author: GRIFFIS, J,

text:
    C. Jake LAMBERT, Jr., M.D., Appellant v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC. and Baptist Memorial Health Services, Inc., Appellees.
    No. 2010-CA-00043-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Rehearing Denied May 24, 2011.
    Certiorari Denied Aug. 18, 2011.

      Louis H. Watson Jr., Robert Nicholas Norris, attorneys for appellant.
    Stephan L. McDavid, attorney for appel-lees.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J,

for the Court:

¶ 1. C. Jake Lambert Jr., M.D., filed suit against Baptist Memorial Hospital-North Mississippi, Inc. (“Hospital”) and Baptist Memorial Health Services, Inc. (“Baptist Health Services”) after he was terminated from his position as a heart surgeon. The Lafayette County Circuit Court found that Dr. Lambert had failed to raise a genuine issue of material fact; therefore, summary judgment was granted for the Hospital and Baptist Health Services. Dr. Lambert appeals claiming that summary judgment was improper as to his claims for breach of contract, defamation, and intentional infliction of emotional distress. We find no error and affirm.

FACTS

¶ 2. Dr. Lambert signed an employment agreement with Baptist Health Services on February 26, 2004. He agreed to provide cardio-thoracic-surgery services to the Hospital located in Oxford, Mississippi. Almost immediately after Dr. Lambert’s employment began, the Hospital began to receive complaints from staff and patients about Dr. Lambert’s angry and abusive behavior. They reported his demeaning attitude, insecurity and hesitancy in decision making, hand shaking, freezing up during surgery, and anger toward patients and their families.

¶ 3. After numerous complaints about Dr. Lambert’s anger issues were filed, Zach Chandler, the Hospital’s CEO, requested that Dr. Lambert attend a discretionary interview. At the interview, Dr. Lambert agreed to be referred to the Mississippi Professional Health Program (“MPHP”). The MPHP then referred him to Dr. Edward Anderson at Pine Grove Recovery Center in Hattiesburg, Mississippi.

¶ 4. Dr. Lambert was evaluated by Dr. Anderson on December 15, 2004. Dr. Anderson submitted his detailed evaluation to the Hospital. Dr. Anderson made the following recommendations:

1. Dr. Lambert should enter a monitoring contract with Dr. Gary Carr and the Mississippi Professionals Health Program for a period of no less than five years. This monitoring should include parameters of disruptive physician behavior as well as monitoring of his surgical performance, due to the fact that there have been several occasions on which his team has felt he has “frozen up” during the surgical process.
2. Dr. Lambert should enter an intensive, structured treatment to address the disruptive behavior described above and his underlying personality disorder. The treatment program should be one approved by the Mississippi Professionals Health Program.
3. Dr. Lambert, the administration of Baptist Hospital of North Mississippi, or the Mississippi Professionals Health Program are invited to seek a second opinion, should they disagree with these findings or recommendations.

The report also stated the following findings under the heading titled “Diagnostic Impressions”:

Axis I. 1. Obsessive-Compulsive Personality Disorder. (Axis II issues is the primary presenting problem and is causing impairment at the level of an Axis I issue with acute and chronic manifestations.).
2. Occupational Problem
Axis II. See above
R/O paranoid features
Axis III. None
Axis IV. Severe primarily related to occupational issues.
Axis V. Highest level of adaptive functioning at the time of the evaluation was a GAF of 40 with serious impairment in occupational functioning.

¶ 5. Chandler testified that he was concerned about some of the language in the diagnosis, specifically, the phrase “serious impairment in occupational functioning.” Chandler stated that he did not understand the meaning of the Axis levels or the term GAF. Chandler contacted Dr. Anderson for clarification of the report. Dr. Anderson filed an addendum, which stated:

It is our impression that Dr. Lambert is currently unfit to practice medicine with reasonable skill and safety, based on the report of a credible source that he has “frozen up” on three separate occasions in the midst of a surgical procedure. However, this is based upon a secondhand report. Dr. Lambert would not allow us consent to speak with the original sources to verify this report.... We believe that Dr. Lambert needs intensive treatment as quickly as possible.

¶ 6. Based on Dr. Anderson’s conclusion that Dr. Lambert was unfit to practice medicine, the Hospital suspended Dr. Lambert’s staff privileges. A letter from the Hospital informed Dr. Lambert that his staff privileges were suspended pending successful completion of a treatment program recommended by Dr. Anderson or the MPHP. The letter also stated that the staff privileges may be reinstated subject to supervision and a probationary period upon Dr. Lambert’s successful completion of a treatment program. The Hospital informed Dr. Lambert that he was entitled to apply for a hearing under the Hospital’s Fair Hearing Plan.

¶ 7. Baptist Health Systems then terminated Dr. Lambert’s employment due to the suspension of his staff privileges at the Hospital. Dr. Lambert’s employment contract specifically states that Baptist Health Systems may terminate the contract for cause due to the termination or restriction of Dr. Lambert’s clinical privileges at the Hospital. The notice of termination provided that Dr. Lambert had the option to use Baptist Health Systems’ Problem Solving Procedure. Dr. Lambert never exercised his rights to a hearing; indeed, his attorney waived those rights.

¶ 8. On January 12, 2006, Dr. Lambert filed a complaint against the Hospital, Baptist Health Systems, Dr. Anderson, and Forrest General Health Services, Inc. d/b/a Pine Grove Recovery Center. Pine Grove and Dr. Anderson were dismissed due to Dr. Lambert’s failure to comply with the requirements of the Mississippi Tort Claims Act.

¶ 9. Dr. Lambert’s complaint set forth claims of breach of contract, tortious interference with a business and/or contractual relationship, negligence, intentional infliction of emotional distress, defamation, breach of the implied covenant of good faith and fair dealing, due-process violation, and punitive damages.

¶ 10. Both the Hospital and Baptist Health Systems filed motions for summary judgment. They claimed that each of Dr. Lambert’s claims were based on the allegation that the Hospital had a duty to investigate the findings in Dr. Anderson’s report, which were the bases for the suspension of Dr. Lambert’s staff privileges. They argued that Dr. Lambert had failed to prove that such duty existed; therefore, Dr. Lambert’s claims must fail. The circuit court agreed and granted summary judgment for both defendants.

STANDARD OF REVIEW

¶ 11. We review the circuit court’s granting of summary judgment using a de novo standard of review. Richmond v. Benchmark Const. Corp., 692 So.2d 60, 61 (Miss.1997). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 464-65 (¶ 3) (Miss.Ct.App.2003). “We have to review the facts presented to determine if there is a genuine issue of material fact and, if such fact exists, whether that fact is outcome determinative.” Evans v. Jackson Coca-Cola Bottling Co., 771 So.2d 1006, 1009 (¶ 10) (Miss.Ct.App.2000).

ANALYSIS

¶ 12. Dr. Lambert argues that summary judgment was not proper as to three of his claims: (1) breach of contract, (2) defamation, and (3) intentional infliction of emotional distress. We review each of these claims separately.

1. Breach of Contract

¶ 13. The employment agreement unambiguously provides that Baptist Health Systems could terminate the agreement for cause upon the termination or restriction of Dr. Lambert’s staff privileges at the Hospital. There is no dispute that this was the reason for the termination of the agreement. Dr. Lambert does not allege a breach of the terms of the contract; instead, he claims that Baptist Health Systems breached the implied covenant of good faith and fair dealing in the performance and enforcement of the contract.

¶ 14. Specifically, Dr. Lambert states that Baptist Health Systems terminated his employment based on Dr. Anderson’s report before Dr. Lambert was given the opportunity to seek a second opinion. Dr. Lambert asserts that he should have been given a medical leave of absence before the agreement was terminated. Underlying this argument is Dr. Lambert’s assertion that the Hospital improperly relied upon Dr. Anderson’s report. Dr. Lambert claims that the report and the addendum are contradictory because the report recommends that he enter into a monitoring contract while the addendum states that he is unfit to practice medicine.

¶ 15. In response, Baptist Health Systems and the Hospital claim that Dr. Lambert has failed to show that they breached any duty. The Hospital claims that it was in full compliance with its bylaws, as well as federal and state laws when it suspended Dr. Lambert’s staff privileges based on Dr. Anderson’s report. The suspension then gave Baptist Health Systems the full authority under the employment contract to terminate Dr. Lambert’s employment.

¶ 16. In his complaint, Dr. Lambert asserted that the Hospital had the duty to investigate the findings in Dr. Anderson’s report before it suspended his staff privileges. Dr. Lambert fails to cite any basis for this duty. The Hospital had numerous documented complaints by members of its staff and patients of Dr. Lambert. The Hospital was well aware of Dr. Lambert’s anger issues. Most disturbingly, the staff reported that Dr. Lambert would freeze up in surgery until another member of the surgical staff was able to get him back on task. Based upon his thorough examination of Dr. Lambert and the documented complaints, Dr. Anderson concluded that Dr. Lambert was unfit to practice medicine.

¶ 17. Based on Dr. Anderson’s report, the Hospital determined there was a need to protect the Hospital’s patients. The Hospital suspended Dr. Lambert’s staff privileges. Dr. Lambert has not asserted that the complaints against him are unsubstantiated. Dr. Lambert has not asserted that Dr. Anderson’s report was based on false information. Dr. Lambert merely asserts that he should have been afforded the opportunity to seek a second opinion before the Hospital took action. However, Dr. Lambert has failed to provide any support for his argument that the Hospital owed him such a duty.

¶ 18. Baptist Health Systems’ actions did not breach the implied covenant of good faith and fair dealing because Baptist Health Systems exercised its contractual right to terminate the agreement. The issue of whether a party can act in bad faith by exercising a contractual right to terminate an agreement was addressed in Limbert v. Mississippi University for Women Alumnae Association, Inc., 998 So.2d 993, 998 (Miss.2008). There, the supreme court held:

All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement. Morris v. Macione, 546 So.2d 969, 971 (Miss.1989). Good faith has been defined as “the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). Bad faith has been defined by this Court as requiring “a showing of more than bad judgment or negligence; rather, ‘bad faith’ implies some conscious wrongdoing ‘because of dishonest purpose or moral obliquity.’ ” Univ. of S. Miss. v. Williams, 891 So.2d 160, 170-71 (Miss.2004) (quoting Bailey v. Bailey, 724 So.2d 335, 338 (Miss.1998)).

Id.

¶ 19. In Limbert, the appellant exercised her express right to terminate an agreement by giving sixty days’ notice to the other party. The supreme court noted that there had been no attack on the validity of the agreement. Further, the supreme court ruled that: “This Court has held that a party has not breached the implied covenant of good faith and fair dealing when the party ‘took only those actions which were duly authorized by the contract.’ ” Id. at 999 (¶ 14) (quoting GMAC v. Baymon, 732 So.2d 262, 269 (Miss.1999)). The appellant did not act in bad faith by merely exercising her contractual right to terminate the agreement. Id.

¶ 20. Here, we must reach the same conclusion. Baptist Health Systems did not act in bad faith when it exercised its right to terminate Dr. Lambert’s employment agreement upon the suspension of his staff privileges. Dr. Lambert has shown no breach of either an express or implied contractual duty by Baptist Health Systems or the Hospital. The circuit court correctly granted summary judgment as to Dr. Lambert’s breach-of-contract claim. Accordingly, this issue has no merit.

2. Defamation

¶ 21. Dr. Lambert next contends that he was defamed when the Hospital reported his suspension to the National Practitioners Data Bank (“data bank”). The report indicated that Dr. Lambert had been suspended because he was “unable to practice safely.” Dr. Lambert claims that this statement is false because Dr. Anderson’s addendum should be interpreted to mean that he could practice if he followed Dr. Anderson’s recommendation of entering a monitoring contract.

¶ 22. In Smith v. Magnolia Lady, Inc., 925 So.2d 898, 904-05 (¶ 20) (Miss.Ct.App.2006), this Court held:

In order to succeed on a claim of defamation, a plaintiff must prove: (1) a false and defamatory statement concerning plaintiff; (2) unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of statement irrespective of special harm or existence of special harm caused by publication. The threshold question in a defamation suit is whether the published statements are false. A statement is defamatory when it tends to injure one’s reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community. Truth is a complete defense to libel or slander.

(Internal citations and quotations omitted).

¶ 23. The alleged defamatory statement is that Dr. Lambert was unable to practice medicine safely. This was Dr. Anderson’s conclusion, and Dr. Lambert has not presented evidence to show that the statement was false. Dr. Lambert argues that Dr. Anderson’s report was inconsistent, but he fails to prove the falsehood of the statement at issue. The Hospital had documented several instances when Dr. Lambert’s anger had caused him to freeze up in surgery. He belittled the staff; he was indecisive; and he showed anger to the patients and staff. Such behavior worried the staff and caused the Hospital to fear for the safety of its patients. Dr. Lambert did not refute the reports by the staff. Because Dr. Lambert has failed to provide evidence of a false statement, summary judgment on his claim of defamation was proper. Accordingly, this issue has no merit.

3. Intentional Infliction of Emotional Distress

¶ 24. Dr. Lambert argues that summary judgment was improper as to his claim of intentional infliction of emotional distress. He asserts that the Hospital and Baptist Health Systems intentionally breached his employment agreement, took away his livelihood, and intentionally presented false information to the data bank stating that he was unfit to practice medicine. Dr. Lambert argues that those actions combined amount to the extreme and outrageous conduct required to prove intentional infliction of emotional distress.

¶ 25. Intentional infliction of emotional distress results when the actions of the defendant were “wanton and willful and evoked outrage or revulsion.” Riley v. F.A. Richard & Assocs., Inc., 16 So.3d 708, 719 (¶ 33) (Miss.Ct.App.2009). “The severity of the acts must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. (quoting Speed v. Scott, 787 So.2d 626, 630 (¶ 18) (Miss.2001)).

¶26. Dr. Lambert states that termination alone may not be outrageous conduct. Essentially, he claims that the outrageous conduct was the Hospital’s report to the data bank. However, Dr. Lambert provides no evidence that this action was outrageous conduct. On the contrary, the Hospital relied on the professional opinion of Dr. Anderson who, in a detailed report, found that Dr. Lambert’s occupational functioning was seriously impaired.

¶27. The Hospital informed Dr. Lambert that his staff privileges were suspended so Dr. Lambert could receive necessary treatment. The Hospital found that the suspension was necessary because Dr. Lambert’s actions were “detrimental to patient safety.” Further, the Hospital found that Dr. Lambert’s inability to work with and relate to other staff members in a professional manner was a violation of the Hospital’s medical staff bylaws. The suspension letter informed Dr. Lambert that his suspension would be reportable to the data bank.

¶ 28. Dr. Lambert has presented no evidence of conduct by the Hospital or Baptist Health Systems that is so outrageous that it goes beyond all possible bounds of decency. As such, there is no genuine issue of material fact as to his claim for intentional infliction of emotional distress. Therefore, this issue has no merit.

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

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Brenda PETERS, Appellant v. BELK INCORPORATED and Liberty Mutual Insurance Company, Appellees.
    No. 2010-WC-00438-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied June 7, 2011.
    Certiorari Denied Aug. 18, 2011.

      Steven H. Funderburg, Jackson, attorney for appellant.
    George E. Read, Oxford, Ginger M. Ro-bey, Oxford, attorneys for appellee.
   IRVING, J.,

for the Court:

¶ 1. On September 14, 2007, Brenda Peters filed a petition to controvert, alleging that she had injured her cervical spine while lifting boxes within the course and scope of her employment with Belk, Inc. Peters also alleged that the cervical-spine injury had resulted in depression. Belk and its insurance carrier, Liberty, Mutual Insurance Company, admitted that Peters had suffered a cervical-spine injury, but disputed the extent of Peters’s disability. Belk and Liberty denied that benefits were owed for any psychological or mental injury. A hearing was held before an administrative judge (AJ), who found that Peters had suffered a psychological injury related to her cervical-spine injury. The AJ concluded that Peters was permanently and totally disabled.

¶ 2. Belk and Liberty appealed the AJ’s decision to the Mississippi Workers’ Compensation Commission (Commission). The Commission reversed the AJ’s decision, finding that Peters was not permanently disabled or entitled to benefits for any psychological injury. However, the Commission awarded Peters temporary total-disability benefits. Peters appealed the Commission’s decision to the Lee County Circuit Court. The circuit court affirmed the Commission’s decision.

¶ 3. Feeling aggrieved, Peters appeals and asserts four issues on appeal, which we will consolidate into two issues: (1) whether the Commission applied an incorrect legal standard in denying benefits for Peters’s psychological injury and (2) whether the Commission’s reversal of permanent total-disability benefits and its denial of benefits for Peters’s psychological injury were not supported by substantial evidence and were arbitrary and capricious.

¶ 4. Finding no reversible error, we affirm.

FACTS

¶ 5. On March 12, 2003, Peters sustained an injury while working at a cosmetic counter at Belk. Peters testified that when she arrived at work that morning, she began moving and unpacking boxes of inventory. Later that day, she testified that she began to experience pain in her neck. Peters left work early and sought treatment at the Barnes Crossing Emergency Medical Clinic. Dr. Billy Walton examined Peters at the clinic. He prescribed anti-inflammatory medications and advised Peters to return if her pain continued. Peters returned to work and continued to move boxes. Peters’s neck pain returned, and she went back to the clinic. Dr. Walton ordered an x-ray, which showed some degenerative changes in Peters’s spine. Dr. Walton also ordered an MRI, which confirmed the existence of disk-space narrowing and mild degenerative changes in Peters’s spine.

¶ 6. Peters was referred to Dr. Thomas McDonald, a neurosurgeon. Dr. McDonald diagnosed Peters with cervical spondylosis and stenosis. Dr. McDonald recommended that Peters use a neurostimulator to relieve pain and muscle spasms, and he placed Peters on light duty with no lifting. On May 5, 2003, Peters visited Dr. McDonald, again complaining of neck pain and headaches. Dr. McDonald took Peters off of work and scheduled a myelo-gram and CT scan of her cervical spine. Additionally, Dr. McDonald prescribed Paxil, an anti-depressant, and Xanax, an anti-anxiety medication. Dr. McDonald did not believe that Peters would benefit from surgery, but he referred Peters to Dr. Louis Rosa for a second opinion. Peters visited Dr. Rosa on May 28, 2003, and Dr. Rosa agreed with Dr. McDonald that surgery would not benefit Peters. On June 13, 2003, Dr. McDonald released Peters to work, noting that Peters had achieved maximum medical improvement. Additionally, Dr. McDonald noted that he saw “no significant injury in this case.”

¶ 7. On July 29, 2003, Peters saw Dr. Kenan Arnautovic for a neurosurgical evaluation. Dr. Arnautovic reviewed Peters’s previous MRI and CT scans and agreed that they showed degenerative disease in her cervical spine. Dr. Arnautovic referred Peters to Dr. Roger Cicala for pain treatment. Dr. Cicala determined that Peters had thoratic outlet syndrome, a ro-tator cuff injury, cervical degenerative disease, and left occipital neuralgia. Dr. Ci-cala advised Peters to place her arm in a sling for four to six hours each day and recommended that Peters see an orthopedic shoulder specialist.

¶ 8. Dr. Arnautovic also referred Peters to Dr. Lance Wright, a neurologist, for further evaluation of her symptoms. Dr. Wright noted that Peters complained of numerous symptoms and that she had difficulty describing them. Additionally, he noted that Peters described her symptoms in a “very histrionic and exaggerated sort of way.” Dr. Wright noted that Peters denied being depressed and that she appeared close to tears during her appointment. Dr. Wright felt that he had nothing he could offer Peters, and he recommended that she follow up with her pain specialist.

¶ 9. Peters testified that following her visit with Dr. Wright, she began experiencing chest pains, and she consulted Dr. Gerhard Mundinger, a cardiologist and family friend. He recommended that Peters use a cervical collar at night to relieve her neck pain, but he advised Peters that she could continue to work. Dr. Mundinger referred Peters to Dr. Salil Tiwari. Dr. Tiwari noted that Peters’s sensation of pain was “highly exaggerated” and disproportionate to her physical condition. Furthermore, he noted that Peters had difficulty describing the exact nature of her pain. Dr. Tiwari diagnosed Peters with chronic pain and depression and referred her to Dr. Sudhakar Madakasira, a psychiatrist.

¶ 10. During her visit with Dr. Madaka-sira, Peters advised him that she had seen at least fifteen doctors in eight months, but none had successfully treated her pain. She stated that she was depressed and reported feeling suicidal. Peters stated that she had never suffered from depression prior to her injury. Dr. Madakasira diagnosed Peters with depression and chronic pain and prescribed anti-depressants.

¶ 11. In December 2003, Dr. Madakasi-ra had Peters admitted to St. Dominic Hospital in Jackson, Mississippi, to regulate her medications and treat her depression. Peters was hospitalized for ten days. While hospitalized, Dr. Carroll McLeod evaluated Peters and recommended a course of steroid injections, which seemed to improve Peters’s neck pain. Dr. Jacob Mathis, a neurosurgeon, also evaluated Peters while she was hospitalized. He diagnosed Peters with cervical spondylosis, but he determined that she would not benefit from surgery. In Peters’s discharge summary, Dr. Madakasira diagnosed Peters with major depressive disorder and psychosomatic pain. He further noted that Peters was “totally fixated on her pain.”

¶ 12. Peters returned to work in January 2004, but her position at the cosmetics counter had been filled in her absence, and Belk transferred her to the clearance warehouse. Later, Peters was transferred to the fragrance counter, but the fragrances irritated her sinuses, and she requested a transfer to the dress department. Peters then complained that the dresses were too heavy to lift, and she requested a transfer to the sportswear department. Belk accommodated each of Peters’s requests.

¶ 13. In November 2004, Peters requested three days off to have a colonosco-py in Jackson, Mississippi. Peters presented her manager with a doctor’s note, but she was already scheduled to work during Belk’s charity sales event. Belk’s human resource manager, Kraig Crump-ton, called Peters’s doctor and confirmed that Peters only needed one day off for the procedure. Crumpton approached Peters about her leave request, and he offered to allow Peters to work a later shift the day after her appointment, but Peters insisted that she needed three days off. Crumpton informed Peters that refusal to work her scheduled shift constituted grounds for termination. Peters refused to work her shift, and Belk terminated her on November 10, 2004.

¶ 14. In December 2005, Dr. Madakasi-ra admitted Peters to the Psycamore Partial Hospital Program for intensive outpatient psychiatric therapy. Peters was discharged from the program on April 26, 2006, but Dr. Madakasira noted that Peters had seen little improvement in her symptoms and gave her a poor prognosis for recovery. He further noted that he considered Peters permanently and totally disabled.

¶ 15. On February 11, 2005, Dr. David Collipp evaluated Peters at the request of Belk and Liberty. Dr. Collipp acknowledged that Peters suffered from depression, but he opined that Peters’s depression was not caused by her work-related injury. Dr. Collipp agreed that Peters had cervical spondylosis, but he believed that it was due to arthritis and not caused or exacerbated by lifting. Dr. Collipp determined that Peters had reached maximum medical improvement from her cervical strain as of April 2003 and that she had no permanent impairment.

¶ 16. On May 11, 2005, Dr. Mark Webb evaluated Peters, also at the request of Belk and Liberty. Dr. Webb noted in his medical report that Peters had seen multiple doctors, but she had experienced little relief for her symptoms. Dr. Webb concluded that Peters suffered from hypochondriasis and exhibited histrionic personality traits. While Dr. Webb recommended continued psychiatric treatment, he concluded that Peters’s personality traits likely arose during childhood and were not work- or incident-related. Furthermore, he did not believe that Peters was psychiatrically disabled and assigned no psychiatric impairment rating.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 18. An appellate court’s standard of review in a workers’ compensation claim is well settled:

Appellate courts are bound by the decision of the Mississippi Workers’ Compensation Commission if the Commission’s findings of fact and order are supported by substantial evidence. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). “This is so, even though the evidence would convince [the reviewing court] otherwise, were [it] the fact finder.” Id. (citations omitted). “Stated differently, [the reviewing court] will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. “A finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing- court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 780 [ (¶ 17) ] (Miss.2003) (citations omitted).

Hardaway Co. v. Bradley, 887 So.2d 793, 795 (¶ 11) (Miss.2004).

1. Claimant’s Burden of Proof

¶ 19. Peters argues that the Commission improperly evaluated the evidence of her psychological injury under the “clear and convincing” standard. However, “a review of this state’s precedent shows that ‘clear evidence’ and ‘clear and convincing evidence’ are used synonymously, and apply to a claimant’s burden of proof under either a mental/mental or physical/mental case.” Hosp. Housekeeping Sys., Inc. v. Townsend, 993 So.2d 418, 424 (¶ 21) (Miss.Ct.App.2008).

¶ 20. In reviewing Peters’s claim, the Commission stated that “the [claimant failed to present clear and convincing evidence that she sustained a psychological overlay causally related to her cervical strain, and therefore, any disability associated with [the][c]laimant’s psychological problems is irrelevant.” Because this Court held in Townsend that the “clear and convincing evidence” and “clear evidence” standards are synonymous, Peters’s assignment of error is without merit.

2. Commission’s Decision Regarding Peters’s Depression and Permanent Disability

¶21. Peters also argues that the Commission’s denial of benefits for her depression and its finding that she was not permanently and totally disabled are not supported by substantial evidence and, consequently, are arbitrary and capricious.

¶ 22. The Commission found that Peters had failed to present clear-and-convincing evidence that her depression was causally related to her cervical strain. The Commission noted that the only evidence that Peters presented in support of her claim that her depression was causally related to her physical injury came from Dr. Madakasira, Peters’s psychiatrist. In his deposition testimony, Dr. Madakasira stated that most patients with Peters’s level of depression and emotional instability are not able to work. While Dr. Mada-kasira testified that he believed that Peters’s depression was related to her work injury, he admitted that his belief was “speculation.” Dr. Collipp and Dr. Webb, who evaluated Peters at the request of Belk and Liberty, both opined that there was no causal relation between Peters’s depression and her work-related injury.

¶ 23. The Mississippi Supreme Court has stated that when examining conflicting opinions by medical experts, “it is not the role of the [reviewing court] to determine where the preponderance of evidence lies.... ” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 335 (¶ 11) (Miss.2003) (quoting Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997)). Instead, “it is presumed that the Commission as trier of fact has previously determined which evidence is credible and which evidence is not.” Id. (quoting Hale, 687 So.2d at 1224-25). Our supreme court further stated that “whenever the expert evidence is conflicting, [the reviewing court] will affirm the Com-missionfs decision] whether the award is for or against the claimant.” Id. at 336 (¶ 13) (quoting Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 268 (Miss.1966)). Given our deferential standard of review and the Commission’s position as the ultimate fact-finder, we do not find that the Commission erred in relying on the opinions of Dr. Collipp and Dr. Webb, especially when Dr. Madakasira admitted that his conclusions were mere speculation. As such, we find that substantial evidence supports the Commission’s finding that Peters failed to present sufficient evidence that her depression was causally related to her work injury.

¶ 24. Peters seems to rely solely on her depression in support of her claim of permanent disability, as no physician assigned a permanent impairment rating to her cervical strain. However, as discussed above, Peters’s depression was not causally related to her on-the-job injury. As such, we find that the Commission’s determination that Peters’s was not permanently and totally disabled is supported by substantial evidence. This issue lacks merit.

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

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


author: IRVING, P.J.,

text:
    Robert SPURLOCK, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01728-COA.
    Court of Appeals of Mississippi.
    March 8, 2011.
    Rehearing Denied Aug. 9, 2011.

      Erin E. Pridgen, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., MYERS and MAXWELL; JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On November 20, 2008, Robert Spurlock was convicted of possession of at least one kilogram but less than five kilograms of marijuana with intent to distribute. The Pike County Circuit Court sentenced Spurlock to fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve and five years of post-release supervision. On December 1, 2008, Spurlock filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which the circuit court denied. On October 22, 2009, Spurlock filed a pro se petition for an out-of-time direct appeal, which the circuit court granted. On appeal, Spurlock argues that the circuit court erred in denying his pretrial motion to suppress evidence.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. In September 2007, Spurlock returned to his hometown in Pike County, Mississippi, to visit his ailing grandmother. While there, he reconnected with a high-school friend, Thomas Magee Jr. Spurlock allegedly told Magee that he had marijuana that he wanted to sell, and Spurlock asked Magee if he knew of anyone who would buy it. Magee contacted a former co-worker, Willie Jefferson, and arranged the transaction. According to Magee, Spurlock later met Magee at a local hotel with a ten-pound brick of marijuana, which Spurlock and Magee broke into one-pound bags. Magee then took Spurlock to Jefferson’s home, and Spurlock sold Jefferson a one-pound bag of marijuana. Jefferson called Magee later and requested three more pounds. According to Magee, he and Spurlock agreed to meet Jefferson the next day.

¶ 4. The following day, the local police and officers from the Mississippi Bureau of Narcotics (MBN) arrived at Jefferson’s home to execute a search warrant. During the search, Jefferson’s telephone rang. One of the officers assisting with the search answered the telephone. The caller, who did not identify himself, asked, “Are you ready to re-up?” The officer responded, “Bring it on.” He then informed the other officers that someone was approaching the home, possibly to deliver drugs. The officers set up a roadblock along the street that ran in front of Jefferson’s home. Shortly after, Magee and Spurlock arrived in Magee’s pickup truck. Officer Derrick Carr stopped Ma-gee and Spurlock and asked them for identification. Magee stated that he did not have identification, and Spurlock provided his military ID. Officer Carr, who was standing beside the driver’s side of the truck, noticed that Magee had an open container of beer between his legs. Officer Carr testified that he also smelled marijuana coming from the truck. As Officer Carr spoke with Magee, an officer standing beside the passenger side of the truck noticed a handgun on the floorboard, near Spurlock’s feet. The officers removed both Magee and Spurlock from the truck and handcuffed them. Officer Carr then asked Magee for consent to search the truck. Magee consented to the search. During his search of the vehicle, Officer Carr recovered a backpack from the bed of the truck. The backpack, which had an Army logo, contained five pounds of marijuana broken into one-pound bags, finger scales, and small folding sandwich bags. Agent Billy Ray Warner, an MBN officer, testified that $1,914 was also recovered during the search. Agent Warner testified that a portion of the money was found in Spurlock’s pocket.

¶ 5. Prior to trial, Spurlock filed a motion to suppress the marijuana seized from the vehicle. In his motion, Spurlock argued that the officers did not have probable cause to stop and search the vehicle; therefore, the evidence obtained from the search should be suppressed. The circuit court denied the motion, finding that neither the roadblock nor the search of the truck violated the Fourth Amendment of the United States Constitution. The circuit court reasoned that the telephone call that the officers received at Jefferson’s home gave them reasonable suspicion that an illegal act was imminent. Therefore, the roadblock was not unconstitutional. The circuit court further noted that the officers had probable cause to search the truck given Magee’s open container of beer, the handgun on the passenger-side floor board, and the strong odor of marijuana coming from the truck.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. When reviewing a trial court’s denial of a motion to suppress, an appellate court employs a “mixed standard of review.” Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss.2006). “Determinations of reasonable suspicion and probable cause should be reviewed de novo.” Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). A trial court’s decision to admit or exclude evidence is reviewed under the abuse-of-discretion standard. Chamberlin v. State, 989 So.2d 320, 336 (¶ 52) (Miss.2008).

¶ 8. Spurlock argues that the police roadblock was unconstitutional; therefore, the evidence seized after police stopped and searched the vehicle should have been suppressed. The State contends that this Court is barred from reviewing this issue because Spurlock failed to include a copy of the transcript from the suppression hearing in the record. The appellant is responsible for providing a “record sufficient to show the occurrence of the error he asserts.” Acker v. State, 797 So.2d 966, 971 (¶ 18) (Miss.2001) (quoting Lambert v. State, 574 So.2d 573, 577 (Miss.1990)). However, we believe that Spurlock has presented an appellate record sufficient to support his assignment of error. Spurlock has provided his motion to suppress along with the order denying the motion. Therefore, we do not find that Spurlock’s failure to include a transcript from the suppression hearing precludes appellate review.

¶ 9. Both the United States Constitution and the Mississippi Constitution protect “an individual’s right to be free from unreasonable searches and seizures.” Dies, 926 So.2d at 917-18 (¶ 21) (citing Floyd, 749 So.2d at 114 (¶ 14)). The prohibition against unreasonable searches and seizures extends to brief investigatory stops of a vehicle. Id. at 918 (¶ 21). However, “[t]he constitutional requirements for an investigative stop are less stringent than those for a full arrest.” Id. at (¶ 22) (citing Floyd, 749 So.2d at 114 (¶ 16)). The Mississippi Supreme Court has held that investigative stops are permissible, provided that an officer has “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[,J engaged in criminal activity.” Id. (quoting Floyd, 749 So.2d at 114 (¶ 16)) (emphasis added).

¶ 10. In Dies, MBN agents learned that a woman was either in possession of or trying to sell narcotics at a local bar. Id. at 913 (¶ 2). When the agents arrived at the bar, they noticed a woman and two men sitting in a red Chevrolet Camaro in the bar’s parking lot. Id. Other than the gender of the individuals, the agents had no other descriptive information. Id. at (¶ 8). The agents waited to approach the car until the group had exited the Camaro and entered the bar. Id. As the agents passed the Camaro, they noticed the smell of burnt marijuana. Id. at (¶ 4). The agents wanted to investigate further, but not in the bar’s parking lot. Id. The agents asked local police to conduct a traffic stop. Id. The agents gave police a description of the Camaro and alerted police when the car left the bar. Id. at (¶ 5). Shortly thereafter, the police stopped the Camaro, and Kirby Dies exited the car and fled. Id. at 914 (¶ 5) The police captured and arrested Dies, and during a search incident to his arrest, the police discovered a bag containing marijuana, rolling papers, and cocaine. Id. at (¶ 6).

¶ 11. Dies filed a motion to suppress, arguing that the traffic stop was illegal because it was not based on reasonable suspicion. Id. at 917 (¶ 19). Our supreme court held that the smell of burnt marijuana emanating from the Camaro “[gave] rise to a reasonable suspicion that criminal activity had been committed and that further investigation [was] warranted.” Id. at 918-19 (¶ 24). Our supreme court went on to note that “[t]he Fourth Amendment does not require police who lack the information necessary for probable cause to simply shrug their shoulders and allow a crime or a criminal escape to occur. Rather, it allows for investigatory stops to encourage the police to pursue their reasonable suspicions.” Id. at 919 (¶24) (citing Singletary v. State, 318 So.2d 873, 877 (Miss.1975)).

¶ 12. In this case, the police received a phone call from an unidentified male while executing a search warrant at Jefferson’s home. When police answered, the caller asked, “Are you ready to re-up?” Before receiving the call, the police had uncovered marijuana, ecstacy, and handguns in Jefferson’s home. While the police did not have any identifying information for the caller other than his gender, they reasonably suspected that someone was approaching Jefferson’s home with contraband. Therefore, the police utilized a roadblock to confirm their reasonable suspicion. Because the police had reasonable suspicion, their investigatory stop of the vehicle in which Spurlock was a passenger was not unconstitutional. As such, the circuit court did not err in denying Spurlock’s motion to suppress.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF POSSESSION OF AT LEAST ONE KILOGRAM BUT LESS THAN FIVE KILOGRAMS OF MARIJUANA WITH INTENT TO DISTRIBUTE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

      . MBN had received a tip that Jefferson had marijuana at his home.


author: CARLTON, J„

text:
    Bonnie SMITH, Appellant v. HARRISON COUNTY, Mississippi, Appellee.
    No. 2010-CA-00945-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.

      Tamekia Rochelle Goliday, attorney for appellant.
    Joseph R. Meadows, Karen J. Young, Gulfport, attorneys for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J„

for the Court:

¶ 1. This appeal arises from a complaint filed by Bonnie Smith pursuant to the Mississippi Tort Claims Act (MTCA) against Harrison County, Mississippi, alleging that she sustained emotional injuries while working as a nurse for a private contractor at the Harrison County Adult Detention Center (HCADC) as a direct and proximate result of the actions of the agents and employees of Harrison County. The Harrison County Circuit Court granted summary judgment in favor of Harrison County. Smith filed a motion for reconsideration, which was subsequently denied by the trial court. Aggrieved, Smith appeals, raising the following issues as error: whether the trial court erred when it granted summary judgment in favor of Harrison County and whether Harrison County breached its duty to provide her with a reasonably safe place to work causing her emotional injury. Finding no error, we affirm.

FACTS

¶ 2. In 2006, medical services for inmates at the HCADC were provided through a contract with Health Assurance, LLC. Smith worked for Health Assurance, LLC as a nurse assigned to the HCADC. On February 4, 2006, while at work, Smith witnessed the employees of the sheriffs department beat Jesse Lee Williams, which ultimately led to his death. On April 19, 2007, Smith filed a complaint against Harrison County, alleging that she suffered psychological/psychiatric injuries as a direct and proximate result of the actions of Harrison County.

¶ 3. Harrison County filed a motion for summary judgment, asserting that Smith was not entitled to relief because a cause of action based on bystander liability only exists when there is a close relationship between the plaintiff and the victim, and Smith and Williams lacked such relationship. In response, Smith argued that the trial court erred by granting summary judgment and asserted that while she was not entitled to recovery for bystander liability, she had presented a viable claim for negligence by the breach of the county’s duty to provide a reasonably safe work environment, which precluded summary judgment. The trial court granted summary judgment in favor of Harrison County. Smith then filed a motion for reconsideration. The trial court denied Smith’s motion, and she now appeals.

STANDARD OF REVIEW

¶ 4. We review a trial court’s denial of a motion for reconsideration under Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure for an abuse of discretion. City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 66 (¶ 19) (Miss.2005); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984).

¶ 5. We employ a de novo standard of review when reviewing a trial court’s grant or denial of a motion for summary judgment. Gorton v. Rance, 52 So.3d 351, 354 (¶ 6) (Miss.2011) (citing Stringer v. Trapp, 30 So.3d 339, 341 (¶ 9) (Miss.2010)). It is proper to grant a summary judgment where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)). “If no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law, summary judgment should be entered in that party’s favor.” Id. (quoting Trapp, 30 So.3d at 341 (¶ 9)). The burden falls on the moving party. Id. The trial court must view all the evidence in the light most favorable to the nonmoving party. Id. at 354-55 (¶ 6) (citing Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 649-50 (¶ 11) (Miss.2009)).

¶ 6. “Once the absence of genuine material issues has been shown, the burden of rebuttal falls upon the non-moving party. To survive summary judgment, the non-moving party must produce specific facts showing that there is a genuine material issue for trial.” Id. at 355 (¶ 7) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213-14 (Miss.1996); see also M.R.C.P. 56(e)). “Therefore, to avoid summary judgment, the non-movant must set forth specific facts that demonstrate a genuine issue of a material fact that merits trial instead of mere unsubstantiated allegations.” Id. (quoting Green v. Allendale Planting Co., 954 So.2d 1032, 1038 (¶ 13) (Miss.2007)). “However, summary judgment is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Id. (quoting Dearman v. Christian, 967 So.2d 636, 639 (¶ 12) (Miss.2007)).

DISCUSSION

¶ 7. Smith argues that the trial court erred in granting summary judgment in favor of Harrison County. Smith asserts that a genuine issue of material fact existed as to whether she presented a viable claim of negligence against Harrison County since the injuries suffered by her were not intimately connected with the work she was contracted to perform, and she lacked knowledge of the subject dangers. Smith claims that: Harrison County owed a duty to her, as an independent contractor, to provide her with a reasonably safe work environment, and it breached this duty by beating Williams in her presence, causing her psychological and emotional injuries for which she sought medical treatment and incurred medical bills and loss wages. Smith further contends that the Harrison County Sheriff, George Payne Jr., was aware of the history of violence at HCADC and failed to develop and implement policies and procedures to eliminate the use of excessive force by its agents and employees.

¶ 8. In response, Harrison County argues that the trial court properly granted summary judgment, as this is a case of bystander liability for which Smith is not entitled to recover because she lacked a close relationship with Williams, the victim. Harrison County also asserts that Smith failed to present a viable claim of negligence since Harrison County did not owe her a duty as it pertained to her viewing of a traumatic incident at work.

1. Bystander Liability

¶ 9. The record shows that the trial court considered Smith’s negligence claims, but ultimately, the court decided that Smith’s claim was one claiming bystander liability. The trial court then determined that Smith was not entitled to recover under the prevailing standard of liability for bystander recovery. We agree.

¶ 10. The Mississippi Supreme Court has set the standard for determining whether a defendant owes a duty of care to a bystander plaintiff:

In determining, whether [the] defendant should reasonably foresee the injury to [the] plaintiff, or, whether [the] defendant owes [the] plaintiff a duty of care, the courts will take into account such factors as the following: (1) Whether [the] plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon [the] plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether [the] plaintiff and [the] victim were closely related, as contrasted with an absence of any relationship or the presence of only a distance relationship.
[Entex, Inc. v. McGuire, 414 So.2d 437, 444 (Miss.1982)] (quoting Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 920 (1968)) (emphasis added). In O’Cain, 603 So.2d 824 (Miss.1991), this Court held that, in Entex, the “Court set out the criteria which one must meet on a claim of emotional trauma by a bystander[.]” Id. at 829.

Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 664 (¶ 7) (Miss.2004).

¶ 11. In the present case, Smith’s claim fails the third prong of the bystander-liability test as stated above. The record shows that Smith had no relationship whatsoever with Williams prior to her witnessing the assault. Because Smith has failed to create a genuine issue of material fact on the essential elements of bystander liability, we find that the trial court properly granted summary judgment in favor of Harrison County. This issue lacks merit.

2. Negligence

¶ 12. The record shows that after determining that Smith failed to set forth facts or statements of law to remove her case from one of bystander liability, the trial court briefly considered Smith’s negligence claim and determined that Smith also failed to establish a breach of any duty owed by Harrison County to her. The trial court stated the following:

Smith provides no proof of fact or statement of law that removes her case from one of bystander recovery. Whatever intent or malice was exhibited the night [Williams] was beaten, it was not directed at Smith[,] and she has failed to articulate any breach of a duty owed to her by Harrison County. Smith’s reliance on O’Cain, 603 So.2d at 824 is misplaced. In O’Cain, the plaintiffs apartment was burglarized!,] and her roommate raped. The Mississippi Supreme Court affirmed the trial court’s ruling that there was no bystander recovery for O’Cain, but reversed the case for further proceedings on the question of negligence. O’Cain’s landlord had a duty to warn of latent defects!,] and the [c]ourt held there was a dispute of material fact regarding the landlord’s notice, or not, of a latent defect (questionable locks on the doors) in the apartment. Additionally^] the question of whether the criminal act of burglarizing plaintiffs apartment was an intervening cause which would relieve the landlord of any liability was left open for the trier of fact. O’Cain established a duty owed to her and created a genuine issue of material fact as to a breach of that duty. Smith has not.
In order to recover on a negligence claim[,] Smith had to establish the existence of a legal duty, breach of that duty, proximate causation, and damages. See i. e., [,] Brown v. Harrah’s Entertainment, Inc., 14 So.3d 827, 829 (Miss.Ct.App.2009). Smith has failed to establish a breach of any duty owed her by the County.

¶ 13. In asserting her claim of negligence under the MTCA, to overcome summary judgment, Smith must first show a genuine issue of material fact regarding each of the four elements of negligence, which are: “[a] duty, or obligation ... [,][a] breach of the duty ... [,][a] reasonably close causal connection between the conduct and the resulting injury[,][and][a]ctual loss or damage.” Sellars ex rel. Dill v. Walgreen Co., 971 So.2d 1278, 1279 (¶ 5) (Miss.Ct.App.2008) (citing Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So.2d 130, 133 (¶ 8) (Miss.2001)). The record reflects that while at work, Smith witnessed some individual HCADC employees beating Williams, an inmate. No evidence exists in the record, however, showing that the Harrison County Board of Supervisors failed to provide Smith with a safe work environment or were aware of any potential unsafe conditions, or that Sheriff Payne was aware of HCADC’s alleged history of violence as asserted by Smith. Additionally, the record lacks evidence showing Sheriff Payne failed to implement policies to eliminate any use of excessive force by agents and employees under his supervision. Therefore, as noted by the trial court, Smith failed to set forth facts showing that Harrison County owed her a duty; moreover, she failed to show that Harrison County breached a duty owed to her with respect to her workplace. In the absence of any issue of material fact regarding the duty owed by Harrison County, or the breach of that duty, we must find that summary judgment was properly granted. See Gorton, 52 So.3d at 354 (¶ 6). This issue is without merit.

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

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

      . Miss.Code Ann. § 11-46-1 to -23 (Supp. 2010).

      . Smith was not related to Williams, nor did she know him personally prior to the day that she witnessed the beating.

      . Smith relies on Miss. Chemical Corp. v. Rogers, 368 So.2d 220 (Miss.1979) and O'Cain v. Harvey Freeman and Sons, Inc. of Miss., 603 So.2d 824 (Miss.1991), to support her contention that Harrison County owed a duty to provide her with a reasonably safe work environment.

      . See M.R.C.P. 56(c). See also Bedford Health Properties, LLC v. Estate of Williams ex rel. Hawthorne, 946 So.2d 335, 341 (¶ 11) (Miss.2006) (“To avoid summary judgment, the non-moving party must establish a genuine issue of material fact within the means allowable under the Rule. If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise the decision is affirmed.”) (citations omitted). A review of the record shows that Smith did not create a genuine issue of material fact precluding summary judgment; she failed to respond with proof to Harrison County’s well-supported motion. See Stuckey v. The Provident Bank, 912 So.2d 859, 864 (¶ 8) (Miss.2005) (finding an adverse party may not rest upon the mere allegations in his pleadings, but must set forth specific facts).


author: ISHEE, J., MAXWELL, J.,

text:
    FRED’S STORES OF TENNESSEE, INC., Appellant v. Jesse PRATT, Appellee.
    No. 2010-CA-00481-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Richard D. Underwood, Madison, attorney for appellant.
    Charles Jones Swayze III, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. Fred’s Discount Stores of Tennessee, Inc. (Fred’s) was found liable for negligence after one of its patrons, Jesse Pratt (Pratt), was injured after slipping on a plastic grocery sack on the floor near a checkout stand. The jury awarded Pratt $25,000 for her injuries.

¶ 2. Fred’s now appeals the verdict, arguing six issues. Because two of the issues involve the same subject matter, we have combined them. Fred’s asserts that the trial court erred by (1) refusing to grant a directed verdict in its favor; (2) refusing to grant its motion for a judgment notwithstanding the verdict (JNOV); (3) refusing to grant a new trial based on the court’s denial of placing medical records into evidence that showed Pratt had a preexisting condition to her left knee; (4) refusing to admit Pratt’s deposition testimony as part of Fred’s case-in-chief; and (5) refusing to grant a mistrial based on improper comments of Fred’s counsel in closing arguments. We find merit to issue three. Therefore, we affirm in part, and reverse and remand in part for further proceedings consistent with this opinion.

STATEMENT OF FACTS

¶ 3. On December 20, 2003, Pratt slipped and fell on a plastic shopping bag while checking out of a Fred’s discount store in Greenwood, Mississippi. After the fall, Pratt sat on a bench at the store for approximately ten minutes, complaining that she was in pain. The store manager gave her water and aspirin. Pratt then left Fred’s and continued shopping at a local grocery store. Later that day, she went to the emergency room, complaining of severe pain in her left knee and shoulder.

¶ 4. Pratt claimed she suffered severe injuries to her left knee and shoulder and filed suit against Fred’s, stating that her injuries were the proximate result of Fred’s failure to maintain its premises in a reasonably safe condition for its invitees.

¶ 5. At trial, John Beck, an eyewitness to the incident, testified that he was standing behind Pratt in the checkout line and saw her slip and fall on a plastic shopping bag. He also stated that he saw several plastic shopping bags on the floor prior to Pratt’s fall. Pratt testified that after she fell, she saw the cashier pick the shopping bags up off the floor and throw them in the garbage.

¶ 6. Dr. Walter Moses, Pratt’s treating physician at the emergency room, testified that Pratt suffered an anterior cruciate ligament tear, medial meniscus tear, and a tear to the lateral meniscus in her left knee. He stated that Pratt’s injuries were caused by her fall at Fred’s and striking her knee, and not caused by arthritis.

¶7. Pratt had been previously treated for back pain and arthritis in her right knee at the Greenwood Orthopedic Clinic, and had complained about pain in both knees during visits to the clinic in 2001 and 2003. She received several treatments to both knees, including injections into the knees before her accident at Fred’s. However, these records relating to Pratt’s medical treatments prior to the fall were not allowed into evidence at trial.

¶ 8. In her deposition which was read aloud at trial, Gayle Prewitt, a manager at the Fred’s store in Winona, stated that according to Fred’s safety policies, all employees at Fred’s are responsible for insuring that the aisles are clean and clear of debris. She also read from the employee safety policy, which instructed that all employees were responsible for “inspecting the store constantly to be aware of the physical hazards which could cause physical injury or property damage.” In addition, the employee safety policy stated that “every employee is responsible for reporting unsafe conditions to the store manager.”

¶ 9. Prewitt admitted that a plastic bag on the floor would be considered an unsafe condition and a tripping hazard. She further testified that the plastic shopping bags were required to be kept in a bag well by the cashier, and not on the floor, and that only Fred’s employees handled the plastic bags. Pratt also entered into evidence a Fred’s document that instructed employees to “keep all aisles clear. Do not have tripping hazards.”

¶ 10. In the closing argument, Pratt’s attorney referenced the fact that Fred’s failed to call a doctor as its witness to testify as to Pratt’s medical records. Fred’s attorney objected after the close of the arguments, and the court sustained the objection. The court further advised the jury that “any objection or comments as to who counsel opposite calls or does not call is inappropriate.” A jury found Fred’s liable for negligence and awarded Pratt $25,000 for her injuries.

DISCUSSION

I. Directed Verdict

¶ 11. Fred’s argues that it was entitled to a directed verdict because Pratt failed to present evidence that Fred’s was negligent. Fred’s claims that Pratt did not prove that an employee of Fred’s caused any plastic bags to be on the floor, or the plastic bags were on the floor for a sufficient amount of time for any employee to have known about it or to have constructive knowledge that the bags were on the ground.

¶ 12. On appeal, this Court employs a de novo standard of review for motions for a directed verdict. Ducksworth v. Wal-Mart Stores, Inc., 832 So.2d 1260, 1262 (¶ 2) (Miss.Ct.App.2002). We consider the evidence in the “light most favorable to the non-moving party and give[ ] that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial.” Id. (citation omitted). “If those facts and inferences, so viewed, can be said to create a question of fact from which reasonable minds could differ, then the matter should be submitted to the jury, and the directed verdict should not be granted.” Id.

¶ 13. Fred’s asserts that Pratt’s testimony was inadequate to substantiate proof of negligence because Pratt merely testified that she was in the store, fell, and thought that she had slipped on a plastic bag. She did not know how the plastic bag came to be on the floor or how long it had been there. Fred’s claims that its duty was to discover the bags in a reasonable amount of time and clean up the bags, if its employees did not cause the bags to be on the floor.

¶ 14. Pratt- testified that she slipped on a plastic shopping bag in the checkout aisle. Beck testified that he witnessed Pratt’s fall, which he testified was a result of the Fred’s plastic shopping bag being in the aisle. Dr. Moses, Pratt’s treating physician, testified that the injuries Pratt suffered were directly related to Pratt’s fall. Fred’s did not provide evidence to rebut any of the testimony.

¶ 15. Fred’s own representative, Prew-itt, admitted in her testimony that the plastic shopping bag in the aisle was a dangerous condition. She also admitted that the plastic shopping bags are only handled by Fred’s employees and should not be on the floor of the store. In her deposition, Prewitt read aloud a portion of Fred’s employee safety policy, which stated that all employees were responsible for “inspecting the store constantly to be aware of the physical hazards which could cause physical injury or property damage.”

¶ 16. Based on the testimony and evidence presented at trial, we find that a reasonable jury could conclude that the plastic shopping bag on the floor in the checkout aisle was present due to Fred’s negligence. While there was no testimony which provided an account as to how the bags got on the floor, Fred’s representative testified that the only ones in the store who handled Fred’s bags were the employees. The bags were kept in a well by the cashier’s checkout. Upon reviewing the testimony in the light most favorable to Pratt, the non-movant, we find that a reasonable inference may be drawn to support the jury’s finding that Fred’s caused the bags to be on the floor. Therefore, we do not find that the circuit court erred in denying a directed verdict for Fred’s.

II. Judgment Notwithstanding the Verdict

¶ 17. Fred’s argues that it is also entitled to a JNOV or a new' trial because there was no proof that Fred’s caused a plastic bag to be on the floor.

¶ 18. A motion for a JNOV “tests the legal sufficiency of the evidence supporting the verdict.” Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss.1989) (citations omitted). We consider the evidence “in the light most favorable to the party against whom the motion has been made, disregarding any evidence on the part of the movant, which is conflicting.” Bruner v. Univ. of S. Miss., 501 So.2d 1113, 1116 (Miss.1987). A JNOV is not proper “[i]f there is credible evidence from which to draw reasonable inferences, supporting the jury’s verdict.” Id. (citations omitted).

¶ 19. Pratt was an invitee of Fred’s. As such, Fred’s, the business owner, owed Pratt, a business invitee, a “duty of ordinary care to keep the business premises in a reasonably safe condition.” Treadwell v. Circus Circus Miss., Inc., 942 So.2d 221, 222 (¶ 6) (Miss.Ct.App.2006) (citation omitted). Fred’s also had a duty to warn Pratt of any dangerous conditions that are not obvious to the invitee and of which Fred knew or through the exercise of reasonable care should have known. Id.

¶ 20. In order to prevail in this premises-liability case, Pratt must have shown one of the following that: (1) a negligent act by Fred’s caused her injuries, or (2) Fred’s possessed actual knowledge of the dangerous condition yet failed to warn of it, or (3) a dangerous condition existed for such a length of time that Fred’s should have known of the existence of the dangerous condition so that constructive knowledge of the condition could be imputed to Fred’s. Rod v. Home Depot USA, Inc., 931 So.2d 692, 694 (¶ 10) (Miss.Ct.App.2006).

¶ 21. As discussed above, a witness testified that the shopping bags were on the floor when Pratt fell. Pratt testified that she slipped on a plastic shopping bag in the checkout aisle, which was corroborated by an eyewitness who saw her fall. Pratt’s physician testified that Pratt’s injuries were directly related to her fall. In addition, Fred’s representative admitted that the plastic shopping bags are only handled by Fred’s employees and should not have been on the ground.

¶ 22. Thus, we find that there was sufficient evidence from which the jury could draw reasonable inferences to support the verdict. Accordingly, this issue is without merit.

III. Medical Records

¶ 23. Fred’s also argues that it is entitled to a new trial because the trial court deprived it of the opportunity to submit evidence to show that Pratt suffered from a preexisting condition to her left knee. Fred’s filed a motion for a new trial, asserting the medical-records error, which the circuit court denied.

¶ 24. The trial court has discretion as to whether to grant a motion for a new trial. Lift-All Co. v. Warner, 943 So.2d 12, 15 (¶ 11) (Miss.2006). This Court “will only reverse the denial of a motion for a new trial when the trial court has abused its discretion.” Davis v. Wal-Mart Stores, Inc., 724 So.2d 907, 910 (¶ 11) (Miss.1998) (citation omitted). “A motion for a new trial may be granted in several circumstances including where faulty jury instructions have been given, where the verdict is against the overwhelming weight of the evidence, or where bias, passion, or prejudice have tainted the jury’s verdict.” Id. (citations omitted). In addition, we will not reverse a decision on the admission or exclusion of evidence “unless the error adversely affects a substantial right of a party.” United Servs. Auto Ass’n v. Lisanby, 47 So.3d 1172, 1179 (¶25) (Miss.2010).

¶ 25. Fred’s asserts that the medical records were relevant to show that Pratt’s preexisting condition may have accounted for some or all of her alleged pain. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. The Rule favors the admissibility of evidence if the evidence has any probative value. Burnwatt v. Ear, Nose & Throat Consultants of N. Miss., 47 So.3d 109, 114 (¶ 21) (Miss.2010).

¶ 26. The circuit court did not admit Pratt’s medical records from the Greenwood Orthopedic Clinic because the court stated that the records were not relevant. Pratt claimed injury to her left knee and shoulder at Fred’s. The proposed exhibit by Fred’s consisted of records of prior treatment to Pratt’s right knee, although on one visit in 2001, the records noted that Pratt had “increasing pain in both knees due to arthritis.” During visits on May 21, June 5, and June 12, 2003, Pratt received injections into each knee. She fell at Fred’s on December 20, 2003.

¶ 27. Although the court did not allow these medical records to be admitted into evidence, the jury was aware of Pratt’s preexisting conditions in her left knee. In her testimony, Pratt stated that she had problems with her left knee prior to her fall at Fred’s. Fred’s attorney also addressed Pratt’s preexisting left knee problems in his closing argument. And Dr. Moses, Pratt’s physician, testified that Pratt’s injuries were caused by the fall at Fred’s, and not by arthritis.

¶ 28. However, we find the medical records were relevant to determine the issue of damages; therefore, the circuit court abused its discretion by not allowing the medical records into evidence. Accordingly, we reverse and remand this matter to the circuit court for a new trial to evaluate the limited question of damages consistent with the findings of this opinion.

IV. Admission of Deposition Testimony

¶ 29. Fred’s remaining argument is that the circuit court erred by not allowing it to introduce portions of Pratt’s deposition to the jury. According to Mississippi Rule of Civil Procedure 32(a)(1), “[a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of [a] deponent as a witness, or for any other purpose permitted by the Mississippi Rules of Evidence.” However, it is within the court’s discretion to admit such testimony. Figueroa v. Orleans, 42 So.3d 49, 52 (¶ 8) (Miss.Ct.App.2010). As stated previously, only errors affecting a substantial right merit reversal. Lisanby, 47 So.3d at 1179 (¶ 25).

¶ 30. Fred’s opened its case-in-chief by attempting to submit into evidence Pratt’s deposition from February 6, 2007, after Pratt had already testified as a live witness in the trial. Fred’s first attempted to read Pratt’s entire deposition into the record, to which Pratt made an objection that the court sustained. The court ruled that since Pratt was present as a live witness, Fred’s could have used the deposition to cross-examine or impeach her. Fred’s had the opportunity during Pratt’s live testimony to bring out any discrepancies between her deposition and her testimony given during the trial. Fred’s failed to do so.

¶ 31. We find that the circuit court properly permitted Fred’s to use the deposition testimony to contradict or impeach Pratt during cross-examination, which is consistent with Rule 82(a)(1) of the Mississippi Rules of Civil Procedure. Yet Fred’s failed to avail itself of this opportunity. Instead, without giving any explanation of the deposition’s relevance or its probative value, Fred’s waited to introduce the deposition until after Pratt had left the stand and rested her ease-in-chief.

¶ 32. While Rule 32(a)(1) of the rules of civil procedure does not expressly prohibit the introduction of a deposition if the person is a live witness at trial, we find in this instance that admitting the deposition, without any clarification of its relevance, would be improper. We are further concerned that allowing such a practice — i.e., permitting a party to cure its failure to examine or cross-examine a live witness properly by later attempting to admit a prior deposition into the record — would have the prejudicial effect of either bolstering a witness’s testimony or confusing the jury. Accordingly, this issue has no merit.

Y. Comments Regarding Failure to Call a Witness

¶ 33. Fred’s final argument is that a mistrial should have been granted when Pratt’s attorney, in his closing argument, commented on Fred’s failure to call a medical doctor to rebut Pratt’s medical records after she fell. Fred’s relies on Holmes v. State, 537 So.2d 882, 885 (Miss.1988), to assert that commenting about a party’s failure to examine a particular witness, when the witness is available to both parties, is not a proper subject for comment by attorneys before a jury.

¶34. An improper comment on failure to call a witness does not require reversal unless “the natural and probable effect of the improper argument ... creates an unjust prejudice against the opposing party resulting in a decision influenced by the prejudice so created.” Eckman v. Moore, 876 So.2d 975, 986 (¶38) (Miss.2004) (quoting Davis v. State, 530 So.2d 694, 701-02 (Miss.1988)).

¶ 35. In his closing argument, Pratt’s attorney made the following comments:

I have gone back over all of the evidence, and I want you to consider the evidence that was opposed to the evidence that we presented because there wasn’t any evidence. There was none. There was an incident report that had Ms. Pratt’s address on it and some medical records. They didn’t have a doctor to come up here and testify to those records. There was no evidence put on that rebutted any point that we made today. I want you to consider that when you are back there in deliberations.

After the closing arguments, Fred’s attorney objected to the comments made by Pratt’s attorney in his closing argument. The trial court sustained the objection and instructed the jury to disregard the statements made about Fred’s failure to call a witness to rebut Dr. Moses’s testimony, stating that those statements were “inappropriate.”

¶ 36. We find that the attorney’s comments were cured by the circuit court’s instruction, and as such, constitute harmless error which does not warrant reversal.

CONCLUSION

¶ 37. We find that Fred’s assignments of error regarding the circuit court’s denial of a directed verdict and JNOV, and the court’s refusal to admit Pratt’s deposition into evidence, as well as the court’s refusal to grant a mistrial based on Pratt’s attorney’s statements in his closing argument are without merit. However, we find that the court’s refusal to admit Pratt’s previous medical records regarding the preexisting condition in her left knee constitutes reversal on the limited issue of a determination of damages. Accordingly, we affirm this case in part and reverse and remand in part for a new trial on the issue of damages.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPEL-LEE.

LEE, C.J., IRVING, P.J., MYERS AND RUSSELL, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., BARNES AND ROBERTS, JJ., AND JOINED IN PART BY RUSSELL, J. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

MAXWELL, J.,

concurring in part and in result:

¶ 39. I agree with the majority’s result but write separately to illustrate that there is nothing improper with the tactic of offering a plaintiffs deposition during the defendant’s case.

¶ 40. Here, the circuit judge refused to admit Pratt’s deposition during Fred’s case because of Pratt’s availability as a witness. Fred’s argued it could introduce a party’s deposition at any time. The judge admittedly had never confronted a similar request. She reasoned that because Pratt had testified and was present, her deposition could be used only to cross-examine her. I disagree.

¶ 41. Our evidentiary rules and case law certainly support that an attorney, if he or she so desires, is certainly free to avoid confronting an adverse witness with contradictory deposition testimony by simply offering the deposition. Fred’s obviously believed it would fair better by offering the deposition at a point in trial where Pratt could not explain away her earlier answers. This is a matter of strategy. And like skinning a cat, there are countless ways to prosecute or defend lawsuits.

¶42. Mississippi Rule of Civil Procedure 32(a) states, in pertinent part, that:

(a) At the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Mississippi Rules of Evidence.
(2) The deposition of a party ... may be used by an adverse party for any purpose.

(Emphasis added).

¶ 43. In Hartel v. Pruett, 998 So.2d 979 (Miss.2008), the Mississippi Supreme Court confronted Fred’s precise argument but from a plaintiffs perspective. Our supreme court held a circuit judge in error for denying a plaintiffs request to admit, in his case-in-chief, the defendant doctor’s deposition in a medical-malpractice case. Id. at 989 (¶ 25). The Hartel court considered Rule 32(a) in combination with Mississippi Rule of Evidence 801(d)(2)(A), which provides that “[a] statement is not hearsay if: ... [t]he statement is offered against a party and is ... the party’s own statement, in either an individual or a representative capacity!)]” The court emphasized witness availability did not matter. It found: “A party may enter portions of an opposing party’s deposition into evidence without calling the opposing party as a witness, provided that the portions of the deposition are admissible under Rule 801.” Hartel, 998 So.2d at 989 (¶ 24) (emphasis added).

¶ 44. Earlier, in McMillan v. King, 557 So.2d 519 (Miss.1990), our supreme court similarly held a trial judge in error for denying a plaintiffs request to admit portions of a medical attendant’s deposition testimony. The supreme court noted that Rule 801(d)(2) is generally incorporated into Rule 32(a). McMillan, 557 So.2d at 526. It also referenced a treatise on the Federal Rules of Civil Procedure. The treatise interpreted an Advisory Committee Note to mean the phrase “ ‘for any purpose permitted by the Federal Rules of Evidence’ specifically makes statements falling under Rules 801(d) and 801(d)(2) and contained in a deposition admissible despite availability of the witness.” Id. (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure §§ 2144 & 2146 (Supp.1988)). Our supreme court found the medical attendant’s deposition testimony admissible regardless of his availability as a witness. Id. at 526.

¶ 45. The McMillan court acknowledged that “federal courts have routinely accepted this view in the somewhat analogous Rule 32(a)(2), holding the availability of the witness to testify is immaterial, and it is error to deny the admission of a deposition into evidence on this ground.”

¶ 46. Though the circuit judge’s exclusion here was error, I find it harmless since Pratt testified about the subject matter of the deposition. This result is consistent with Hartel, McMillan, and the federal cases cited. On remand, if Fred’s attempts to admit the deposition in toto, and Pratt objects to certain portions based on relevance or other grounds, the court should address such objections and redact portions deemed inadmissible. M.R.C.P. 32(a). Further, if Fred’s now attempts to offer only portions of Pratt’s deposition, Pratt is entitled to introduce any other part of the deposition, “which ought in fairness to be considered contemporaneously with it.” M.R.E. 106; see also M.R.C.P. 32(a)(4).

GRIFFIS, P.J., BARNES AND ROBERTS, JJ„ JOIN THIS OPINION. RUSSELL, J., JOINS THIS OPINION IN PART.

        . McMillan, 557 So.2d at 526 (citing Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 1187, 1194 (5th Cir.1983); Jackson v. Chevron Chem. Co., 679 F.2d 463, 466 (5th Cir.1982); King & King Enters, v. Champlin Petroleum Co., 657 F.2d 1147, 1164-66 (10th Cir.1981); Coughlin v. Capitol Cement Co., 571 F.2d 290, 308 (5th Cir.1978); Pingatore v. Montgomery Ward & Co., 419 F.2d 1138, 1142 (6th Cir.1969); Pursche v. Atlas Scraper & Eng’g Co., 300 F.2d 467, 488 (9th Cir.1961)).

      . Hartel, 998 So.2d at 989 (¶ 25).

      . McMillan, 557 So.2d at 526.


author: ISHEE, J.,

text:
    Billy Glen STEWART, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00192-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Billy Glen Stewart, appellant, pro se.
    Edmund J. Phillips Jr., Newton, James Edwin Smith III, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, Scott Stuart, attorneys for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Billy Glen Stewart appeals his convictions of Counts I, II, and III of sale of cocaine, and three separate sentences of sixty years each in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender, without eligibility for probation or parole, with the sentences in Counts II and III to run concurrently with the sentences in Count I. Stewart argues on appeal that the Leake County Circuit Court erred by (1) enhancing his sentence under Mississippi Code Annotated section 41-29-147 (Rev.2009) and Mississippi Code Annotated section 99-19-81 (Rev.2007) and (2) denying his motion for a directed verdict, request for peremptory instruction, and motion for a new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 5, May 6, and May 24, 2005, the Leake County Sheriffs Department organized sting operations to catch drug dealers in Leake County. They used a confidential informant, Larry Gardner, to arrange drug buys with dealers in the area. Gardner, a former addict, professed to know many of the dealers in the area and offered to arrange a meeting with Stewart, whom he claimed was a well-known drug dealer. Law-enforcement officials agreed to monitor Gardner over several days while he met with alleged drug dealers.

¶ 3. On the day of each drug buy, law-enforcement officials would wire Gardner with a video camera and audio device before each meeting with prospective dealers. The officers were not able to view the video until after the transactions took place, but they were able to monitor the meetings through live radio transmissions. Gardner met with Stewart on May 5, May 6, and May 24, 2005. During each.of these meetings, the team was able to-hear the conversations between Gardner and Stewart, and later the team was able to view the transactions. The audio and video recordings reflected Gardner purchasing cocaine from Stewart.

¶ 4. On February 22, 2006, Stewart was indicted on three counts of selling cocaine to a confidential informant. The indictment charged Stewart as a second drug offender and also as a habitual offender due to Stewart’s previous convictions for selling marijuana. The indictment listed each count separately for each alleged drug sale, and it charged Stewart “did willfully, feloniously and knowingly sell and deliver to Mississippi Bureau of Narcotics Confidential Informant # 95-110 ... a Schedule II controlled substance, namely cocaine, in Leake County.”

¶ 5. Stewart was convicted of the first offense of selling marijuana on May 16, 1989, and sentenced to serve two and a half years in custody of the MDOC. He was convicted of the second offense of selling marijuana on January 14,1991, and again sentenced to serve two and a half years in the custody of the MDOC.

¶ 6. At the trial for the present charges of selling cocaine, Leake County Sheriff Greg Waggoner testified that he was part of the surveillance team for each of the cocaine sales on May 5, May 6, and May 24, 2005. He named Gardner as the confidential informant and noted that Officer Clay McCombs was also part of the surveillance team.

¶ 7. Officer McCombs, a narcotics investigator with the sheriffs department, testified that before each buy, he would conduct a pre-buy meeting with Gardner. During the pre-buy meetings, he would search Gardner and his vehicle to ensure Gardner was not carrying any contraband. He would then give Gardner money to purchase drugs. Officer McCombs stated that he wore a wire the entire time during the pre-buy meeting. After Gardner met with the prospective dealers, Officer McCombs would then conduct a post-buy meeting, and he would again search Gardner. Officer McCombs wore a wire during the post-buy meetings as well. Officer McCombs was present on all three of the days that Gardner met with Stewart. He testified that along with Sheriff Waggoner, they followed Gardner on May 5, 2005, after the pre-buy meeting and watched him as far as they could. They drove to Stewart’s home, outside of the city limits, but Officer McCombs stopped his vehicle before they reached Stewart’s home. Officer McCombs stated that over an external microphone mounted in his car, he heard Gardner stop his own car, walk to the house, and engage in conversation with Stewart. Officer McCombs heard Gardner say that he needed “fifty’s worth,” and after a brief conversation, Gardner left Stewart’s home. Shortly afterwards, Officer McCombs met with Gardner for the post-buy meeting, where he retrieved crack cocaine from Gardner. He also searched Gardner again and took Gardner’s statement as to what occurred during the meeting with Stewart. Officer McCombs later turned over the DVD of the video recording, as well as an audio recording of the buy to the sheriffs department, and he submitted the crack cocaine to the Mississippi Crime Laboratory (crime lab) for testing.

¶8. During the second transaction on May 6, 2005, Officer McCombs testified that he again conducted a pre-buy meeting with Gardner, which was identical to the first pre-buy meeting. Gardner again went to Stewart’s home, but this time another man was present — Sidney Leflore. Gardner spoke with Leflore, left Stewart’s house, and traveled to McGivney Hardware Store, just inside the city limits of Carthage, Mississippi. Officer McCombs and Sheriff Waggoner continued their surveillance, and they witnessed Gardner approach Stewart in the hardware store’s parking lot and speak to him. Gardner then got back in his vehicle and followed Stewart back to Stewart’s home. Officer McCombs stated the he heard Gardner engage in a conversation with Stewart at the house and then leave. Officer McCombs later met Gardner for the post-buy meeting; and after searching Gardner’s person and vehicle, Gardner gave the officer a package of crack cocaine that he said he had purchased from Stewart. Officer McCombs again turned the video and audio recordings over to the sheriffs department and submitted the cocaine to the crime lab for testing.

¶ 9. During the third meeting on May 24, 2005, Officer McCombs conducted a pre-buy meeting with Gardner, which was identical to the previous meetings. Officer McCombs and Sheriff Waggoner followed Gardner in their vehicle and conducted surveillance through the external microphone in the car. At this meeting, Officer McCombs heard Gardner say he needed, “fifty’s worth,” but he did not hear the other person in the conversation. Gardner left the house and met with Officer McCombs and Sheriff Waggoner for the post-buy meeting. Gardner again presented crack cocaine to Officer McCombs and stated that he had purchased it from Stewart. Officer McCombs sent the video and audio recordings to the sheriffs department and submitted the bag of cocaine to the crime lab for testing.

¶ 10. Gardner also testified at trial. He corroborated Officer McCombs’s statement of the events that took place, and he identified each of the three bags of cocaine as being those which he had purchased from Stewart during the three separate meetings. Gardner also identified the video recordings as being true and correct representations of each of the sales of cocaine by Stewart, identified Stewart as being the person seen and heard on the video, and also identified Stewart as the person who had sold him the crack cocaine.

¶ 11. Leflore, who was present at Stewart’s home during the May 6, 2005 meeting testified that he was at Stewart’s house that day to complete some remodeling work for Stewart. Leflore answered the door at Stewart’s house and told Gardner that Stewart was at the hardware store; Gardner then left. He later saw Gardner return with Stewart, and he witnessed Gardner give money to Stewart. He saw Stewart go into another room and come back with a bag of cocaine, which Stewart then gave to Gardner.

¶ 12. On January 17, 2007, a Leake County jury convicted Stewart of all three counts of the sale of cocaine. For Count I, Stewart was sentenced to serve sixty years in the custody of the MDOC as a habitual offender, without eligibility for probation or parole. For Counts II and III, Stewart was also ordered to serve sixty years in the custody of the MDOC as a habitual offender, without eligibility for probation or parole. The sentences in Counts II and III were ordered to run concurrently with the sentence in Count I.

DISCUSSION

I. Enhancement Statute for Sentencing

¶ 13. Stewart argues that the circuit court improperly used the same prior convictions for two separate enhancements of the same sentence, thereby twice enhancing the punishment for the offense, in violation of the double-jeopardy prohibition of the Fifth Amendment to the United States Constitution. He claims that the circuit court improperly enhanced his sentence once under section 41-29-147 of the Mississippi Code Annotated as a second or subsequent drug offender and also under section 99-19-81 as a habitual offender.

¶ 14. Stewart cites no case law to support this theory. It is well settled that “the failure to cite authority in support of an argument eliminates our obligation to review the issue.” Glasper v. State, 914 So.2d 708, 726 (¶ 40) (Miss.2005) (citations omitted).

¶ 15. Notwithstanding this procedural bar, we will briefly discuss Stewart’s claim of improper sentence enhancement and habitual-offender status. Stewart was convicted of three separate violations under Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2009) for the sale of cocaine. The statutory maximum penalty for this crime is thirty years. Miss.Code Ann. § 41—29—139(b)(1) (Rev.2009). He received an enhanced sentence, which doubled the thirty-year sentence to sixty years, due to the fact that Stewart also had two prior convictions for the sale of marijuana. Section 41-29-147 allows for enhancement of a convicted criminal’s sentence up to twice the statutory maximum. A conviction of the sale of cocaine qualifies as a second or subsequent offense when a defendant had a previous conviction for the sale of marijuana. Id.

¶ 16. Likewise, section 99-19-81 mandates that persons convicted of two previous felonies and who were convicted to separate terms of one year or more in any state or federal penal institution, “shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Sentencing a criminal under the habitual-offender statute is mandatory if the criminal meets the statutory requirements. Id. Double jeopardy only “applies to successive prosecutions for the same criminal offense.” White v. State, 702 So.2d 107, 109 (¶ 10) (Miss.1997) (citing United States v. Dixon, 509 U.S. 688, 694, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)).

¶ 17. Stewart had already served time in prison for selling marijuana—once in 1989 and again in 1991. For each of those separate convictions, he was sentenced to serve two and a half years in the custody of the MDOC. In 2007, Stewart was convicted of three separate counts of selling cocaine. The sentences imposed for these crimes do not punish Stewart for his previous crimes of selling marijuana. Rather, those prior convictions were only used to enhance his current sentences for selling cocaine. “Prior convictions which are ‘constitutionally valid in and of themselves’ may appropriately be used to enhance punishment for subsequent convictions.” Horn v. State, 825 So.2d 725, 727 (¶ 16) (Miss.Ct.App.2002) (citing Bailey v. State, 728 So.2d 1070, 1072 (¶ 12) (Miss.1997)). We find that each of Stewart’s convictions satisfy the statutory requirements for habitual-offender status and enhanced sentencing. Accordingly, Stewart’s argument is without merit.

II. Directed Verdict, Peremptory Instruction, and Motion for New Trial

¶ 18. Stewart next argues that the evidence was insufficient to prove that he sold cocaine to the confidential informant listed in the indictment. Stewart references the indictment that accused him of selling cocaine to “Mississippi Bureau of Narcotics Confidential Informant # 95-110.” Stewart admits that the evidence at trial proved that he sold cocaine three times to Gardner, but no evidence was presented to prove that Gardner and confidential informant # 95-110 were the same person or that Stewart made any drug sales to the “confidential informant.” Stewart claims that this failure by the State to prove the connection constitutes reversible error. We disagree.

¶ 19. The decision to grant or deny a motion for a new trial is within the sole discretion of the circuit court. Hill v. State, 912 So.2d 991, 995 (¶ 25) (Miss.Ct.App.2004). We utilize an abuse-of-discretion standard of review in determining whether a new trial should be granted, and a new trial is only warranted if “the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion [for a new trial] would result in unconscionable injustice.” Id. All evidence must be viewed in the light most “consistent with the verdict.” Id.

¶ 20. A directed verdict tests the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The standard of review for a request for a peremptory instruction and directed verdict is the same. Easter v. State, 878 So.2d 10, 21 (¶ 36) (Miss.2004). If the “facts and inferences considered ... point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” then we will reverse the conviction. Bush, 895 So.2d at 843 (¶ 16). The prosecution receives the benefit of all “favorable inferences that may be reasonably drawn from the evidence,” to support the verdict. Smith v. State, 839 So.2d 489, 495 (¶ 11) (Miss.2003).

¶ 21. Stewart readily admits that the State proved that he sold drugs to Gardner on three separate occasions. Yet Stewart claims that the proof failed to show that Gardner was the same person referenced in the indictment and that the absénce of proof was a defect which entitles him to a reversal.

¶ 22. While the indictment did not specifically name Gardner as confidential informant # 95-110, the witness testimony clearly proved that confidential informant # 95-110 was Gardner. Sheriff Waggoner stated that Gardner was the confidential informant used in the drug buys with Stewart. Officer McCombs confirmed that Gardner was the confidential informant, and he went into detail concerning the surveillance efforts used to ensure that Gardner was, in fact, the person who had purchased cocaine from Stewart. Moreover, Gardner himself testified that he had acted as the confidential informant and purchased drugs from Stewart on three separate occasions.

¶ 23. In addition, Stewart failed to raise this issue at trial. “[A]n appellant is not entitled to raise new issues on appeal that he has not first presented to the trial court for determination.” Bush, 895 So.2d at 842 (¶ 13). Therefore, Stewart has waived his right to contest the proof of the confidential informant’s identity on appeal. While the prosecution should have either amended the indictment to conform to the proof presented at trial or confirmed the confidential informant’s identity during questioning as being the same person referred to in the indictment by an informant number, we do not see how Stewart was unfairly prejudiced. Accordingly, we find this issue is procedurally barred and without merit.

¶ 24. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I, II, AND III, SALE OF COCAINE, AND SENTENCE OF SIXTY YEARS ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ALL AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE, WITH THE SENTENCES FOR COUNTS II AND III TO RUN CONCURRENTLY WITH THE SENTENCE FOR COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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