author: KING, Justice,

text:
    ST. DOMINIC-JACKSON MEMORIAL HOSPITAL v. MISSISSIPPI STATE DEPARTMENT OF HEALTH and Madison HMA d/b/a Madison River Oaks Hospital.
    No. 2011-SA-00007-SCT.
    Supreme Court of Mississippi.
    April 26, 2012.

      Jonathan Robert Werne, Edmund L. Brunini, Jr., Robert Richard Cirilli, Jr., attorneys for appellant.

      Thomas L. Kirkland, Jr., Allison Carter Simpson, Andy Lowry, Robert Emmett Fagan, Jr., Bea Tolsdorf, Chad Warner Blalack, attorneys for appellees.
    Before WALLER, C.J., KITCHENS and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. This Court is asked to decide whether the Mississippi Department of Health (Department) erred by denying the eertificate-of-need (CON) application of St. Dominic-Jackson Memorial Hospital (St. Dominic). In its CON application, St. Dominic sought to relocate seventy-one general acute-care beds from its Jackson location to a new facility it planned to build in Madison County. The Department found that St. Dominic’s proposed project was actually a new hospital, not a relocation. Because St. Dominic did not meet the need criteria for a new hospital, the Department denied the request. The Madison County Chancery Court affirmed this decision.

¶ 2. Aggrieved, St. Dominic has appealed to this Court, raising four issues:

I. Whether St. Dominic’s CON application is a relocation of a portion of a health-care facility as contemplated under Mississippi Code Section 41-7-191(l)(b).
II. Whether St. Dominic’s CON application complies with the specific need criteria for a relocation of a portion of a health-care facility detailed in the State Health Plan.
III. Whether St. Dominic’s CON application complies with the specific need criteria for the proposed institution of obstetrical services as set forth in the State Health Plan.
IV. Whether St. Dominic’s CON application complies with the General Review Criteria as set forth in the Mississippi Certificate of Need Review Manual.

We determine that the Department did not err by finding St. Dominic’s proposed project was actually a new hospital. Because St. Dominic could not meet the need criteria for a new hospital, the Department did not err by denying its CON application, and the chancery court did not err by affirming this decision. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. St. Dominic, which is located in General Hospital Service Area 3 (GHSA), is a short-term, general, acute-care facility. At the time of its application, St. Dominic had a licensed capacity of 535 beds that included 417 medical/surgical beds, 35 chemical-dependency beds, and 83 psychiatric beds.

¶ 4. In June 2007, St. Dominic filed a CON application to build a new hospital in Madison County. St. Dominic later withdrew that application. Then, on December 1, 2008, St. Dominic filed a CON application requesting approval to relocate seventy-one beds (sixty-five general acute-care beds and six obstetric beds) from its Jackson location to a new “satellite campus” it planned to build in Madison. The project was estimated to cost $125,303,387 and would be located at the future Interstate 55/Reunion Interchange, between the existing Madison and Gluckstadt exits.

¶ 5. The application consisted of four components: (I) to relocate sixty-five licensed and operational, general, acute-care beds and related services and to construct a new facility, (II) to construct an accompanying 60,000 squarefoot medical office building, (III) to provide MRI services at the new facility, and (IV) to relocate six licensed, general, acute-care beds for obstetrical and neonatal services. St. Dominic stated that it would implement Components II, III, and IV only if the Department approved Component I.

¶ 6. In February 2009, a staff analysis recommended the application be denied. St. Dominic requested a hearing. Madison HMA, Incorporated (also doing business as Madison River Oaks), the operator of a sixty-seven-bed hospital in Canton, Mississippi, challenged St. Dominic’s CON application. The public hearing took place February 4 through February 25, 2010, and included evidence and testimony in support of and in opposition to St. Dominic’s application.

¶ 7. The hearing officer found that St. Dominic’s proposed relocation was actually a new hospital, finding (1) “the proposed project ‘does not reduce the scope of services available at the Jackson campus[;]’ ” (2) “Since St. Dominic has not identified the beds that will be relocated, there is no basis for determining if the ‘relocated’ beds are actually operational;]” (3) “St. Dominic has not identified staff that will be relocated, and acknowledges new personnel will be hired to staff the new hospital[;]” (4) “St. Dominic’s application contemplates the purchase of new equipment!];]” and (5) “St. Dominic proposed to construct a new building which, regardless of licensure classification, will be a separate hospital.”

¶ 8. After concluding that the proposed project was actually a new hospital, the hearing officer analyzed St. Dominic’s CON application under the “Certificate of Need Criteria and Standards for the Establishment of a General Acute Care Hospital.” Under the criteria, the hearing officer determined that Madison County had an existing hospital — Madison HMA. The applicable formula showed the area was “over-bedded” — Madison County with an excess of thirty-four beds and GHSA 3 with an excess of 1,300 beds. Based on these figures, the hearing officer concluded that Madison County did not need an additional hospital.

¶ 9. In addition to complying with the requirements of the State Health Plan, St. Dominic had to comply with the sixteen General Review Criteria (GRC) set forth in the CON Review Manual. The hearing officer determined that three criteria did not apply; St. Dominic passed six criteria; but St. Dominic failed to comply with the following seven criteria.

GRC 1 State Health Plan: For the reasons stated above, the hearing officer found that St. Dominic failed to comply with the State Health Plan.
GRC 3 Availability of Alternatives: Based on the evidence, the hearing officer concluded that St. Dominic had decided to build a hospital in Madison many years ago. St. Dominic only considered two options: renovating/expanding its existing facility and building a second facility in Madison. Thus, the hearing officer opined that St. Dominic did not truly consider its alternatives.
GRC Jp Economic Viability: Evidence did not support a finding that the project would be profitable by its second or third years of operation.
GRC 5(a)-(d) Need for the Project: Because the proposed project would be placed in a “relatively young, wealthy population,” the hearing officer was not convinced that the motivation for the project was to improve healthcare access for low income, minority, and under-served groups. Although Madison County’s population was increasing, the growth was not significant enough to support a new hospital. The proposed facility would have a negative effect on Madison HMA. There was huge opposition to St. Dominic’s application, and St. Dominic used misleading advertising and giveaways to gain supporters.
GRC 6 Access to Facility or Service: The hearing officer determined that this project was not geared toward serving underserved groups. The proposed project would be in close proximity to eight other hospitals. And, because funding for the Reunion Interchange was lost, the facility would not be directly accessible from the highway.
GRC 8 Relationship to Existing Healthcare System: Evidence suggested that the proposed project would negatively affect the existing hospital-Madison HMA.
GRC Up Construction Projects: The Department must consider whether construction projects are designed to maximize cost containment. The hearing officer found that this criterion did not weigh in favor of St. Dominic.

¶ 10. The hearing officer also determined St. Dominic was not in compliance with the State Health Plan’s four General Certificate of Need Policies. The hearing officer stated that:

If St. Dominic is permitted to proceed with this project under the guise of a “relocation” by satisfying the need requirement with nothing more than a showing that: 1) Madison County is one of the fastest growing counties in Mississippi, 2) the current transportation system is inadequate, 3) there are parking and patient flow problems at its Jackson Campus, and 4) many Madison County residents are inconvenienced by having to drive to Jackson for healthcare, the standard will have been officially lowered from what is currently required by [law].

Because St. Dominic’s application did not comply with the statutes, the 2009 State Health Plan, and the CON Review Manual, the hearing officer denied the application.

¶ 11. The State Health Officer reviewed the hearing officer’s recommendations and concurred with the findings, denying St. Dominic’s CON application by final order dated August 26, 2010. On September 7, 2010, St. Dominic appealed to the Madison County Chancery Court. The chancellor affirmed the denial. Aggrieved, St. Dominic appealed to this Court on December 29, 2010.

¶ 12. We will include additional facts within the context of the discussion.

STANDARD OF REVIEW

¶ 13. As an appeal from an administrative agency, this Court gives great deference to the Department’s factual findings. St. Dominic Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 728 So.2d 81, 83 (¶ 9) (Miss.1998). The Legislature has instructed that:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

Miss.Code Ann. § 41-7-201(2)(f) (Rev. 2009).

ANALYSIS

¶ 14. The Mississippi Health Care Certificate of Need Law requires obtaining a CON from the Department before engaging in certain designated activities. See Miss.Code Ann. § 41-7-191(1) (Rev. 2009). The statute provides, in pertinent part, that:

(1) No person shall engage in any of the following activities without obtaining the required certificate of need:
(a) The construction, development or other establishment of a new health care facility,
(b) The relocation of a health care facility or portion thereof, or major medical equipment, unless such relocation of a health care facility or portion thereof, or major medical equipment, which does not involve a capital expenditure by or on behalf of a health care facility, is within five thousand two hundred eighty (5,280) feet from the main entrance of the health care facility;
(e) The relocation of one or more health services from one physical facility or site to another physical facility or site, unless such relocation, which does not involve a capital expenditure by or on behalf of a health care facility, (i) is to a physical facility or site within five thousand two hundred eighty (5,280) feet from the main entrance of the health care facility where the health care service is located, or (ii) is the result of an order of a court of appropriate jurisdiction....

Id. The Court must determine whether St. Dominic’s project is a relocation, as suggested by St. Dominic, or a new hospital, as argued by the Department and Madison HMA.

¶ 15. There is no bright-line rule by which to analyze this issue. But this Court has provided much guidance on the topic. Whether St. Dominic’s project is a relocation or a new hospital will control which standard applies to its CON application.

I. Is St. Dominic’s project a true relocation or an attempt to build a new hospital?

¶ 16. St. Dominic presented its project as a relocation, but the Department determined that the project actually was a new hospital. St. Dominic argues that the Department erred because (1) the ruling is contrary to CON law, (2) the Department misinterpreted and misapplied prior Court decisions, and (3) the decision is arbitrary and capricious because it is inconsistent with the Department’s prior decisions in identical cases. Conversely, the Department and Madison HMA argue that (1) the project actually is a new hospital, (2) the Department did not mischaracterize the project, and (3) the prior cases are distinguishable.

¶ 17. In determining whether the project is a new hospital, the hearing officer relied on this Court’s decisions in St. Dominic-Jackson Memorial Hospital v. Mississippi Department of Health, 728 So.2d 81 (Miss.1998), and St. Dominic-Madison County Medical Center v. Madison County Medical Center, 928 So.2d 822 (Miss.2006).

A. Methodist

¶ 18. In the Methodist case, Methodist Medical Center filed a CON application requesting to relocate sixty-four licensed but unused beds to a new satellite campus in Northeast Jackson. Methodist, 728 So.2d at 84 (¶ 11). The Department granted the CON. Id. at 82 (¶2). On appeal, the chancellor questioned whether the Methodist project was a relocation or actually a new hospital. Id. at 82 (¶ 3). She also questioned whether the project was needed. Id. Thus, the chancellor remanded the case to the Department for review. Id.

¶ 19. On remand, the Department conducted a second hearing, determined that Methodist’s project was a relocation, and granted its CON application. Id. at 84 (¶ 11). On the second appeal, the chancellor affirmed. Id. at 82 (¶ 4). Aggrieved, St. Dominic appealed to this Court, which reversed the decision. Id. at 82 (¶ 5), 92 (¶¶ 43-45).

¶ 20. The Court questioned why the Department classified the project as a “relocation.” Id. at 84 (¶¶ 11-13). At the time, “relocation” was not defined in the State Health Plan; thus, the Department had the authority to interpret the term. Id. at 84-85 (¶ 12). “[T]he Department has the authority to define terms in a manner inconsistent with their generally accepted definition,” but the Court found the Department’s “definition of ‘relocation’ to be suspect.” Id. at 84-85 (¶¶ 12-14). The Court stated that:

The North Campus project does not constitute a “relocation” in any ordinary sense of the word. The record is clear that a completely new building was constructed in northeast Jackson, and this building has been staffed with new medical workers and new equipment. There was no corresponding decrease in services at the main hospital in south Jackson, and, although the North Campus facility lacks an emergency room, the facility is, for all practical purposes, a new hospital.

Id. at 85 (¶ 13). Although the Court determined that the Department’s interpretation of “relocation” was suspect, the Court deemed it unnecessary to determine whether the definition was arbitrary and capricious. Id. at 85 (¶ 14). Instead, the Court found the decision erroneous as a matter of law because the Department erroneously had applied a lesser standard of need when approving the alleged “relocation.” Id.

¶ 21. The Court determined “that the showing of need must be commensurate to what the project actually is ...,” and the project actually was a new hospital. Id. at 89 (¶ 27). According to evidence, GHSA 3 was over-bedded and no new hospitals had been proposed in Jackson since the passage of the CON laws. Id. at 89 (¶ 29). The Court stated that:

[W]e would question a proposal which sought to build what is, for all practical purposes, a new hospital in an affluent part of Jackson under the guise of a “relocation.” This Court also harbors reservations about a project which purports to be concerned largely with bene-fitting indigent patients, but which is located in a part of Jackson where few indigent citizens actually live.

Id. at 90 (¶ 31). The Court further explained that:

It should be readily apparent that the Department’s conclusion that new hospitals may be constructed under the guise of “relocations,” even absent any need for the new hospitals, has the potential to cause serious damage to this State’s health care system. Given the abundance of surplus licensed capacity possessed by hospitals throughout the State, this interpretation of the law has the potential to render the CON requirements a nullity. Implicit in the Department’s rationale is the assumption that, merely because a hospital is licensed to provide a certain number of beds, it necessarily follows that there is a need for these beds. The fact remains, however, that the excess licensed capacity enjoyed by many hospitals has never had to withstand CON scrutiny, and any implied presumption of need in this regard is erroneous.

Id. at 91 (¶ 36). Based on the foregoing, the Court reversed the Department’s ruling and rendered judgment, denying Methodist’s CON application. Id. at 92 (¶¶ 43-45).

B. St. Dominic 2006

¶ 22. In June 2002, St. Dominic filed a CON application requesting to build a new 100-bed hospital in Madison County. St. Dominic, 928 So.2d at 823 (¶ 3). Several months later, St. Dominic amended its application, seeking approval to relocate 100 licensed but unused beds from its Jackson campus to a facility in Madison County. Id. Madison County Medical Center opposed the application. Id. at 823 (¶ 4).

¶ 23. The Department granted St. Dominic’s amended application but permitted it to relocate only fifty beds. Id. Madison County Medical Center appealed to the chancery court. Id. Relying on Methodist, the chancellor reversed the Department’s grant of the CON. Id. Aggrieved, St. Dominic appealed. Id. This Court affirmed. Id. at 830 (¶¶ 32-33)

¶ 24. The Court found the health officer’s definition of “relocation” to be suspect, but the Court determined it was unnecessary to review whether the definition was arbitrary and capricious. Id. at 828 (¶ 18). Relying on Methodist, the Court stated that “the showing of need must be commensurate to what the project actually is and the impact which it actually has on the Jackson healthcare market.” Id. at 829 (¶ 26). The Court explained that, under Mississippi Code Section 41-7-191(1), a relocation is a transfer of an entire health service. Id. at 829 (¶ 28). Thus, “the transferring facility would no longer have the authority to provide the same service.” Id.

¶ 25. The Court noted that St. Dominic’s amended application proposed to construct a new building, hire new employees, and purchase new equipment. Id. at 829 (¶ 29). The new facility would offer “surgery in four operating units; high-level imaging services; nursing care 24 hours per day, seven days per week; rehabilitation and physical therapy; pharmacy; clinical laboratories; and Level IV emergency services.” Id. The Court saw no evidence to suggest that St. Dominic would decrease or eliminate any of these services at its Jackson campus. Id. For those reasons, the Court determined St. Dominic’s amended application should have been considered under the standards for a new hospital, not a relocation. Id. at 829-830 (¶¶ 30-32). Because St. Dominic could not meet the standards for a new hospital, the Court affirmed the chancellor’s reversal. Id. at 830 (¶ 32).

C. This project is a new hospital, not a relocation.

¶ 26. The Department actually denied St. Dominic’s request in this case, unlike its decisions in Methodist and St. Dominic 2006. Still, the Court’s holdings in those cases are applicable. As mentioned previously, this Court affords great deference to the Department’s findings of fact unless those findings are not supported by substantial evidence. Miss.Code Ann. § 41-7-201(2)® (Rev. 2009).

¶ 27. St. Dominic argues that the Department failed to apply the appropriate definition of “relocation” to its proposed project. According to St. Dominic, a relocation of a portion of a health-care facility includes moving beds from one facility to another, not just services.

¶ 28. Mississippi Code Section 41-7-191(l)(b) provides, in pertinent part, that: “(1) No person shall engage in any of the following activities without obtaining the required certifícate of need: ... (b) The relocation of a health care facility or portion thereof....” Miss.Code Ann. § 41-7-191(l)(b) (Rev. 2009). The statute does not define the terms “portion thereof.” St. Dominic relies on a note to section 100.03 of the CON Review Manual which states, in part, that:

The relocation of a health care facility is defined as the relocation of a health care facility from one physical location or site to another.
A portion of a health care facility is considered to be a wing, unit, service(s), or beds.

Based on this, St. Dominic believes its request is an authorized relocation of a portion of a health-care facility.

¶ 29. The hearing officer did not address St. Dominic’s specific argument (whether moving beds from one facility to another constitutes a relocation). Instead, the Department focused on the fact that St. Dominic did not plan to reduce its services at its Jackson campus. On appeal, the Department and Madison HMA maintain that this Court does not have to decide whether moving beds constitutes a relocation. Instead, the parties suggest that the Court must look at what the project actually is — the project is a new hospital — and any relocation criteria are moot.

¶ 30. Before determining whether the Department correctly interpreted the term “relocation” in regard to St. Dominic’s CON application, we must first determine what the project actually is. In its CON application, St. Dominic readily admitted it had no plans to reduce services at its Jackson campus. But a reduction of services is only one factor in determining whether a project is a true relocation or a new hospital.

¶ 31. In Methodist and St. Dominic 2006, the Court found that constructing a new building, hiring new medical staff, and purchasing new equipment was evidence that the proposed projects were new hospitals and not relocations. Methodist, 728 So.2d at 85 (¶ 13); St. Dominic, 928 So.2d at 829 (¶ 29). St. Dominic’s current CON application also proposes to construct a new medical building, hire new staff, and purchase new medical equipment. We do not suggest that a new building, new employees, and new equipment are individually prohibited under CON law. But the three are important factors to consider when determining what a project actually is.

1. New Building

¶ 32. Relying on testimony given by St. Dominic’s experts, the hearing officer found that the cost of the proposed facility would be comparable to that of a new healthcare facility. Scott Eddy, the architect who designed the facility, did not agree it was a new hospital. Instead, Eddy stated the facility was “a building to put relocated beds in.” But Eddy admitted he would not have designed the facility any differently if it were a new hospital:

Q: And I can go down here and ask you all of these one-by-one, but these would all be areas that you would put into a new hospital if you were building one, correct?
A: Yes.
Q: All right, sir. Now is there anything that’s not in this list that would be required if you were building a new hospital?
A: It would be enlarged, further developed.
Q: Well, this is the difference in whether you’re building a small hospital or large hospital?
A: Okay.
Q: Okay, say you’re building a small hospital. Is there anything that you would have to add to this particular component list here by description if you were not building a new hospital?
A: Not that I’m aware of.

To justify the cost, Eddy stated “we’re building a facility in the City of Madison, and I think everyone knows Mayor Hawkins’ reputation in Madison ... it’s going to have to be a higher quality level.... ” ¶ 33. Ronald Luke, St. Dominic’s health planning and CON expert, also maintained the facility was not a new hospital but an additional campus. In an email to Dan Isengole, who prepared the project’s equipment list, Luke instructed Isengole to “[njote we want to refer to it as Madison Campus, not new hospital.” But Luke agreed that the proposed facility would have “many of the same capabilities of any acute care inpatient facility that’s providing a comparable range of — or treating a comparable range of patients.”

¶ 34. In its application, St. Dominic stated the facility would operate under the same license as its Jackson campus. But no testimony was given to substantiate this claim. Noel Falls, an expert in health-care planning and CON, testified that the facility “is clearly a health care facility, separate, freestanding ... with all of the components of a general acute care hospital.” Then Falls responded to the following question:

Q.... [Hjave you found anything in your review of the State Health Plan, or the Certificate of Need Review Manual, or any other documents, for that matter, that ... say you can obtain a Certificate of Need for a facility just because its under the same license as another facility?
A. No. I mean it’s kind of an absurd proposition. It is not unusual for hospitals to operate under the same license. And ... often ... the same provider number, which is usually the basis for getting them licensed together so you can have then under one provider number.... That’s- a federal government issue really. It’s a Medicare issue primarily. But from a health planning perspective, those facilities are always counted separately as hospitals. And they always have been, and are to this day in Mississippi counted as separate hospitals.

Falls also presented evidence that Mississippi currently counts facilities operating under the same license as separate hospitals.

¶ 35. Based on this evidence, the health officer concluded that St. Dominic’s proposed facility actually was a new hospital. This finding is supported by substantial evidence.

2. New Employees

¶ 36. As indicated in Methodist and St. Dominic 2006, the addition of new staff is a relevant factor in determining whether a project actually is a new hospital. See Methodist, 728 So.2d at 85 (¶ 13); St. Dominic, 928 So.2d at 829 (¶ 29). Regarding employees, St. Dominic stated the following in its CON application:

On January 1, 2013, the emergency department, the obstetrical department and some number of medical surgical beds will immediately be opened and staffed primarily with persons already on the St. Dominic payroll. The number of additional positions required to open the campus is small relative to the St. Dominic workforce. All persons on the payroll will be employees of St. Dominic and will be assigned to either campus as the needs of the enterprise require.

¶ 37. Lester Diamond, St. Dominic’s Executive Vice-President of Operations, testified that St. Dominic planned to identify positions, not employees, needed to operate the Madison facility. Then, St. Dominic would “offer [its employees] the opportunity to have those positions once those positions are identified.” But Diamond stated that he could not identify how many positions would be needed because a hospital is a “fluid environment.”

¶ 38. Luke testified that additional positions would be added to accommodate the new facility. Luke based his opinion on St. Dominic’s expected growth rate, stating, “there’s no doubt that there will be a relatively small number of additional staff positions that will be necessary over and above what you would have if you did it all at the Jackson campus.”

¶ 39. The hearing officer did not find St. Dominic’s statements persuasive, finding St. Dominic’s intention to hire new employees as evidence that the project actually is a new hospital. We find no reason to disturb the hearing officer’s finding.

3. New Equipment

¶ 40. As stated in its CON application, St. Dominic also planned to purchase new equipment:

[R]elatively little existing equipment will be available to be moved from the Jackson campuses to the Madison Campus. Regardless of whether new or existing furniture or equipment is placed at the Madison Campus or the Jackson Campuses, a substantial amount of new furniture and equipment will be purchased .... All fixed equipment at the Madison Campus is likely to be newly purchased.

St. Dominic’s desire to purchase new equipment and beds is reiterated in the application: “Since the intention is to make all licensed general acute care beds operational, new beds and related equipment will ultimately have to be purchased whether they are placed at Madison or Jackson campuses.”

¶ 41. Diamond testified that St. Dominic planned to move existing equipment to Madison, but St. Dominic had not identified any pieces of equipment to move. The hearing officer also found the email from Luke to Isengole insightful on this point. In the email, Luke directed Isen-gole to prepare a letter and spreadsheet for Diamond, listing equipment needed for the Madison Campus. Luke instructed Is-engole that the “[quantities assume acquisition of all required furniture and equipment — does not assume [furniture and equipment] from [the] Main Campus.” During the hearing, Luke explained that his intent was to present a “worst-case scenario,” the purchase of new equipment.

¶ 42. The hearing officer was not persuaded by St. Dominic’s argument, finding that St. Dominic’s desire to purchase new equipment was evidence that St. Dominic intended to build a new hospital. This finding is supported by substantial evidence.

4. No reduction in beds and services at the Jackson campus

(A) Beds

¶ 43. As previously mentioned, St. Dominic requested to relocate seventy-one beds from its Jackson campus to Madison. However, St. Dominic failed to identify by wing, unit, floor, or rooms which beds it planned to take from the Jackson campus. When asked why St. Dominic had not identified the beds, Diamond stated, “[a]t this time, we have chosen not to identify the beds, because we don’t believe it is appropriate because those needs and beds could change over the next several years.”

¶ 44. St. Dominic’s application assumes that it will relocate beds actually in use. But evidence shows that St. Dominic had numerous empty beds throughout the years: 190 to 203 in 2006, 140 to 162 in 2007,138 to 164 in 2008, 140 to 163 in 2009, and approximately 105 in January 2010.

¶ 45. The hearing officer determined St. Dominic had many beds that were not in use, stating that “without identifying the beds that are proposed to be relocated, it is impossible to tell whether the beds that will be relocated are actually utilized.” This finding is supported by substantial evidence.

(B) Services

¶ 46. Mississippi Code Section 41-7-191(l)(e) provides that a CON is needed for “[t]he relocation of one or more health services from one physical facility or site to another physical facility or site.... ” Miss.Code Ann. § 41 — 7—191(l)(e) (Rev. 2009). In its CON application, St. Dominic stated that it did not plan to reduce the scope of services available at its Jackson campus. The hearing officer’s recommendation focused on this fact. Citing Methodist and St. Dominic 2006, the hearing officer found St. Dominic’s project was not a true relocation, because St. Dominic did not intend to reduce services at its main campus.

¶ 47. St. Dominie argues that Section 41 — 7—191(l)(e) does not apply to its application, because it proposed to relocate beds under subsection (b). We decline to discuss the differences between subsections (b) and (e); it is simply unnecessary in this case. Regardless if St. Dominic intended to relocate only beds and not services, the breadth of services St. Dominic plans to offer at its proposed facility supports the Department’s finding that this is a new hospital.

¶ 48. Component I, with a $2 million capital expenditure, proposes to relocate sixty-five general acute-care beds to a new facility, which will house the following services: Level IV emergency room, inpatient and outpatient surgery and endoscopy, imaging services, physical therapy, a station for emergency medical service vehicles and personnel, and a pharmacy. Component II proposes to build a 60,000 square foot medical office space. Component III proposes to provide MRI services which would require “the construction of a pad, covered walkway, and electrical connections adjacent to Component I.” Finally, Component IV, with a $2 million capital expenditure, proposes to relocate six, licensed delivery beds and to institute Level I obstetrical and neonatal services, which would require an additional 13,434 square feet. As stated by St. Dominic, “St. Dominic is proposing a new obstetrical service at the Madison Campus and not á relocation or a partial relocation of the current obstetrical service offered at the Jackson campuses.” (Emphasis added.) The wide range of services St. Dominic plans to offer evidences that the proposed project is a new fully functioning, freestanding, general acute-care hospital.

¶ 49. St. Dominic argues that:

[A] relocated portion of a hospital is just like the original hospital-but on a smaller scale. Thus, it makes perfect sense that the relocated portion of a hospital will offer and perform the same services as the original hospital.

In other words, St. Dominic argues that the accompanying acute-care services must transfer with the relocation of the general, acute-care beds. To support its argument, St. Dominic cites Wesley Health System, LLC v. Mississippi State Department of Health, 2008-SA-01276-SCT (Miss. Dec. 3, 2009), in which this Court issued a per curiam affirmance. The Court has stated that “trial courts are not free to decide issues according to authority found in unpublished [trial] court opinions.” In re Guardianship of Duckett, 991 So.2d 1165, 1181 (¶ 35) (Miss.2008). St. Dominic argued the same point before the trial court, and the trial court did not entertain the argument. But a copy of the lower court’s opinion in Wesley was submitted as an exhibit in this case. Although Wesley is not binding authority, we summarize its holding and demonstrate how Wesley is distinguishable from the present ease.

¶ 50. In Wesley, Forrest General Hospital (Forrest) filed a CON application to relocate thirty orthopedic beds to a new facility, a short distance away from its main campus. Wesley Health Sys., LLC v. Miss. State Dep’t of Health, Cause No. G2008-66 at 2 (June 20, 2008). Forrest’s current orthopedic staff and equipment also would transfer to the new facility, with few additions. Id. at 19. The facility would be adjacent to Southern Bone and Joint Specialists, a medical group consisting of ten orthopedic surgeons and other specialists. Id. at 2. Forrest indicated that its current orthopedic unit was outdated and problematic, and it needed larger rooms to accommodate patients and specialized medical equipment. Id. at 8. Forrest intended only to perform orthopaedic services at its proposed satellite campus. Because Forrest was the only Level II trauma hospital in South Mississippi, it had to maintain a certain level of orthopedic service at its main campus to accommodate trauma patients. Id. at 19. The Department found that Forrest’s request was a true relocation and granted its CON application. Id. at 3. Wesley Medical Center opposed the application. Id. The chancery court affirmed. Id. at 23-24.

¶51. St. Dominic’s case is clearly distinguishable. Forrest planned to relocate its orthopedic beds to a new facility adjacent to a specialized clinic and intended to perform only orthopedic services there. As a Level II trauma center, Forrest had to maintain a certain level of orthopedic services at its main campus for trauma patients; otherwise, Forrest would have lost its Level II trauma status. On the other hand, St. Dominic intends to provide many of the same services at its proposed Madison facility that it provides at the main campus and to build a new facility in a different county. St. Dominic also chose to pay a penalty fee instead of participating in the trauma system. Thus, unlike Forrest, St. Dominic does not have to maintain a certain level of services at its main campus to keep any trauma status. Also, Forest’s orthopedic facility would be dependent on its main campus for many services — janitorial, laundry, food, and pharmacy. Conversely, St. Dominic’s proposed Madison campus could operate independently of its Jackson campus.

¶ 52. St. Dominic’s proposed Madison campus would duplicate several services already performed at its Jackson campus. The State Health Plan prohibits the unnecessary duplication of health services. Thus, St. Dominic’s attempt to “relocate” beds to Madison to build a mini version of its Jackson campus must fail.

II. Whether St. Dominic’s CON application complies with the specific need criteria for a relocation of a portion of a health-care facility detailed in the State Health Plan.

¶ 53. The hearing officer reviewed whether St. Dominic’s application complied with the specific need criteria for a new hospital and found that it does not. St, Dominic argues that its CON application complies with the specific need criteria for a relocation under Section 108.03 of the State Health Plan.

¶ 54. Mississippi State Health Plan Section 108.03(l)(a), or the “[CON] Criteria and Standards for Construction, Renovation, Expansion, Capital Improvements, Replacement of Health Care Facilities, and Addition of Hospital Beds,” provides the review criteria for projects which do not involve the addition of any acute-care beds. Since St. Dominic’s project is a new hospital, the Department argues that this relocation criterion does not apply. We agree. St. Dominic’s project should be reviewed under the specific need criteria for the establishment of a new hospital— Section 108.02.

A. St. Dominic fails to comply with the CON criteria and standards for the establishment of a general acute-care hospital.

¶ 55. Section 108.02, or the “Certificate of Need Criteria and Standards for the Establishment of a General Acute Care Hospital,” provides that:

The [Department] will review applications for a [CON] to construct, develop, or otherwise establish a new hospital under the applicable statutory requirements of [Mississippi Code] [s]ections 41-7-1173, 41-7-191, and 41-7-193 ... [Department] will also review applications for [CON] according to the general criteria listed in the Mississippi Certificate of Need Review Manual; all adopted rules, procedures, and plans of the [Department]; and the specific criteria and standards listed below.
1. Need Criterion: The applicant shall document a need for a general acute care hospital using the appropriate need methodology as presented in this section of the Plan. In addition, the applicant must meet the other conditions set forth in the need methodology.

Section 108.01(b) contains the appropriate need methodology for this project.

¶ 56. Section 108.01(b) states that “the [Department] shall use the following formula to determine the need for an additional hospital in a county with an existing hospital.” Madison County has an existing hospital — Madison HMA. Section 108.01(b) explains that “[t]he formula is calculated for each facility within a given General Hospital Service Area (GHSA); then beds available and beds needed under the statistical application of the formula are totaled and subtracted to determine the bed need or excess within each GHSA.” The Department may consider approval of a hospital with a maximum of 100 beds if the GHSA needs 100 or more beds, the project has strong community support, and the project is economically feasible. Under the formula, Madison County has an excess of thirty-four beds, and GHSA 3, which includes Madison County, has an excess of 1,300 beds. As a result, Madison County does not need an additional hospital. Thus, St. Dominic fails to comply with the CON criteria and standards for the establishment of a general acute-care hospital.

B. St. Dominic’s CON application does not comply with the State Health Plan’s General CON Policies.

¶ 57. Because Madison County and GHSA 3 are over-bedded, the Department could not approve St. Dominic’s project. In an abundance of caution, the Department continued with its analysis, determining whether the application complied with the State Health Plan. The Department determined that St. Dominic had failed to comply with these policies. St. Dominic maintains that it is in substantial compliance with all four policies. But based on the Court’s resolution of the previous issues, this issue is moot.

III. Whether St. Dominic’s CON application complies with the General Review Criteria as set forth in the Mississippi CON Review Manual.

¶ 58. Out of an abundance of caution, the Department also considered whether St. Dominic complied with the sixteen GRC set forth in the CON Review Manual. The hearing officer determined that three GRC criteria did not apply to this application. St. Dominic passed six criteria. But the hearing officer determined that St. Dominic had failed to comply with seven criteria. As previously stated, because Madison County and GHSA 3 are over-bedded, the Department could not have approved St. Dominic’s project. This issue also is moot.

IV. Whether St. Dominic’s CON application complies with the specific need criteria for the proposed institution of obstetrical services as set forth in the State Health Plan.

¶ 59. St. Dominic stated that it would not pursue Components II, III, and IV of its proposed project if the Department did not approve Component I. Component I was not approved. Thus, this argument is moot.

CONCLUSION

¶ 60. This case is a classic example of wants versus needs. St. Dominic wants to build a hospital in Madison County but, currently, the need does not exist. In Methodist and St. Dominic 2006, the Court held that CON applications should be reviewed based on what the project actually is. The Department correctly applied those holdings to this case and ruled that St. Dominic’s proposed project is — for all intents and purposes — a new hospital, not a relocation. St. Dominic failed to meet the applicable standards for a new hospital. Therefore, the chancery court did not err by affirming the Department’s denial of St. Dominic’s CON application. For these reasons, we affirm the chancellor’s judgment.

¶ 61. AFFIRMED.

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

      . Evidence suggests that St. Dominic had picked the location of its proposed project well before retaining some of its experts.

      . Because the current case and the cited cases all involve St. Dominic, we refer to the cases as Methodist and St. Dominic 2006, respectively.

      . At the time, Madison County Medical Center had a pending CON application, requesting to move its entire sixty-seven-bed hospital from Madison County to Hinds County. The Department denied the request. St. Dominic, 928 So.2d at 823 (¶¶ 5-6).

      . Section 41 — 7—191 (1 )(e) provides, in part: "No personal shall engage in any of the following activities without obtaining the required certificate of need.... The relocation of one or more health services from one physical facility or site to another physical facility or site....”

      . Section 41-7-19l(l)(b) prohibits relocating a health-care facility or portion thereof without obtaining a certificate of need.

      . The Department uses the following formula to determine the need for an additional hospital in a county with an existing hospital: ADC + K(ADC). “ADC” means "Average Daily Census,” and "K” refers to the "Confidence Factor,” which equals 2.57.

      . The State Health Plan provides four General CON policies: (1) to improve the health of Mississippi residents; (2) to increase the accessibility, acceptability, continuity and quality of health services; (3) to prevent the unnecessary duplication of health resources; and (4) to provide some cost containment.

      . GRC 9 (availability of resources), GRC 13 (special needs of other entities), and GRC 15 (competing applications).

      . St. Dominic complied with GRC 2 (long-range plan), GRC 7 (information requirement), GRC 10 (relationship to ancillary or support services), GRC 11 (effect of project on clinical needs of health professional training programs), GRC 12 (access by health professional schools), and GRC 16 (quality of care).

        .See supra 9. St. Dominic failed to comply with GRC 1 (State Health Plan), GRC 3 (availability of alternatives), GRC 4 (economic viability), GRC 5 (need for the project), GRC 6 (access to facility or service), GRC 8 (relationship to existing healthcare system), and GRC 14 (construction projects).


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Thomas R. ALFONSO, III and Anne Alfonso d/b/a Bay Jourdan Publishing Company v. GULF PUBLISHING CO., INC. and the Sun Herald. Thomas R. Alfonso, III and Anne Alfonso d/b/a Bay Jourdan Publishing Company v. Diamondhead Country Club and Property Owners Association, Inc.
    Nos. 2009-CA-01457-SCT, 2010-CA-00091-SCT.
    Supreme Court of Mississippi.
    May 10, 2012.

      David Neil McCarty, attorney for appellants.
    Keith R. Raulston, Jackson, Henry Laird, William V. Westbrook, III, Gulf-port, attorneys for appellees.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   ON MOTION FOR REHEARING

CHANDLER, Justice,

for the Court:

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted.

¶ 2. These two appeals are from consolidated chancery-court cases. In the first case, Diamondhead Country Club and Property Owners Association, Inc. (“Dia-mondhead”) sued Thomas R. Alfonso, III, and Anne Scafidi Cordova, d/b/a Bay Jourdan Publishing Co. (“BJP”) for breach of a contract to publish The Diamondhead News. On July 2, 1997, the chancery court entered a preliminary injunction order preventing BJP from publishing The Dia-mondhead News, selling advertising for The Diamondhead News, collecting or disposing of advertising revenues derived from the publication of The Diamondhead News, and interfering with the printing, publication, or distribution of The Dia-mondhead News. The chancery court also found that an arbitration clause in the publishing contract was inapplicable to the lawsuit. The chancery court denied BJP’s two subsequent motions to compel arbitration of the breach-of-contract dispute. BJP appeals from the chancery court’s latest denial of arbitration.

¶ 3. In the second case, BJP sued Dia-mondhead and Gulf Publishing Co., Inc., d/b/a The Sim Herald (“Gulf Publishing”), for intentional interference with the publishing contract. Gulf Publishing filed a motion for summary judgment. The court granted summary judgment to Gulf Publishing and directed the entry of a final judgment as to Gulf Publishing pursuant to Mississippi Rule of Civil Procedure 54(b). BJP appeals from the grant of summary judgment.

¶ 4. We affirm the chancery court’s order denying BJP’s third motion to compel arbitration because the issue was ruled upon previously, and no appeal was taken. Finding genuine issues of material fact for trial, we reverse the chancery court’s order granting summary judgment to Dia-mondhead and Gulf Publishing, and remand this case for further proceedings.

FACTS

A. Diamondhead v. BJP

¶ 5. On November 4, 1996, Diamondhead and BJP entered into a contract providing for BJP’s publication of The Diamondhead News. Diamondhead filed a complaint for breach of contract on June 19, 1997, requesting preliminary and permanent in-junctive relief against BJP. Diamondhead complained that BJP had breached the contract because it had withdrawn funds from the parties’ joint bank account and had deposited them in BJP’s private account, had failed to produce a detailed accounting upon request, had superceded Diamondhead’s editorial control by publishing content unapproved by Diamond-head, and had used an unauthorized mailing list. At a hearing on July 1,1997, BJP requested to arbitrate the dispute pursuant to the contract’s arbitration clause. On July 2,1997, the chancellor granted the preliminary injunction, finding that

(a) BJP refused to use the designated joint venture’s account, they placed joint venture funds in a private account, and refused to remedy the situation by meeting with the Board or meeting at the bank; (b) BJP refused to provide an accounting timely ...; (c) BJP has apparently sold advertising for the July issue and neither placed those funds in the joint account or produced an accounting; and, (d) BJP has breached the editorial control provisions of the agreement by publishing the July paper.

The chancellor entered a preliminary injunction enjoining BJP from publishing The Diamondhead News, selling advertising for The Diamondhead News, collecting or disposing of advertising revenues derived from the publication of The Dia-mondhead News, and interfering with the printing, publication, or distribution of The Diamondhead News. The chancellor rejected BJP’s request for arbitration, finding that the arbitration clause did not prevent Diamondhead from seeking equitable relief in chancery court. BJP did not appeal the chancellor’s denial of arbitration.

¶ 6. On June 29, 2001, BJP filed a “Motion To Dismiss and a Motion to Stay Proceeding and To Compel Arbitration.” On March 24, 2005, the chancellor overruled the motion, finding that BJP had waived its right to demand arbitration. BJP failed to appeal from this order. On August 5, 2009, BJP filed another “Motion To Dismiss, or in the Alternative to Stay and Compel Arbitration.” The chancellor overruled that motion on December 6, 2009. Applying our decision in MS Credit Center, Inc., v. Horton, 926 So.2d 167 (2006), the chancellor held that BJP had waived its right to arbitration through “substantial and active participation in the judicial process.” BJP has appealed from that order.

B. Alfonso v. Gulf Publishing

¶ 7. Gulf Publishing publishes The Sun Herald newspaper, which circulates in South Mississippi. Gulf Publishing began publishing The Diamondhead News in August 1997. On June 12, 2000, BJP commenced a circuit court action against Diamondhead and Gulf Publishing. BJP alleged that Gulf Publishing had intentionally interfered with BJP’s contract to publish The Diamondhead News. Specifically, BJP alleged that, before the chancery court entered the preliminary injunction, Diamondhead and Gulf Publishing had been negotiating for Gulf Publishing to publish The Diamondhead News, contingent upon Diamondhead’s termination of the contract with BJP. On February 8, 2001, the circuit court transferred the case to the Chancery Court of Hancock County.

¶ 8. Gulf Publishing moved for summary judgment. It asserted that Diamondhead had terminated its contract with BJP prior to any negotiations between Diamondhead and Gulf Publishing. It attached testimony from the transcript of the June 30, 1997, preliminary injunction hearing to show that no negotiations between Dia-mondhead and Gulf Publishing had occurred prior to June 1997. In the transcript, a member of the Diamondhead board of directors testified that it was only after Diamondhead’s relationship with BJP had broken down that Diamondhead had contacted Gulf Publishing to publish the next month’s newsletter.

¶ 9. Gulf Publishing also produced a letter dated June 5, 1997, from Diamondhead to BJP that notified BJP of its intention to terminate the publishing contract. That letter stated, “effective immediately the contract between Diamondhead Country Club & Property Owners Association, Inc., and the Bay Jourdan Publishing Company is cancelled due to the following reasons: ...” However, Section XVI of the publishing contract between Diamondhead and BJP, titled “Termination for material breach,” provided for termination upon sixty days’ written notice and opportunity to cure. That section stated:

This agreement may be terminated by any party for the material breach of any other party. The party intending to terminate shall give the defaulting party sixty (60) days’ written notice specifying with particularity the condition, act, omission, or course of conduct asserted to constitute such material breach. The agreement may not be terminated under this provision if during such sixty (601-day period the defaulting party has cured, corrected, or eliminated such material breach or has taken steps to cure, correct, or eliminate such material breach, which steps, if diligently prosecuted to a conclusion, are reasonably designed to effect a cure, correction or elimination.

Gulf Publishing also argued that BJP could not prove proximate causation because the preliminary injunction order effectively had terminated the contract and had made it impossible for Gulf Publishing to have damaged BJP.

¶ 10. In response, BJP argued that in June 1997, the contract’s status had been disputed and that the preliminary injunction had not terminated the contract, but only suspended its operation. BJP produced two documents supporting its intentional-interference claim. In a “letter to the community,” published in The Dia-mondhead News in 2000, Frank Jerome stated that while he was the interim general manager of the Diamondhead Property Owners’ Association, he had “arranged a meeting and Rene Duffour and I met with them one late afternoon. Out of this meeting came an agreement that the Sun Herald would bear all expenses in getting out our monthly newspaper.” BJP also presented a faxed letter, dated June 6, 1997, from Gulf Publishing to Diamondhead. That letter stated, in pertinent part:

Gulf Publishing Company is interested in publishing The Diamondhead News. We are particularly pleased that you came to us first ... we are certain your current publisher was not in a profitable situation with this product based on the numbers we developed.... Since we are proposing to start our formal relationship in August, we propose that we print for your association, at no cost to the association, 5,000 copies.... Call this a good will gesture for our August marriage.

¶ 11. BJP argued that its two pieces of evidence — the published letter by Jerome and the June 6, 1997, letter from Gulf Publishing to Diamondhead — showed negotiations between Diamondhead and Gulf Publishing before the July 2,1997, preliminary injunction, and created a genuine issue of material fact as to whether Gulf Publishing proximately had caused damage to BJP due to interference with its publishing contract with Diamondhead that culminated in Diamondhead’s pursuit of a preliminary injunction.

¶ 12. The chancellor granted summary judgment in favor of Gulf Publishing, finding that because the preliminary injunction was entered against BJP, “prohibiting them from publishing, advertising, or otherwise dealing with The Diamondhead News newsletter[,] there was no contract in force between [BJP] and [Diamondhead] with which Gulf Publishing could conceivably have interfered since the injunction enjoined [Diamondhead] from acting under the contract at all since the suit against Gulf Publishing was filed.” BJP appeals.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY DENYING BJP’S THIRD MOTION TO COMPEL ARBITRATION.

¶ 13. In the order granting a preliminary injunction, the chancellor denied BJP’s request for arbitration. BJP filed a motion to compel arbitration on June 28, 2001. The chancery court denied the motion on March 18, 2005. BJP could have, but did not, appeal from that order. See Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1170 (Miss.2003) (holding that a direct appeal may be taken from an order denying a motion to compel arbitration). On August 5, 2009, BJP filed another Motion to Dismiss and to Compel Arbitration, which was denied on December 6, 2009. BJP filed a timely notice of appeal from that order.

¶ 14. Rule 4(a) of the Mississippi Rules of Appellate Procedure requires that a notice of appeal be filed within thirty days of the date the judgment was entered. M.R.A.P. 4(a). We find that the chancellor correctly denied BJP’s third motion to compel arbitration because the issue already had been ruled upon on March 18, 2005, and no appeal was taken. We affirm the chancery court’s order denying the Motion to Dismiss and Motion to Compel Arbitration.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF GULF PUBLISHING.

A. Standard of Review

¶ 15. This Court applies a de novo standard of review to a chancellor’s grant of summary judgment. Whiting v. Univ. of S. Miss., 62 So.3d 907, 914 (Miss.2011). If, upon review of all pleadings, depositions, interrogatory answers, and admissions on file, there is no genuine issue of material fact, summary judgment in favor of the moving party is proper. M.R.C.P. 56(c). All evidentiary matters must be viewed in the light most favorable to the nonmoving party. Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 364 (Miss.2004).

¶ 16. “A material fact is one which resolves any ‘of the issues properly raised by the parties.’ ” Strantz v. Pinion, 652 So.2d 738, 741 (Miss.1995) (quoting Stegall v. WTWV, Inc., 609 So.2d 348, 351 (Miss.1992)). “[Wjhen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

B. Intentional interference with contract

¶ 17. To survive Gulf Publishing’s motion for summary judgment, BJP had to show there were genuine issues of material fact on every element of its claim of intentional interference with contract against Gulf Publishing. The elements of intentional interference with contract are: “(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiff in his/her lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which acts constitute malice); and (4) that actual damage or loss resulted,” and “(5) the defendant’s acts were the proximate cause of the loss or damage suffered by the plaintiff.” Scruggs, Millette, Bozeman & Dent, P.A. v. Merkl & Cocke, P.A., 910 So.2d 1093, 1098-99 (Miss.2005).

¶ 18. In Scruggs, this Court held that “a plaintiff claiming intentional interference with a contract must prove that ‘the contract would have been performed but for the alleged interference.’ ” Scruggs, 910 So.2d at 1098-99 (citing Par Industries, Inc. v. Target Container Co., 708 So.2d 44 (Miss.1998)). The Court also focused on the lack of intent and malice by the third party in affirming the trial court’s dismissal of the intentional-interference-with-contract claim, holding that, “for intent to be implied, a plaintiff must show that the defendant knew of the existence of a contract and did a wrongful act without legal or social justification that was certain or substantially certain would result in interference with the contract.” Id. at 1099 (citing Par Industries, 708 So.2d at 48). The Court also held the alleged interference must be wrongful, meaning the interfering third party was not acting “in the exercise of a legitimate interest or right, which constitutes ‘privileged interference.’ ” Id. at 1099. In Samggs, the three interested parties were law firms arguing over attorneys’ fees in the wake of massive asbestos litigation. Id. at 1095. The Court found the appellant, Merkel & Cocke, P.A., had lacked the malice and intent to interfere with the appellee’s contract with Wilson, P.A., because the appellant could easily be “confused by all of the convoluted relationships under which the asbestos claims were handled.” Id. at 1099.

¶ 19. The letter from Gulf Publishing to Diamondhead presents a genuine issue of material fact on each of the first four elements of an interference-with-contract claim, leaving the fifth element, the question of proximate cause, determinative of whether BJP should survive the motion for summary judgment. Gulf Publishing’s brief focuses on the element of proximate cause. Gulf Publishing contends that Dia-mondhead’s June 5, 1997, termination letter to BJP, along with the July 2, 1997, preliminary injunction, made it impossible for Gulf Publishing to have interfered with the contract. To bolster this argument, Gulf Publishing provides a timeline of events, which we paraphrase:

November 4, 1996: BJP and Diamondhead entered into the contract.
May, 1997: Serious problems developed in the relationship between BJP and Diamondhead.
June 5, 1997: Diamondhead sent letter to BJP terminating contract and contacted Gulf Publishing to solicit its help in publishing The Diamondhead News.
June 6, 1997: Gulf Publishing answered Diamondhead’s inquiry and expressed an interest in publishing The Diamondhead News.
July 2, 1997: Chancery Court entered a preliminary injunction against BJP, enjoining it from any business affiliations with The Diamondhead News.

Gulf Publishing argues that it was the entry of the preliminary injunction that prevented BJP from publishing the newspaper, not any action of Gulf Publishing.

¶ 20. We find that, considering the termination letter, Gulf Publishing’s June 6, 1997, letter, and the preliminary injunction in the light most favorable to BJP, there were genuine issues of material fact for trial. While Gulf Publishing argues that Diamondhead terminated the contract with the termination letter dated June 5, 1997, that letter — along with the evidence that BJP acted outside the scope of the contract — shows only that the status of the contract prior to the preliminary injunction was in dispute. Under the contract terms, no termination could occur until sixty days after written notice, provided BJP neither cured the breach, nor took sufficient steps to cure the breach. Therefore, the question of whether or not there was a contract between BJP' and Dia-mondhead on June 6, 1997, presents a genuine issue of material fact. Under the contract terms, the June 5, 1997, letter was effective notification, but the contract was still in effect as of the next day, June 6, 1997. On June 6, 1997, Gulf Publishing stated in its letter to Diamondhead that “we are certain your current publisher was not in a profitable situation- with this product based on the numbers we developed,” and offered to publish 5,000 free copies of the next month’s issue of The Diamond-head News.

¶ 21. The June 6, 1997, letter from Gulf Publishing to Diamondhead is dated more than three weeks before the chancery court’s preliminary injunction order. That letter showed negotiations between Dia-mondhead and Gulf Publishing before the preliminary injunction at a time when the contract still was in force under its terms. Gulf Publishing argues that it could not have interfered with the contract because it was Diamondhead that first contacted Gulf Publishing about publishing the newsletter. While the June 6, 1997, letter from Gulf Publishing supports that assertion, there is no evidence as to what Diamond-head communicated to Gulf Publishing regarding the status of its contract with BJP. In the letter, Gulf Publishing recognized that BJP was the “current publisher” at the time. It is reasonable to infer that Gulf Publishing acquired that knowledge from Diamondhead. But regardless of how Gulf Publishing became aware of BJP’s contract, the letter shows it knew that, as of June 6, 1997, the contract was still in force. While this Court in Scruggs found the relationships confusing, in this case, Gulf Publishing clearly harbored no confusion about BJP’s status, because it referred to BJP as the “current publisher” of The Diamondhead News.

¶ 22. Considering the evidence in the light most favorable to BJP, on June 5, 1997, Diamondhead was unhappy with BJP’s performance of several duties under the contract. That displeasure caused Diamondhead to notify BJP of its intent to terminate the contract, and, possibly on the same day, to contact Gulf Publishing as a candidate to take over as publisher. The next day, Gulf Publishing faxed its responsive June 6, 1997, letter to Diamondhead that acknowledged BJP as the current publisher, questioned BJP’s abilities to succeed in that role, and offered an incentive to Diamondhead to switch publishers from BJP to Gulf Publishing. On June 19, 1997, Diamondhead filed a complaint against BJP for breach of contract. In that complaint, Diamondhead asserted the vital need for publication of The Diamond-head News, and requested a preliminary injunction against BJP to permit Gulf Publishing immediately to assume publication. On July 2, 1997, a preliminary injunction was entered against BJP, and it is still in force today. While it is true that the preliminary injunction prevents BJP from performing its contract with Diamondhead, the June 6, 1997, letter shows a genuine issue of material fact as to whether Gulf Publishing proximately caused Diamond-head to sever its relationship with BJP by obtaining the preliminary injunction.

¶ 23. We hold that whether Gulf Publishing’s actions proximately caused BJP’s loss of the publishing contract presents a genuine issue of material fact. The status of the contract between BJP and Dia-mondhead on June 6, 1997, is a question of fact. Considering the evidence in the light most favorable to BJP, BJP showed that, during the time that BJP was under contract with Diamondhead to publish The Diamondhead News, Gulf Publishing, in response to Diamondhead’s inquiry, sent a letter to Diamondhead stating “we are certain your current publisher was not in a profitable situation with this product based on the numbers we developed” and offering to publish 5,000 free copies of The Diamondhead News. Whether the June 6, 1997, letter was an effort by Gulf Publishing to improperly influence Diamondhead to breach its contract with BJP is a question of fact at this stage.

CONCLUSION

¶ 24. We affirm the order denying BJP’s third motion to compel arbitration because the issue already had been ruled upon on March 18, 2005, and no appeal was taken. We find that the chancery court erred by granting summary judgment in favor of Gulf Publishing, because genuine issues of material fact remain on BJP’s claim of intentional interference with contract. We reverse the chancery court’s order granting summary judgment, and remand for further proceedings.

¶ 25. AS TO 2009-CA-1457-SCT: REVERSED AND REMANDED. AS TO 2010-CA-00091-SCT: AFFIRMED.

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

      . After marrying Alfonso, Cordova changed her name to Anne Cordova Alfonso.

      . The June 6, 1997, letter from Gulf Publishing to Diamondhead is dated June 9, 1997, but has a fax date of June 6, 1997. Viewing the evidence, as we must, in the light most favorable to the nonmoving party, we assume that Diamondhead received the letter on June 6, 1997. Therefore, we refer to the letter as "the June 6, 1997, letter.”


author: CARLTON, J.,

text:
    GGNSC TYLERTOWN, LLC d/b/a Golden Living Center-Tylertown, Appellant v. Virgie DILLON, by and through her next friend, Arverta HARGROVE, Appellee.
    No. 2010-CA-01241-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Dismissed May 8, 2012.
    John Ernest Wade Jr., Sharon F. Bridges, Claire W. Ketner, Jackson, attorneys for appellant.
    Douglas Bryant Chaffin, James Burke McHugh, Hattiesburg, Michael Jay Fuller Jr., attorneys for appellee.
    Before GRIFFIS, P.J., MYERS AND CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This matter is before this Court on appeal from an order entered March 12, 2010, by the Walthall County Circuit Court, which denied in part GGNSC Tyler-town, LLC d/b/a Golden Living Center-Tylertown’s (Tylertown) motion to compel arbitration and stay discovery. Tylertown contends that the contract by which the parties agreed to arbitrate all claims related to Virgie Dillon’s care at the facility is valid and enforceable, and that the circuit court’s partial refusal to compel arbitration should be overturned. Finding error in the circuit court’s judgment, we affirm in part and reverse and render in part.

FACTS

¶ 2. Dillon was admitted to Tylertown, a nursing facility in Tylertown, Mississippi, on August 12, 2003. Dillon has continued to reside at the facility through the present. On May 18, 2009, Dillon executed a general durable power of attorney appointing her sister, Arverta Hargrove, as her “true and lawful attorney-in-fact.” This power of attorney authorized Hargrove “to execute, deliver and acknowledge ... agreements” and “to arrange for my entrance to and care at any hospital, nursing home, health center, convalescent home, retirement home, or similar institution, and to authorize, arrange for, and consent to, waive and terminate any and all medical and surgical procedures on my behalf, including the administration of drugs, and to pay all bills for my care.”

¶ 3. On May 21, 2009, Hargrove became Dillon’s responsible party for her residency at Tylertown. Consistent with her authority as power of attorney, Hargrove executed an admission agreement for Dillon with Tylertown. Dillon and Hargrove also executed a resident and facility arbitration agreement as part of the admission-documents packet. The arbitration agreement provided, in relevant part, that:

any and all claims, disputes[,] and controversies ... arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the facility to the resident shall be resolved exclusively by binding arbitration to be conducted ... in accordance with the National Arbitration Forum Code of Procedure.

¶ 4. On October 2, 2009, Dillon, by and through Hargrove, filed suit in the Walt-hall County Circuit Court, alleging that she sustained injuries over the years as the result of deficient care at the facility. Tylertown subsequently filed a motion to compel arbitration and stay discovery. Dillon filed a response, attacking the validity of the arbitration agreement based on “insufficient” consideration and a lack of voluntariness. She also claimed that any agreement to arbitrate should apply only to claims which arose after the contract was executed on May 21, 2009.

¶ 5. After a hearing held in the Walthall County Circuit Court on February 10, 2010, the circuit court filed an order on March 12, 2010, which denied in part Ty-lertown’s motion to compel arbiti'ation and stay discovery. The order stated that the court found the arbitration agreement to be valid and enforceable as to any claims arising after its execution, but regarding any claims which arose prior to execution, the agreement failed for lack of consideration. Tylertown moved to reopen the time for appeal, and Dillon moved for an expedited trial setting. The circuit judge granted Tylertown an additional fourteen days from the entry of its July 8, 2010 order to file its notice of appeal, and he further ordered that the parties confer on a scheduling order including an early 2011 trial setting. Tylertown filed this notice of appeal on July 20, 2010.

STANDARD OF REVIEW

¶ 6. The standard for reviewing a trial court’s grant or denial of a motion to compel arbitration is de novo. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶9) (Miss.2002). Since the agreed-upon forum choice for arbitration no longer exists, then the agreement to arbitrate herein lacks enforceability. Therefore, arbitration must be denied in this case.

DISCUSSION

Whether the circuit court erred in denying in part Tylertown’s motion to compel arbitration and stay discovery.

¶ 7. Tylertown submits that the circuit court erred in denying, in part, its motion to compel arbitration and stay discovery. The circuit court held that the arbitration agreement was valid and enforceable and, thus, supported by consideration, but only as to the claims accruing after the contract was executed on May 21, 2009, nearly six years after Dillon had admitted herself to the nursing home. The circuit court found:

At the time the arbitration agreement was signed, no claims flowing from [Ty-lertown], against [Dillon] had accrued. However, the alleged claims flowing from [Dillon] against [Tylertown] may have accrued.
The court finds that the arbitration agreement lacks sufficient consideration as to any claims arising prior to May 21, 2009. [Tylertown] cannot rely on past consideration to validate an entirely new contractual agreement with [Dillon]. Therefore, the court grants the motion to compel as to all claims accruing after May 21, 2009[,] when the arbitration agreement was signed, and denies the motion to compel as to all claims accruing prior to that date.

¶ 8. In determining the validity of a motion to compel arbitration under the Federal Arbitration Act, this Court must conduct a two-pronged inquiry. East Ford, 826 So.2d at 713 (¶ 9). “The first prong has two considerations: (1) whether there is a valid arbitration agreement and

(2) whether the parties’ dispute is within the scope of the arbitration agreement.” Id.

¶ 9. Turning to the first prong, we note that the language of the arbitration agreement at issue mandates that:

any and all claims, disputes[,] and controversies ... arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted ... in accordance with the National Arbitration Forum Code of Procedure.

¶ 10. However, as Dillon points out, precedent recognizes that as of July 24, 2009, the National Arbitration Forum (NAF) voluntarily ceased to administer consumer arbitration disputes, thus leaving courts unable to enforce the arbitration clauses that agreed to arbitration conducted in accordance with the NAF’s rules. Covenant Health & Rehab, of Picayune, LP v. Estate of Moulds ex rel. Braddock, 14 So.3d 695, 706 (¶ 36) (Miss.2009) (citation omitted); See National Arbitration Forum to Cease Administering All Consumer Arbitrations in Response to Mounting Legal and Legislative Challenges, http://www.adrforum.com/ newsroom.aspx?itemID=1528 (last visited June 1, 2011). We note that the American Arbitration Association (AAA) and the American Healthcare Lawyers Association (AHLA) have both made similar announcements about healthcare arbitrations. The AAA “no longer acceptfs] the administration of cases involving individual patients without a post-dispute agreement to arbitrate.” Moulds, 14 So.3d at 706 (¶ 36). Similarly, the AHLA announced that it will only administer consumer healthcare liability claims if an agreement to arbitrate was entered into by the parties in writing after the alleged injury occurred. Id. at 706-07 (¶ 37) (citation omitted). In Moulds, the Mississippi Supreme Court reiterated that “[arbitration is limited to choice of forum.” Id. at 697 (¶ 3). In applying this precedent to the present case, we find that the agreement to arbitrate lacks enforceability since the forum is no longer available.

¶ 11. Similarly, in Magnolia Healthcare, Inc. v. Barnes ex rel. Ghigsby, 994 So.2d 159, 162 (¶¶ 10-11) (Miss.2008), the parties entered into an arbitration agreement that utilized AHLA rules. However, the AHLA requires a post-dispute agreement to arbitrate. The supreme court held that because the patient’s injuries occurred after the new AHLA policy was implemented, and because there was no post-dispute agreement, then no valid agreement to arbitrate existed. Id. In the present case, due to the NAF’s procedural rules stating that the organization will no longer provide arbitration for disputes such as the one before this Court, we similarly find the chosen forum for arbitration unavailable. Thus, as in Barnes, the agreement to arbitrate lacks enforceability. The record reflects no post-dispute agreement by the parties to be bound by arbitration, and we acknowledge that the NAF refuses to conduct consumer arbitra-tions entirely, even with a post-dispute arbitration agreement. We can enforce only contracts where an agreement exists.

¶ 12. In B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 487-88 (Miss. 2005) (quoting AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)), the supreme court recognized that “[t]he U.S. Supreme Court has stated that, ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.’ ” Accordingly, we will not force arbitration where a party does not agree to it.

¶ 13. The arbitration agreement before us clearly reflects that Tylertown sought to have its disputes resolved exclusively by arbitration in accordance with the NAF, a forum that now refuses to arbitrate disputes such as the one in the present case. In keeping with the precedent of the Mississippi Supreme Court, this Court recognizes that the forum in the agreement between Tylertown and Dillon is no longer available, and we “decline[ ] to order the lower court to pick a forum” not anticipated by either party. Moulds, 14 So.3d at 695 (¶ 45). Therefore, this arbitration agreement is unenforceable as the forum in the agreement is no longer available. Accordingly, we affirm the circuit court’s judgment denying the motion to compel as to all claims accruing prior to May 21, 2009, and we reverse and render as to the circuit court’s finding that the arbitration agreement was enforceable as to any claims arising after May 21, 2009.

¶ 14. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND AP-PELLEE.

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

      . Due to our finding as to the first prong, it is unnecessary to consider the second prong of the test.

      . Dillon cited to this web site in her appellate brief.

      . "While the circuit court based its decision to deny arbitration on reasons different from ours, we may on appeal affirm the decision of the trial court where the right result is reached, even though we may disagree with the trial court’s reasons for reaching that result.” Pass Termite & Pest Control, Inc. v. Walker, 904 So.2d 1030, 1032 (¶ 6) (Miss.2004) (citation omitted).


author: MYERS, J.,

text:
    Marvin RHODA, Appellant v. Edith W. WEATHERS, Appellee.
    No. 2010-CA-00797-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Oct. 25, 2011.

      Benjamin Louis Taylor, attorney for appellant.
    Dawn Davis Carson, attorney for appel-lee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   MYERS, J.,

for the Court:

¶ 1. Marvin Rhoda and Edith Weathers were involved in a two-vehicle collision in Southaven, Mississippi. Rhoda brought suit against Weathers, alleging she had negligently caused the accident and his resulting injuries. The case was tried to a jury in the County Court of DeSoto County, which returned a verdict for Weathers. Rhoda appealed to the DeSoto County Circuit Court, which affirmed the trial court’s judgment. He then appealed that decision to the Mississippi Supreme Court, which assigned the case to this Court. We affirm, except as to Rule 37(c) sanctions.

FACTS

¶ 2. On April 21, 2004, Weathers was traveling south on W.E. Ross Parkway, which intersects with Church Road. There is a stop sign at the intersection, requiring southbound traffic on W.E. Ross Parkway to stop and the yield the right-of-way to vehicles on Church Road. Church Road is a four-lane, divided highway with a posted speed limit of forty-five miles per hour. Rhoda was traveling west on Church Road in the right lane of travel, the lane nearest to the intersection with W.E. Ross Parkway. What happened next was disputed.

¶ 3. Rhoda testified that Weathers came to a “rolling stop” at the intersection. He saw her enter the intersection without looking both ways, as he was passing through it, causing their vehicles to collide. According to Weathers, the last thing she remembered was stopping her vehicle outside the intersection. Weathers testified that she was completely stopped when her vehicle was struck. An eyewitness, Melissa Stanford, testified that she saw the accident while working as a drive-through teller at a nearby bank. Stanford stated that Rhoda hit a puddle, lost control of his vehicle, and collided with Weathers’s vehicle. Stanford also corroborated Weathers’s testimony that she was stopped outside the intersection at the time of the collision.

¶ 4. The jury returned a verdict finding that Weathers had not negligently caused or contributed to Rhoda’s injuries, and Rhoda appeals, raising six issues.

DISCUSSION

1. Police Accident Report

¶ 5. Rhoda sought to introduce into evidence an accident report prepared by Officer Brian Keller of the Southaven Police Department. The report was a “Mississippi Uniform Crash Report,” essentially a form completed by the officer responding to the accident. The report contained a brief and somewhat contradictory narrative describing the collision:

[Rhoda] was westbound on Church Rd. in the # 2 lane. [Weathers] was stopped at the stop sign on W.E. Ross Pkwy. at Church Rd. [Weathers] started to make a left turn onto Church Rd. when [Rhoda] hit [Weathers] in the left door pushing her off the roadway to the west. The witness stated she noticed [Weathers] stopped and saw [Rhoda] hit [Weathers] in the driver’s side.

More importantly, the accident report had checkboxes for “contributing circumstances” attributable to each driver. For Rhoda, “no apparent improper driving” was checked, while Weathers was indicated to have “failed to yield the right-of-way.”

¶ 6. Essentially, Rhoda contends that the police report is substantive evidence that Weathers caused the accident by entering the intersection without yielding the right-of-way to him. Rhoda sought to introduce the report, but the trial court found it unreliable and did not allow it into evidence. On appeal, Rhoda contends that the accident report should have been admitted under Mississippi Rules of Evidence 803(6) and 808(8).

¶ 7. Police reports are hearsay. Rebelwood Apartments, LP v. English, 48 So.3d 483, 491 (¶ 36) (Miss.2010). Hearsay is generally inadmissible to prove the truth of the matter asserted, but Rule 803 provides certain exceptions. At issue in this case are Rule 803(6), the exception for records of regularly conducted activity, and Rule 803(8), the public records exception.

¶ 8. Rule of Evidence 803(8)(C) provides an exception for “factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” According to the comment, Rule 803(8)(C) extends to the “factual findings made in an investigation which was conducted pursuant to lawful authority. Opinions and conclusions contained in such reports should be excluded.” The comment also notes that trial judges are “expressly give[n] ... the discretion to exclude such reports,” and other jurisdictions have exercised “great caution” in admitting them.

¶ 9. Rule 803(6), often called the business records exception to the rule against hearsay, provides that records kept in the “course of a regularly conducted business activity” are admissible, “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” M.R.E. 803(6).

¶ 10. In the recent Rebelwood decision, the Mississippi Supreme Court addressed the admissibility of police reports in civil actions. The court noted that the Rule 803(8) exception is interpreted broadly, so admissible “factual findings” may encompass opinions or conclusions, as long as they are factually based. Rebelwood, 48 So.3d at 492 (¶ 41). Our supreme court noted that the United States Supreme Court, interpreting the corresponding federal rule of evidence, held that police accident reports are admissible, including the officer’s conclusion as to fault, so long as they meet Rule 803’s trustworthiness requirements. Id. The rule in Mississippi is the same: “[a] conclusion in a police report may be admitted if based on a factual investigation and [it] satisfies the Rule’s trustworthiness requirement.” Id. at 493 (¶ 42) (citation and quotation omitted). Thus, the critical issue under either subsection of Rule 803 is whether the accident report is trustworthy.

¶ 11. The trial court excluded the accident report, finding that Officer Keller’s investigation was insufficient to reach a trustworthy conclusion as to fault in causing the accident. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Mingo v. State, 944 So.2d 18, 28 (¶ 27) (Miss.2006).

¶ 12. To analyze trustworthiness, the Mississippi Supreme Court has endorsed the following four considerations: “(1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation.” Rebelwood, 48 So.3d at 493 (¶ 44) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168 n. 11, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)).

¶ 13. The first, third, and fourth Rebel-wood factors are not at issue in this case. The only relevant concern is the officer’s skill and experience or, more precisely, their application to the investigation in this case.

¶ 14. Officer Keller was called to testify, outside the presence of the jury, regarding how he prepared the accident report. He admitted that he had no recollection of the investigation, despite efforts to refresh his memory by reviewing the report. He was only able to say what he would ordinarily have done to prepare a similar report. Officer Keller stated that he would have reviewed the scene of the accident, interviewed both drivers and any witnesses, and reviewed the functionality of any traffic control devices present — in this case, verify that the stop sign was standing and visible. Officer Keller also testified that he had some training in accident reconstruction, particularly analyzing skid marks to determine the speeds of vehicles involved in an accident. He admitted, however, that he did not do a reconstruction for this accident. Officer Keller suggested that a more rigorous analysis would have been reserved for accidents that had resulted in deaths or more serious injuries.

¶ 15. There was no question that Officer Keller had significant experience; by the time of the subject accident, he estimated he had responded to “thousands” of accidents. He likewise had training in some aspects of accident reconstruction. But Officer Keller acknowledged that he did not reconstruct this accident, and neither Keller nor the report itself explained what was actually done to investigate the accident. By all indications the investigation was cursory, and the only thing that the accident report establishes Officer Keller did was consider conflicting accounts of who was at fault. This amounted to little more than a credibility determination— weighing the same conflicting testimony presented to the jury in the trial. Keller’s opinion might have been informed by his years as a police officer, but we can only speculate as to how that experience was applied to investigating this accident. Under these circumstances we cannot say the trial court abused its discretion in excluding the conclusions in the report as unreliable. This issue is without merit.

2. Exclusion of Officer Keller as an Accident Reconstructionist

¶ 16. Rhoda next contends that the trial court erred in not allowing Officer Keller to testify as an expert accident reconstruc-tionist. We find this issue without merit because Officer Keller testified that he did not perform a reconstruction of this accident. He also admitted he had no independent recollection of his investigation. Moreover, Rhoda waived this issue during the trial by withdrawing his offer of Keller as an expert witness. This issue is procedurally barred and lacks merit.

3. Comparative Fault Instruction

¶ 17. Rhoda next contends that the trial court erred in giving a comparative fault instruction to the jury, as he asserts that there was no evidence he negligently contributed to his injuries. We disagree. There was testimony that Rhoda lost control of his vehicle after striking a puddle in the road, while traveling at approximately forty miles per hour. The puddle was described as presenting an open and visible danger. Mississippi law places a duty upon drivers to “to keep a reasonable lookout and take reasonably proper steps to avoid an accident or injury to persons and property after having knowledge of a danger.” Prewitt v. Vance, 16 So.3d 37, 40 (¶ 13) (Miss.Ct.App.2009) (quoting Shideler v. Taylor, 292 So.2d 155, 156-57 (Miss.1974)). We find the evidence sufficient to warrant a comparative fault instruction.

4. Motion for a New Trial / Judgment Notwithstanding the Verdict

¶ 18. Under these headings, Rhoda reiterates several issues we have previously found without merit. He also raises at least five new contentions of error, most of which concern evidentiary rulings of the trial court. On these new issues, however, his brief fails to comply with the Mississippi Rules of Appellate Procedure. Rule 28(a)(3) requires that each issue presented to the Court on appeal shall be “separately numbered” and “distinctly identified.” Failure to comply with the Rule 28 amounts to an abandonment of these issues on appeal. See, e.g., Shavers v. Shavers, 982 So.2d 397, 403 (¶ 34) (Miss.2008).

¶ 19. Additionally, Rhoda fails to provide authority and argument to support these new contentions. Rule 28(a)(6) requires that the assertions of the appellant must be supported by “the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” This is because there is “a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to the appellate court.” Cobb v. Cobb, 29 So.3d 145, 152 (¶24) (Miss.Ct.App.2010). Thus we have held that the failure to employ relevant authority operates as a procedural bar on appeal. Shavers, 982 So.2d at 401 (¶ 22). Of the various new contentions Rhoda raises under these headings, only one is supported by citation to any authority whatsoever. The remainder are clearly procedurally barred.

¶ 20. The supported contention, although some authority is cited, is also procedurally barred under Rule 28(a)(6). Rhoda asserts that the trial court erred by not allowing her to impeach the testimony of Stanford, the third-party eyewitness to the accident. The issue arose after Rhoda’s attorney asked Stanford on cross-examination whether she had spoken with anyone between the time she had spoken to the police officer, immediately after the accident, and before her deposition in this litigation. Stanford initially responded that she did not remember speaking with anyone and, when pressed by Rhoda’s attorney, denied that she had. Rhoda contends on appeal that she should have been allowed to cross-examine Stanford regarding the fact that she gave a statement to Weathers’s liability insurance company shortly after the accident, ostensibly for the purpose of impeaching her credibility as a witness.

¶ 21. This issue is simply not developed in Rhoda’s brief. To begin with, the brief does not cite the record to show where the trial court actually ruled that Rhoda could not impeach Stanford. Rule 28(a)(6) requires arguments of error be supported by citation to the record. A reviewing court is not obligated to scour the record to substantiate an appellant’s unsupported assertions as to what occurred at the trial. Nonetheless, we searched for it, and we have not been able to find such a ruling in the record. During Rhoda’s cross-examination of Stanford, he never attempted to impeach Stanford regarding the statement she had given to Weathers’s insurance company. After the redirect examination, Rhoda did state to the court in a bench conference that he wished to advance that line of questioning. Weathers’s attorney objected, contending that it was a transparent attempt to introduce improper evi- • dence of Weathers’s liability insurance. Rhoda denied that this was his intent, and at this point, the trial judge asked Rhoda to clarify what he was asking for. Rhoda then apparently abandoned his proposal to impeach Stanford on whether she had given the statement to the insurance company, stating that he only wished to examine the statement to determine whether it was consistent with Stanford’s testimony at trial, and then potentially to impeach her with it. The trial court reviewed the statement in chambers and denied Rhoda’s request.

¶ 22. Rhoda’s argument on this issue amounts to little more than an announcement of a position. There is no analysis of the question presented, and while two Mississippi cases are mentioned in a string citation, they give no apparent support to the sentences that precede them. Specific pages or paragraphs in the decisions are not cited. Rhoda makes no effort to explain how the authorities support his position, and we have no obligation to try to figure it out. Rule 28 does not simply require a party to mention authority; the authority must be used to develop the argument in a meaningful way. Randolph v. State, 852 So.2d 547, 558 (¶29) (Miss.2002).

¶ 28. An appellant cannot give cursory treatment to an issue and leave it to this Court to uncover a basis for the claims, either in the record or in the law. Simply put, we will not act as an advocate for one party to an appeal. The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.

5. Sanctions for Failure to Admit to Medical Records

¶ 24. Finally, Rhoda contends that the trial court erred in not awarding sanctions under Rule 37(c) of the Mississippi Rules of Civil Procedure, which states:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable under Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

Rhoda contends that Weathers failed to admit “certain facts” in his Rule 36 requests for admission. See M.R.C.P. 36. Although Rhoda’s argument in his brief is not specific, from the record it is clear he is referring to requests for Weathers to admit the genuineness and admissibility of his medical records. At trial, Weathers did not object to their admission into evidence. After the trial, Rhoda sought sanctions against Weathers for the reasonable expenses of offering the documents. The trial court denied the motion.

¶ 25. Weathers offers two responses to Rhoda’s argument. First, she contends that she had “no specific knowledge” of the authenticity of the documents and no medical training with which to evaluate them. This contention is plainly without merit, as Rule 36 states: “An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.” Second, Weathers contends that the Mississippi Rules of Evidence provide an “inexpensive method” for medical records to be admitted. That may very well be the case, but it is an argument for the amount of Rhoda’s “reasonable expenses” under Rule 37(c), rather than whether any sanctions should be awarded.

¶ 26. Discovery matters are entrusted to the discretion of the trial court, but Rule 37(c) states that it “shall” order sanctions unless one of four specific findings is made. The admissions sought were clearly not “held objectionable under Rule 36(a)” or “of no substantial importance”; and we have reviewed the record and can find no “reasonable ground to believe that [Weathers] might prevail on the matter,” or “other good reason for the failure to admit.” M.R.C.P. 37(c). We therefore conclude that the trial court abused its discretion in denying sanctions for Weathers’s failure to admit to the admissibility of Rhoda’s medical records. Consequently, we reverse and remand for a determination of the amount of sanctions.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . Rhoda apparently never tried to get Weathers's statement in discovery. Rhoda attacks the ruling denying him access to the statement in one of the unsubstantiated assertions of error we have already declined to address.