author: GRIFFIS, J., IRVING, J.,

text:
    Manda GRIFFIN, Individually and as a Wrongful Death Beneficiary, and on Behalf of All Other Wrongful Death Beneficiaries of Gracie M. Stephens, Deceased, Appellant v. NORTH MISSISSIPPI MEDICAL CENTER, Appellee.
    No. 2009-CA-00672-COA.
    Court of Appeals of Mississippi.
    Jan. 18, 2011.
    Rehearing Denied April 19, 2011.
    Certiorari Denied Aug. 4, 2011.

      Felecia Perkins, Hiawatha Northington II, Ridgeland, attorneys for appellant.
    John G. Wheeler, attorney for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. Manda Griffin filed a wrongful-death claim against North Mississippi Medical Center (NMMC) in the Lee County Circuit Court. She alleged that NMMC was vicariously liable for the negligence of a nurse that caused her mother’s death. Griffin now appeals the circuit court’s directed verdict that was entered in favor of NMMC. We find no error and affirm.

FACTS

¶ 2. Gracie Stephens was a sixty-one-year-old diabetic with kidneys that no longer functioned. Because of her total renal failure, she required dialysis. Initially, she dialysed by way of an abdominal peritoneal dialysis catheter. However, the abdominal site became infected, and doctors determined it was necessary to switch to a hemodialysis catheter that would be placed in her jugular vein. Surgeon Dr. Terry Pinson was called upon to install the catheter. During the operation, Dr. Pin-son inadvertently punctured Stephens’s carotid artery. He attempted to repair the carotid artery with stitches, placed the catheter in the jugular vein, and closed the site. Stephens was then transferred to the recovery room.

¶ 3. In the recovery room, Sherry Cren-shaw was the nurse assigned to care for Stephens. According to testimony, while Stephens was in the recovery room, her blood pressure and blood volume steadily fell to dangerously low levels, which was consistent with internal bleeding from an ineffectively repaired carotid artery. Cren-shaw reported Stephens’s falling blood pressure to anesthesiologists in the recovery room, and some treatments were administered. However, the treatments were only temporarily effective, and Stephens’s condition continued to deteriorate. Approximately three-and-a-half hours after Stephens first entered the recovery room, Dr. Pinson was called. Dr. Pinson determined it was necessary to reopen the surgical site. However, before that could be done, Stephens went into cardiac arrest and suffered extensive brain damage. She died approximately seven days later.

¶ 4. Stephens’s daughter, Griffin, filed a wrongful-death claim against Dr. Pinson. Later, the complaint was amended to add NMMC as a defendant. The circuit court granted summary judgment in favor of Dr. Pinson, and this Court affirmed that judgment on appeal. Griffin v. Pinson, 952 So.2d 963, 963 (¶ 1)' (Miss.Ct.App.2006). The case proceeded to trial with NMMC as the sole defendant. At the close of Griffin’s evidence, the circuit court granted NMMC’s motion for a directed verdict. It is from this judgment that Griffin now appeals.

STANDARD OF REVIEW

¶ 5. On appeal, we conduct a de novo standard of review of a motion for a directed verdict. Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992). When deciding whether the granting of a motion for a directed verdict was proper by the lower court, this Court considers the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial. Id. If the favorable inferences have been reasonably drawn in favor of the non-moving party so as to create a question of fact from which reasonable minds could differ, then the motion for a directed verdict should not be granted, and the matter should be given to the jury. Id.

ANALYSIS

¶ 6. Griffin’s theory at trial was that Crenshaw was negligent in failing to timely recognize the signs of Stephens’s blood loss and negligent in failing to timely warn Dr. Pinson, or another surgeon, of such blood loss and that Crenshaw’s negligence resulted in a fatal delay of surgical intervention that would have stopped the bleeding and saved Stephens’s life. Griffin alleged NMMC was vicariously liable for Crenshaw’s negligence. The circuit court’s directed verdict was based on the court’s finding that Griffin had failed to present sufficient evidence on the issue of proximate cause. Griffin contends this was error.

¶ 7. The Mississippi Supreme Court articulated the requirements for a prima facie case in medical-malpractice suits, stating:

A prima facie case for medical malpractice must be made by proving the following elements: (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant. Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). “When proving these elements in a medical malpractice suit, expert testimony must be used. Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Banner v. Gorman, 605 So.2d 805, 809 (Miss.1992) (citing Latham v. Hayes, 495 So.2d 453 (Miss.1986)).

Hubbard v. Wansley, 954 So.2d 951, 956-57 (¶ 12) (Miss.2007).

¶ 8. The first two elements — duty and breach of duty — are not at issue here. Griffin submitted expert testimony of a nurse to establish duty and breach of duty. This evidence is not challenged on appeal. Instead, the element of proximate cause is the crux of this appeal.

¶ 9. This case considers a legal theory called the “lost chance of recovery.” To establish the element of proximate cause in a lost-chance-of-recovery case, where the allegation is that a medical provider failed to administer proper care and that the failure allowed an already existing injury to deteriorate, the plaintiff must prove that had proper care been administered then it is probable, or more likely than not, that a substantially better outcome would have resulted. Id. at 964 (¶ 42). Stated differently, the plaintiff must show that, absent malpractice, there is a greater than fifty-percent chance that a substantially better result would have followed. Id.

¶ 10. Griffin’s theory was basically that Crenshaw had failed to take appropriate action to arrest Stephens’s bleeding. It is important to note that the actions of Dr. Pinson in surgery are not at issue, since he was granted summary judgment and is no longer a defendant and that Crenshaw did not assume responsibility until Stephens entered the recovery room already suffering from the punctured, and possibly ineffectively repaired, carotid artery. Thus, the essential allegation to be proved was that proper care was not administered and that failure to administer that care allowed an already existing injury to deteriorate.

¶ 11. To establish her prima facie case, Griffin had to offer expert testimony to establish that had Crenshaw timely recognized the blood loss and timely warned a surgeon, the surgeon would have intervened, and that intervention would have, more likely than not, saved her mother’s life.

¶ 12. Griffin offered the expert testimony of Dr. Richard Truly. Dr. Truly was accepted by the circuit court as an expert in emergency and family medicine. Dr. Truly claimed no expertise in surgery and was not accepted as an expert in that field.

¶ 13. Dr. Truly testified, as to causation, that “[m]y opinion is that the — that the negligence on behalf of the hospital contributed and proximately caused her death by the mere fact that there was [failure to recognize the signs of blood loss].” Dr. Truly did not testify as to what a surgeon would have done had he been notified of the blood loss or what the odds of success would have been had a surgeon timely intervened. Dr. Truly was not an expert in surgery, so any testimony to that effect would have drawn an objection. Indeed, Dr. Truly could not testify as to what a surgeon would have done, nor could he testify that timely surgical intervention would have, more likely than not, saved Stephens’s life. Thus, Dr. Truly did not offer sufficient evidence to support an essential element of Griffin’s prima facie case in this lost-chance-of-recovery case.

¶ 14. The circuit court decided that Dr. Truly’s testimony was insufficient to create a jury question as to proximate cause in a lost-chance-of-recovery case. We agree. Finding no error, we affirm.

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

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

IRVING, J.,

dissenting:

¶ 16. The majority finds that the circuit court did not err in granting a directed verdict against Manda Griffin because she failed to present sufficient evidence to create a jury issue as to the proximate cause of Gracie M. Stephens’s death. The basis for the circuit court’s ruling, which is embraced by the majority, is that Griffin’s expert, Dr. William Truly, was not competent to testify as to the cause of Stephens’s death. Specifically, the circuit court found:

¶ 17. Adequate proof of proximate cause in a medical malpractice action of this type requires evidence that in the absence of the alleged malpractice a significantly better result was probable or more likely than not.

There is nothing in the testimony of Dr. Truly, Nurse Ross, or anyone else of the chances of sparing the life of Ms. Stephens had Nurse Crenshaw — had Nurse Crenshaw’s care of Ms. Stephens had been exactly as Nurse Ross and Dr. Truly think it should have been.

Without this evidence, the plaintiff has failed to make a prime facie case....

¶ 18. Since I believe both the circuit court and the majority have erred, I dissent. I would reverse and remand this case for a new trial.

¶ 19. Dr. Truly was accepted as an expert in the practice of emergency and family medicine. In order to properly appreciate and evaluate Dr. Truly’s testimony, I will present it in the question-and-answer context as it occurred, complete with objections and rulings by the circuit court. On day one, Dr. Truly testified as follows:

Q. Dr. Truly, what were you asked to do with regard to this particular case?
A. I was asked to review this case, as I understand it, and give an opinion as to the cause of death.
Q. And could you tell the jury exactly what you did in doing so?
A. I reviewed the medical records as relates to this patient. I reviewed her admission of 12-29. I reviewed her admission of November 11th. I reviewed her renal status. I reviewed her admission to the PACU. I reviewed Dr. Pin-son’s operative note, as well as his procedure. I reviewed the nursing notes, as well as the laboratory and everything that happened in PACU. I reviewed when she was transferred from PACU over to surgery. So I was able to develop a total picture of this patient’s evaluation and her management and give some reasonable cause or give a cause in my opinion of why she died and why she bled to death.
Q. And did you indeed form such opinions?
A. Yes.
Q. Could you share those with the jury?
NMMC’S ATTORNEY: May it please the Court, I object to that. This witness has not been properly qualified to state that opinion.
GRIFFIN’S ATTORNEY: Your Honor, as was stated in the evaluation of Mr. Truly during his proffer, he — as a part of his experience in the fields of emergency medicine and family medicine, he has been called upon to formulate opinions with regard to cause of death. He has been qualified as an expert in court and testifying in these particular areas based on his experiences in family medicine and emergency medicine. These are the designations that he was given and these are the qualifications for his giving those opinions, and his opinions as stated today will be consistent with the designation that was provided to the Court.
THE COURT: The Court is of the opinion that Dr. Truly is qualified by his knowledge, skill, experience, training and education in the fields of family and emergency medicine to testify and state his opinion as to the cause of death in this case. Certainly, the Court is of the opinion that both family physicians and emergency room physicians are qualified to form opinions as to the cause of death of persons under their care. So the objection is overruled. You may answer the question.
Q. (Griffin’s Attorney) The question, Dr. Truly, was whether you formed opinions and what those opinions were?
A. Yes.
THE COURT: I believe he had answered he had formed an opinion.
GRIFFIN’S ATTORNEY: That’s correct, Your Honor.
THE COURT: The question now is what is his opinion.
GRIFFIN’S ATTORNEY: Thank you.
A. Yes. I have formed an opinion as to the cause of this patient’s death that I would like to share with you. And my opinion is that this patient, one, bled to death. And to share with you what happened, this patient went to — went to surgery on January 4th of 2001, and before she went to surgery, she by definition had a normal 4 blood volume, what we call a normal hemoglobin, which was like 11.8 and that was done on 12-29-2000. She went and she had her surgery, and, of course, all of — we now know what happened in surgery. Dr. Pinson inserted a catheter into the patient’s carotid artery. His intent was to insert a catheter into the patient’s internal—
NMMC’S ATTORNEY: I apologize, but I have to object to this. This testimony is clearly far afield of the expertise of someone in family medicine and emergency medicine. To offer an opinion as to the cause of death is one thing, but to comment upon the care provided by physicians well far afield from his specialty, who he has admitted he does not have expertise in, is irrelevant and inappropriate. I want the record to reflect my objection, Your Honor.
THE COURT: The objection on that point is sustained.
GRIFFIN’S ATTORNEY: Your Honor, if I may, with regard to the testimony that he has given with regard to these actions by Dr. Pin-son, these records that been admitted into the evidence in this case, as well as testimony and questions from Mr. [NMMC’s attorney], testimony from Ms. Ross, merely state the facts that are reflected in the records. Dr. Pinson performed this operation. It went a certain way. Mr. [NMMC’s Attorney] asked questions of Ms. Ross regarding what happened during the surgery. He is not giving opinions about whether that was right or wrong. He’s saying that’s what happened.
NMMC’S ATTORNEY: Your Hon- or, perhaps we could be heard on this outside the presence of the jury.
THE COURT: All right. It’s a good time to take a recess anyway, give the jury a break. Ladies and gentlemen, go with the bailiff. Again, do not discuss this case among yourselves or form or express any opinions about the case.
(JURY LEAVES THE COURTROOM AT 3:13 P.M.)
THE COURT: All right. Mr. [NMMC’S attorney].
NMMC’S ATTORNEY: May it please the Court, I certainly understand the Court’s ruling with respect to the hospital’s objection that would allow this witness proffered and accepted by the Court over objection as an expert in family medicine and emergency medicine. We did not contest his qualifications in that regard, as the Court knows. However, it is anticipated that at some juncture this witness is going to be asked a question of connecting up the alleged neglect of the nurse to his theory of cause of death, and it is our strong position, Your Hon- or, that he has not demonstrated the qualifications necessary to offer such an opinion. It goes without saying, and I think even Nurse Ross conceded, that in order for something to be done that would have altered the outcome for this patient, action would have had to have been taken by one of her attending physicians, either a general surgeon or an anesthesiologist. Even if we accept Nurse Ross’ criticisms that the nurse failed to inform the doctor correctly, intervention would have required action by a physician. This physician, Dr. Truly, does not know and is not an expert on what is done by anesthesiologists or general surgeons in any clinical circumstance. He has not demonstrated that expertise. In Hall vs. Hilbun, Hardy vs. Brantley, Palmer vs. Biloxi Regional, Cheeks vs. Biotech, Troupe vs. North Mississippi Medical Center, a case tried in this very court, Hubbard vs. Wansley, the Supreme Court said repeatedly that this Court, the trial court, is the gatekeeper, and that not every doctor is qualified as an expert in every malpractice case. Dr. Truly is without question, according to the Court, an expert on two topics, family medicine and emergency medicine. Any effort by him to causally connect the alleged nurse negligence in this case to this patient’s death is far afield from his expertise, and we object to it.
THE COURT: MR. [Griffin’s Attorney].
GRIFFIN’S ATTORNEY: Yes, Your Honor. The expertise that Mr. Truly — Dr. Truly has with regard to family medicine and emergency medicine is established in the hospital setting, and certainly — and these questions are going to bear this out — Dr. Truly has experience dealing with nurses and dealing with patients in post-surgical care situations, as he stated. So to that extent, we submit to the Court that Dr. Truly is not only qualified to talk about issues relating to the alleged breaches and whether that was related to the cause of death, but also, if he were to be questioned about hospital procedures as they related to nurses, he’d be qualified to talk about that. My understanding of Mr. [NMMC’S’s attorney’s] objection was whether or not Dr. Truly could talk about any kind of breach or any kind of action with regard to Dr. Pinson and this surgical intervention. Dr. Truly has already stated that he is not a surgeon, and I don’t believe his testimony, as reflected by the court reporter, will indicate that he is talking about any kind of breach on the part of Dr. Pinson. I think the record will reflect that he is merely stating that the record indicates that during the course of the surgical procedure these things happened. He hasn’t given an opinion, and I don’t think he is going to give an opinion as to whether or not such constituted anything other than what the record said or did.
THE COURT: Well, the defense objection is, among other things, is Dr. Truly is ... I have allowed him to testify as to his opinion as to cause of death. The defense objection is ... is any further testimony by him going to the issue of proximate cause. Is that correct, Mr. [NMMC’S attorney]?
NMMC’S ATTORNEY: It is exactly that, Your Honor, and Counsel misunderstands the objection, and, Your Honor, an anticipatory objection was made because Counsel’s questions — and I am not criticizing him — are simply state your opinion. I have no idea when Dr. Truly is going to offer that opinion to the jury, but I want to make the objection now, because I anticipate that it’s coming. The record will clearly reflect that Dr. Truly was identified to us as an expert within the last two weeks. I confessed the substitution of Dr. Truly for Dr. Gold-stein. However, the order from this Court specifically reads that we reserve all objections as to his qualifications and the competency of his opinions. And my point is this: Dr. Truly can not tell us what any anesthesiologist or general surgeon would have done or should have done had their theory of recovery been correct. Had the nurse been negligent and had she been obligated to give more information to Dr. Thompson, Dr. Byars, Dr. Pinson, Dr. Douglas, Dr. Eldridge, if their theory is correct and she owed them more information, he can not tell us, because he is not an expert as to what they would have done or what they could have done or should have done, and for that reason we object to him offering any opinion on proximate causation.
THE COURT: MR. [Griffin’s Attorney], that is the — the issue is whether or not Dr. Truly can offer an additional opinion that — on causation of death. What — what do you say to that?
GRIFFIN’S ATTORNEY: Well, I think, Your Honor — and I want to be clear on what our purpose for having Dr. Truly testify is.
THE COURT: Tell you what, continue your examination of Dr. Truly. The jury is outside the presence of the courtroom.
GRIFFIN’S ATTORNEY: Backtrack to where he left off, Your Honor?
THE COURT: Yes, sir.
Q. MR. [Griffin’s Attorney] Dr. Truly, I’d like you to tell the Court, you were speaking as we left off with regard to the issue of the surgical procedure of Dr. Pinson. And my question to you is: After that occurred, do. you have any opinions as to whether or not the cause of death was related to anything that occurred after that?
A. Yes.
Q. And that’s what I wanted to ask you questions about and what I want you to inform the Court in this proffer.
A. My opinion — my opinion — my opinions are related to what occurred after surgery, and as I was attempting to explain, my opinion is that the patient bled to death and that is based on the fact that before she received her surgery, she had a, by definition, a normal hemoglobin of 11.8, and she entered PACU at 15:24, if I recall correctly. She was in PACU 40 minutes, and her hemoglobin had dropped from its baseline, from 11.8 to a 9.5, which is around about 4:04 or 4:10, and it continued to drop over a period of 2 hours and 45 minutes to a 6.8, which is further evidence of bleeding, and by the time — I think that was about 6:49. Eleven minutes later, around about 7:00, she had dropped down to a 6. That’s a tremendous amount of loss of blood as it relates to the perfusion of the brain, and I think as a consequence of her acute loss of blood, as a consequence of her sustained episodes of hypotension that she experienced in the PACU, that she suffered a cardiac arrest, and I agree with the death certificate, that she had hypertension, and that all of this was due to her encephalopathy, as seen on the EEG, that speaks to the whole issue of hypoxic brain injury as seen on the CT scan, that speaks to the issue of destruction of the gray white matter, brain edema and brain injury. So I think that this acute bleed, this profound hypotension over a period of a couple of hours, with no intervention led to this patient’s death.
Q. And, Dr. Truly, do you have an opinion as to whether or not the breaches as elaborated by Ms. Ross caused or contributed to the cause of death?
A. I think it was a contributing cause of death, because my opinion is that nurses are not helpless ladies, that nurses have certain rights. If Ms. Crenshaw didn’t know, she should have known that in the face of, one, blood loss as represented by falling hematocrit, in the face of two, sustained hypotension — sure, there were times when there was intervention, where boluses of normal saline was given, vasoconstrictors in the form of Neosynephrine was given that — that normalized the blood pressure, but that was only brief. The real state of this patient returned to its original state, sustained hypertension, and if she — if she — if she didn’t know, she should have known that this was something ominous and grave, that this represented blood loss, and that the only doctor who could have intervened in the presence of acute blood loss would have been the surgeon, the proper doctor.
Q. And hypotension meaning blood pressure lower than normal?
A. Yes.

¶ 20. After an overnight recess, Dr. Truly continued his testimony. Again, I present that testimony in the context that it was given, complete with objections and the rulings of the circuit court:

Q. Good morning, Dr. Truly.
A. Good morning, sir.
Q. When we broke yesterday, if I am correct, your testimony had begun with your discussion of the issue of lack of oxygen to vital cells. If you could follow-up on where your testimony was to the jury?
A. I am specifically trying to recall specifically the issue that we were talking about, but I think it was with relevance to the cause of death of Ms. Gracie, and I think I was — I was talking about her being transferred to the PACU. I think I recall that correctly. She was transferred to the PACU following her surgery, and as a consequence of her being transferred to the PACU, there were certain kinds of things that happened in the PACU. And she was transferred, if I recall correctly, at 15:24, which is about 3:24. While in the PACU, she had falling blood pressures. She didn’t just have a low type blood pressure that you saw reflected on the screen. She had falling blood pressures. What, as I would interpret as an emergency room physician, blood pressures that were dangerously low. In the face of her failing blood pressures, she had lost 20 percent of her blood. Meaning that we have about five liters, or five quarts as some people say, and she had lost one of hers. Well, how do we know that? We know that because we looked at what her blood level was before she went into the PACU, and before she went into PACU, her blood count was 11.5. And after having been in PACU for 40 minutes, she dropped from her baseline down to a 9.5, and this is around about 4:10 or 4:04. Interestingly enough, 2 hours and 45 minutes later she didn’t just drop to a 9.5 and stop. Based on the record, the medical record presented to me, she continued to drop. At 18:49 or 6:49 she had dropped all the way down from a 9.5 at 4:10 to a 6.8. So she had dropped all the way down to a 6.8 around about 6:49, and 11 minutes later she had dropped all the way down to a 6. So when you look at all of the falling blood pressures, and when you look at the falling blood count, meaning her hemoglobin he-matocrit, that is a loss of blood, and that is why her pressure was low, because she was losing blood. She was trying to tell Nurse Crenshaw something when she got into trouble around about 17:51. There was a change in her mental status, and there was a change in her physical status. When you go back and look at the record, she is calm, she has good strength, but around about 17:50, which is about 5:50, she is uncooperative. She is pulling off her oxygen. She is pulling off her blood pressure cuff. She is flailing around in the bed. She falls back. She is restless. In the presence of a falling blood pressure and in the presence of a falling hematocrit, when patients become restless and uncooperative, and there is a change in their status and they develop this kind of-kind of air hunger, that means that they are bleeding. There is a change in her status. So at this particular time something needs to be done. So she became unresponsive about 26 minutes after she started flailing around and being restless and being short of breath, and she became unresponsive because she didn’t have enough blood left to sustain her, and that’s why she became unresponsive.
Q. And, Dr. Truly, if you could, give the jury an understanding what you mean by not having enough blood left? A. Well, blood carries the oxygen that we breathe, and what I mean by that, if you simply take water and put it in a balloon, it will expand, and if you punch a hole in the balloon, the water comes out. So we need blood to maintain our balance, to maintain our blood pressure. We need blood to be delivered to our vital organs; our brain, our heart, our liver, our lower extremities, upper extremities. We have to have blood, and when we suddenly lose blood — it’s one thing when you lose blood over a period of — over a period of six months, or three months, as a consequence of some kind of an anemia, but it is another thing when you lose that amount of blood over a period of two to three hours. That is difficult to — it is difficult to sustain that kind of blood loss, and when you lose that kind of blood loss, your entire body is going to shut down. You are going to become simply unresponsive and go into a cardiac arrest.
Q. And what impact did the blood loss that you are talking about have on Ms. Stephens, if any?
A. The blood loss that I am talking about, that had on Ms. Stephens, is that it caused her to go into a cardiac arrest. It caused her to stop breathing. Caused her heart to stop breathing, and it caused the intervention of emergency measures, and which is what they did. There was an intervention of emergency measures, where you beat on the chest, you put a tube down, you give life-saving medicines to keep the blood pressure up and to try to ... to ... restore circulation. They worked on Ms. Gracie from the time she became unresponsive, which was 6:26, if I recall correctly, all the way over to 19:42. So it was from 6:26 all the way over to— not — yeah, 6:26 all the way over to 7:42. 7:42. So they worked on her, and they finally restored her, but by the time they restored her, when you go and look in the record, she was evaluated by a Dr. Milev, who was her kidney doctor, and he gave her what was known as a scale, called a Glasgow scale, or some people call it a Glaseo scale. It is a scale that tells us how much brain damage there is, and he gave her a scale of 3, and people who have a scale of 3, there is an 85 percent chance that either they will die, or either they will remain a vegetable, and this is what happened in her case. The next day she had a CT scan, and the CT scan showed brain injury. Specifically it shows a destruction 10 of what we call gray and white matter, collection of fluid on the brain, brain injury. She also had what was known 12 as an EEG. That, simply speaking, showed hypoxic brain injury, which means by definition her brain is of no function, or her brain is dead. My impression is that this patient died as a consequence of blood loss, sustained hypotension that she experienced in the PACU, and it was the blood loss, the lack of oxygen, that caused her brain injury, that we call 19 hypoxic brain injury, or encephalopathy, as some people 20 might call it, which is on her death certificate, and this is what caused her death and caused her not to ever recover.
Q. And Dr. Truly, do you have any opinions as to whether or not the breaches as alleged by Ms. Ross had anything to do with this cause of death?
A. I — I think that in the — I think that in the — yeah, the answer is yes, because in the PACU there is a — you have a falling blood pressure, and you have a falling hematocrit, and that kind of information — look, we have a patient whose blood pressure is critically low, whose hematocrit has fallen. This represents blood loss. So a doctor, or a resident, or a third-year student should know that falling blood pressures, falling hematocrits, a sudden change in a patient’s status, being restless and uncooperative, and falling back on the bed, and getting out of control is a representation that something is wrong here. This is just not right. Something is wrong here, and there needs to be an intervention.
Q. Dr. Truly, in your review of the medical records, did you observe at any time that Ms. Stephens had any kind of respiratory distress?
A. She experienced respiratory distress at 5:51. There were two components of her illness while in the PACU. One, there was a hematoma, swelling of the neck; and two, there was a description of respiratory distress in the form of her respirations were shallow. Normally when people breathe, they breathe normally. Their respirations are not shallow. Coupled with, if you are in a PACU, or if you are in an ICU, or wherever you are in a hospital, and a loved one’s respirations become shallow, and they are basically lethargic, meaning it seems as if they just don’t have any energy, or they just can’t do things, then that’s a danger sign that there is a change in this patient’s status.
Q. And Dr. Truly, did you notice anything else in the medical records, the nurse’s notes in the PACU, which would indicate to a nurse that there was blood loss occurring?
A. What I noticed was the fact that when she first went into the PACU, there was no blood loss, when she first went in. Forty minutes after being in the PACU, there is a documentation of blood loss. What is the documentation? It changed from a normal blood count of 11.5, which is near normal, down to a 9.5. That means there is a 20 percent blood loss, that she has dropped down, coupled with the sustained hypotensions, sustained low blood pressures. I need to share with you, however, that there were times when this patient was given what’s known as boluses of fluid that equal to in one — couple of instances less than a glass of water, or 200 ccs. In some instances, more than a glass of water, 300 ccs, and that would cause her blood pressure to go up, but it would never stay up. It would never sustain. There were times when her blood pressure was critically low, and she was given blood pressure medicines, called Neosynephrine, that would make her blood pressure go up, but after a while her blood pressure would go back to the original level, the kind of level that you would see as a consequence of not having enough volume or not having enough blood to keep her pressure at a normal level. She simply just didn’t have enough fluids in her body, enough blood in her body to keep it at a normal level. You could give her boluses, you could give her all of these medicines, and because the fluid, the blood, wasn’t there, she simply would drop back down. And so, my interpretation of that is that here is a lady who has falling blood pressures and who has a falling hematocrit, who was uncooperative and restless, and that kind of information, that is important to the patient, was not ever communicated to the individual who did the surgery. Dr. Truly, you spoke previously about encephalopathy as being her end result, in terms of her brain damage. A. Yes.
Q. Did you, in determining the cause of death in this case, rule out any other causes of death?
A. Well, you know, Ms ... Ms. Gracie had several diseases. One, she had what was known as end-stage renal disease, and what that basically means is that her kidney, or kidneys for that matter, simply were not functioning for her. So she had to have what was known as substitute kidney. Her substitute kidney was the peritoneal dialysis, and the same as hemo-dialysis, it is really by definition a substitute kidney. It is a kidney that works for you when your kidney no longer functions. So what is the purpose of the kidney? The purpose of the kidney is to clear all accumulated waste, and if we do not clear that accumulated waste, then, of course, we die. So when people’s kidneys fail, we have to have something like a substitute kidney, which is the hemodialy-sis machine, which is one way of keeping the blood free of waste. Of course, the other way is peritoneal dialysis, where you put a tube into the abdomen and you feed a dialysate, a solution into the abdomen, and through a process the waste comes from the capillaries that line the stomach into the dialysate, and it comes out. So that is how you are able to— to use peritoneal dialysis to clear the body of waste. So she — but it was not — it was not — end-stage renal disease does not mean the end of life. I manage patients with end-stage renal disease who are 70, 80 years of age. So it doesn’t mean the end of life. We see people all the time who are in their 70s and 80s on dialysis. So I was never impressed that that was the cause of death. She also had the complications of diabetes, meaning that her vision was affected. The vessels lining her retina was affected, that we call 14 diabetic retinopathy. That was not the cause of her 15 death. She also had what they call sepsis, and when you 16 go back and look at her record, Ms. Gracie had what was known as chronic peritonitis. She had a chronic infection of her peritoneum, and she — I don’t recall her, when she was in PACU, having what was known as acute peritonitis. Acute peritonitis is where you have the chills, the fevers, the rigor, the stomach is tender. You punch on the belly and remove your hand, and there is what is known as rebound tenderness. So I don’t ever recall that, but she did have chronic peritonitis from the catheter that was in her abdomen. She had a lot of blood cultures done after ... after her ... she became brain dead, and there is nowhere in the record where an organism was found in her blood, that I recall. Usually, when people have — there is a difference between — there are some people who— who — who define sepsis as an infection. I need to share with you that there is a difference between an infection and a septicemia. People have tonsilitises, and their white count goes up, but they don’t have septicemia. Septicemia means, or bacteremia means the finding of bacteria in the blood stream. That is how we define bacteremia or septicemia. It is characterized by fevers and chills and a bacteria in the bloodstream. A bacteria was never found in her blood stream. When you go back and you look at her record, she did have white count of 12,000, with normal being about 10, white count of 10, maybe 11, but before Dr. Pinson did the surgery, it was 12,000. When you go back and look at her white count after her— around about 8:40, which was January 4th, 2001, she has a white count of 22,000. Now the real question is, is that related to — is that a septicemia? Because what happens is when an individual has a cardiac arrest, and all of the intervening measures take place, we now know that it is not unusual to find an elevated white count. I’m not saying to you that—
NMMC’S ATTORNEY: Your Honor, may it please the Court, I apologize for interrupting. I’m being as patient as I can be, but this is so far afield from this witness’ disclosure, that I am compelled for the record to object.
GRIFFIN’S ATTORNEY: I would impose a question, Your Honor.
THE COURT: The objection is sustained. From what the Court recalls, the expert’s proposed testimony would be as reflected in the filings with the Court.
GRIFFIN’S ATTORNEY: Thank you, Judge.
Q. Dr. Truly, do you have an opinion as to whether or not failures or omissions of North Mississippi Medical Center caused or contributed to Ms. Stephens’ death?
A. Yes.
Q. Please share that opinion with the jury.
A. My opinion is that the — that the negligence on behalf of the hospital contributed and proximately caused her death by the mere fact that there was — one, there was a failure to recognize the significance of a falling blood pressure, coupled with a falling hematocrit, coupled with a patient who is uncooperative and restless, coupled with the change in her status, coupled with air hunger. So there was a failure of the hospital to respond to these changes of a falling blood pressure and a falling hemato-crit or hemoglobin. The falling he-matocrit, the hemoglobin, represents that she is bleeding.
Q. Are those opinions given to a reasonable degree of medical probability? A. Yes.
Q. Dr. Truly, when did Ms. Stephens expire?
A. If I recall correctly, I think she actually expired on the 10th or the 11th of January 2001.
Q. And what was her condition between the date of her death and the date of the surgery?
A. She was in a vegetative state.

¶ 21. It seems clear to me that, based on Dr. Truly’s testimony, Griffin was entitled to have a jury consider whether the negligence of Nurse Crenshaw in not timely notifying Dr. Pinson was a proximate cause of Stephens’s death. Surely a jury might find that the delay in notifying Dr. Pinson was a proximate cause of Stephens’s death, as the delay either allowed her to bled to death or substantially increased her chances of dying from a tardy intervention by Dr. Pinson once he was notified. To suggest that Griffin failed to present adequate expert testimony because Dr. Truly was not qualified to give an expert opinion in the field of surgery evades the crucial question: should Nurse Crenshaw have notified Dr. Pinson earlier than she did, and did this delay proximately contribute to Stephens’s death?

¶ 22. For the reasons presented, I dissent. I would reverse and remand for a new trial.

KING, C.J., AND LEE, P.J., JOIN THIS OPINION.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Bertha COLLINS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-00170-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Rehearing Denied May 10, 2011.
    Certiorari Denied Aug. 4, 2011.

      Alexander J. Simpson III, attorney for appellant.
    Albert B. White, attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. Bertha Collins was employed by Tony’s Café in Aberdeen, Mississippi, as a waitress until she was discharged due to an altercation with Tony’s owner, Teresa Davis. Collins had failed to report to work on February 16, 2009, and the altercation on February 17 resulted from Davis’s questioning of Collins about her absence from work. Davis stated that Collins yelled profanities at her, pointed a finger in her face, and shoved her. Collins admitted that she yelled at Davis, but she denied pointing her finger at Davis and shoving her. Collins was fired on February 17.

¶ 2. Collins subsequently filed for unemployment benefits with the Mississippi Department of Employment Security (MDES). The claims examiner determined that Collins was disqualified from receiving benefits. Collins appealed. After a telephonic hearing, the administrative judge (AJ) found that Collins’s behavior constituted misconduct; thus, she was not entitled to benefits.

¶ 3. Collins appealed to the Board of Review. The Board adopted the AJ’s findings of fact and affirmed the decision to deny benefits. Collins then appealed to the Monroe County Circuit Court, which affirmed the decision of the Board.

¶ 4. Collins now appeals, asserting the following issues: (1) MDES violated her due-process rights, and (2) her behavior did not constitute misconduct. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. Our restrictive standard of review for administrative appeals is well known. In the absence of fraud and if supported by substantial evidence, an order from the Board on the facts is conclusive in the lower court. Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). On appeal, employees have the burden of overcoming a rebuttable presumption in favor of the Board’s decision. Miss. Employment Sec. Comm’n v. Noel, 712 So.2d 728, 730 (¶ 5) (Miss.Ct.App.1998). The denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights. Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993).

DISCUSSION

I. DUE PROCESS

¶ 6. Collins contends that her due-process rights were violated because MDES failed to provide her with proper notice of the precise issues to be determined at her hearing before the AJ. Collins asserts that she was only given notice that her discharge was due to absenteeism and not the altercation with Davis.

¶ 7. In Booth v. Mississippi Employment Security Commission, 588 So.2d 422, 427 (Miss.1991), the Mississippi Supreme Court stated that, in appeals before administrative agencies, minimum due process is required, which consists of “notice reasonably calculated, under all the circumstances, to apprise interested parties ... and afford them an opportunity to present objections.” Collins was notified of the hearing and that the issue to be discussed concerned the reason for her discharge. Although the reason for Collins’s discharge on some of the MDES forms and letters was for absenteeism, it is clear from the record that Collins was aware her termination resulted from the altercation with Davis. Collins produced a witness to testify on her behalf at the telephonic hearing and admitted three letters from witnesses to support her version of the altercation.

¶ 8. It is apparent that Collins was afforded minimum due process; thus, we find no violation of her constitutional rights. This issue is without merit.

II. MISCONDUCT

¶ 9. Collins also contends that her behavior did not constitute misconduct. Collins specifically argues that a single instance of misconduct does not meet the definition of misconduct sufficient to disqualify her for benefits. A definition of the term “misconduct” can be found in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), which provides:

[T]he meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.
Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

¶ 10. We find that there was substantial evidence to support the Board’s decision. Collins yelled profanities at Davis and shoved her. This occurred in the restaurant in front of patrons and other employees. One of Collins’s witnesses admitted that she had to separate Collins and Davis. Davis stated that she asked Collins to leave the premises, but Collins continued to yell at her. This conduct is a deliberate disregard of standards of behavior that Davis had a right to expect from Collins. This issue is without merit.

¶11. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS AFFIRMED.

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


author: ROBERTS, J.,

text:
    Lawonda SHEPHARD and Alfred Kirkham, Appellants v. STATE of Mississippi, Appellee.
    No. 2009-KA-00112-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied June 21, 2011.
    Certiorari Denied Aug. 4, 2011.

      Andrew Brevik Schimmel, David Neil McCarty, attorneys for Shephard.
    W. Daniel Hinchcliff, attorney for Kirk-ham.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Alfred Kirkham and Lawonda She-phard were simultaneously tried for aggravated assault before a jury in the Bolivar County Circuit Court. The jury found them both guilty, but Shephard was convicted as an aider and abettor. Kirkham was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Shephard was sentenced to fifteen years in the custody of the MDOC with five years suspended. Aggrieved, Kirkham and Shephard appeal. Kirkham argues that the circuit judge erroneously prohibited testimony regarding the reputation of the victim. Kirkham also argues that the cumulative effect of the circuit judge’s comments prejudiced his right to a fair trial. Finding no error as to Kirkham, we affirm. Shephard argues that the circuit judge erred when it denied her motion to sever her trial from Kirk-ham’s after Kirkham, her co-defendant, unexpectedly implicated her. After careful consideration, we find Shephard’s argument with merit. Accordingly, we reverse the circuit judge’s judgment regarding Shephard and remand Shephard’s case for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. The events that led to Kirkham’s and Shephard’s convictions for aggravated assault took place during June 2007 in Shaw, Mississippi. The catalyst for their convictions was a dispute between Kirk-ham and Fabian Curry regarding damages to Curry’s car. In March 2007, Kirkham’s brother was responsible for some collision damage to Curry’s car. Curry insisted that Kirkham pay $3,500 for the damage. Kirkham felt as though he should not be required to pay for the damages that his brother caused. Even so, Kirkham tried to arrange for his father to pay for the damage to Curry’s car. When he had not received any money from Kirkham’s father, Curry again demanded that Kirkham pay for the damage to his car. Kirkham adamantly refused. On Sunday, June 24, 2007, there was an altercation between Kirkham and Curry. Kirkham testified that Curry shoved him against a wall and demanded that Kirkham pay for the damage to his car. Kirkham also testified that he left on his motorcycle, and Curry ran him off the road.

¶ 3. It is undisputed that, the next day, Kirkham shot Curry in the chest. Curry survived. Curry and Kirkham described two distinctly different versions of events. According to Curry, he was visiting a friend at the Promise Land Apartments. Curry testified that he left his friend’s apartment to go to a store. Curry went on to testify that he saw Shephard outside and heard Kirkham’s motorcycle. In Curry’s version of events, their confrontation became more heated, and Shephard handed Kirkham a pistol that she had gotten out of Kirkham’s nearby car. Curry testified that Kirkham shot him once in the chest. Curry further testified that Kirk-ham tried to shoot him again, but Kirk-ham’s .38-caliber derringer pistol misfired. Curry’s friends arrived shortly afterward and took Curry to the hospital.

¶ 4. Shephard, who was Kirkham’s girlfriend at the time Kirkham shot Curry, testified that Curry and three of Curry’s friends confronted Kirkham. According to Shephard, Curry punched Kirkham in the face. When Shephard tried to intervene, Curry threatened her too. Shephard testified that Curry implied that he and his friends would arm themselves with pistols. Shephard went on to testify that her aunt attempted to intervene, and during the commotion, she heard a shot and saw Curry on the ground. Shephard testified that she did not give Kirkham a pistol. She also testified that there was not a pistol in Kirkham’s car, which she had been driving.

¶ 5. Kirkham testified in his own defense. His version of events was similar to Shephard’s. Like Shephard, Kirkham testified that Curry punched him in the face and “dashed” beer on him. Kirkham consistently maintained that Curry was the aggressor and that Curry was supported by three of his friends. Kirkham also testified that immediately before he shot Curry, Curry acted as though he was retrieving a weapon from his pants. According to Kirkham, he shot Curry in necessary self-defense.

¶ 6. Kirkham gave a sworn statement to officers with the Shaw Police Department. In that statement, Kirkham did not state that Shephard handed him a pistol. Instead, he said that he “came up with the gun.” However, at trial, he testified, for the first time, that he asked Shephard to hand him a pistol. He also testified that she complied. According to Kirkham, he did not know who owned that particular pistol, but he was aware that Shephard owned one.

¶ 7. Kirkham was indicted for aggravated assault. Shephard was indicted as an accessory-before-the-fact for aiding and abetting in the aggravated assault. Kirk-ham and Shephard were tried together. Ultimately, the jury found both Kirkham and Shephard guilty. The circuit judge sentenced Shephard to fifteen years in the custody of the MDOC with five years suspended. Kirkham, who had previously been convicted of possession of cocaine with intent to distribute, was sentenced to twenty years in the custody of the MDOC. Aggrieved, Kirkham and Shephard appeal.

ANALYSIS

KIRKHAM’S ISSUES ON APPEAL

I. COMMENTS BY THE CIRCUIT JUDGE

¶ 8. Kirkham claims that the circuit judge made numerous inappropriate comments throughout the entirety of the trial. Kirkham did not object to any of the comments he mentions. However, in his motion for a new trial, Kirkham argued that the cumulative effect of what Kirkham considers to be the circuit judge’s attempts at levity eroded the seriousness of the proceedings and, in the aggregate, result in reversible error.

¶ 9. According to Kirkham:

Beginning in the [circuit court’s] voir dire and continuing throughout the proceedings, the [circuit] court induced laughter from the courtroom. During the [circuit] court’s voir dire, there was laughter reported in the record [on] ten instances. Although a cold record does not explain the basis for the jocularity, some instances were clearly a response to the [circuit court’s] comments. For instance, when a juror answer[ed] “sometimes” to the [circuit court’s] inquiry of whether [the juror was a] friend [of] one of the lawyers, or went to the lawyer’s home, the [circuit] court jested[,] “[a]re you sometimes personal friend or sometimes go to the home? I’m not sure.”

The record indicates that people in the courtroom laughed at the circuit judge’s comment. Additionally, Kirkham points out that there was laughter in the courtroom when, during voir dire, the circuit judge “remarked, apparently to his clerk, that vernacular terminology had changed since his youth.” Kirkham further draws attention to an instance in which, according to Kirkham, a juror “had difficulty expressing whether his knowledge of the witnesses would affect him.” After the prospective juror had attempted to indicate that he was not a friend of any of the parties involved in Kirkham’s trial, the circuit judge said, “[y]ou are not friends with anybody?” Again, the record indicates that there was laughter in the courtroom.

¶ 10. Kirkham also notes that, during the prosecution’s voir dire, the circuit judge drew laughter from the courtroom when he stated, “Bill went to high school with us, too. Didn’t he Tresa?” Furthermore, Kirkham’s attorney asked the jury panel, during voir dire, whether any members of the panel owned a weapon for personal protection. The circuit judge again made people in the courtroom laugh when he made a statement regarding members of the panel having weapons with them at that time.

¶ 11. This is not the first time that such a claim has been raised against the circuit judge who presided over Kirkham’s trial. In McKinney v. State, 26 So.3d 1065, 1071-72 (¶ 31) (Miss.Ct.App.2009), this Court considered a claim that the same circuit judge made numerous comments that, in the aggregate, denied a defendant “a fair trial because the jury was induced to treat the matter lightly.” This Court noted the following cautionary language by the Mississippi Supreme Court:

Jocularity and humor, by a court, should not be indulged in when a man’s liberty is at stake. The officers of a court, and especially the judge, district attorney and sheriff, because of the attributes of the offices they hold, unconsciously exert tremendous influence in the trial of a case, and they should be astutely careful so that unintentionally the jurors are not improperly influenced by their words and actions.

Id. at 1072 (¶ 32) (quoting Roberson v. State, 185 So.2d 667, 670 (Miss.1966)). “The great danger, particularly in a criminal case, is that the weight and dignity of the court accompany each question or comment, although not so intended by the judge.” Id. (quoting Thompson v. State, 468 So.2d 852, 854 (Miss.1985)).

¶ 12. It is clear that some of the circuit judge’s comments were not only unnecessary, but also unnecessary attempts at levity. However, we cannot conclude that the cumulative or aggregate effect of the circuit judge’s comments eroded Kirkham’s right to a fair trial. As in McKinney we can find no instance in which the circuit judge “made light of the proceedings or joked at the defendant’s expense.” McKinney, 26 So.3d at 1072 (¶ 33). Be that as it may, we caution circuit judges to be aware of the supreme court’s instructions to avoid jocularity and humor to mitigate not only the possibility of unintentionally causing reversible error, but also the possibility of unintentionally creating an atmosphere of levity where one clearly does not belong.

¶ 13. Kirkham does not focus solely on comments that he considers to be attempts at humor. Kirkham notes that, during voir dire, the circuit judge had explained to the jury panel that “if I call one of them by [his or her] first name, I’m not trying to show lack of respect. They are friends. We work together. And so we know each other in this arena. And these are good attorneys and very respectful.” According to Kirkham, “there was one attorney present who was not from that circuit[;] the attorney for ... Kirkham. Thus, the [circuit] judge singled out the prosecutor and [Shephard’s] defense counsel and named them as friends and good attorneys.” Kirkham also draws attention to a comment that occurred during defense counsel’s cross-examination in which the circuit judge stated to defense counsel, “Don’t confuse things, lawyer.” According to Kirkham, the message to the jury was that defense counsel was attempting to confuse them. However, there was no contemporaneous objections to either of the circuit judge’s comments. Accordingly, any issue regarding those comments is proeedurally barred.

¶ 14. At one point during the trial, Curry and Kirkham were asked to stand beside one another so the jury could see the relative size difference between them. Kirkham notes that the circuit judge stated, “don’t get ‘em too close together.” Kirkham further notes that the record indicates that there was laughter from unspecified people in the courtroom. Again, this issue is proeedurally barred based on the lack of a contemporaneous objection. Procedural bar notwithstanding, given the facts and circumstances of this case, we cannot conclude that the circuit judge was attempting to make light of the situation at that time. The circuit judge’s comment did not imply that either Kirkham or Curry was more likely to attack the other. It was not unreasonable for the circuit judge to mitigate the possibility of a violent altercation by requiring that there be some distance between Kirkham and Curry.

¶ 15. Finally, Kirkham notes that, while cross-examining a defense witness who had testified that Kirkham’s ankle was bruised, the prosecution asked whether such injuries could have been sustained by kicking someone. The circuit judge instructed the prosecution to move forward with its cross-examination because the prosecution “got enough evidence to— there’s no need in asking her about that.” According to Kirkham, the circuit judge’s comment “could only be construed by the jury as the judge’s’s judgement [sic] that the State had proved it’s [sic] ease [and] that no more evidence was required to convict [Kirkham].” However, there was no contemporaneous objection that the circuit judge’s comment was a comment on the weight or sufficiency of the evidence. Accordingly, any such claim raised for the first time on appeal is procedurally barred.

¶ 16. “The very position of a judge during trial makes each comment unusually susceptible of influencing a juror or the jury.” Davis v. State, 811 So.2d 346, 353 (¶ 14) (Miss.Ct.App.2001) (quoting Hannah v. State, 336 So.2d 1317, 1321 (Miss.1976)). “Jurors are most susceptible to the influence of the judge; he cannot be too careful and guarded in his language and conduct in the presence of the jury.” Beyersdoffer v. State, 520 So.2d 1364, 1366 (Miss.1988). Viewing all of the comments that Kirkham raises, we cannot find that, in the aggregate, the cii’cuit judge’s comments clearly prejudiced Kirkham’s right to a fair trial. Accordingly, we find no merit to this issue.

II. CHARACTER EVIDENCE

¶ 17. Kirkham claims the circuit judge erred when it prohibited him from testifying regarding Curry’s reputation for violence. During Kirkham’s testimony on direct examination, Kirkham’s attorney asked, “were you at this time familiar with Mr. Curry’s reputation in the community for peacefulness!?]” The prosecution objected and stated, “He’s not for character, your Honor, when he’s also a fact witness. And I would object to that. I don’t think that that is permitted by the rules of evidence.” During a bench conference, the circuit judge asked Kirkham’s attorney whether he was “trying to say [Curry] has ... a reputation for violence.” Kirkham’s attorney answered affirmatively and mentioned that the testimony he sought to elicit was regarding Kirkham’s “state of mind.”

¶ 18. In response, the prosecution argued that Kirkham’s state of mind “has already been presented and has to be known to him not so much the community. He’s the one that acted.” The circuit judge agreed with the prosecution and added that Kirkham’s attorney had “already brought out that they’ve got — their argument about this thing.” We interpret the circuit judge’s statement to mean that evidence regarding a dispute between Kirkham and Curry had already been presented in evidence. The circuit judge went on to state that “it’s a [Mississippi Rule of Evidence] 403 problem for you.” The circuit judge never expressly ruled on the prosecution’s objection, but the context of the bench conference indicates that the circuit judge would not permit Kirkham’s attorney to elicit any evidence of Cuny’s reputation for violence in the community.

¶ 19. The relevance and admission or exclusion of evidence is a matter of the circuit judge’s discretion which will be reversed only for an abuse of that discretion which results in prejudice to a party. Shearer v. State, 423 So.2d 824, 826 (Miss. 1982). Pursuant to Mississippi Rule of Evidence 404(a), “[ejvidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” Nevertheless, evidence that would otherwise be excluded under Rule 404(a) is admissible if it is “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor[.]” M.R.E. 404(a)(2).

¶ 20. This Court has held that:

when the defendant claims to have acted preemptively to protect himself from a feared by yet-unrealized attack, the defendant’s knowledge concerning the victim’s character for aggressive behavior may be relevant to permit the jury to assess the reasonableness of the defendant’s response to what might otherwise appear as an overreaction against the victim.

Sheffield v. State, 844 So.2d 519, 522 (¶ 6) (Miss.Ct.App.2003). However, the defendant in Sheffield, “made no proffer as to what the particulars of Sheffield’s testimony might have been had he been allowed to continue.” Id. Similarly, there was no proffer of what Kirkham’s testimony might have been had Kirkham been allowed to continue. The record is simply silent on whether Kirkham knew, at the time of the shooting, Curry’s reputation for peacefulness or violence in the community and, if so, whether it was good or bad.

¶ 21. Regarding the proper predicate to such testimony, this Court has held as follows:

it is essential that the proper predicate be laid for the admissibility of evidence of the victim’s propensity for violence, i.e., that the defendant was actually aware of the victim’s character so that this prior knowledge colored the defendant’s decision regarding the necessity of violent physical effort to avoid an anticipated attack. This is so because of the obvious proposition that, if the defendant was not actually aware of the victim’s reputation for violent behavior, there was no reasoned basis to utilize force that, in the ordinary circumstance, would appear excessive and unjustified.

Id. Mississippi Rule of Evidence 103(a)(2) states that; “[E]rror may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and .... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Based on the lack of a proffer in the record, we cannot conclude that the circuit judge abused its discretion. Id. Accordingly, we find no merit to this issue.

SHEPHARD’S ISSUES ON APPEAL

I. SEVERANCE

¶ 22. Shephard did not file a pretrial motion to sever her trial from Kirkham’s because Kirkham’s pretrial statement did not implicate Shephard. Instead, Kirk-ham’s pretrial statement indicated that he, not Shephard, “came up with the gun” when Kirkham shot Curry.

¶ 23. At trial, Curry testified that She-phard handed Kirkham the pistol before Kirkham shot Curry. After the prosecution rested its case-in-chief, Kirkham opted to testify. Unlike his pretrial statement, Kirkham implicated Shephard during his direct testimony. Specifically, Kirkham testified that he told Shephard to “pass [him] the gun.” Kirkham also testified that Shephard complied.

¶ 24. Immediately after Kirkham’s unanticipated testimony, Shephard’s attorney moved to sever Shephard’s trial from Kirk-ham’s. The circuit judge overruled She-phard’s motion on the basis the Kirkham’s testimony was consistent with Curry’s. Shephard argues that the circuit judge erred.

¶ 25. According to the State, this issue is procedurally barred because Shephard did not raise this issue in her motion for a new trial. As authority for its argument that one who had unsuccessfully moved for a severance during a trial must then raise that issue again in a motion for a new trial, the State cites Goldman v. State, 9 So.3d 394, 399 (¶¶ 20-23) (Miss.Ct.App.2008). Nevertheless, that portion of Goldman pertains to an issue regarding whether a circuit judge erred when it allowed the prosecution in that case to submit a victim’s medical records into evidence. This Court held that the issue was procedurally barred because “Goldman made a specific objection at trial, and his objection was wholly unrelated to his argument on appeal.” Id. at (¶ 23). Failure to raise the issue in a motion for new trial was not mentioned. Accordingly, the State has submitted no relevant authority for its argument that one who unsuccessfully moved for a severance during trial must raise that issue again in a motion for new trial or the issue is procedurally barred on appeal. It follows that the State’s argument is, itself, barred on appeal for failure to cite relevant authority.

¶ 26. A circuit judge’s decision to deny a motion to sever a trial will not be overturned unless the circuit judge abused its discretion. King v. State, 857 So.2d 702, 716 (¶ 19) (Miss.2003). “Defendants who are jointly indicted for a felony are not entitled to separate trials as a matter of right.” Miller v. State, 17 So.3d 1109, 1112 (¶ 11) (Miss.Ct.App.2009) (citation omitted). The circuit judge may grant a motion to sever upon a determination that a severance “is necessary to promote a fair determination of a co-defendant’s guilt or innocence.” Id. (citation omitted).

¶ 27. As set forth by Rule 9.03(2) of the Mississippi Uniform Rules of Circuit and County Court, “[t]he court may, on motion of the state or defendant, grant a severance of offenses ... [i]f during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.” “When the evidence at trial goes equally to the guilt of both defendants, and not to one more than the other, it is not error to try the defendants jointly.” King, 857 So.2d at 716 (¶ 19). The Mississippi Supreme Court has held:

[T]o warrant reversal ... [an appellant] must demonstrate that (1) [a co-defendant] attempted to exculpate himself at the expense of [the appellant], i.e., there was a conflict of interest between the two; and (2) that the balance of the evidence introduced at trial went more to the guilty [sic] of [a co-defendant] than to the guilt of [the appellant], such that the jury may have found [the appellant] guilty by association.

Id. at (¶ 20).

¶ 28. Kirkham’s testimony tended to exculpate himself at Shephard’s expense in that, by testifying that Shephard handed him the pistol, Kirkham avoided the appearance of having brought the pistol with him for a confrontation with Curry. In other words, Kirkham’s testimony avoided the appearance that he was the initial aggressor in the confrontation or that he left the confrontation, armed himself, and returned to the confrontation. If Kirkham anticipated a confrontation with Curry, armed himself in advance of that confrontation, and returned to the confrontation armed, he may well have forfeited any claim of necessary self-defense. See, e.g., Griffin v. State, 495 So.2d 1352, 1354 (Miss.1986).

¶ 29. As for the second part of the supreme court’s severance test, the balance of evidence certainly went more toward Kirkham’s guilt than it did toward Shephard’s guilt. Aside from Curry’s testimony that Shephard handed Kirkham the pistol, the prosecution presented no other evidence that Shephard was involved in an aggravated assault. Kirkham corroborated Curry’s version of events, but in doing so, he made his claim of self-defense more viable. The only evidence regarding She-phard’s involvement in an aggravated assault was that Shephard handed Kirkham a pistol. Other than Curry’s testimony and Kirkham’s unexpected testimony that was inconsistent with his statement, there was no evidence that Shephard behaved in any criminal manner. In summary, the jury certainly may have found Shephard guilty by association with Kirkham.

¶ 30. Having found that Shephard has demonstrated both parts of the supreme court’s two-part test, we find that the circuit judge erred when it denied Shephard’s motion for severance. We, therefore, reverse the judgment of the circuit judge as to Shephard only and remand this matter for a new trial consistent with this opinion. Because we find merit to this issue, She-phard’s remaining issues are rendered moot.

¶ 81. KIRKHAM: THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SHEPHARD: THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS REVERSED, AND SHEPHARD’S CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: IRVING, P.J.,

text:
    TENNESSEE PROPERTIES, INC., Appellant/Cross-Appellee v. Larry GILLENTINE, Appellee/Cross-Appellant.
    No. 2010-CA-00376-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.

      William R. Bruce, attorney for appellant.
    Dennis W. Yoge, Tupelo, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. On June 12, 2008, Tennessee Properties, Inc. (TPI) filed a complaint to adjudicate title to property located in Verona, Mississippi. Southern Pilot Insurance Co. had foreclosed on the property on June 12, 1998. On August 31, 1998, Larry Gillen-tine purchased the property from Southern Pilot. Gillentine financed the purchase through Renasant Bank, which took a secured interest in the property.

¶ 2. In its complaint, TPI argued that Southern Pilot’s foreclosure sale was unauthorized because TPI had paid the underlying debt secured by the property. Alternatively, TPI argued that the sale was void because it did not comply with the terms of the deed of trust, which required a sale by public outcry. TPI asserted that because Southern Pilot’s foreclosure sale was void, Gillentine’s warranty deed was also void.

¶ 3. Gillentine filed a motion to dismiss under Rule 12(b) of the Mississippi Rules of Civil Procedure, arguing that TPI had failed to serve process on Southern Pilot, to join Renasant as a necessary party under Rule 19 of the Mississippi Rules of Civil Procedure, and to file its claim within the general three-year limitations period set forth in Mississippi Code Annotated section 15-1-49 (Rev.2003). Additionally, Gillentine sought sanctions in the form of attorney’s fees and court costs under Rule 11(b) of the Mississippi Rules of Civil Procedure.

¶ 4. The Lee County Chancery Court dismissed the complaint as time-barred, but it denied Gillentine’s motion for Rule 11 sanctions. Feeling aggrieved, TPI appeals and argues that the chancery court erred in applying the wrong limitations period to its claim and in refusing to find that the limitations period was tolled because of concealed defects in the foreclosure sale. Gillentine filed a cross-appeal, arguing that the chancery court erred in failing to award Rule 11 sanctions.

¶ 5. Finding no reversible error, we affirm.

FACTS

¶ 6. On December 8, 1986, Dr. Herbert Brewer executed a warranty deed conveying his interest in the subject property to TPI. On August 2, 1989, TPI executed a deed of trust in favor of The People’s Bank and Trust Co., now known as Renasant, to secure a promissory note. For reasons that are not explained in the record, Rena-sant assigned the promissory note and the associated deed of trust to Southern Pilot on March 20,1996.

¶ 7. On June 12, 1998, Southern Pilot foreclosed on the deed of trust and successfully bid on the property. Southern Pilot received a substituted trustee’s deed, which it recorded on July 28, 1998. On August 31, 1998, Southern Pilot executed a warranty deed and sold the property to Gillentine.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. A Mississippi appellate court employs a limited standard of review on appeals from chancery court. Corp. Mgmt. v. Greene County, 23 So.3d 454, 459 (¶ 11) (Miss.2009). As such, we “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneousf,] or applied an erroneous legal standard.” Id. (quoting Biglane v. Under The Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007)). However, questions of law, including a chancery court’s application of the statute of limitations, are reviewed de novo. Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss.2009).

1. Statute of Limitations

¶ 10. TPI argues that the chancellor erred in applying the general, three-year statute of limitations set forth in section 15-1-49. TPI asserts that the ten-year statute of limitations applicable to actions to recover land applies to its claim. We disagree. TPI contends that it had paid the debt secured by the property, and, therefore, Southern Pilot wrongfully foreclosed on its property. The Mississippi Supreme Court has held that the general, three-year statute of limitations applies to actions for wrongful or fraudulent foreclosures. S. Land & Res. Co. v. Dobbs, 467 So.2d 652, 655 (Miss.1985). TPI filed its complaint on June 12, 2008-exactly ten years after Southern Pilot had foreclosed on the property. As such, the chancery court did not err in finding that TPI’s claim of wrongful foreclosure was time-barred. This issue is without merit.

¶ 11. Alternatively, TPI argues that the ten-year statute of limitations applicable to defective instruments applies to its claim. TPI contends that the foreclosure sale did not comport with the terms of the substituted trustee’s deed because it was not made by public outcry. In support of its allegation, TPI filed the affidavit of Richard Stanley, who stated that he was present at the courthouse on June 12, 1998, and intended to bid on the property; however, he did not see anyone attempt to sell the property by public outcry.

¶ 12. While TPI alleges that Southern Pilot failed to conduct its sale of the property by public outcry and, consequently, failed to comply with the terms of the deed of trust, the record does not contain the substituted trustee’s deed. Our supreme court has stated that “[t]he appellant has ‘the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.’ ” Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293 (¶ 4) (Miss.2002) (citing Burney v. State, 515 So.2d 1154, 1160 (Miss.1987) (overruled on other grounds)). Furthermore, an appellate court must “decide each case by the facts shown in the record, not assertions in the brief.” Id. at (¶ 3) (citing Burney, 515 So.2d at 1160). Because we do not have the substituted trustee’s deed before us, we cannot determine whether it required a sale of the property by public outcry or whether the instrument was defective. This issue is without merit.

2. Tolling of the Statute of Limitations

¶ 13. TPI argues that even if the general, three-year statute of limitations applies to its claim, the doctrine of concealed fraud tolled the limitations period. While the doctrine of concealed fraud may toll the statute of limitations, it does not apply to matters of public record. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 875 (¶22) (Miss.2001). Our supreme court has held that “where an alleged fraudulent conveyance of real property is recorded and available to the public, there can be no concealed fraud preventing the running of statute of limitations.” Id. at 876 (¶ 26).

¶ 14. TPI contends that the public-record exception to the concealed-fraud doctrine does not apply to its claim because the alleged defects in the foreclosure sale could not have been discovered by reviewing the land records. As discussed above, we do not have the substituted trustee’s deed in the record before us; therefore, we cannot determine whether the sale complied with the terms of the deed of trust, nor can we determine whether the alleged defects rose to the level of concealed fraud and tolled the statute of limitations. This issue is without merit.

3. Rule 11 Sanctions

¶ 15. In his cross-appeal, Gillentine argues that the chancellor erred in refusing to award sanctions under Rule 11(b) in the form of attorney’s fees and court costs. Gillentine argues that sanctions are appropriate because TPI failed to perform a diligent search of the land records, to properly join Renasant under Rule 19, and to serve process on Southern Pilot.

¶ 16. Under Rule 11(b), a trial court may order a party to pay expenses or attorney’s fees “[i]f any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay....” M.R.C.P. 11(b). A motion or pleading is frivolous “only when, objectively speaking, the pleader or movant has no hope of success.” In re Spencer, 985 So.2d 330, 339 (¶ 28) (Miss.2008) (quoting City of Madison v. Bryan, 763 So.2d 162, 168 (¶ 28) (Miss.2000)).

¶ 17. The chancery court found no basis for an award of sanctions under Rule 11(b), and based on our review of the record, we do not find that the chancery court abused its discretion. While TPI’s case against Gillentine, a subsequent purchaser for value, might have been weak, our supreme court has held that “[tjhough a case may be weak or ‘light-headed,’ that is not sufficient to label it frivolous.” Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 195 (Miss.1995) (citing Nichols v. Munn, 565 So.2d 1132, 1137 (Miss.1990)). Furthermore, there is no evidence in the record that TPI’s claim was intended to harass Gillentine. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

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

      . Section 15-1-49(1) provides:
      All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.

      . Mississippi Code Annotated section 15-1-7 (Rev.2003) provides in pertinent part:
      A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

      . Mississippi Code Annotated section 15-1-11 (Rev.2003) provides in pertinent part:
      Any person who has a right of action for the recovery of land because of any one or more of the following enumerated defects in any instrument, shall institute his suit therefor not later than 10 years next after the date when such instrument has been actually recorded in the office of the clerk of the chancery court of the county in which such real estate is situated and not afterwards:
      (1) where it has not been signed by the proper officer of any corporation;
      (2) where the corporate seal of the corporation has not been impressed on such instrument;
      (3) where the record does not show such corporate seal;
      (4) because the record does not show authority therefor by the board of directors and stockholders (or either of them) of a corporation;
      (5) where such instrument was executed and delivered by a corporation which had been dissolved or whose charter had expired, or whose corporate franchise had been cancelled, withdrawn or forfeited;
      (6) where the executor, administrator, guardian, assignee, receiver, master in chancery, agent or trustee, or other agency making such instrument, signed or acknowledged the same individually instead of in his representative or official capacity;
      (7) where such instrument is executed by a trustee without record of judicial or other ascertainment of the authority of such trustee or of the verity of the facts therein recited;
      (8) where the officer taking the acknowledgment of such instrument having an official seal did not affix the same to the certificate of acknowledgment;
      (9) where the notarial seal is not shown of record;
      (10) where the wording of the consideration may or might create an implied lien in favor of the grantor (by this is not meant an express vendor’s lien retained).

      . On July 28, 2010, TPI filed a motion to modify the record to include the substituted trustee's deed. However, TPI failed to submit a copy of the deed to the clerk of the chancery court for certification as required by Rule 10(e) of the Mississippi Rules of Appellate Procedure, and our supreme court dismissed the motion without prejudice. There is no indication that TPI made another attempt to supplement the record on appeal.


text:
    Gerald HAMMOND, Appellant v. CATERPILLAR FINANCIAL SERVICES CORPORATION, Appellee.
    No. 2010-CA-00547-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Gregory D. Keenum, attorney for appellant.
    Robert B. Ireland III, Jackson, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Gerald Hammond bought a 2005 Caterpillar Skid-Steer (Skid-Steer) from David Timbes on August 15, 2008. Almost a year later, on July 10, 2009, Caterpillar Financial Services Corporation (Caterpillar Financial) filed a replevin in the Alcorn County Circuit Court alleging that it was entitled to possession of the Skid-Steer due to a prior, perfected security interest. The circuit court granted Caterpillar Financial possession of the Skid-Steer. Feeling aggrieved, Hammond now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 9, 2006, Caterpillar Financial obtained a security interest in a Caterpillar Skid-Steer. Then, on July 26, 2006, Caterpillar Financial approved the transfer of the Skid-Steer to Double D Services, Inc., a Texas corporation. After the transfer, Caterpillar Financial perfected its security interest in the Skid-Steer by filing a UCC financing statement with the Texas Secretary of State’s office.

¶ 3. Double D Services, Inc. was administratively dissolved by the Texas Secretary of State’s office in 2007. Before the corporation’s dissolution, it had defaulted on the contract with Caterpillar Financial, but Caterpillar Financial was unable to collect from it. Timbes, a former owner of Double D Services, Inc., sold the Skid-Steer to Hammond on August 15, 2008, for $7,600. Apparently, Timbes executed this sale without requesting permission from or informing Caterpillar Financial. Caterpillar Financial learned of the sale of the Skid-Steer, and on July 10, 2009, it commenced a suit for replevin in the circuit court against Hammond seeking possession of the Skid-Steer due to its prior, perfected security interest in the equipment.

¶ 4. On March 4, 2010, the circuit court conducted a hearing to determine whether Hammond or Caterpillar Financial was entitled to possession of the Skid-Steer. At the hearing, the circuit judge began by asking if there was any dispute that Caterpillar Financial had a perfected security interest in the Skid-Steer. The circuit judge then allowed each party to give a statement about his case. Hammond asserted that, although Caterpillar Financial had a perfected security interest in the Skid-Steer, he was a buyer of a consumer good. His position as a buyer of consumer goods entitled him to possession over Caterpillar Financial’s perfected security interest. Caterpillar Financial then presented its argument as to why Hammond was not a buyer of a consumer good and that it, not Hammond, was entitled to possession of the Skid-Steer. After hearing from both parties, the circuit judge found in favor of Caterpillar Financial and granted it possession of the Skid-Steer.

¶ 5. Hammond appeals raising the following three issues:

1. The circuit judge failed to require Caterpillar Financial to prove or establish that it was entitled to immediate possession of the equipment.
2. The circuit judge refused to accept any testimony or evidence at the hearing other than the parties’ statements, and he made the decision based solely on the pleadings.
3. The circuit judge excluded or otherwise ignored Hammond’s request to produce evidence which was essential to the understanding of the case.

Finding no error, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 6. An appellate court, when reviewing the decision of a trial judge sitting without a jury, “may only reverse when the findings of the trial judge are manifestly wrong or clearly erroneous.” Singley v. Smith, 844 So.2d 448, 451 (¶ 9) (Miss.2003) (citing Amerson v. State, 648 So.2d 58, 60 (Miss.1994)). Further, “a circuit court judge’s findings are ‘safe on appeal where they are supported by substantial, credible, and reasonable evidence.” James Wrecker Serv. v. Humphreys County, 906 So.2d 771, 772 (¶ 4) (Miss.Ct.App.2004) (quoting Maldonado v. Kelly, 768 So.2d 906, 908 (¶ 4) (Miss.2000)).

ANALYSIS

¶ 7. Caterpillar Financial brought suit under Mississippi Code Annotated section 11-37-131 (Rev.2002) which permits a re-plevin suit be brought without posting bond and without requesting immediate seizure of the property. As required by statute, Caterpillar Financial and Hammond appeared before the circuit court on March 4, 2010, for a final hearing to determine the possession rights of the parties with regard to the Skid-Steer. At the hearing, Hammond did not dispute that Caterpillar Financial had a perfected security interest in the Skid-Steer. Once this fact was admitted, the circuit judge asked Hammond to tell him why Caterpillar Financial’s prior, perfected security interest does not carry the day. The trial transcript clearly indicates that Hammond was permitted to describe, at length, the issues and evidence he would present to prove his ease. His primary argument was that he was a buyer of a consumer good without knowledge of the prior security agreement; thus, he was entitled to possession of the Skid-Steer over Caterpillar Financial’s security interest. The circuit judge heard Hammond’s argument and gave Caterpillar Financial an opportunity to respond. After hearing the arguments from both parties, the circuit judge found that “Caterpillar Financial Services Corporation had a perfected security interest in [the Skid-Steer] under the law of the State of Texas, which we’re going to honor here in [Mississippi]” and granted Caterpillar Financial possession of the Skid-Steer.

¶8. Although Hammond does not dispute that Caterpillar Financial had a properly perfected security interest in the Skid-Steer, he does argue that the circuit judge erred in not allowing any evidence to be presented at the hearing and not requiring Caterpillar Financial to prove it was entitled to immediate possession before granting Caterpillar Financial possession of the Skid-Steer. We find that the circuit judge did not err.

I. Proof of Immediate Possession

¶ 9. The sole case Hammond cites in his brief, Robinson v. Friendly Finance Company of Biloxi, 241 Miss. 239, 243, 130 So.2d 256, 257 (1961), supports the proposition that Caterpillar Financial bears the burden of proving its right to possession of the Skid-Steer. The circuit judge found that Caterpillar Financial proved its right to possession by demonstrating that it had a valid prior, perfected security interest in the Skid-Steer by virtue of the properly filed financing statement in Texas. Further, Hammond did not dispute that this security interest existed and was valid. Our standard of review is limited to whether the circuit judge’s decision was manifestly wrong or clearly erroneous. Singley, 844 So.2d at 451 (¶ 9). After review of the record, we find that the circuit judge’s decision that Caterpillar Financial was entitled to immediate possession of the Skid-Steer was not manifestly wrong or clearly erroneous and was supported by substantial evidence.

II. Failure to Allow the Introduction of Evidence

¶ 10. In addition to Hammond’s claim that Caterpillar Financial did not prove it was entitled to immediate possession, he also argues that the circuit judge ignored his request to produce evidence or hear testimony at the hearing. It should be noted that Hammond failed to provide any relevant authority to support this argument. The failure to provide authority acts as a procedural bar, and this Court is under no obligation to consider this issue on appeal. Taylor v. Kennedy, 926 So.2d 957, 959 (¶ 4) (Miss.Ct.App.2006) (citing Grey v. Grey, 638 So.2d 488, 491 (Miss.1994)).

¶ 11. We find Hammond’s issue procedurally barred.

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

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

      . At the time of the hearing, Renasant Bank, the bank that had financed Hammond's loan, was also a party. It did not dispute that Caterpillar Financial had a valid, perfected security interest in the Skid-Steer. Renasant Bank is not a party to this appeal.