (table). We granted cer-tiorari review to determine whether the Court of Criminal Appeals was correct in applying the limitations period of Rule 32 to Martinez’s petition.

Rule 32 Proceeding and Appeal

In his Rule 32 petition, Martinez argued that the trial court was without jurisdiction to render a judgment and to impose the sentence because, he says: (1) a fatal variance existed between the charge in the indictment and the proof offered at trial; (2) the jury instruction on aiding and abetting was a constructive amendment of the indictment, adversely affecting Martinez; (3) the indictment failed to allege the offense of aiding and abetting; and (4) Martinez was denied allocution at the time of sentencing. Martinez also argued that the time limitation of Rule 32.2(c), Ala. R.Crim. P., should not apply in his case because, he says, as a native of Guatemala who does not speak English, he faced significant obstacles in pursuing postconviction review. Additionally, he argued that his counsel was ineffective: (1) for requesting a jury charge on aiding and abetting; (2) for failing to consult with Martinez before requesting a charge on aiding and abetting; and (3) for failing to adequately cross-examine witnesses.

The State filed a motion to dismiss Martinez’s petition along with a response to the petition. The State’s motion to dismiss states as follows: “Comes Now State of Alabama in the above-styled cause and moves to dismiss [Martinez’s] most recently filed petition and for grounds therefore [sic] statefs] that [Martinez’s] petition is precluded pursuant to Rule 32.2(a), (b), and (c).” The State then goes on to respond to the merits of Martinez’s petition. In the State’s response, the State again refers to Rule 32.2(c), but simply states that the limitation issue was addressed in its motion to dismiss.

The circuit judge who had presided over Martinez’s trial conducted a hearing on Martinez’s Rule 32 petition. At the hearing, Martinez was represented by counsel, and he testified though the use of an interpreter. The focus of the hearing was Martinez’s assertion that his conviction was obtained in part because he did not understand English. After the hearing, the trial court entered an order disposing of Martinez’s claims and denying his petition. Specifically, the trial court stated:

“The Court has jurisdiction to render judgment and impose sentence. [Martinez] was indicted and charged with Murder. The Indictment apprised [Martinez] [of] what he was charged with and what he must defend against. The Indictment was sufficient according to law and was not void.
“Under Alabama Law a person indicted as an actual perpetrator of a crime may be convicted as an aider or abettor upon proof of being an aider or abettor even though not charged as an aider or abettor in the Indictment.
“An aider or abettor may be indicted directly [for] the commission of the substantive crime and the charge may be supported by proof that he only aided or abetted in the commission of the crime. One need not be charged as an aider or abettor to be tried and convicted as one.
“And as the Judge presiding over the trial of this case, the Court finds that Attorney Bill Kominos’[s] conduct was not such as to undermine the proper functioning of the adversarial process so that the trial or appeal of this cause could not be relied upon to produce a just result. The Court finds that counsel’s assistance was reasonable and effective considering all of the circumstances of the case.
“The Court further finds that the decisions made by counsel concerning the trial and appeal of this case and his trial strategy was the result of reasonable, professional judgment. The Court further finds that in applying the standards as set forth in Strickland v. Washington, 466 U.S. 688, 104 Sup.Ct. 2052, 80 L.Ed.2d 674 (1984), [Martinez’s] claim that his rights were violated and that he did not receive a fair trial because of ineffective assistance of counsel are not well taken.
“The Court further finds that there is no showing of prejudice. [Martinez] has not shown that there was a reasonable probability that but for counsel’s alleged ‘unprofessional errors,’ the result would have been different.
“The Court further finds that counsel’s representation did not fall below an objective standard of reasonable probability that the result would have been different if counsel’s trial of the case had been different.
“The Court further finds that at the sentencing hearing [Martinez] and his counsel were given the opportunity to make any statement he wanted to make before sentence was imposed.
“The Court further finds that this case was appealed to Court of Criminal Appeals and was affirmed by [unpublished] Memorandum. The Court finds that the grounds raised by [Martinez] in this petition were raised at trial and were raised or could have been raised in a Motion for New Trial or Motion for Judgment for Acquittal or were or could have been raised on appeal.
“The Court further finds that the Certificate of Judgment by the Court of Criminal Appeals was issued on the 10th day of March, 2004. This petition was filed October 5, 2005.
“The Court has considered each contention or ground or allegation in [Martinez’s] petition and finds that they are not well taken.”

The Court of Criminal Appeals, in its unpublished memorandum, stated that, in reviewing the trial court’s denial of Martinez’s petition, it would affirm the trial court’s judgment if the court was correct for any reason, even for a reason not stated in the trial court’s order. The Court of Criminal Appeals then held that Martinez’s claims were barred by the limitations period of Rule 32.2(c), because the petition was filed more than one year after the Court of Criminal Appeals had issued its certificate of judgment in Martinez’s direct appeal. The court further held that the limitations period of Rule 32.2(c) was mandatory and jurisdictional and that Martinez’s petition, which was filed outside of the applicable one-year limitations period, was clearly untimely.

Martinez petitioned this Court for cer-tiorari review, arguing that the Court of Criminal Appeals erred: (1) in, he says, sua sponte applying the limitations period of Rule 32.2(c) to his ineffective-assistance-of-counsel claims; (2) in holding that the limitations period of Rule 32.2(c) was mandatory and jurisdictional and that it could not be waived by the State; and (3) in holding that the doctrine of equitable tolling does not apply to the limitations period in Rule 32.2(c) for a petition for postcon-viction relief.

Discussion

While Martinez’s application for rehearing of the Court of Criminal Appeals’ decision on his appeal from the denial of his Rule 32 petition was pending and then while his petition for certiorari review of that court’s decision was pending, this Court issued two opinions that are disposi-tive of the issues raised by Martinez. On May 4, 2007, this Court issued its opinion in Ex parte Clemons, 55 So.3d 348 (Ala.2007), in which we held that a reviewing court could not apply a procedural bar sua sponte. In Clemons, Eugene Clemons was convicted of capital murder in the death of a drug-enforcement officer during the course of a robbery. After finding Clemons guilty of capital murder, the jury recommended that the death penalty be imposed; the trial court followed the jury’s recommendation and sentenced Clemons to death. The Court of Criminal Appeals affirmed Clemons’s conviction and sentence on direct appeal. Clemons v. State, 720 So.2d 961 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998). Clemons then filed a Rule 32, Ala. R.Crim. P., petition alleging, among other things, ineffective assistance of trial counsel. Ultimately, the trial court denied Clemons’s allegations of ineffective assistance of counsel on the merits. On appeal from the denial of the Rule 32 petition, the Court of Criminal Appeals affirmed the trial court’s order on the ground that Clemons’s ineffective-assistance-of-counsel claims were barred by Rule 32.2(a)(2), because Clemons’s appellate counsel had raised the issue of trial counsel’s effectiveness in a motion for a new trial and Rule 32.2(a)(2) provides that no petitioner will be granted relief on a ground that was raised or addressed at trial. This Court granted certiorari review to determine whether the Court of Criminal Appeals erred in sua sponte applying a procedural bar to preclude Clemons’s ineffective-assistance-of-counsel claims. We held that although Rule 32.2(a) is mandatory, the procedural bar is not jurisdictional and, therefore, can be waived by the State.

Subsequently, on June 1, 2007, in Ex parte Ward, 46 So.3d 888 (Ala.2007), this Court addressed the limitations period of Rule 32.2(c), Ala. R.Crim. P., as follows:

“The Court of Criminal Appeals, in its unpublished memorandum [in Ward v. State (No. CR-05-0655, Aug. 18, 2006), 988 So.2d 1078 (Ala.Crim.App.2006) ], held that equitable tolling is unavailable to suspend the running of the Rule 32.2(c) limitations period. Ward appears to be correct that this Court has never addressed this issue.
“Although we today hold that the limitations provision in Rule 32.2(c) is not a jurisdictional bar, it is nonetheless written in mandatory terms. Rule 32.2(c) provides that ‘the court shall not entertain any petition for relief from a conviction or sentence’ that is not timely. In prior cases in which it concluded that equitable tolling is unavailable, the Court of Criminal Appeals based its holding on the mandatory ‘shall’ language found in Rule 32.2(c) and the fact that no Alabama court has ever held that there is an exception to the limitations period. See, e.g., Arthur v. State, 820 So.2d 886, 889-90 (Ala.Crim.App.2001) (holding that there is no exception to Rule 32.2(c) and that the limitations period is jurisdictional). However, this Court has never held that equitable tolling is not available in a case such as this one. Moreover, because Rule 32.2(c) does not establish a jurisdictional bar, the trial court has the power to hear an untimely petition because the running of the limitations period would ‘not divest the circuit court of the power to try the case.’ Ex parte Seymour, 946 So.2d 536, 539 (Ala.2006).
“Further, as Ward points out, under federal habeas corpus practice, the federal courts have held that equitable tolling is available for a § 2244 petition, notwithstanding that the word ‘shall’ appears in 28 U.S.C. § 2244(d)(l)(estab-lishing procedures for petitions for the writ of habeas corpus). See, e.g., Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir.2003)(holding that equitable tolling may be available where the attorney’s behavior was outrageous or the attorney’s incompetence was extraordinary); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003)(allowing equitable tolling where the petitioner’s attorney failed to file the petition and failed to return the petitioner’s file despite multiple requests from the petitioner); Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999)(allowing equitable tolling in cases of extraordinary circumstances beyond the petitioner’s control and unavoidable even with the exercise of diligence).
“We hold that equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence. We recognize that ‘[i]n a capital case such as this, the consequences of error are terminal, and we therefore pay particular attention to whether principles of “equity would make the rigid application of a limitation period unfair” and whether the petitioner has “exercised reasonable diligence in investigating and bringing [the] claims.” ’ Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001) (quoting Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998)). Nevertheless, ‘the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.’ United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000).
“Finally, we must address the petitioner’s burden of demonstrating that he or she is entitled to the relief afforded by the doctrine of equitable tolling. Rule 32.7(d), Ala. R.Crim. P., allows the trial court to summarily dismiss a Rule 32 petition that, on its face, is precluded or fails to state a claim, and we have held that the trial court may properly summarily dismiss such a petition without waiting for a response to the petition from the State. Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) (‘ “Where a simple reading of a petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.” ’). Although the Rules of Criminal Procedure initially place the burden on the State to plead any ground of preclusion, the ultimate burden is on the petitioner to disprove that a ground of preclusion applies. Rule 32.3, Ala. R.Crim. P.
“Because the limitations provision is mandatory and applies in all but the most extraordinary of circumstances, when a petition is time-barred on its face the petitioner bears the burden of demonstrating in his petition that there are such extraordinary circumstances justifying the application of the doctrine of equitable tolling. See Spitsyn v. Moore, 345 F.3d at 799 (holding that the burden is on the petitioner for the writ of habeas corpus to show that the exclusion applies and that the ‘extraordinary circumstances’ alleged, rather than a lack of diligence on his part, were the proximate cause of the untimeliness); Drew v. Department of Corr., 297 F.3d 1278, 1286 (11th Cir.2002)(‘The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.’). Thus, when a Rule 32 petition is time-barred on its face, the petition must establish entitlement to the remedy afforded by the doctrine of equitable tolling. A petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed without a hearing. Rule 32.7(d), Ala. R.Crim. P.”

46 So.3d at 896-98.

In the present case, the Court of Criminal Appeals affirmed Martinez’s conviction on a ground that it claims was not provided in the trial court’s order. However, the trial court responded to all contentions raised by Martinez in his Rule 32 petition, including Martinez’s acknowledgment that his petition should be heard and that the procedural bar of Rule 32.2(c) should not apply. Rule 32.2(c) establishes a limitations period for filing a petition for postconviction relief on the grounds specified in Rule 32.1(a) and (f), and if there is a direct appeal from the conviction to the Court of Criminal Appeals, the Rule 32 petition should be filed within one year of the issuance by that court of a certificate of judgment on the petitioner’s direct appeal. In responding to Martinez’s petition, the trial court found in its order that the certificate of judgment in Martinez’s case was issued on March 10, 2004, and that Martinez’s petition was filed on October 5, 2005. Although the trial court did not refer to Rule 32.2(c), the court did refer to the date the Court of Criminal Appeals issued its certificate of judgment and the date Martinez filed his petition. Accordingly, we cannot say that the Court of Criminal Appeals raised the issue of the statute of limitations sua sponte because Martinez acknowledged that his petition was untimely, the State referred to the limitations period in its motion to dismiss, and the trial court’s order referred to the dates applicable to the limitations period. Although this Court’s decision in Ex parte Clemons (addressing a court’s sua sponte application of a procedural bar) does not apply to the facts of this case, our decision in Ex parte Ward (addressing equitable tolling of the limitations period of Rule 32) does.

While Martinez’s certiorari petition was pending, this Court issued its opinion in Ex parte Ward. Martinez did not have the benefit of Ward to afford him the opportunity to argue the equitable tolling of the limitations period. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for consideration of Martinez’s claim that he is entitled to the remedy afforded by the doctrine of equitable tolling and, if it decides that he is, whether the trial court was correct in denying Martinez’s petition.

APPLICATION OVERRULED; OPINION OF FEBRUARY 6, 2009, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH DIRECTIONS.

LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., and SHAW, J., recuse themselves.

      . Rule 32.2(a), (b), and (c), Ala. R.Crim. P., address preclusion of grounds (32.2(a)), successive petitions (32.2(b)), and the limitations period (32.2(c)).

      . Martinez’s petition was deemed filed on September 28, 2005, when he gave it to the prison authorities. See Ex parte Allen, 825 So.2d 271 (Ala.2002). In any event, Martinez’s petition was clearly outside the one-year limitations period.