author: CHANDLER, Justice, KITCHENS, Justice,

text:
    Sidney Carlton GORTON, M.D. v. Shumaera RANCE, Individually, and on behalf of Dexter Jordan, Jr., Deceased.
    No. 2009-IA-01111-SCT.
    Supreme Court of Mississippi.
    Jan. 27, 2011.

      Gaye Nell Lott Currie, Jackson, attorney for appellant.
    Precious Tyrone Martin, Gerald A. Mumford, Jackson, attorneys for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. Shumaera Ranee filed a complaint in the Circuit Court of Humphreys County against Dr. Sidney Carlton Gorton, Dr. Daisy Thomas, Humphreys County Memorial Hospital (HCMH), and John Does 1-5 for the wrongful death of her ten-month-old son, Dexter Jordan, Jr. Dr. Gorton filed a motion for summary judgment that alleged he was employed by Greenwood Leflore Hospital, an entity covered by the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002). Dr. Gorton argued that Ranee had failed to provide a timely notice of claim under the MTCA and that the MTCA’s one-year statute of limitations had expired, barring Ranee’s claims. See Miss.Code Ann. § 11-46-11(3) (Rev.2002). The trial court denied the motion for summary judgment.

¶2. This Court granted Dr. Gorton’s petition for an interlocutory appeal. We find no genuine issue of material fact in Dr. Gorton’s assertions that Greenwood Leflore Hospital employed him at the time of the allegedly tortious conduct, and that the MTCA applied to Ranee’s claims against Dr. Gorton. Because Ranee failed to provide timely notice of claim to Greenwood Leflore Hospital, and her complaint was filed outside the MTCA’s one-year statute of limitations, we reverse the denial of summary judgment and render a judgment in favor of Dr. Gorton.

FACTS

¶ 3. Ranee’s complaint alleged that Jordan had received treatment and tragically died at HCMH. On August 7, 2007, Jordan was admitted to HCMH with vomiting and signs of pneumonia. Shortly thereafter, Jordan experienced difficulty breathing. Jordan’s treating physician was Dr. Thomas, but the medical records reflect that Jordan was admitted to Dr. Gorton’s service and the case was discussed with him. Early the following morning, Dr. Thomas determined that Jordan needed additional medical assistance and requested air transportation to the University of Mississippi Medical Center. Jordan died before leaving HCMH’s grounds. His autopsy report stated that his cause of death was pneumonia.

¶ 4. On July 1, 2008, Ranee served a notice of claim on the chief executive officer of HCMH as required by the MTCA. Miss.Code Ann. § 11-46-11(3) (Rev.2002). She filed suit on November 5, 2008. Ranee claimed that, due to a lack of adequate and immediate medical care, Jordan had experienced unnecessary pain, suffering, and death. Ranee contended that the defendants’ conduct constituted negligence, gross negligence, and reckless disregard for Jordan’s rights, justifying punitive damages. Dr. Gorton filed a separate answer and affirmative defenses, including statute of limitations, jurisdiction, and venue under the MTCA. Later, Dr. Gorton filed a motion to dismiss or, in the alternative, a motion for summary judgment with attached contracts showing his status as an employee of Greenwood Leflore Hospital, a government-owned hospital subject to the MTCA.

¶ 5. Ranee filed a response to the motion. She asserted that, despite having conducted a thorough investigation prior to filing suit, she had failed to discover Dr. Gorton’s employment with Greenwood Le-flore Hospital until the motion for summary judgment had been filed. Ranee admitted that Dr. Gorton had entered into a contract with Greenwood Leflore Hospital, but argued that it provided for only a courtesy membership on Greenwood Le-flore Hospital’s staff and privileges on the active medical staff of HCMH. In a supplemental response filed on June 3, 2009, Ranee asserted that discovery was necessary to determine the dates of Dr. Gor-ton’s employment by Greenwood Leflore Hospital. Dr. Gorton filed supplemental materials in reply to the response to the motion for summary judgment. After a hearing, the trial court entered an order that stated the motion was denied because a genuine issue of material fact was in dispute; the order did not provide further explanation.

STANDARD OF REVIEW

¶ 6. The standard of review for the grant or denial of a motion for summary judgment is de novo. Stringer v. Trapp, 30 So.3d 339, 341 (Miss.2010). Summary judgment properly may be granted 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.” 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.” Trapp, 30 So.3d at 341. The burden rests on the moving party. Id. The trial court views all evidence before it in the light most favorable to the nonmoving party. Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 649-50 (Miss.2009).

¶ 7. “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.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213—14 (Miss.1996); see also M.R.C.P. 56(e). Therefore, “[t]o 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.” Green v. Allendale Planting Co., 954 So.2d 1032, 1038 (Miss.2007) (citing Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997)). “The party opposing the motion must be diligent.” Richmond, 692 So.2d at 61-62 (citing Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 415 (Miss.1988)). However, “[sjummary 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.’ ” Dearman v. Christian, 967 So.2d 636, 639 (Miss.2007) (citations omitted).

¶ 8. The nonmoving party “remains silent at her peril.” Fruchter v. Lynch Oil Co., 522 So.2d 195, 198-99 (Miss.1988). “[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” M.R.C.P. 56(e); see also Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1984).

LAW AND ANALYSIS

I. The applicable provisions of the MTCA.

¶ 9. The MTCA provides immunity to government entities, such as public hospitals, and to government employees under specified circumstances. See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002). The MTCA provides the exclusive remedy for money damages against a governmental entity or its employee. Miss.Code Ann. § 11-46-7(1) (Rev.2002). However, a party may join an employee, in his or her representative capacity, in an action against a governmental entity “if the act or omission complained of is one for which the governmental entity may be liable.” Miss.Code Ann. § 11-46-7(2) (Rev.2002). But an employee cannot be personally liable for any acts or omission that occurred within the course and scope of his or her duties. Miss.Code Ann. § 11-46-7(2).

¶ 10. Public hospitals are covered by the MTCA. Miss.Code Ann. § 11 — 46—l(j) (Rev.2002). A party claiming injury under the MTCA against a governmental entity, such as a public hospital, must file a notice of claim with the chief executive officer of the governmental entity ninety days prior to maintaining an action. Miss.Code Ann. § 11-46-11(1) (Rev.2002). The MTCA also provides a one-year statute of limitations on all actions brought under its provisions which is tolled by a timely-filed notice of claim. Miss.Code Ann. § 11-46-11(3) (Rev.2002).

II. Whether there was a genuine issue of material fact that Dr. Gor-ton was an employee of a public hospital entitled to the protections of the MTCA.

¶ 11. It is undisputed that Greenwood Leflore Hospital is a public hospital entitled to the protections of the MTCA. Therefore, its employees also have the explicit extension of the MTCA’s protection. Miss.Code Ann. § 11-46-7 (Rev.2002). Dr. Gorton argues that the documentation before the trial court established his status as an employee of Greenwood Leflore Hospital and it was not a genuine issue of material fact.

¶ 12. We agree that there was no genuine issue of material fact that Dr. Gorton was an employee of Greenwood Leflore Hospital on August 7-8, 2007, the dates relevant to this appeal. To support Dr. Gorton’s assertion that he was employed by Greenwood Leflore Hospital at all relevant times, he provided: (1) an affidavit from Margaret Buchanan, the Director of Human Resources at Greenwood Leflore Hospital; (2) his own affidavit stating that his dates of employment were September 29, 1999, through October 31, 2007; (3) a copy of his original employment contract, effective September 29,1999; (4) a copy of an amendment to the employment contract that extended his employment contract from September 1, 2004, through August 31, 2009; (5) a copy of a mutual termination of the employment agreement providing that Dr. Gorton’s employment would terminate August 1, 2007; (6) a copy of an amendment to the mutual termination-of-employment agreement, providing that Dr. Gorton’s employment would terminate on November 1, 2007; and (7) a copy of a report of termination providing that Dr. Gorton’s last day of employment was October 31,2007.

¶ 13. In her affidavit, Buchanan stated that Greenwood Leflore Hospital is a community hospital owned by the City of Greenwood and Leflore County. Buchanan stated that Dr. Gorton was an employee of Greenwood Leflore Hospital during the time of the events set forth in Ranee’s complaint. Buchanan related that, while in medical school, Dr. Gorton had entered into an employment contract with Greenwood Leflore Hospital dated September 29, 1999, and, pursuant to that contract, Greenwood Leflore Hospital continuously had employed Dr. Gorton from September 1, 2004, through October 31, 2007. Buchanan stated that, according to the conditions of Dr. Gorton’s employment with Greenwood Leflore Hospital, he practiced in the Gorton Clinic and saw patients at HCMH.

¶ 14. In Dr. Gorton’s affidavit, he stated that he had been employed continuously by Greenwood Leflore Hospital from September 29, 1999, to October 31, 2007. Dr. Gorton stated that the parties initially had agreed to terminate his employment effective August 1, 2007, but that before August 1, 2007, the parties had agreed to extend the employment contract to November 1, 2007. The reason for the delay was to “allow completion of documents to effect a change of ownership of the Gorton Clinic from Greenwood Leflore Hospital to Dr. Mac Gorton and Dr. Sidney Carlton Gor-ton.”

¶ 15. The employment agreement between Greenwood Leflore Hospital and Dr. Gorton provided that it was for a five-year term from the date Dr. Gorton commenced his practice of medicine under the conditions specified. The contract provided that Dr. Gorton’s responsibilities as a full-time employee of Greenwood Leflore Hospital required him to serve as the physician for the Gorton Clinic and to become a member of HCMH’s active staff to provide oversight and care of the clinic’s and HCMH’s patients. Later, Greenwood Le-flore Hospital and Dr. Gorton executed an amendment to the employment agreement. This document established that Dr. Gor-ton’s employment dates were September 1, 2004, through August 31, 2009.

¶ 16. On April 16, 2007, Greenwood Le-flore Hospital and Dr. Gorton executed a mutual termination of the employment agreement. The termination agreement set the date of termination as August 1, 2007. However, the parties also executed an amendment to the termination of employment agreement dated “August _ 2007,” that extended Dr. Gorton’s date of termination to November 1, 2007. Dr. Gorton and a representative of Greenwood Leflore Hospital signed this amendment. A copy of a report of termination for Dr. Gorton noted the following dates: (1) a hire date of August 31, 2004, (2) a last date worked of October 31, 2007, and (3) a date of termination of October 31, 2007. The report also stated that the details of termination were “change ownership.”

¶ 17. Ranee offered no evidence to refute Dr. Gorton’s assertion that, on the relevant dates of August 7-8, 2007, he was an employee of Greenwood Leflore Hospital and subject to the protections of the MTCA. Before the trial court, Ranee took issue with the fact that the extension of the termination agreement did not specify the date in August 2007 that it was executed, and with the execution date of the amendment to the employment agreement. She claimed that, while Greenwood Leflore Hospital’s representative signed the amendment to the employment agreement on August 26, 2005, Dr. Gorton’s signature was dated August 24, 2009, a future date that had not occurred. In response to this allegation, Dr. Gorton stated in his affidavit that the date on the amendment “reads ‘August 24, 2005,’ not August 24, 2009.”

¶ 18. We find that the documents submitted by Dr. Gorton established that he was employed by Greenwood Leflore Hospital on the relevant dates of August 7-8, 2007. Ranee provided no specific facts that demonstrate a genuine issue of material fact that merits trial. Instead, Ranee provided mere unsubstantiated allegations. See Green, 954 So.2d at 1038. Therefore, the evidence before the trial court failed to create a genuine issue of material fact as to Dr. Gorton’s status as an employee of Greenwood Leflore Hospital, a government entity covered by the MTCA. We observe that Ranee had a legal duty to conduct a due-diligence inquiry into the true employment status of potential defendants. Ray v. Keith, 859 So.2d 995, 999 (Miss.2003).

III. Whether Ranee provided proper notice to Greenwood Leflore Hospital under the MTCA.

¶ 19. Having determined no genuine issue of material fact exists as to the applicability of the MTCA, we turn to Dr. Gorton’s argument that Ranee failed to provide pre-suit notice to Greenwood Leflore Hospital’s chief operating officer pursuant to the MTCA. See Miss.Code Ann. § 11 — 46—11(3) (Rev.2002).

¶ 20. Mississippi Code Section 11-46-11 states the notice requirements for filing a lawsuit under the MTCA. According to Section 11-46-11(1):

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity. Service of notice of claim may also be had in the following manner: If the governmental entity is a county, then upon the chancery clerk of the county sued; if the governmental entity is a municipality, then upon the city clerk. If the governmental entity to be sued is a state entity as defined in Section 11 — 46—l(j), service of notice of claim shall be had only upon that entity’s chief executive officer. If the governmental entity is participating in a plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims filed within five (5) days after the receipt thereof.

Miss.Code Ann. § 11-46-11(1) (Rev.2002) (emphasis added).

¶ 21. This Court strictly applies the ninety-day-notice requirement of Section 11-46-11(1). Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (Miss.2006). “[T]he ninety-day notice requirement under section 11-46-11(1) is a ‘hard-edged, mandatory rule which the Court strictly enforces.’ ” Id. (quoting Ivy v. GMAC, 612 So.2d 1108, 1116 (Miss.1992)). See also Price v. Clark, 21 So.3d 509, 518-19 (Miss.2009) (“Strict compliance with statutory notice is required, regardless of why the plaintiff failed to provide notice.”) (quoting Easterling, 928 So.2d at 819-20); Brown v. Sw. Miss. Reg’l Med. Ctr., 989 So.2d 933, 936 (Miss.Ct.App.2008) (stating that “Easterling’s strict compliance standard is meant to apply equally to cases in which no notice is filed, notice is filed after the complaint, or the complaint is filed sooner than ninety days after filing notice”).

¶ 22. Ranee provided pre-suit notice to HCMH. When Ranee filed the suit, she separately served HMCH, Dr. Thomas, and Dr. Gorton. But because Dr. Gorton was employed by Greenwood Leflore Hospital, a covered entity, he was personally immune from suit, and could have been joined in a suit against his employer in a representative capacity only. Miss.Code Ann. § 11^46-7(2) (Rev.2002). Because Ranee did not serve notice on the chief executive officer of Greenwood Leflore Hospital ninety days prior to filing suit, Ranee failed to follow the pre-suit notice requirements of the MTCA.

¶ 23. Ranee attempts to circumvent this outcome by arguing that her notice to HCMH was constructive notice to Greenwood Leflore Hospital. Ranee argues that Greenwood Leflore Hospital’s employees worked at HCMH pursuant to a contractual relationship between the two hospitals. Ranee contends that, given the hospitals’ contractual relationship and the fact that she could not have known of Dr. Gorton’s actual employment status, her notice to the chief executive officer of HCMH should have been adequate notice to Greenwood Leflore Hospital. The record shows no evidence of a contract between the two hospitals. Although Ranee’s contention that there was a contract between the hospitals is unsupported by the record, obviating the need for analysis of her argument, we find it appropriate to note that this Court strictly enforces the MTCA’s ninety-day notice requirement.

IY. Whether the statute of limitations has expired.

¶ 24. Dr. Gorton also avers that the statute of limitations had expired before Ranee filed the complaint. The MTCA prescribes a one-year statute of limitation. Miss. Code Ann. § 11-46-11(3) (Rev.2002). Specifically, the statute provides:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (120) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim. After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant’s receipt of notice of denial of claim from the governmental entity.

Miss.Code Ann. § 11^16-11(3).

¶ 25. According to the allegations of the complaint, the tortious, wrongful, or otherwise actionable conduct that caused Jordan’s death occurred on August 7-8, 2007. Ranee filed suit on November 5, 2008, more than one year later. Although the statute provides for tolling during the notice period, because Ranee provided no notice to Dr. Gorton’s employer, Greenwood Leflore Hospital, the tolling provision is inapplicable in this case. Therefore, Ranee’s claim was barred by the applicable statute of limitations under the MTCA.

V. Whether there was constructive notice and whether the borrowed-servant doctrine applies.

¶ 26. Ranee argues that Dr. Gorton was the borrowed servant of HCMH, and thus her notice to HCMH was sufficient. The borrowed-servant doctrine is a common-law rule “that a servant, in general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, although he remains in the general employment of the lender.” Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 778 (Miss.1997) (quoting Quick Change Oil and Lube v. Rogers, 663 So.2d 585, 589 (Miss.1995)). Where the rule applies, “[t]he borrower then becomes the employer to the exclusion of the lender.” Id. This Court has identified three criteria for determining whether one is a borrowed servant: “(1) whose work is being performed, (2) who controls or has the right to control the workman as to the work being performed, and (3) has the workman voluntarily accepted the special employment.” Id. at 778-79.

¶ 27. Ranee argues that Dr. Gorton was the borrowed servant of HCMH because, at the time of the alleged negligence, he was working at HCMH pursuant to his employment contract with Greenwood Le-flore Hospital, which provided that Dr. Gorton would be on the active medical staff of HCMH. Dr. Gorton argues that the borrowed-servant doctrine has not been recognized as an applicable theory under the MTCA, and that, even if the borrowed-servant doctrine were applicable to an MTCA claim, its elements were not met in this case.

¶ 28. This Court never has considered the borrowed-servant doctrine in the context of an MTCA claim. Assuming for the sake of argument that the borrowed-servant doctrine could be applied to an MTCA claim, it is plainly inapplicable to the facts presented by this case. The only evidence of the relationship between Dr. Gorton and HCMH was Dr. Gorton’s employment contract with Greenwood Leflore Hospital, requiring him to be on the active medical staff of HCMH. No evidence of any contract between Dr. Gorton and HCMH or between HCMH and Greenwood Leflore Hospital affecting Dr. Gorton’s employment is in the record. “Generally, staff privileges permit a doctor to use hospital facilities to practice his medical profession.” State By and Through Miss. Ethics Comm’n v. Aseme, 583 So.2d 955, 958 (Miss.1991) (quoting Engelstad v. Virginia Mun. Hosp., 718 F.2d 262, 267 (8th Cir.1983)). This Court has held that a physician’s appointment to the medical staff of a hospital and the grant of clinical privileges do not equate to an employment contract between the physician and the hospital. Sullivan v. Baptist Mem’l Hosp.-Golden Triangle, Inc., 722 So.2d 675 (Miss.1998) (citing Aseme, 583 So.2d at 958-60; Trapp v. Cayson, 471 So.2d 375, 384 (Miss.1985)). Notwithstanding the question of whether the borrowed-servant doctrine could apply to an MTCA claim, it is clear that Dr. Gorton’s position on the medical staff of HCMH did not implicate the borrowed-servant doctrine. Therefore, summary judgment was warranted as to Dr. Gorton.

CONCLUSION

¶ 29. We find that there was no genuine issue of material fact that Dr. Gorton was employed by Greenwood Leflore Hospital, a political subdivision of the State of Mississippi covered by the MTCA. Ranee did not comply with the pre-suit-notice requirements of the MTCA, and her claim against Dr. Gorton was barred by MTCA’s one-year statute of limitations. The borrowed-servant doctrine is inapplicable to Ranee’s claim against Dr. Gorton. Therefore, we reverse the denial of summary judgment by the Circuit Court of Hum-phreys County, and we render judgment in favor of Dr. Gorton.

¶ 30. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.

KITCHENS, Justice,

dissenting:

¶ 31. The majority has concluded that the borrowed servant doctrine is inapplicable to the facts of this case. I respectfully disagree and dissent.

¶ 32. In Denton v. Yazoo & Mississippi Valley Railroad Company, 284 U.S. 305, 308, 52 S.Ct. 141, 76 L.Ed. 310 (1932), the Supreme Court of the United States said that whether a principal may be held liable for the acts of its servants

depends not upon the fact that he was their servant generally, but upon whether the work which he was doing at the time was their work or that of another; a question determined, usually at least, by ascertaining under whose authority and command the work was being done. When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former.

Id. at 308, 52 S.Ct. 141. Further, in Quick Change Oil and Lube, Inc. v. Rogers, 663 So.2d 585 (Miss.1995), this Court held that:

The general rule, as applied at common law, is that a servant, in general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant to the borrower, although he remains in the general employment of the lender. The borrower then becomes the employer to the exclusion of the lender. Application of the rule depends upon the question of whose work is being performed, and if the lender is to escape liability, it must appear that the servant is under the borrower’s exclusive control and direction as to the work in progress. When an employee voluntarily accepts and enters upon such an assignment, he ceases to be in the course of the employment by the lender or the general employer. However, while the “loaned servant” doctrine is generally considered applicable in the compensation field, a shift of emphasis will be noted as to the three pertinent questions involved, viz: (1) whose work is being performed, (2) who controls or has the right to control the workman as to the work being performed, and (3) has the workman voluntarily accepted the special employment.

Id. at 589 (emphasis in original) (citing Dunn, Mississippi Workers’ Compensation Law § 186 (1986)).

¶ 33. This Court has never decided specifically whether the borrowed servant doctrine applies to cases brought under the Mississippi Tort Claims Act; however, the United States District Court for the Southern District of Mississippi has considered the application of the doctrine to the Federal Tort Claims Act. See Banks v. United States, 623 F.Supp.2d 751 (S.D.Miss.2009).

¶ 34. In Banks, Yolanda Banks, a patient of the University of Mississippi Medical Center High Risk Obstetrics Clinic, died of a post-operative intra-abdominal abscess as a result of Dr. Andrew T. Allen’s alleged negligence. Id. at 752. At the time of treatment, Dr. Allen was a Captain in the United States Air Force, thus an employee of the United States. Id. The plaintiff brought her medical malpractice action against the United States under the Federal Tort Claims Act. Id. The Government moved for summary judgment, “contending that it [could] not be held vicariously liable for Dr. Allen’s alleged negligence since at the time of his actions in diagnosing and treating Ms. Banks, Dr. Allen was the borrowed servant of UMMC.” Id. Applying Mississippi law, the federal district judge found Dr. Allen to have been the borrowed servant of UMMC and granted summary judgment in favor of the United States. Id. at 753, 756.

¶ 35. Though not controlling here, the federal court’s analysis in Banks is on point and persuasive. That court acknowledged that “Mississippi law recognizes the defense of the ‘borrowed servant’ where a person who is under the employment of one employer may be temporarily loaned to another employer, in which circumstance ‘the borrower ... becomes the employer to the exclusion of the lender.’ ” Id. at 752-53 (quoting Quick Change, 663 So.2d at 592). The Banks court held that “[t]he record evidence in this case establishes beyond reasonable challenge that Dr. Allen was UMMC’s borrowed servant in connection with his residency at UMMC, and his diagnosis and treatment of Yolanda Banks during that residency.” Banks, 623 F.Supp.2d at 753. In that case, the record included the Memorandum of Understanding between UMMC and Keesler Medical Center delineating the duties of Dr. Allen and the obligations of UMMC. Id. at 754. Specifically, the agreement provided that Dr. Allen was expected, among other things, to provide patient care in accordance with “all hospital, state, and federal rules and regulations regarding patient care and ... seek advice in questionable circumstances.’ ” Id. Additionally, the agreement mandated that UMMC would “make available the clinical and related facilities needed for training. ...” Id.

¶ 36. In this case, the physician employment agreement between Dr. Gorton and Greenwood Leflore Hospital provided in relevant part, that “throughout the term of employment pursuant to this Agreement, [Dr. Gorton] shall maintain privileges and membership on the active medical staff of the Humphreys County Memorial Hospital and the courtesy medical staff of the Greenwood Leflore Hospital.... ” Additionally, the agreement required that Dr. Gorton “shall be responsible for providing appropriate care and treatment for patients at Gorton Clinic, Humphreys County Memorial Hospital, and the nursing home on an as-needed basis and when requested by [Greenwood Leflore] Hospital.... ” Further, Schedule A of the agreement required Dr. Gorton to be responsible for the “oversight and care of clinic and Humphreys County Memorial Hospital patients in accordance with Hospital/medical staff policies and accepted professional standards.” Established law and the facts before us lead logically to the conclusion that Dr. Gorton was the borrowed servant of Humphreys County Memorial Hospital (HCMH) at all relevant times. Banks, 623 F.Supp.2d at 753.

¶ 37. Moreover, under controlling Mississippi case law, Dr. Gorton was the borrowed servant of HCMH in accordance with the Quick Change three-part test. See Quick Change, 663 So.2d at 589. At the time of the Jordan child’s death, Dr. Gorton was required, pursuant to his employment agreement with GLH, to do the work of HCMH. It can be deduced from the language of Dr. Gorton’s employment agreement that HCMH had the right to control Dr. Gorton’s work performed at HCMH. Specifically, Dr. Gorton was required to provide care at HCMH “in accordance with Hospital/medical staff policies and accepted professional standards.” Such is a reasonable inference that can be drawn from the evidence. Finally, there is no indication in the record that Dr. Gorton did not voluntarily enter into the employment agreement with GLH that required him to be an active member of the HCMH medical staff. Because Dr. Gorton was the borrowed servant of HCMH, Ranee gave proper pre-suit notice of her claim against Dr. Gorton pursuant to Mississippi Code Section 11-46-11(1). See Miss.Code Ann. § 11^46-11(1) (Rev.2002).

¶ 38. Recently, in Tillis v. State, 43 So.3d 1127 (Miss.2010), this Court held that a nurse, employed by a contractor that provided medical services to a private correctional facility, was the dual employee of the contractor and the private correctional facility. In that case, Zenas Tillis was indicted for the simple assault of Kathy Hogue, a nurse who worked at Walnut Grove Youth Correctional Facility in accordance with a contract between Health Assurance and Walnut Grove, in violation of Mississippi Code Section 4T — 4—1(4). Tillis, 43 So.3d at 1128. Counsel for Tillis argued that the State’s case failed because Hogue was not an employee of Walnut Grove; rather, defense counsel asserted, Hogue was a contract employee of Health Assurance. Id. at 1130. The State responded that “while Walnut Grove might not write her paycheck, that is the only place she works.... She’s there every day.... Hogue was a de facto employee of Walnut Grove.” Id.

¶ 39. With regard to whether Hogue was an employee of Walnut Grove, the circuit court held that “as far as the interpretation ... that ostensibly it could be broadly interpreted that Hogue, in this setting, and under these circumstances, would qualify as being a person who would fit the term of employee.” Id. On appeal, this Court agreed and held that

[d]ual employment arises “when an employee is engaged in the service of two (2) employers in relation to the same act.” Ray v. Babcock & Wilcox Co., Inc., 388 So.2d 166, 167 (Miss.1980). See also Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1282 (Miss.1995) (“[i]n Mississippi, one may be employed by more than one employer....”); Dependents of Roberts v. Holiday Parks, Inc., 260 So.2d 476, 478 (Miss.1972) (“[i]t is well settled that a person may be a servant of two or more masters at one time as to one act.”). Such dual employment may exist even if only one employer pays the employee. See Biggart v. Texas Eastern Transmission Corp., 235 So.2d 443, 444-45 (Miss.1970) (“[t]he fact that only one of the employers paid Big-gart (here River Construction Corporation) does not alter the fact that Biggart was in the service of Texas Eastern and Brown & Root, Inc., an employer-employee relationship between appellees and ... Biggart based on the element of control present at the time.”). Accordingly, the fact that Hogue’s paycheck came from Health Assurance is not dis-positive. Rather, given Hogue’s exclusive service to Walnut Grove, this Court concludes that she was a dual employee of both Walnut Grove and Health Assurance.

Tillis, 43 So.3d at 1132. Moreover, this Court opined in a footnote that “the borrowed servant doctrine [was also] applicable here, because Hogue was working exclusively at Walnut Grove, supplying medical services which Walnut Grove was constitutionally required to provide its inmates.” Id.

¶ 40. In this case, Dr. Gorton was clearly the borrowed servant of HCMH and the dual employee of both GLH and HCMH. Dr. Gorton’s employment contract was with GLH; however, the employment contract provided, in relevant part, that Dr. Gorton “shall maintain privileges and membership on the active medical staff of the Humphreys County Memorial Hospital and the courtesy medical staff of the Greenwood Leflore Hospital.... ” Further, Dr. Gorton was “responsible for providing appropriate care and treatment for patients at Gorton Clinic, Humphreys County Memorial Hospital, and the nursing home on an as-needed basis and when requested by [Greenwood Leflore] Hospital....”

¶ 41. The record is clear that Dr. Gor-ton was an employee engaged in the service of two employers in relation to the same act: the care and treatment of patients at Humphreys County Memorial Hospital. See Ray v. Babcock & Wilcox Co., Inc., 388 So.2d 166, 167 (Miss.1980). Moreover, there was no reason for Ranee to have had knowledge that Gorton was the employee of any hospital other than HCMH. Ranee’s child was admitted to Dr. Gorton’s service at HCMH, and the medical records reveal that at least one nurse and one other physician at HCMH discussed the child’s care with Dr. Gorton, via telephone.

¶ 42. Accordingly, I must respectfully disagree with the majority’s conclusion that Dr. Gorton was not the borrowed servant of Humphreys County Memorial Hospital. I would affirm the trial court’s denial of Dr. Gorton’s motion for summary judgment.

GRAVES, P.J., joins this opinion.

      . In her brief, Ranee admits that Dr. Gorton was an employee of Greenwood Leflore Hospital. She states that "[ujnbeknownst to Ranee, Dr. Gorton was employed by Greenwood-Leflore Hospital (‘Greenwood Leflore Hospital’) and worked at HCMH under the auspices of a contract between HCMH and Greenwood Leflore Hospital.”

      . The discrepancy in the start dates of Dr. Gorton’s employment provided by Buchanan and Dr. Gorton is immaterial to the discussion, because both agree that he was employed by Greenwood Leflore Hospital on August 7-8, 2007, the dates relevant to Ranee's claims. The September 29, 1999, contract stated that Dr. Gorton’s employment would be for a period of five years from the date Dr. Gorton moved to Belzoni, Mississippi, and commenced his practice of medicine as a full-time employee of Greenwood Leflore Hospital and member of the active medical staff of HCMH. It is evident from the amendment to the employment agreement that this five-year period began on September 1, 2004.

      . At the time of the events in Banks, Dr. Allen was a Captain in the Air Force in his second year of a residency training program of the Air Force and UMMC, and was assigned to a two-month rotation in the UMMC High Risk Obstetrics Clinic. Banks, 623 F.Supp.2d at 753. Further, the "parameters of the training program were set forth by a 2003 Memorandum of Understanding (MOU) entered between UMMC and the Keesler Medical Center, Keesler Air Force Base.” Id.

      . Mississippi Code Section 47-4-1(4) provides, in relevant part:
      A person convicted of simple assault of an employee of a private correctional facility while such employee is acting within the scope of his or her duty or employment shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.
      Miss.Code Ann. § 47-4-1(4) (Rev.2004).


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Mattie BENNETT, individually and on behalf of the wrongful death beneficiaries of Josephine Lewis, deceased and as administratrix of the Estate of Josephine Lewis, Deceased v. HILL-BOREN P.C., T. Robert Hill, Melvin & Melvin and Leonard B. Melvin, III, Executor of the Estate of Leonard B. Melvin, Jr., Deceased.
    No. 2009-IA-01418-SCT.
    Supreme Court of Mississippi.
    Jan. 27, 2011.

      Hiawatha Northington, II, Ridgeland, Alma Walls, Clarksdale, attorneys for appellant.
    John Benton Clark, Thomas Ray Julian, Jackson, attorneys for appellees.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Mattie Bennett filed a legal-malpractice action against Hill-Boren, P.C., T. Robert Hill (collectively, “Hill”), Melvin & Melvin, Leonard B. Melvin, Jr. (collectively, “Melvin”), and John Does 1-10. Bennett alleged that Hill and Melvin had represented her and her sister, Dorothy Washington, in a wrongful-death case filed on August 23, 2000, and that Hill and Melvin had failed to serve process on a defendant, which had resulted in the dismissal of the case.

112. Melvin moved for summary judgment based on the expiration of the three-year statute of limitations. In response, Bennett asserted that, under the discovery rule, the earliest time that she knew or reasonably should have known of the alleged malpractice was when her new counsel had obtained the case file in 2005. The trial court rejected Bennett’s discovery-rule argument, and held that the statute of limitations had begun to run, at the earliest, upon Bennett’s termination of Melvin’s representation in 2001 or, at the latest, when Melvin last had represented Washington and Bennett, in unsuccessful settlement negotiations in 2002. The trial court granted summary judgment to Melvin, and entered a final judgment in favor of Melvin pursuant to Mississippi Rule of Civil Procedure 54(b). See M.R.C.P. 54(b).

¶ 3. Because Bennett submitted evidence that, under the discovery rule, the earliest time that she or Washington knew or with reasonable diligence should have known of the alleged malpractice was when her new counsel had obtained the case file in 2005, there was a genuine issue of material fact as to the date that she or Washington knew or should have known about the alleged negligence. Therefore, this Court reverses the trial court’s order granting summary judgment to Melvin. We remand this case for further proceedings.

FACTS

I. The Underlying Medical-Malpractice Case

¶ 4. Quitman County Nursing Home admitted Bennett and Washington’s mother, Josephine Lewis, in approximately 1996. Lewis developed gangrene in her left foot, and she was admitted to Northwest Mississippi Regional Medical Center (NMRMC) for amputation of the foot on July 23, 1998. NMRMC discharged Lewis on August 3, 1998. Upon Lewis’s return to the nursing home, a nurse discovered a large decubitus ulcer covering ninety percent of Lewis’s buttocks. Lewis was admitted to the Regional Medical Center in Memphis for treatment of the decubitis ulcer and for amputation of her left stump due to further gangrene problems. Lewis’s condition deteriorated, and she was transferred to an extended-care, skilled nursing facility on August 29, 1998. Lewis died from an infection in her bloodstream the next day.

¶ 5. Washington consulted Hill on the matter and, shortly thereafter, Hill hired Melvin as Mississippi counsel. Melvin received a letter from Dr. Carl A. Coppolino dated May 24, 1999, and a letter from Dr. Alan E. Kravitz dated August 13, 1999, that provided expert medical opinions that only NMRMC was negligent. Both physicians stated that Lewis had died from a blood infection caused by the decubitus ulcer. Both also stated that NMRMC was negligent because it had both caused the ulcer and failed to treat it. Dr. Kravitz stated that he found no negligence on behalf of Quitman County Nursing Home.

¶ 6. On August 23, 2000, Hill and Melvin filed a complaint on behalf of Washington and the other wrongful-death beneficiaries in the Circuit Court of Quitman County against the Quitman County Hospital and Nursing Home, Inc., and NMRMC, under the lease, operation, and management of Health Management Association, Inc., seeking $2,000,000 in actual damages and $5,000,000 in punitive damages. Melvin caused summonses to be issued for both defendants. An August 30, 2000, letter from the process server, CT Corporation, to Melvin reflects that the CT Corporation returned the NMRMC summons as faulty. Neither Melvin nor Hill again attempted to effect sendee. On November 12, 2001, Hill sent a letter to Melvin stating that Washington had insisted she terminate Melvin’s representation due to a prior confrontation between Melvin and Washington. The letter requested return of Melvin’s file. Melvin sent Hill letters acknowledging the termination on November 14, 2001, and November 16, 2001. However, Melvin did not file a motion in the trial court for permission to withdraw. The trial court dismissed the case for want of prosecution on October 14, 2005. Because Melvin never had withdrawn from the case, Hill moved for permission to withdraw for himself and Melvin on October 13, 2005, the day before the case was dismissed for want of prosecution.

II. The Instant Legal-Malpractice Case

¶ 7. The alleged legal malpractice arose from Melvin’s failure to effect service of process on NMRMC. Melvin’s file contained a legal-research memorandum dated August 28, 2000, on excusable neglect, the standard for obtaining an order enlarging the time for service of process. See M.R.C.P. 6(b). However, neither he nor Hill ever sought the issuance of an alias summons or sought leave from the court for additional time to effect service of process. Melvin received a letter from NMRMC’s insurance carrier dated February 3, 2002. Although Melvin had been terminated, he responded on February 12, 2002, seeking settlement.

¶ 8. Hill hired new Mississippi counsel, Lucius Edwards. Upon Hill’s review of the entire file and discussion with Edwards, Hill discovered that NMRMC had not been served and that this omission likely was fatal to the case against NMRMC. Hill wrote the following note on or about December 28, 2001:

This is a curious bunch of documents. Where is copy of complaint? Answer? For N.H.? I think the regional medical center is gone for failure to serve summons timely. See ltrs. to LM 4- client. Set depositions. Serve rogs. Do we have all documents? RFProduction? What a mess. [s/]R.

In a January 2, 2002, letter to Melvin, Hill stated:

I am very concerned about the lawsuit against the hospital (Northwest Mississippi Regional). It appears that you never obtained service on the defendants Northivest Regional and Health Management Association, Inc. (management company of the hospital), and time has expired to issue alias summons. This situation has been explained to Ms. Washington. I am not sure what damage has resulted from this error but I would suggest that you consider notifying your malpractice carrier of a potential claim.
If you have information that would establish good service on Northwest Regional and Health Management, please let me have it as soon as possible. Time is of the essence.

(Emphasis added.)

¶ 9. Notwithstanding this letter, in their interrogatory responses, both Hill and Melvin admitted that they never had informed Bennett or Washington of the failure to serve NMRMC. In Bennett’s interrogatory answers, she stated that on or about March 19, 2001, Melvin had informed Washington that they were “having trouble” obtaining service of process on one of the defendants. She further admitted that, on or prior to January 2, 2002, Hill had informed Washington “about the difficulty of obtaining service of process upon the defendant [NMRMC].” Notably, Bennett’s responses did not state that Washington had been told that the time had expired for service of process, as asserted in Hill’s letter to Melvin.

¶ 10. The correspondence between Washington and Bennett and Hill reveals that the sisters repeatedly inquired about the status of the case through written correspondence and telephone calls. In a September 25, 2002, letter to Hill, Washington and Bennett complained that they had received little or no communication from their attorneys. They stated that they had been told that Dr. Kravitz had been gathering information, and that they should expect to go to court in spring 2002. In an April 8, 2003, letter, Hill informed the sisters that the case was in the discovery phase, including sending pleadings to the defendants and answering pleadings, and they were working hard to move everything along. But a May 3, 2004, letter from Hill to Washington stated that, upon review, Hill had concluded that the case could not be won because there was no way to prove negligence on behalf of the nursing home, and recommended dismissal. In a November 24, 2004, letter, Hill apologized for all the delays in the case. At no point in the correspondence did Hill address the failure to serve NMRMC. On or about April 4, 2005, Washington retained new counsel who commenced the instant legal-malpractice action, which was filed on October 22, 2007.

¶ 11. Bennett filed an amended complaint on November 15, 2007. Melvin moved for summary judgment based on the expiration of the three-year statute of limitations. In response, Bennett asserted that, under the discovery rule, the earliest time that she knew or reasonably should have known of the alleged malpractice was when her new counsel had obtained the case file in 2005. The trial court held that the statute of limitations had begun to run either when Bennett had terminated Melvin’s representation in 2001 or when Melvin had last represented Washington in unsuccessful settlement negotiations in 2002. The trial court granted Melvin’s motion for summary judgment and entered a final judgment in favor of Melvin under Mississippi Rule of Civil Procedure 54(b). See M.R.C.P. 54(b).

STANDARD OF REVIEW

¶ 12. This Court applies de novo review to the grant of summary judgment. Fletcher v. Lyles, 999 So.2d 1271, 1276 (Miss.2009). When reviewing the evidence on summary judgment, the Court should view the evidence in the light most favorable to the nonmovant. Id. Viewing the evidence in this light, summary judgment should be granted 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.” M.R.C.P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists. Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1017 (Miss.2000). “The non-moving party must produce specific facts showing that there is a genuine material issue for trial.” Id. at 1018. The nonmoving party is given the benefit of every reasonable doubt as to the existence of a genuine issue of material fact. Id. at 1017. The de novo standard also applies on review of the trial court’s application of the statute of limitations. Fletcher, 999 So.2d at 1276.

DISCUSSION

¶ IB. The three-year statute of limitations applies to actions for legal malpractice. Channel v. Loyacono, 954 So.2d 415, 420 (Miss.2007); Miss.Code Ann. § 15-1-49 (Rev. 2003). The trial court found there was no genuine issue of material fact because more than three years had passed since either of two possible dates when Melvin was terminated, either in 2001 or 2002. Citing Stevens v. Lake, 615 So.2d 1177 (Miss.1993), Melvin argues that the trial court’s decision was correct because the “statute of limitations in a legal malpractice action begins to run on the date that the attorney’s representation of the specific matter or transaction ended.” This rule for determining the beginning of the limitations period is known as “the continuous representation rule.” Channel, 954 So.2d at 420.

¶ 14. Melvin’s contention is without merit. This Court specifically has held that “Mississippi does not follow the ‘continuous representation rule.’ ” Id. at 421. In Channel, the Court recognized that Stevens had discussed the rule, but that the discussion merely had explained the rule and had stated why it could not apply under the facts of the case. Id. at 420-21. The Court recognized that, “[i]n Sneed, this Court explained that the discovery rule was the proper test for deciding when the statute of limitations for a legal malpractice action begins to run.” Id. (citing Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994)).

¶ 15. Under the discovery rule, as applied in a legal-malpractice action, the statute of limitations begins to run on the date that the plaintiff learns, or through reasonable diligence, should have learned, of the negligence of the lawyer. Sneed, 638 So.2d at 1253. The discovery rule is applied when the facts indicate that “it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” McCain v. Memphis Hardwood Flooring Co., 725 So.2d 788, 794 (Miss.1998) (overruled on other grounds). In Sneed, the Court found that the discovery rule applies when it would be impractical to require a layperson to have discovered the malpractice at the time it happened. Id. at 1257-58. This is because requiring a layperson to ascertain legal malpractice at the time it occurs would necessitate the retention of a second attorney to review the work of the first. Id. (citing Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421, 428 (1971)).

¶ 16. Melvin also cites Champluvier v. Beck, 909 So.2d 1061, 1063 (Miss.2004), for his assertion that the continuous-representation rule, not the discovery rule, applies. But in Champluvier, this Court also applied the discovery rule. The Court examined the following facts that pertained to when Champluvier knew of her attorney’s alleged negligence. The trial court had entered a preliminary injunction that had required Champluvier to provide an accounting and turn over business records. Id. at 1062. She hired attorney Beck to represent her and provide the court with the accounting. Id. However, Beck did not file a proper accounting with the court, and Champluvier was found in contempt and ordered to serve jail time. Id. When Champluvier was released, she terminated Beck’s representation and filed a bar complaint on September 1, 1999. Id. The trial court entered an order releasing Beck from the representation on August 22, 2000. Id. Champluvier filed her complaint on March 14, 2003. Id. Champluvier argued that her complaint was timely because she had filed the complaint within three years of the date the court had entered the order terminating Beck’s representation. Id. at 1063.

¶ 17. The Court held that the statute of limitations had run by the time Champluvier had filed the complaint. Id. at 1064. The Court stated, “[t]he statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer.” Id. at 1063 (quoting Greenline Equip. Co. v. Covington County Bank, 873 So.2d 950, 956 (Miss.2002)). The Court rejected Champluvier’s argument that the limitations period ran from the date of termination. Id. The Court stated that, in Stevens, the Court had held that the attorney’s continuing representation of the client on other matters did not toll the statute of limitations for legal malpractice. Id. (citing Stevens, 615 So.2d at 1182). The Court held that Champluvier reasonably knew or should have known of Beck’s negligence a year before the court order of termination, because in August 1999, she had been held in contempt of court and jailed for Beck’s mistakes, and in September 1999 she had filed a bar complaint against Beck. Id. at 1063-64.

¶ 18. Melvin also argues that, under the rules of agency, Melvin’s and Hill’s knowledge of the failure to serve NMRMC was imputed to Washington and Bennett. However, the cases Melvin cites for this proposition are inapposite, because they do not involve a lawsuit against an attorney by a former client for legal malpractice. Instead, these cases held that an attorney’s knowledge was imputable to the client where the rights of third parties were involved. O.W.O. Investments, Inc. v. Stone Inv. Co., 32 So.3d 439, 447 (Miss.2010); Lane v. Oustalet, 873 So.2d 92, 95-6 (Miss.2004). The essence of a legal-malpractice action is that the attorney’s and the client’s interests are opposed to each other, and the discovery rule could never apply in legal-malpractice cases if an attorney’s knowledge of his or her own misconduct was imputed to the client. Plainly, Bennett presented evidence that Melvin and Hill had acted in their own interest by failing to communicate the lack of service of process on NMRMC. Thus, we find the agency principle Melvin cites to be wholly inapplicable to the instant case.

¶ 19. We find that the evidence submitted on summary judgment created a genuine issue of material fact as to whether the first time that Bennett and Washington knew or with reasonable diligence should have known of the alleged malpractice was when their new attorney received the case file in 2005. In the January 2002 letter to Melvin, Hill stated that he had informed Washington that the time had expired to serve NMRMC. However, Bennett claimed that neither she nor Washington had known of the fatal error until they had obtained the case file from Hill and had it reviewed by new counsel. In fact, both Hill and Melvin admitted in their interrogatory responses that they never had informed Bennett or Washington of the failure to serve NMRMC. Bennett admitted in her interrogatory responses that on March 19, 2001, Melvin had informed Washington that they were having trouble serving process on one of the defendants, and that prior to January 2, 2002, Hill had informed Washington about the difficulty of serving process on NMRMC. Viewing the evidence in the light most favorable to Bennett, Bennett presented evidence that she and Washington had lacked actual knowledge of the alleged malpractice prior to her new counsel’s review of the case file in 2005.

¶ 20. Melvin argues that, when Bennett and Washington were told that their attorneys were having trouble with service on NMRMC, a duty to investigate arose, and their failure to investigate was a lack of reasonable diligence. Citing Blail- ock ex rel. Blailock v. Hubbs, 919 So.2d 126, 130 (Miss.2005), and Spann v. Diaz, 987 So.2d 443 (Miss.2008), Melvin argues that, in order to fulfill the reasonable-diligence requirement, Bennett and Washington were required to investigate the available records, such as court records and client files, in an effort to ascertain whether malpractice had occurred. “[T]o claim benefit of the discovery rule, a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury.” Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1001 (Miss.2004). “The discovery rule will toll the statute of limitations ‘until a plaintiff should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.’ ” Blailock, 919 So.2d at 130 (citing Wayne Gen. Hosp., 868 So.2d at 1000-01).

¶ 21. Blailock was a medical-malpractice action in which the plaintiffs sued the doctors who had delivered their son. Id. at 129. After the expiration of the one-year statute of limitations under the Mississippi Tort Claims Act, the plaintiffs sought to amend their complaint to join the hospital. Id. This Court held that the one-year statute of limitations had expired because the Blailocks had been on constructive notice of possible medical negligence since the birth; they had possessed medical records indicating negligence on behalf of the hospital as well as the physicians, and they had in fact instigated the lawsuit against the physicians. Id. at 130. The Court held that reasonable diligence required the Blailocks to have reviewed the medical records and determined the hospital’s negligence at that time. Id. Thus, the plaintiffs had known or should have known of possible negligent conduct by the hospital as early as the delivery of their child or upon their review of the medical records.

¶ 22. Spann involved an underlying medical-malpractice case where the plaintiffs attorney, Diaz, had added Dr. Raw-son as a defendant after the statute of limitations had expired. Spann, 987 So.2d at 445. The plaintiff settled with the hospital, and a jury rendered a verdict for the plaintiff against Dr. Rawson. Id. On appeal, this Court reversed the plaintiffs verdict based on the statute of limitations. Id. (citing Rawson v. Jones, 816 So.2d 367 (Miss.2001)). After speaking to another attorney, Spann learned that Diaz had been negligent in failing to timely join Rawson. Id. This Court found that Spann’s legal-malpractice suit was time-barred because the legal negligence was a matter of public record, and in the exercise of reasonable diligence, Spann should have discovered Diaz’s negligence at the time this Court denied Spann’s motion for rehearing of the decision barring her suit against Rawson. Id. at 449-50. The Court noted that the Rawson decision specifically stated the reasons for finding that the statute of limitations had expired and strongly implied that Diaz had been at fault. Id. at 449.

¶ 23. Blailock and Spann are distinguishable from the instant case. Although Washington and Bennett could have checked the court records to determine whether NMRMC had ever been served, they had received no information that should have alerted a layperson to possible negligence. The news that their attorneys were having trouble or difficulty with serving NMRMC was not the type of information reasonably guaranteed to communicate to a layperson that the reason for the difficulty was that their attorneys may have been guilty of negligence. In fact, Bennett and Washington submitted evidence showing that they had exercised reasonable diligence by continually inquiring into how the case was progressing through their telephone calls and written correspondence to Hill. But instead of informing the sisters of the fact that the case could not proceed against NMRMC, Hill’s responses contributed to a false sense of security by continually reassuring them that things were progressing, until finally informing them that the case could not proceed because there was no evidence of negligence on behalf of the nursing home.

¶ 24. Quoting the Texas Supreme Court, this Court has stated that the “[c]orollary to [an attorney’s] expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it.” Smith, 638 So.2d at 1257. (quoting Willis v. Maverick, 760 S.W.2d 642, 645-46 (Tex.1988)). This Court further quoted:

The client must feel free to rely on his attorney’s advice. Facts which might ordinarily require investigation likely may not excite suspicion where a fiduciary relationship is involved. Further, breach of the duty to disclose is tantamount to concealment. Thus, the California Supreme Court writes: “[p]ost-ponement of accrual of the cause of action until the client discovers, or should discover, the material facts in issue vindicates the fiduciary duty of full disclosure; it prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.”

Id. By adopting this rule of law, this Court has determined that Mississippi attorneys cannot rely on their failure to fully inform their clients to assert the statute of limitations in a legal-malpractice action. We find that the evidence created a genuine issue of material fact concerning when Washington and Bennett knew or should have known that Melvin was guilty of the alleged malpractice.

¶ 25. Bennett alternatively argues that the statute of limitations was tolled because the evidence tended to show that Melvin fraudulently had concealed both the failed service and the fact that it was fatal to the wrongful-death case. The requirements to show fraudulent concealment of a cause of action are (1) a subsequent affirmative act of concealment, and (2) due diligence. Andrus v. Ellis, 887 So.2d 175, 181 (Miss.2004); Miss.Code Ann. § 15-1-67 (Rev. 2003). The fiduciary relationship that exists between attorney and client creates a duty of disclosure. Waggoner v. Williamson, 8 So.3d 147, 154 (Miss.2009) (quoting Owen v. Pringle, 621 So.2d 668, 671 (Miss.1993)). When a fiduciary relationship exists, the failure to disclose can be an affirmative act. See Poe v. Summers, 11 So.3d 129, 134 (Miss.Ct.App.2009).

¶ 26. Although Washington terminated Melvin in November 2001, by law, Melvin represented Washington and Bennett until he was properly relieved by a court of record. Myers v. Miss. State Bar, 480 So.2d 1080, 1092 (Miss.1985) (stating that “any time an attorney undertakes to represent a client in any court of record in this state ... there attaches at that moment a legal, ethical, professional and moral obligation to continue with that representation until ... properly relieved by the court of record”). Because Melvin had a fiduciary relationship with the sisters, he had a duty to communicate facts material to the litigation for the duration of the representation.

¶27. Bennett contends that Melvin’s concealment of the failure of service and the resulting fatality to the wrongful-death case was tantamount to an affirmative act of concealment. Hill’s January 2, 2002, letter to Melvin communicated that Hill had explained the failure of service to Washington. It is reasonable to infer that Melvin reasonably relied on this representation from cocounsel and believed the situation had been “explained to Washington.” However, there is no evidence that, at any time between August 30, 2000, when Melvin received notice of the failed service, and January 2, 2002, Melvin took any measures to inform his clients of the failure. As discussed above, there was evidence that the sisters were diligent in keeping abreast of developments in the litigation through repeated inquiries into the progress of the case. We find that there is a genuine issue of material fact as to whether fraudulent concealment by Melvin tolled the statute of limitations.

CONCLUSION

¶ 28. The Court finds that, viewing the evidence in the light most favorable to Bennett, there was a genuine issue of material fact as to when Bennett and Washington knew, or in the exercise of reasonable diligence should have known, of the alleged legal negligence. We further find that there were genuine issues of material fact concerning possible fraudulent concealment. Accordingly, we reverse the trial court’s order granting summary judgment to Melvin and remand this case for further proceedings.

¶ 29. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. RANDOLPH, J., NOT PARTICIPATING.

      . Washington passed away between the time of the filing of the complaint and the amended complaint.


author: CARLTON, J.,

text:
    April McCULLOUGH, Appellant, v. Shane Allen McCULLOUGH, Appellee.
    No. 2008-CA-00029-COA.
    Court of Appeals of Mississippi.
    Oct. 6, 2009.

      Corey Donald Hinshaw, Tiffany Marie Graves, Jackson, attorneys for appellant.

      W. Brady Kellems, Brookhaven, attorney for appellee.
    Before KING, C.J., GRIFFIS, CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On November 5, 2007, the Chancery Court of Lincoln County entered a judgment granting a divorce to April McCullough (April) and Shane Allen McCullough (Shane) and giving Shane custody of the couple’s two minor children. April was granted liberal visitation and was ordered to pay child support in the amount of $604 per month. Aggrieved, April appeals the chancery court’s judgment. Finding no abuse of discretion by the chancellor, we affirm.

FACTS

¶ 2. April and Shane were married on June 23, 2001. The marriage produced two daughters: Lindsey and Caitlin, who were five years old and three years old, respectively, at the time of the divorce. The couple lived in Gautier, Mississippi, and then in Ruth, Mississippi. Shane worked at Avondale Shipyard in New Orleans, Louisiana where he stayed during the week. April would visit Shane in New Orleans occasionally, but she typically stayed in Ruth at the couple’s home.

¶ 3. The couple’s oldest child, Lindsey, was born on November 1, 2002. Shortly after Lindsey’s birth, Shane took a job working as an engineer with Carnival Cruise Lines, which required him to relocate to Italy on April 12, 2003. On May 8, 2003, April and Lindsey joined Shane in Italy. The family made several trips back to Mississippi, with April and Lindsey taking at least one trip to visit April’s family in Canada. Testimony revealed that April and Lindsey would travel to Mississippi from Italy while Shane was traveling for work. Shane would meet them in Mississippi, and the family would then spend time in Mississippi together before going back to Italy.

¶4. On July 31, 2004, Shane and April returned to Mississippi. April was pregnant with Caitlin at that time. Because April was a Canadian citizen and the family had no health insurance, the couple decided that April should go to Canada to give birth to Caitlin. April traveled to Canada to stay with her mother and to await Caitlin’s birth. Caitlin was born on October 29, 2004. Shane left Canada about one week after Caitlin’s birth to return to work in Italy.

¶ 5. After Christmas 2004, Shane, April, and the children returned to Italy. The family lived in Italy and traveled to Mississippi over the next year. April and the children returned to Mississippi in October 2005. Shane joined them on December 23, 2005. On January 7, 2006, the couple separated. Shane returned to Italy to complete his contractual obligations for work, and April remained in Ruth.

¶ 6. April filed for divorce on March 27, 2006. Meanwhile, Shane completed his work in Italy and returned to the United States. Shane took a job with Sperry Marine, which required him to work for several months in Charlottesville, Virginia before being transferred to Ocean Springs, Mississippi in October 2006. Shane’s contract with his employer included a flight to Mississippi every three weeks to visit with his daughters. He visited with them regularly while living in Virginia.

¶ 7. On October 20, 2006, April rented a car and drove with the children to Maine to set up residence for herself and the children. On October 26, 2006, Shane returned to Ruth from Virginia. On October 27, he filed his counterclaim seeking custody of the children and a temporary restraining order requiring the immediate return of the children.

¶ 8. On November 2, 2006, a hearing was conducted regarding Shane’s temporary restraining order. April did not appear at the hearing, but she was represented by her attorney. The chancellor entered an order on November 3, 2006, ordering April to return the children to Lincoln County, Mississippi, immediately. The order gave Shane temporary legal and physical custody of the children.

¶ 9. April was notified of the chancellor’s decision on November 2, 2006. She filed a complaint for protection from abuse in Maine. She sought custody of the children and a restraining order against Shane. April did not leave Maine until November 22nd to return the children to Mississippi. Shane had to drive to Jackson to pick up the children from a hotel.

¶ 10. The McCulloughs’ divorce and custody trial commenced on August 27, 2007, and lasted for six days. The chancellor entered his final order of divorce on November 19, 2007, granting physical and legal custody of the children to Shane. April was granted visitation and ordered to pay $604 per month in child support to Shane. Further, she was ordered to pay the medical bills incurred for the children that were not covered by insurance.

¶ 11. On appeal, April asserts the following assignments of error:

I. Whether the chancellor committed manifest error by allowing into evidence depositions on written questions and substantially relying on the same to render his opinion to award physical and legal custody to Shane.
II. Whether the chancellor erroneously considered the guardian ad litem’s final report, which was not submitted until the final day of trial, thereby depriving April of an opportunity to challenge the guardian ad litem’s findings and recommendations.
III. Whether the chancellor erred in his application of the Albright factors and abused his discretion in awarding sole physical and legal custody to Shane.
IV. Alternatively, whether the chancellor erred by failing to award the parties joint legal custody of the children.
V. Whether the chancellor erred in requiring April to be solely responsible for all medical expenses not covered by health insurance.

¶ 12. We find no error and affirm the judgment of the chancery court.

STANDARD OF REVIEW

¶ 13. Our standard of review in child custody disputes is well settled. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his [or her] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citations omitted). Furthermore, this Court “will affirm the [child custody] decree if the record shows any ground upon which the decision may be justified.... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interests of the child.” Mosley v. Mosley, 784 So.2d 901, 905-06(¶ 15) (Miss.2001) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)). “However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error.” Hollon v. Hollon, 784 So.2d 943, 946(¶ 11) (Miss.2001) (footnote added).

DISCUSSION

I. Whether the chancellor erred by allowing depositions on written questions into evidence and relying on them to render his opinion.

¶ 14. April’s first assignment of error centers around depositions -on written questions propounded to five witnesses who live out of the country. Regarding these depositions, April argues that: (1) Shane failed to provide her with adequate notice of the depositions, depriving her of the opportunity to cross-examine the witnesses or object to the form of the questions; (2) the written deposition questions were not properly certified pursuant to Mississippi Rule of Civil Procedure 30(f)(1); (3) the chancellor relied on the deposition testimony in making his custody determination, despite the highly objectionable form of the questions; and (4) the guardian ad litem improperly relied on the deposition testimony in forming her opinion.

¶ 15. Mississippi Rule of Civil Procedure 31(a) provides the following guidelines regarding the taking of depositions on written questions:

(a) Serving questions; notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided by law. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with Rule 30(b)(6). Within thirty days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten days after being served with cross questions, a party may serve redirect questions upon all other parties.
Within ten days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

¶ 16. Shane served April with his first notices of depositions on written questions on February 20, 2007. Shane served April with amended notices on March 19, 2007. The amended notices identified the designated depositing officer for each of the depositions to be taken. The first deposition was actually taken on February 27, 2007, prior to April receiving the amended notices. Therefore, April contends Shane failed to comply with Rule 31(a), depriving her of an opportunity to cross-examine the deponents or to object to the questions. April filed a motion in limine to have the depositions on written questions excluded from evidence in the divorce trial. The chancellor, after hearing arguments the day of the trial, denied April’s motion and allowed the depositions into evidence.

¶ 17. The supreme court has held that “[t]he admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So.2d 742, 749(¶ 29) (Miss.2001) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss.1995)). The chancellor allowed the depositions on written questions into evidence, finding that Rule 31(a) did not require that direct and cross-examination questions be submitted simultaneously. Furthermore, the chancellor found that April failed to ask the court for any extension of time with regard to the depositions on written questions so that she could submit her own cross-examination questions. Notably, April failed to raise any objections as to the deposition notices until she filed her motion in limine, a period of approximately six months. Rule 32(d)(1) of the Mississippi Rules of Civil Procedure provides that “[a]ll errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving notice.” (Emphasis added). April failed to promptly notify Shane of her objections to his written depositions.

¶ 18. Furthermore, April failed to make a timely objection to the form of the written deposition questions. Rule 32(d)(3)(C) of the Mississippi Rules of Civil Procedure states the following regarding objections to written deposition questions:

Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.

Likewise, Rule 32(d)(4) requires the following with respect to deposition testimony:

As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

¶ 19. Again, April failed to object to the deposition questions or the certification by the deposing officer with reasonable promptness. Because April waived any objection to the deposition questions, we find no error in the chancellor’s admission of the deposition testimony into evidence.

¶ 20. April further argues that the chancellor and the guardian ad litem erred in relying on the deposition testimony in forming their opinions with regard to custody of the children. April contends that the deposition questions were highly objectionable as to form, and that the deponents’ responses constituted inadmissible character and opinion evidence. Notwithstanding April’s failure to object to the form of the questions, we find her argument lacks merit. While the chancellor did consider the deposition testimony, the record clearly reflects that he considered other evidence and testimony as well. Furthermore, the guardian ad litem considered the deposition testimony along with information gathered through her own interviews with April’s family members in Maine and Canada, April’s landlord in Canada, a social worker who is familiar with the children, April’s supervisor and neighbors, and others.

¶ 21. April’s contention that the deposition testimony constituted impermissible character evidence also fails. Mississippi Rule of Evidence 404(a) provides that “[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.... ” However, the comment to Rule 404 provides an exception to the prohibition against character evidence when character is a direct issue in a case. M.R.E. 404(a) cmt. In a child custody case, the character traits of parents are at issue in the chancellor’s evaluation of the Albright factors. A parent’s character traits could be relevant in the Albright analysis under any of the factors, including moral fitness of the parents, physical and mental health of the parents, and the stability of the home environment. See Albright, 437 So.2d at 1005.

¶ 22. We find no error in the chancellor’s admission of the deposition testimony or in his consideration of the testimony in his Albright analysis. This issue is without merit.

II. Whether the chancellor erred in considering the guardian ad li-tem’s report, which was not submitted until the final day of trial, thereby depriving April of an opportunity to challenge the guardian ad litem’s findings and recommendations.

¶ 23. In her second assignment of error, April urges this Court to find the chancellor in error for admitting the guardian ad litem’s report on the final day of trial. April asserts that she did not have an adequate opportunity prior to the guardian ad litem’s testimony to review the information in the guardian ad litem’s report, including the interviews she conducted, the documents she reviewed, or her findings and recommendations for custody.

¶24. The chancellor initiated a brief recess in the proceedings so both Shane and April could review the guardian ad litem’s final report before her testimony. April made no objection to the admission of guardian ad litem’s previous reports or to the final report. April made no objection to the admission of the guardian ad litem’s report until she filed her motion for new trial. Furthermore, April made no request for a continuance or for additional time to examine the report.

¶ 25. The supreme court has held that when a party fails to make a contemporaneous objection at trial, he waives any error on that issue on appeal. Dorrough v. Wilkes, 817 So.2d 567, 577(¶ 33) (Miss.2002) (citations omitted). Furthermore, “[a]n appellate court is under no obligation to review an assignment of error when an objection was not made or when an objection was untimely.” Id. Because April did not raise any objections to the admission of the guardian ad litem’s report or make a request for additional time to review the report, we find that this issue is procedurally barred.

III. Whether the chancellor erred in his application of the Albright factors and abused his discretion in awarding sole physical custody to Shane.

¶ 26. April’s third assignment of error centers around the chancellor’s application and analysis of the Albright factors. April contends that the chancellor applied the Albright factors unfairly, placing too much weight on certain facts while disregarding others.

¶ 27. Chancellors must consider a number of factors in determining child custody: (1) age, health, and sex of the child; (2) which parent had continuity of care prior to the separation; (3) which parent has better parenting skills and the willingness and capacity to provide primary childcare; (4) the employment responsibilities of the parents; (5) the physical and mental health and age of the parents; (6) the moral fitness of the parents; (7) the emotional ties of the parents and child; (8) the home, school, and community records of the child; (9) the preference of a child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) the other relevant factors in the parent-child relationship. Albright, 437 So.2d at 1005. The chancellor in the present case thoroughly considered each of the above factors.

¶ 28. April finds manifest error in the chancellor’s findings on the following factors: age, health, and sex; continuity of care; parenting skills; willingness and capacity to provide primary childcare; employment responsibilities; moral fitness; stability of the home environment; and “other factors.” Because April only specifically challenges the chancellor’s findings on these factors, we will not address the chancellor’s analysis of the remaining Al-bright factors.

A. Age, Health, and Sex of the Children

¶ 29. April argues that the chancellor erred by not finding this factor to favor her in his custody determination. April argues that the children, who were ages five and three at the time of the hearing, are of tender years. Thus, April, as the children’s mother, should be favored under this factor.

¶ 30. The chancellor found this factor to favor neither parent. A child is no longer of tender years when she can be equally cared for by someone other than her mother. Mercier v. Mercier, 717 So.2d 304, 307(¶ 15) (Miss.1998). Relying on the deposition testimony from the couple’s friends abroad, along with trial testimony, the chancellor determined that the children “are beyond an age that only April can provide for them, and ... Shane has demonstrated that he can provide for their care.... ”

¶ 31. The chancellor noted that Shane stayed with Caitlin in the hospital when she was only three months old, while April stayed at home with Lindsey, who was also very ill. We note that under this factor, the chancellor’s consideration of the depositions on written questions was limited. The chancellor noted that Shane cared for the children while April went out when the family lived in Italy, and the children were very young at the time. The chancellor stated that this fact was corroborated by the deposition testimony. Furthermore, the chancellor determined that Shane has acted as the children’s primary caretaker since the temporary custody order.

1132. The chancellor found this factor favored neither parent. The children required no special medical care that required them to live with one parent over the other. Further, the chancellor found that because the children were so young, their gender favored neither parent.

¶ 33. We find support in the record for the chancellor’s determination that the above factors favored neither April nor Shane.

B. Continuity of Care

¶ 34. April argues that the chancellor erred in not finding this factor to weigh more in her favor. Under this factor, the chancellor stated the following:

The court finds that if this factor favors either party, it would only slightly favor April due to the stay-at-home mom status she maintained for several years during the girls’ lives and by that status had the opportunity during the time she had the children to do more.

In his analysis, the chancellor noted that: Shane bathed the children more often; he cooked for and fed the children as often as April; and he took care of the children while April went out with friends. The cháneellor noted that April dressed the children more often because she stayed home with them, and that neither parent put the children to bed more often than the other. The chancellor found Shane to be the primary disciplinarian for the children. Further, the chancellor noted that when April had the children with her in Ruth, she relied on Shane’s parents for help -with the children, and that the children stayed with his parents on a regular basis.

¶35. April argues that the chancellor relied too heavily on the period after April and Shane separated in analyzing the continuity-of-care factor. The chancellor did consider the custody and visitation arrangement in effect after the temporary custody order; however, the record does not indicate that he based his analysis under this factor on the post-separation periods. The chancellor recites the arrangements since the temporary order, noting when April exercised visitation on weekends and holidays. However, the chancellor only noted, after the discussion of the custody arrangement, that Shane “has demonstrated that he has the ability to provide primary care ” to the children.

¶ 36. We find support in the record for the chancellor’s determination that this factor slightly favors April.

C.Parenting Skills

¶ 37. Under this factor, the chancellor noted that both Shane and April possessed the ability and wherewithal to provide for the children’s physical care, emotional support, discipline, and guidance. However, the chancellor found Shane more attentive to the children’s medical needs. He also found that Shane’s routine with the children helped them deal with the transition to visiting with their mother on weekends and maintaining a relationship with her. The chancellor generally found Shane more emotionally supportive of the children. Additionally, the chancellor found that Shane has a definitive philosophy in disciplining the children, whereas “April has just told me how she does it.”

¶ 38. The chancellor found this factor to favor Shane. The record supports the chancellor’s finding.

D. Willingness and Capacity

¶ 39. The chancellor noted that both Shane and April have the willingness and capacity to provide childcare for the children. He noted that both Shane and April have a home, transportation for the children, and childcare. The chancellor found that Shane had a greater support network because his parents were close enough to help. April’s family members live as far away as Maine and Canada, and she failed to call witnesses to attest to their willingness to provide backup childcare for the children.

E. Employment Responsibilities of the Parents

¶ 40. The chancellor found this factor favored neither Shane nor April. He found that both Shane and April work in professions that allow flexibility to attend to the children’s needs, and that neither party’s employment was overwhelmingly better than the other’s. The chancellor’s findings are supported by the testimony.

F. Moral Fitness

¶41. The chancellor found the moral fitness factor favored Shane. The chancellor focused on April’s activities when the couple lived in Italy. He noted that, when the family took a cruise, April remained at the bar after Shane and the children went to bed. Further, the chancellor relied on deposition testimony regarding April’s behavior during “girls’ night out” activities with her friends in Italy, including that April tended to become intoxicated and make advances on other men.

¶ 42. April contends that the chancellor failed to take into consideration Shane’s prior behavior, including prior citations for driving under the influence. Further, she faults the chancellor for considering her two prior marriages as evidence of her instability. However, as with the other Albright factors, this Court cannot reweigh the evidence presented at trial. Evidence exists in the record to support the chancellor’s findings under this factor.

G. Stability of the Home Environment

¶ 43. The chancellor failed to state which party he favored under this factor. He stated that both Shane and April maintained stable home environments, but he noted that April had been married twice before marrying Shane.

H. Other Factors

¶ 44. Under this factor, the chancellor considered Shane’s family connections in Mississippi and April’s lack of family connections. Further, the chancellor stated that he found Shane’s testimony regarding the couple’s separation more credible than April’s testimony. He found April’s testimony inconsistent in several instances, including testimony regarding Shane’s relationship and involvement with the children. The chancellor found April’s testimony intentionally deceptive in order to portray Shane negatively.

¶ 45. In her argument, April attempts to relitigate the issue of the best interests of the children and the chancellor’s findings under the Albright factors. This Court has held that “we may not substitute our judgment for the chancellor’s[,] but must determine if the chancellor’s ruling is supported by substantial evidence.” Norman v. Norman, 962 So.2d 718, 721 (¶ 10) (Miss.Ct.App.2007) (citing Brewer v. Brewer, 919 So.2d 135, 141(¶ 23) (Miss.Ct.App.2005)). Further, “[s]o long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Id. (citing Bower v. Bower, 758 So.2d 405, 412(¶ 33) (Miss.2000)). We find substantial evidence to support the chancellor’s findings under the Albright factors. Accordingly, this issue lacks merit.

IV. Whether the court erred by failing to award the parties joint legal custody of the children.

¶ 46. April argues that the chancellor erred by not awarding joint legal custody of the children to April and Shane, despite the guardian ad litem’s recommendation that joint custody be awarded. The parties withdrew their fault-based complaints for divorce prior to trial and agreed to an irreconcilable differences divorce. April and Shane agreed to submit the issues of custody and child support to the chancellor for his determination. While neither Shane nor April specifically requested joint custody, their submission of the issue of custody to the chancellor opened the door for the chancellor to award joint custody if he found it to be in the best interests of the children. See Miss.Code Ann. § 93-5-24(2) (Rev.2004) (“Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.”); see also Crider v. Crider, 904 So.2d 142, 148(¶ 15) (Miss.2005) (holding that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination,” satisfying the statutory requirement of a joint application).

¶ 47. Shane’s and April’s consent to allow the chancery court to determine custody gave the chancellor the option to award joint-custody to the parties. Further, the guardian ad litem’s report recommended a joint custody arrangement. The chancellor rejected the guardian ad litem’s recommendation of joint custody, without explanation, and granted legal and physical custody of the children to Shane. However, chancellors are not required to defer to the findings of a guardian ad litem. Passmore v. Passmore, 820 So.2d 747, 751(¶ 13) (Miss.Ct.App.2002). Furthermore, in cases where the appointment of a guardian ad litem is discretionary, or not required by statute, the chancellor is not bound to explain his decision to reject the guardian ad litem’s recommendations. Id.

¶ 48. The chancellor thoroughly discussed his analysis of the Albright factors in reaching his custody decision. We find ample evidence in the record to support the chancellor’s findings under the Al-bright analysis. This issue is without merit.

V. Whether the chancellor erred in requiring April to be responsible for all medical expenses not covered by insurance.

¶ 49. In her final assignment of error, April argues that the chancellor erred in requiring that she pay all medical expenses incurred for the children not covered by their insurance. The chancellor ordered Shane to maintain the children on the group insurance through his employer and to pay the premiums. April contends the chancellor erred in requiring her to be responsible for 100% of the medical expenses not covered by insurance, rather than splitting the expense equally between her and Shane. She cites Hoar v. Hoar, 404 So.2d 1032, 1036 (Miss.1981) to support her argument.

¶ 50. In Hoar, the supreme court upheld a chancellor’s child support decree requiring a divorcing couple to each pay half of the children’s medical expenses not covered by insurance. Id. In that case, however, the non-custodial parent also bore the responsibility of maintaining health insurance for the children and for the custodial parent. Id. In the case before this Court, however, the chancellor gave Shane, the custodial parent, the task of covering the children on his group insurance because the chancellor determined the insurance plan to be superior to the insurance available to April. Furthermore, the Hoar case does not limit the chancellor to splitting medical expenses equally between the parties. The supreme court merely upheld a chancellor’s ruling that the expenses should be divided. Id. Therefore, this issue is without merit.

¶ 51. In conclusion, we find no abuse of discretion by the chancellor with respect to April’s assignments of error. We, therefore, affirm the chancery court’s judgment.

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

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

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).