text:
    Randall SMITH and Lynn Smith v. Darren BROWN and Turner Industries Group, L.L.C.
    No. 2011 CA 1749.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2012.

      Todd A. Delcambre, Lafayette, LA, for Intervenors/Appellants Formosa Plastics Corporation, Louisiana and Zurich American Insurance Company.
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Baton Rouge, LA, for Defendants/Appellees Turner Industries Group, L.L.C. and Darren Brown.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

IsThis appeal is from a summary judgment invalidating an indemnity agreement in a contract as violative of La. R.S. 23:1033. We affirm.

FACTS AND PROCEDURAL HISTORY

Formosa Plastics Corporation, Louisiana (“Formosa”), the operator of a chemical manufacturing plant in Baton Rouge, entered into a contract with Harmony, L.L.C. (“Harmony”) on December 1, 2001 for the provision of contract labor by Harmony to perform work at Formosa’s facility. Article 17.3 of the contract, entitled “Injury to Persons and Damages to Property,” was stricken from the contract, and was replaced by the indemnity provisions contained in Attachment # 5:

To the fullest extent permitted by law, [Harmony] shall defend (with counsel selected by [Formosa]), indemnify and hold harmless [Formosa], together with its present and former officers, directors, agents, servants, employees, parent companies, subsidiary companies, affiliated companies, related companies, divisions, and shareholders, and any persons in privity with them or bound to pay judgments on their behalf, from and against all claims, damages, liability, expenses (including, without limitation, attorney’s fees and other costs of defense), and losses arising out of, resulting from, or relating to the performance of the work, and shall include, without limitation, any and all such claims, damages, liability, losses and expenses:
a.Caused or alleged to be caused, in whole or in part, by the sole, concurrent, joint, active or passive negligence and/or gross negligence, or other wrongful act or omission of [Formosa], its parent companies, subsidiary companies, affiliated companies, related companies, or divisions, their present and former officers, directors, agents, servants, employees, shareholders, or any persons in privity with them or bound to pay judgments on their behalf, and/or [Formosa’s] contractors or subcontractors, or anyone directly or indirectly employed by them;
b. For or relating to personal injury, sickness, disease or death, or injury to or destruction of property; or,
c. For or relating to workers’ compensation benefits, unemployment benefits, or employment discrimination of any kind, including but not limited to claims, causes of action, charges, or demands under the Louisiana Workers’ Compensation Laws, Louisiana [Labor Law], Title VII of | sthe Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, the Family and Medical Leave Act, and/or any other federal, state, or local statute or civil law obligation or duty.
With respect to the obligation of [Harmony] described in the preceding paragraph, above, the term “performance of the work” shall include, but shall not be limited to, the presence on [Formosa’s] premises of [Harmony], any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, and shall include, but not be limited to, the use by [Harmony] of materials, tools, equipment, supplies, or facilities furnished by [Formosa] for use by [Harmony] and not to be incorporated in the work.
Any other provision in the contract notwithstanding, [Harmony’s] duty to indemnify [Formosa] for [Formosa’s] negligence shall not exceed $3,000,000.00 per occurrence, funded by insurance available to [Formosa] as an additional insured, or to the extent such insurance in unavailable to [Formosa], by payment from [Harmony] or [Harmony’s] other insurance.

On November 21, 2004, Formosa employee Randall Smith and Harmony employee Darren Brown were working together at the Formosa facility. Brown was driving a locomotive and Smith was operating the switches on the side of the track, when Smith fell into the path of the locomotive operated by Brown. Smith was injured and subsequently received workers’ compensation benefits for his injuries from Formosa’s workers’ compensation carrier, Zurich American Insurance Company (“Zurich”).

On June 28, 2005, Smith filed suit against Brown and Turner Industries Group, L.L.C. (“Turner Industries”), alleging that Brown’s negligence caused the accident and Smith’s injuries. On September 27, 2005, Formosa and Zurich intervened in the suit, seeking to recover, under the indemnity provisions of the contract, all workers’ compensation and medical benefits paid to Smith. Smith later voluntarily dismissed his claims |4against Brown and Turner Industries with prejudice, leaving the intervention as the only remaining claim in the suit.

Turner Industries and Brown filed a motion for summary judgment on the claims in the intervention, alleging that the contract’s indemnity provisions were in violation of Louisiana law and public policy. After a hearing, the trial court granted the motion, dismissing Zurich and Formosa’s intervention with prejudice. Zurich and Formosa have appealed the summary judgment, alleging that the trial court erred in ruling that the defense and indemnity provisions of the contract were invalid and in . granting summary judgment.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 06-1558, p. 8 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, 408, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 05-1233, p. 5 (La.App. 1 Cir. 6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez v. Hebert, 06-1558 at 8, 961 So.2d at 408. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

Louisiana Revised Statutes 23:1033, entitled “Contracts against liability prohibited” provides:

No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.

On appeal, Zurich and Formosa argue that La. R.S. 23:1038 only prohibits defense and indemnity agreements to the extent that they infringe on the unconditional right of a claimant to receive benefits under the Workers’ Compensation Act, and as such, the court’s judgment absolving Turner Industries of its obligations under the contract with Formosa was erroneous, and Turner Industries should be made to reimburse Formosa and Zurich for all amounts paid and for all future amounts to be paid under the terms of the contract. Turner Industries argues that La. R.S. 23:1033 is clear that unless the Workers’ Compensation Act expressly allows an employer to | ^contract away its workers’ compensation liability, it is prohibited. Furthermore, Turner Industries argues that the contractual provision is contrary to public policy because it allows an employer to escape both tort liability and workers’ compensation liability.

As our supreme court stated in Roberts v. Sewerage and Water Board of New Orleans, 634 So.2d 341, 343-44:

Workers’ Compensation rests on the sound economic principle that those persons who enjoy the goods or services of a business or other systematic purposeful activity should ultimately bear the cost of the injuries or deaths of its employees that are incident to the production and distribution of its goods and services. Just as in the case of capital structures, machinery and equipment, the expected cost of injury or death to workers can and should be anticipated and provided for in advance through the medium of workers’ compensation insurance, and the premiums for such insurance can be considered an item of production cost in fixing the prices or fees charged for the commodity or service. To operate fairly to all parties, the compensation principle requires predictability and affordability, entailing a compromise between the employer and its employees in which each party surrenders certain advantages under the tort law in order to gain others which are of more importance to each and to society. The employer gives up the immunity it otherwise would enjoy in cases where it is not at fault, and the employee surrenders his or her former right to full damages and accepts instead a more modest claim for bare essentials, payable, however, regardless of the employee’s or employer’s fault and with a minimum of dispute or delay. In other words, the compensation principle essentially ignores the element of blameworthiness and seeks to allocate the accident costs of an industry or undertaking to users of the product or services of the employer.
Obviously, this compromise, in which the employer and employee each surrender valuable rights, could not be effectuated if either party were free to ignore the Act whenever it would be to his advantage to do so.
(Citations omitted.)

Because the workers’ compensation statutes are in derogation of the universal right to sue for damages provided by La. C.C. art. 2815, the immunity provisions must be strictly construed. See Prejean v. Maintenance Enterprises, Inc., 08-0364, p. 10 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, 773. La. R.S. 23:1033 is clear that except where specifically provided by the Workers’ Compensation Act, no contract shall relieve an employer from any liability created by the Workers’ Compensation Act. This is precisely what the indemnity provision at issue in the case attempts to do— shield an employer from both tort liability and workers’ compensation liability. This is both prohibited by the clear language of La. R.S. 23:1033 and is contrary to public policy. Thus, summary judgment dismissing the claims of Formosa and Zurich was appropriate.

DECREE

The summary judgment dismissing Formosa Plastics Corporation, Louisiana and Zurich American Insurance Company’s claims against Turner is affirmed. Costs of this appeal áre to be shared equally by appellants, Formosa and Zurich.

AFFIRMED.

      . Turner Industries is the successor entity to Harmony, L.L.C.

      . The parties’ joint pretrial order lists as an established fact that neither Brown nor Turner Industries was negligent in causing the accident that injured Smith. Thus, the only remaining avenue to recovery for Zurich and Formosa in the intervention was under the indemnity agreement.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Vyron CARTER Individually, and on Behalf of his Wife v. C & M FREIGHTLINER, LLC, Garrick Watts and ABC Insurance Co., et al.
    No. 2011 CA 2184.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2012.
    Rehearing Denied Sept. 13, 2012.

      Sonya E. Hall, Baton Rouge, LA, for Plaintiff-Appellant Vyron Carter.
    Brian K. Abels, Lauren P. Nero, Boyer, Hebert, Abels and Angelle, LLC, Denham Springs, LA, for Defendants-Appellees C & M Freightliner, LLC and QBE Specialty Insurance Co.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

|2In this case arising out of a motor vehicle accident, Vyron Carter appeals a judgment of the district court dismissing his claims in their entirety and with prejudice. This court, on its own motion, filed a rule to show cause why the appeal should or should not be dismissed as untimely. For the following reasons, we grant the rule and dismiss the appeal as untimely.

FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 2010, Vyron Carter filed suit against Garrick Watts, C & M Freightline, LLC (C & M), and “ABC Insurance Company” for damages he suffered as the result of a motor vehicle accident in which his vehicle was struck by an eighteen-wheeler being driven by Watts while allegedly in the course and scope of his employment with C & M, which was insured by an unknown insurance company. C & M and its insurer, QBE Specialty Insurance Company, answered the petition on September 24, 2010, filed an exception raising the objection of lack of procedural capacity concerning Carter’s appearance on behalf of his wife, filed a request for notice, and propounded interrogatories, requests for production of documents, and requests for admission to Carter. Copies of these pleadings were mailed by defense counsel to Carter’s attorney at her street address in Baton Rouge, as shown on the petition. On October 22, 2010, a letter from defense counsel was mailed to Carter’s attorney at that address and faxed to her fax number shown on the petition, requesting a telephone conference concerning discovery on October 25 at 3:00 p.m. When the attorney failed to call at that time and there was no response to their discovery requests, the defendants filed a motion to compel discovery.

The motion was scheduled and noticed for a hearing on January 27, 2011. | .^Neither Carter nor his attorney were present at the hearing. The court granted the motion and ordered Carter to pay the defendants all costs of the motion and $850 in attorney fees. The judgment set a follow-up hearing for February 24, 2011. The record shows that notice of signing of the judgment was mailed by the deputy clerk of court to all counsel of record on January 28, 2011.

At the follow-up hearing on February 24, 2011, neither Carter nor his attorney appeared. The court again granted the motion to compel complete discovery responses and ordered Carter to pay all costs of the motion and to pay defendants $700 in attorney fees. The February 24 judgment also held Carter in contempt for failure to comply with the January 27 judgment and set another follow-up hearing for March 31, 2011. The record includes a certificate signed by the deputy clerk of court, showing notice of the judgment was mailed to all counsel of record on February 24, 2011. Carter’s attorney received a copy of the judgment and filed an “Opposition to Proposed Judgment” on February 28, 2011. In that pleading, Carter’s attorney discussed the supposed agreement with defense counsel to pass on the January hearing and indicated that Carter had no opposition to dismissal of his claims on behalf of his wife.

At the follow-up hearing on March 31, 2011, the district court noted that two previous hearings had been held on the defendants’ motion to compel discovery, in which the court had granted the motion and ordered full and complete responses. Yet, neither Carter nor his attorney had appeared at either hearing. In addition, they were not present at this follow-up hearing, and Carter had failed to comply with the court’s orders. Accordingly, the court dismissed Carter’s claims in their entirety and at his costs for his “repeated failure to answer discovery in violation of this Court’s order.” The judgment dismissed all of his claims with prejudice. The record shows that notice of [4the March 31, 2011 judgment was mailed that day by the deputy clerk of court to all counsel of record.

Carter filed a “Motion to Set Aside Judgment of Dismissal” on April 19, 2011, which was set for hearing on June 23, 2011. A protracted hearing was held on that date, at which both sides presented argument, documentary evidence was filed, and the court heard testimony from the deputy clerk of court. Carter’s attorney stated she believed the first hearing in January had been passed without date by agreement with defense counsel, and she never received notice of the February 24, 2011 follow-up hearing. However, she acknowledged that a copy of the court’s judgment rendered and signed on that date was faxed to her on February 25, 2011, by defense counsel, but stated that she did not receive the court’s notice. She filed an “opposition” to the judgment on February 28 and checked to be sure the clerk of court’s office had her correct address on file, which it did. She claimed she had no notice of the March 31 followup hearing, at which the judgment dismissing her client’s claims was rendered and signed, and had not received notice of the March 31, 2011 judgment from the court. She only learned of the hearing and the judgment when she called defense counsel some time in April about setting a status conference with the court. At that time, she personally picked up a copy of the judgment from the clerk’s office and filed her “Motion to Set Aside Judgment of Dismissal.” She stated she also had not received notice of the hearing date on that motion until she called the judge’s office to inquire whether a date had been set on her motion. Defense counsel contended that the notices filed in the court record and the testimony of the deputy clerk of court showed that copies of all the judgments, each of which included a date for a followup hearing, were sent to Carter’s attorney at her listed street address, which she acknowledged was her correct address. Defense counsel argued that he and the court were entitled to rely on those notices in the record. He also contended that his firm had sent courtesy |Bcopies of each of the court’s judgments and orders to Carter’s counsel at that address.

After hearing arguments and considering the evidence, the court discussed whether the “Motion to Set Aside Judgment of Dismissal” could be treated as an action for nullity and determined it did not meet the criteria set out in Article 2002 or 2004. The possibility of a motion for new trial was also considered, but in that case, the “Motion to Set Aside Judgment of Dismissal” was untimely under Article 1974. Reluctantly, the court rendered judgment denying the “Motion to Set Aside Judgment of Dismissal.” The judgment was signed on July 8, 2011. Carter filed a notice and motion for appeal of the March 31, 2011 judgment on July 27, 2011.

ANALYSIS

Louisiana Code of Civil Procedure article 1974 provides that the delay for applying for a new trial shall be seven days, exclusive of legal holidays, and commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. According to LSA-C.C.P. art. 1913(A), notice of the signing of a final judgment is required in all contested cases and shall be mailed by the clerk of court to the counsel of record for each party. The judgment of March 31, 2011, dismissed all of Carter’s claims with prejudice, and thus, was a final judgment. Article 1913(D) requires the clerk to file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed. The clerk of court’s certificate in the record shows that notice of the court’s judgment dismissing all of Carter’s claims with prejudice was mailed on March 31, 2011, giving Carter until April 11, 2011, to file a motion for new trial, pursuant to Article 1974. This court can only base its decision on what appears in the record and is entitled to rely on the clerk’s certifícate of mailing. If a date of mailing is definitively established from a certificate of notice that has been filed in the record, there is compliance with Article 1918. See White v. White, 99-772 (La.App. 3rd Cir. 11/3/99), 747 So.2d 176, 178. Accordingly, as the district court correctly determined, the “Motion to Set Aside Judgment of Dismissal,” filed April 19, 2011, was untimely if considered to be a motion for new trial. See Mabry v. Theriot, 337 So.2d 1232,1233 (La.App. 1st Cir.1976).

Louisiana Code of Civil Procedure article 2123(A)(1) provides, in pertinent part, that an appeal that suspends the effect or the execution of an appealable judgment may be taken only within thirty days of the expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely. Article 2087(A)(1) provides, in pertinent part, that an appeal that does not suspend the effect or execution of an appealable judgment may be taken within sixty days of the expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely.

The district court found, and we have agreed, that Carter’s “Motion to Set Aside Judgment of Dismissal,” filed April 19, 2011, was not filed timely if considered to be a motion for new trial. Therefore, he had either thirty or sixty days to file for an appeal of the district court’s March 31, 2011 judgment, beginning on April 12, 2011. He had until May 11, 2011, to file a suspensive appeal, according to Article 2123(A)(1), and had until June 10, 2011, to file a devolutive appeal, according to Article 2087(A)(1). Carter did not file his notice and motion for appeal until July 27, 2011.

Upon receipt of the order of appeal, this court noted the apparent untimeliness and issued a rule to show cause why the appeal should or should not be dismissed on that basis. After receiving responsive briefs on the rule, a panel of this court referred the rule to the panel assigned to handle the appeal. Based on our review of the record, we must grant the rule to show cause and dismiss the appeal as untimely. See Jackson v. Davis, 346 So.2d 757, 758 (La.App. 1st Cir.), writ denied, 351 So.2d 153 (La.1977).

Like the district court, this court is concerned about Carter’s attorney’s contention that notices mailed from the clerk’s office and letters mailed by defense counsel were never received at her office. However, we note that Carter’s attorney acknowledged receipt of the February 24, 2011 judgment, not from the clerk’s office, 17but from defense counsel by fax on February 25, 2011. Even if, as she contends, she received none of the notices mailed from the clerk’s office, on February 25, 2011, she did receive a copy of a judgment that, among other things, set a follow-up hearing on the discovery issues for March 31, 2011. Had she taken steps to provide further responses to discovery by that date, or at the very least, appeared at that hearing to argue her client’s position, it is highly unlikely that the court would have entered a judgment dismissing her client’s claims.

Having concluded that the appeal must be dismissed as untimely, we express no opinion on the merits of Carter’s claim that the court abused its discretion in dismissing his claims for failure to respond to court-ordered discovery.

CONCLUSION

For the above reasons, we grant the rule to show cause and dismiss Carter’s appeal as untimely. All costs of this appeal are assessed to Vyron Carter.

RULE TO SHOW CAUSE GRANTED; APPEAL DISMISSED.

      . The court ordered the parties to file briefs in response to this exception, after which the matter would be taken under advisement. Carter did not file an opposing brief, but stated in a February 28, 2011 pleading that he agreed to the dismissal of any claims on behalf of his wife. The exception was sustained and all claims on behalf of Carter’s wife were dismissed in a judgment signed March 9, 2011.

      . Carter's attorney stated in a February 28, 2011 pleading that she had received notice of the January 27 hearing, but that defense counsel had agreed in a telephone conversation to pass on the hearing if she sent responses. Some incomplete responses were sent to defense counsel. Defense counsel maintained that the agreement to pass the hearing was dependent on receipt of full and complete responses, which they had not received. At the hearing, the court reviewed Carter’s responses to the discovery requests and ordered him to provide "complete and accurate answers and records” within 15 days.

      . The Louisiana Code of Civil Procedure sets out only three mechanisms by which a final judgment can be revised or set aside by the trial court: amendment in accordance with Article 1951; a motion for new trial under Articles 1971 through 1979; and an action of nullity under Articles 2001 through 2006. There is no procedural device called a "Motion to Set Aside Judgment of Dismissal.”

      . The notice and motion for appeal does not indicate the date of the judgment being appealed. However, it states that the court erred in dismissing Carter’s claims for failure to answer discovery and in denying his motion seeking to have that judgment declared null. Therefore, it appears that Carter intended to appeal both judgments.


author: KING, Justice, for the Court:

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER v. Barbara LANIER, Individually and on Behalf of the Heirs at Law of Darrell Gill, Deceased.
    No. 2011-CA-00163-SCT.
    Supreme Court of Mississippi.
    July 26, 2012.
    Rehearing Denied Oct. 4, 2012.

      Stephen P. Kruger, Kristopher Alan Graham, Jackson, attorneys for appellant.
    Isaac K. Byrd, Jr., Suzanne Griggins Keys, Jackson, attorneys for appellees.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   KING, Justice, for the Court:

¶ 1. In 1998, Barbara Lanier’s two-year-old son Darrell Gill Jr. died while being treated at the University of Mississippi Medical Center (UMC). Lanier filed a complaint against UMC alleging medical malpractice and wrongful death. In 2008, the case was resolved by bench trial in the Hinds County Circuit Court with a verdict in favor of Lanier of $250,000. UMC appeals, raising four issues for this Court’s review:

I. Whether the trial court erred by denying UMC’s motion for summary judgment based on the statute of limitations.
II. Whether the trial court erred by denying UMC’s motion for directed verdict.
III. Whether the verdict was against the overwhelming weight of the evidence.
IV. Whether the trial court erred by granting Lanier’s motion to conform the pleadings to the evidence.

We find that the trial court erred by denying UMC’s motion for a directed verdict. Because we reverse and render the case on this issue, the remaining issues are moot.

FACTS AND PROCEDURAL HISTORY

¶ 2. Darrell was born January 9, 1996. That summer, he was diagnosed with a rare genetic disorder — Chediak-Higashi Syndrome (CHS). CHS is characterized by neurological and bleeding disorders that ultimately affect the organs and compromise the immune system, leaving its victims susceptible to life-threatening infections. In eighty-five percent of children, the condition advances to “the accelerated phase,” which is terminal. Five characteristics of the accelerated phase are fever, enlarged liver and spleen, hemopha-gocytosis, low fibrogen levels, and pancy-topenia. An enlarged spleen, also known as splenic sequestration, occurs when red blood cells are sequestered (trapped) in the spleen, causing it to become large and tender. Splenic sequestration causes a rapid drop in hemoglobin and prevents blood from flowing to the rest of the body. Children diagnosed with CHS typically succumb to infection, organ failure, and other complications.

¶ 3. Darrell’s condition had reached the accelerated phase. Over the course of his life, Darrell was hospitalized fifteen times, staying in the hospital approximately 150 days. He had frequent fevers. His spleen was swollen on several occasions. He had experienced severe neurological deterioration, leaving him unable to communicate, walk, and sit up on his own. He also had seizures and was prescribed topiramate (brand name Topomax), an anticonvulsant medication. According to Darrell’s prescription, he was to receive two 25-milli-gram pills, three times a day (a total of 150 milligrams per day).

¶ 4. Darrell had a scheduled doctor’s appointment on August 27, 1998. When he arrived at UMC, he had a 102-degree fever and, thus, was admitted to the hospital. According to medical records, the treating doctor noted that Darrell's spleen was palpable. At approximately 9:00 p.m., a nurse administered Darrell’s seizure medication, giving him a 200-milligram dose.

¶ 5. Lanier testified that, thereafter, Darrell became lethargic and had problems breathing. She contacted the nurse, and Darrell was rushed to the pediatric (intensive care unit. Doctors were unsuccessful in their attempts to resuscitate Darrell, and he was later pronounced dead on August 28, 1998, at 12:55 a.m. The autopsy report listed the cause of death as “acute splenic sequestration crisis secondary to the accelerated phase of Chediak-Higashi Syndrome.”

¶ 6. Lanier mailed a notice-of-claim letter, which was dated July 15, 1999, to UMC and subsequently filed her complaint, alleging medical malpractice and wrongful death, on January 14, 2000. Several years passed with little action in the case. Then in 2008, Lanier produced the proof of delivery for her notice-of-claim letter, which showed that the notice-of-claim letter was not delivered until September 22, 1999. UMC moved to dismiss the action, claiming Lanier’s claim was barred by the statute of limitations. But the trial court found that UMC had waived its affirmative defense by participating in litigation and, thus, denied the motion.

¶ 7. Before the bench trial, UMC stipulated that it had breached the standard of care by giving Darrell an incorrect dosage of topiramate. According to the pretrial order, the sole issue at trial was whether Darrell had died as a result of the dosage error or from complications related to CHS.

¶ 8. The plaintiffs expert Dr. Rodrigo Galvez, a pathologist and psychiatrist, testified that, because Darrell’s health had deteriorated rapidly after taking the topi-ramate, the drug directly caused his splenic sequestration and ultimate death. Because this testimony is central to the leading issue in this case, we will discuss Dr. Galvez’s testimony below in greater detail.

¶ 9. Dr. Laurence Boxer, an expert in ■. pediatric hematology and oncology, testified for UMC. Dr. Boxer also is an expert in Chediak-Higashi Syndrome, conducting extensive research in the area, publishing several studies and textbook chapters, and personally treating three CHS patients. Dr. Boxer testified to a reasonable degree of medical probability that Darrell had died of splenic sequestration, a condition directly related to CHS. According to Dr. Boxer, no literature suggested that topira-mate could cause splenic sequestration or an abrupt drop in hemoglobin. Although the Physician’s Desk Reference listed death as a rare side effect of topiramate, Dr. Boxer stated that this percentage was “no higher than patients with a noted history of epilepsy dying and having sudden death with other drugs.” Thus, Dr. Boxer attributed Darrell’s death to the accelerated phase of CHS. Against UMC’s objection, Dr. Boxer also was allowed to testify that the treating doctor erred by not checking Darrell’s spleen sooner.

¶ 10. Dr. David Stafford, the defendant’s expert forensic toxicologist, testified that topiramate is a relatively mild drug, and, although Darrell’s dosage was higher than prescribed, it was not necessarily an overdose. He could find neither a study that established a toxic dose for topira-mate nor a reported death due to an overdose — even where patients took 1600 to 4000 milligrams of the drug. Dr. Stafford opined that, if Darrell had been affected adversely by the topiramate, he would have had high levels of chloride and carbon dioxide in his system, which he did not. Additionally, Dr. Stafford stated that he did not find any literature which suggested that topiramate could cause splenic sequestration. Based on a reasonable degree of medical probability, Dr. Stafford opined that the topiramate did not cause Darrell’s death.

¶ 11. After the defense rested, Lanier moved to amend the pleadings to conform to the evidence based on Dr. Boxer’s testimony that the treating doctor had failed to properly examine Darrell. UMC objected, but the trial judge granted the motion. On December 13, 2010, the trial court ruled in favor of Lanier, finding that “but for the incorrect dosage of [tjopiramate and the subsequent failure of Dr. Iyer to find splenic sequestration upon an exam, Darrell would not have died.... ” Aggrieved, UMC timely filed its notice of appeal with this Court.

ANALYSIS

¶ 12. This Court reviews the grant or denial of a motion for a directed verdict de novo. McGee v. River Region Med. Ctr., 59 So.3d 575, 578 (¶8) (Miss.2011). A motion for directed verdict chal lenges the legal sufficiency of the evidence. Id. In ruling upon a motion, the Court must look solely to the testimony provided by the nonmoving party, reviewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all favorable inferences that reasonably may be drawn from the evidence. Id. If the evidence presented creates a question of fact upon which reasonable minds could differ, then the motion for directed verdict should be denied. Id.

¶ 13. UMC argues that the trial court erred by denying its motion for directed verdict for three reasons: (1) Dr. Galvez was not qualified to testify, (2) his opinion had no basis, and (3) he failed to provide his opinions to a reasonable degree of medical probability. Lanier argues that Dr. Galvez was a qualified expert, and he established causation within a reasonable degree of medical probability.

¶ 14. A plaintiff must prove four factors to make out a prima facie case of medical negligence:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and (4) the plaintiff was injured as a result.

Univ. of Miss. Med. Ctr. v. Gore, 40 So.3d 545, 552 (¶27) (Miss.2010) (citation omitted). As previously noted, UMC stipulated that it had breached its duty to Darrell by giving him an incorrect dosage of topiramate. Thus, Lanier only had to prove causation.

¶ 15. Generally, causation must be proven by expert medical testimony. Estate ex rel. Campbell v. Calhoun Health Serv., 66 So.3d 129, 136 (¶ 32) (Miss.2011). This Court reviews the trial court’s admission or exclusion of expert testimony for an abuse of discretion. Worthy v. McNair, 37 So.3d 609, 614 (¶ 13) (Miss.2010). Absent an abuse of discretion, the trial court’s determination as to an expert’s qualifications will remain undisturbed on appeal. Id. The trial court must determine whether expert testimony is admissible under Daubert — (1) the expert testimony must be relevant, meaning that it will aid the fact-finder, and (2) the expert testimony must be reliable. Worthy, 37 So.3d at 614 (¶ 13). Mississippi Evidence Rule 702 further provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Id. (citing M.R.E. 702).

A. Dr. Galvez’s Qualifications

¶ 16. The trial court accepted Dr. Gal-vez as an expert in the field of forensic pathology. By profession, Dr. Galvez is a retired psychiatrist, having begun his training in the late 1970s, and a retired pathologist, supervising or observing more than 4,000 autopsies during his career. During his coursework, Dr. Galvez took an elective in forensic pathology, but he failed the forensic pathology boards. Thereafter, he specialized only in clinical and anatomical pathology.

¶ 17. Ninety-nine percent of his forensic exams stemmed from criminal cases, and ninety percent of those cases involved determining the cause of death for gunshot victims. Besides preparing for this case, Dr. Galvez had no knowledge or experience with Chediak-Higashi Syndrome. But Dr. Galvez had experience with topira-mate, as he had prescribed it to several psychiatry patients. He stated that he mainly had used the drug to calm down “agitated patients,” not as an anticonvul-sant. Dr. Galvez admitted that he had no training in hematology, oncology, pediatrics, pharmacology, toxicology, or chemistry.

¶ 18. UMC points out Dr. Galvez’s lack of knowledge of CHS, his failing the forensic pathology boards, and his unfamiliarity with neurology, pediatrics, or pediatric hematology/oncology. This Court has stated that “[a] physician who is sufficiently ‘familiar with the standards of a medical specialty, may testify as an expert, even though he does not practice the specialty himself.’ ” Troupe v. McAuley, 955 So.2d 848, 856 (¶ 22) (Miss.2007) (citations omitted). But the physician must be familiar with the applicable standard “by knowledge, skill, experience, training, or education in accordance with Miss. R. Evid. 702.” Id.

¶ 19. The sole issue at trial was whether Darrell’s death was a result of the topiramate-dosage error or of CHS complications. During voir dire, it appeared that Dr. Galvez had some knowledge of topira-mate and experience determining the cause of death based on autopsy results. The trial court reasonably could have believed that Dr. Galvez’s testimony would be relevant and reliable. Thus, as for Dr. Galvez’s qualifications, the Court cannot say that the trial court erred by accepting Dr. Galvez as an expert witness.

B. Dr. Galvez’s opinions were not based on a reasonable degree of medical probability.

¶ 20. The expert opinion of a doctor as to causation must be expressed in terms of medical probabilities as opposed to possibilities. Pittman v. Hodges, 462 So.2d 330, 333-34 (Miss.1984). Dr. Galvez failed to testify within a reasonable degree of medical probability whether Darrell died of the topiramate or as a result of CHS complications. Dr. Galvez was totally unfamiliar with the accelerated phase of CHS, so much so that defense counsel had to explain the accelerated phase of the disease to him during cross-examination.

¶ 21. Dr. Galvez also stated several times — during direct and cross-examination — that he will never know if Darrell died of the topiramate, because there was no toxicology report. During direct examination, Dr. Galvez stated that, “If they knew that the child took an increased dose of Topomax, it was high enough to kill him or was not high enough to cause any damage. We’ll never know.” During cross-examination, he reiterated this point several times:

I said to the Court and to you I will never know if the cause of death was accelerated phase of Chediak-Higashi syndrome because they didn’t do the toxicology study that could go in one direction or the other direction.
I told you before they didn’t do the toxicology screen or level for Topomax, I will never know whether it was the cause of death, and nobody will know whether the cause of death was the accelerated phase of the Topamax intoxication.
I will repeat until I die, we’ll never know how high the level of Topomax was on this child because they didn’t do the blood test. They should have done it. And what the impact of the Topamax was to trigger the sequestration and kill the child we’ll never know because they didn’t do [it] in the autopsy and now it’s too late to do it.

¶ 22. This Court has stated that “nothing is absolutely certain in the field of medicine, but the intent of the law is that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.” Catchings v. State, 684 So.2d 591, 597 (Miss.1996). In this case, the trial court judge sat as the sole fact-finder, and was left to speculate whether Darrell died from CHS complications or the increased dosage of topi-ramate. Because Dr. Galvez’s opinion was not based on a reasonable degree of medical probability, this Court finds the testimony was not sufficient to prove causation. The trial court erred by denying UMC’s motion for a directed verdict. Thus, we reverse and render the trial court’s judgment. Because this issue is dispositive, the remaining issues are moot.

CONCLUSION

¶ 23. Although the trial court did not err by accepting Dr. Galvez as an expert, the trial court did err by denying UMC’s motion for a directed verdict. Dr. Galvez provided no basis for his opinions, and he failed to testify within a reasonable degree of medical probability that the topiramate caused Darrell’s death. Because we reverse and render the trial court’s judgment on this issue, the remaining issues are moot.

¶ 24. REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The record does not indicate whether Darrell had received any topiramate earlier that day.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . In Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss.2001), this Court incorrectly left the impression that it was acceptable to offer expert medical causation in terms of probability or possibility. Id. at 617 (¶ 16). Today, we take this opportunity to state with clarity that expert medical testimony as to causation must be set forth in terms of medical probability.


author: CARLSON, Presiding Justice,

text:
    MISSISSIPPI DEPARTMENT OF REVENUE v. PIKCO FINANCE, INC.
    No. 2011-CA-00842-SCT.
    Supreme Court of Mississippi.
    July 26, 2012.
    Rehearing Denied Oct. 4, 2012.

      Bridgette Trenette Thomas, Gary W. Stringer, attorneys for appellant.
    Christopher Royce Shaw, Jackson, attorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. The Mississippi Department of Revenue (MDOR) issued a subpoena to Pikco Finance, Inc. (Pikco), requesting documentation pertaining to Pikco’s nonpayment of finance company privilege taxes. Pikco filed a petition to quash the subpoena on the basis that MDOR’s ability to audit and tax under Mississippi’s Finance Company Privilege Tax law was preempted by the National Bank Act. The circuit court granted Pikco’s petition to quash, and MDOR appealed. The issue on appeal is whether MDOR’s use of its statutory subpoena power in administration of the Finance Company Privilege Tax is preempted by the National Bank Act. We reverse and remand, finding that Pikco is subject to the subpoena.

FACTS AND PROCEDURAL HISTORY

¶ 2. Pikco is an operating subsidiary of Pike National Bank, a national banking association chartered under the National Bank Act. Pikco is a loan company and the entity through which Pike National Bank conducts its sales financing and consumer lending. On December 16, 2010, MDOR issued a subpoena to Pikco requesting documents in conjunction with an audit regarding Pikco’s nonpayment of finance company privilege taxes from July 1, 2005, through September 30, 2010. Pikco filed a Petition to Quash Subpoena in the Circuit Court for the First Judicial of Hinds County, claiming MDOR’s ability to assess taxes and audit Pikco under Mississippi’s Finance Company Privilege Tax law was preempted by federal law, specifically the National Bank Act. A hearing took place on May 6, 2011, and the circuit court granted Pikco’s petition to quash the subpoena. The circuit court’s order concluded:

The Department’s desire to inspect property to determine whether or not Pikco Finance must pay the state’s finance company privilege tax does not qualify as an exception under any federal law and therefore the subpoena must be quashed pursuant to the [National Bank] Act. However, the Department has a right to ensure state laws are followed and has every right to file a judicial enforcement action in chancery court.

MDOR disagreed with the circuit court’s decision and filed a timely Notice of Appeal. In addition, because MDOR understood the circuit court’s ruling to be limited to whether the subpoena could be enforced, not whether the tax could be assessed, MDOR issued an assessment to Pikco for the unpaid taxes in the amount of $322,287 for July 2005 through March 2011. On June 30, 2011, Pikco filed a Motion for Contempt with the circuit court, alleging that MDOR had violated the court’s order by issuing the tax assessment. That motion is still pending.

DISCUSSION

¶ 3. This Court applies a de novo standard of review to questions of law, such as whether the trial court erred in granting a motion to quash a subpoena. Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So.2d 121, 124 (Miss.2005); State v. Baptist Mem’l Hosp.Golden Triangle, 726 So.2d 554, 557 (Miss.1998).

¶ 4. The issue on appeal is whether MDOR’s use of its statutory subpoena power in administration of the Finance Company Privilege Tax is preempted by the National Bank Act. To answer that question, we must first determine whether Pikco is subject to the Finance Company Privilege Tax in general. The Finance Company Privilege Tax law is located at Mississippi Code Sections 27-21-1 to 27-21-19. Section 27-21-3 provides:

There is hereby levied a statewide privilege tax upon every person, firm, corporation, or association, other than banks, state or national, doing business of lending money secured by mortgages, trust receipts, retained-title[,] or purchase contracts, on motor vehicles, furniture, refrigerators containing mechanical freezing units operated by gas or electricity, or radios or any other tangible personal property, located in the State of Mississippi....

Miss.Code Ann. § 27-21-3 (Rev.2010) (emphasis added). MDOR states that it is responsible for administering the tax laws of this state and that the Mississippi Legislature has given it authority to issue subpoenas as part of its enforcement responsibilities. MDOR maintains that Pik-co is subject to the Finance Company Privilege Tax, as well as the subpoena, which MDOR issued to obtain documents regarding Pikco’s failure to pay the taxes.

¶ 5. Pikco claims that it does not have to comply with MDOR’s subpoena because: (1)the Finance Company Privilege Tax is preempted by the National Bank Act; (2) the subpoena is an exercise of a visitorial power, which is prohibited by the National Bank Act, because Pikco is an operating subsidiary of a national bank and is subject to exclusive oversight by the Office of the Comptroller of the Currency (OCC); and (3) Pikco is exempt from the tax under Mississippi Code Section 27-21-3. Each of Pikco’s arguments will be addressed here.

A. State taxation is not preempted by the National Bank Act.

¶ 6. Pikco claims that it is not required to comply with MDOR’s subpoena because Mississippi’s Finance Company Privilege Tax is preempted by the National Bank Act. The National Bank Act is found at 12 U.S.C. Section 1, et seq. The purpose of the National Bank Act, enacted in 1864, was to establish a national banking system “extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the states.” Easton v. State of Iowa, 188 U.S. 220, 229, 23 S.Ct. 288, 47 L.Ed. 452 (1903).

¶ 7. The burden of demonstrating that federal law preempts state law is on the party claiming preemption, in this case, Pikco. Angle v. Koppers, Inc., 42 So.3d 1, 8 (Miss.2010). This Court has held that federal law preempts state law in three situations: (1) where Congress has explicitly preempted state law; (2) where Congress has occupied the entire field; or (3) where there is an actual conflict between federal and state law. Cooper v. Gen. Motors Corp., 702 So.2d 428, 434 (Miss.1997) (citing English, v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270,110 L.Ed.2d 65 (1990)).

¶ 8. First, Congress has not explicitly preempted state law as to taxation. The National Bank Act precludes state regulation of national banks in certain enumerated areas, but state taxation is not one of those areas. In fact, taxation is specifically exempted from the areas preempted by the National Bank Act. Section 548 provides, “For the purposes of any tax law enacted under authority of the United States or any State, a national bank shall be treated as a bank organized and existing under the laws of the State or other jurisdiction within which its principal office is located.” 12 U.S.C. § 548 (2006). In addition to Section 548, the Code of Federal Regulations provides that state tax laws apply to national banks. “State laws on the following subjects are not inconsistent ■with the powers of national banks and apply to national banks to the extent that they only incidentally affect the exercise of national bank powers: ... (vi) Taxation ...” 12 CFR § 7.4009(c)(2) (repealed July 21, 2011).

¶ 9. Second, Congress has not occupied the entire field as to national banks. The National Bank Act left several areas to state regulation, so long as the state laws in those areas “only incidentally affect the exercise of national bank powers.” 12 C.F.R. § 7.4009(c)(2) (repealed July 21, 2011). Congress spoke directly to the issue of taxation in 12 U.S.C. Section 548 and 12 C.F.R. Section 7.4009, stating that national banks were subject to state taxation. In most cases, we look for Congress to have preempted an area of law. In this case, Congress specifically exempted taxation from federal regulation and left it to the states.

¶ 10. Turning to the third situation in which federal law could preempt state law, there is no duplicative federal law pertaining to collection of Mississippi state finance taxes. If an area is not preempted by the National Bank Act, state law applies. “National banks remain bound by state laws and regulations, except for those laws substantively preempted by other provisions of the Bank Act.” Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949, 964 (9th Cir.2005). Because state taxation is exempt from federal regulation, there is no actual conflict between federal and state law in this area; thus, federal law will not preempt state law under that theory. As such, national banks and their subsidiaries are subject to state tax laws, such as the Finance Company Privilege Tax.

¶ 11. In sum, federal law does not preempt state law as to state taxation of national banks. Congress has not explicitly preempted state law in this area, Congress has not occupied the entire field, and there is no conflict between federal and state law in this area. The National Bank Act does not preempt state taxation; in fact, it explicitly exempts it, leaving taxation to the states under 12 U.S.C. Section 548 and 12 C.F.R. Section 7.4009(c)(2).

B. MDOR’s subpoena was not an exercise of a visitorial power.

¶ 12. Pikco claims that it is not required to comply with MDOR’s subpoena because the issuance of the subpoena is an exercise of a visitorial power. Pikco’s argument is based on 12 U.S.C. Section 484, which provides:

(a) No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized....

12 U.S.C.A. § 484(a) (2006). Section 484 was meant to protect the independence of banks by giving the OCC exclusive authority to exercise visitorial powers as to national banks. See 12 C.F.R. § 7.4000(a)(1). See also Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11-15, 127 5.Ct. 1559, 167 L.Ed.2d 389 (2007); Capital One Bank (USA), N.A. v. McGraw, 563 F.Supp.2d 613, 617 (S.D.W.V.2008). Pikco argues that, even though it is not a national bank, the protections of Section 484 apply to it because 12 C.F.R. Section 7.4006 provides, “Unless otherwise provided by Federal law or OCC regulation, State laws apply to national bank operating subsidiaries to the same extent that those laws apply to the parent national bank.” 12 C.F.R. § 7.4006 (repealed July 21, 2011).

¶ 13. Pikco relies heavily on the United States Supreme Court ease of Watters v. Wachovia Bank. In that case, the Michigan Office of Insurance and Financial Services sought to enforce state registration and inspection requirements on Wachovia Mortgage, a state-chartered mortgage company and subsidiary of a federally-chartered bank. Watters, 550 U.S. at 8-9, 127 S.Ct. 1559. Wachovia Mortgage challenged the requirements as preempted by the National Bank Act. Id. The Supreme Court held, “Wachovia’s mortgage business, whether conducted by the bank itself or through the bank’s operating subsidiary, is subject to OCC’s superintendence, and not to the licensing, reporting, and visitorial regimes of the several States in which the subsidiary operates.” Id. at 7, 127 S.Ct. 1559. The state’s attempt to further regulate the bank’s real estate lending was “duplica-tive state examination, supervision, and regulation,” which was prohibited. Id. at 17, 127 S.Ct. 1559. The Court held that the same applied to Wachovia Mortgage, because operating subsidiaries were treated “as equivalent to national banks with respect to powers exercised under federal law [.]” Id. at 18, 127 S.Ct. 1559 (emphasis added).

¶ 14. Watters is not applicable to today’s case because the area of regulation at issue in that case—real estate lending— was a power “exercised under federal law” and specifically regulated by the National Bank Act. Taxation is left to the states and is not regulated by the National Bank Act. Pikco’s rationale^that even though it is not a national bank, the protections of Section 484 apply to it under 12 C.F.R.

Section 7.4006 — is flawed because taxation is a matter of state law, not federal law. As the Waiiers Court recognized, “the laws of the States in which national banks or their affiliates are located govern matters the National] B[ank] A[ct] does not address.” Id. at 21, 127 S.Ct. 1559. State law governs taxation, and under state law Pikco is not treated the same as its parent national bank, and the visitorial limitation of Section 484 is not applicable.

¶ 15. Further, regardless of whether Pikco should be protected under Section 7.4006, examination of tax records by state officials is not an exercise of a visitorial power prohibited under Section 484. The Supreme Court has said that “visitorial power” under the National Bank Act “refers to a sovereign’s supervisory powers over corporations.” Cuomo v. Clearing House Ass’n LLC, 557 U.S. 519, 129 S.Ct. 2710, 2721, 174 L.Ed.2d 464 (2009). MDOR’s issuance of a subpoena as a means of enforcing an allowable state tax is not an exercise of a “supervisory power” over Pikco. “[A]ny inquiry into the operation of a bank is not automatically a ‘visitorial power’ [that] is prohibited” under Section 484. Peoples Bank of Danville v. Williams, 449 F.Supp. 254, 259-260 (W.D.Va.1978). “The exclusively federal power to ‘visit’ national banks is not the power to oust all state regulation of those entities.” Wells Fargo, 419 F.3d at 964 (emphasis in original). The OCC has long held that it has “no objections to state officials examining records of national banks for the purpose of ascertaining payment of applicable taxes.” O.C.C. B.C. 59, 1974 WL 21171 (Dec. 9,1974).

¶ 16. State taxation of national banks is allowed and is not preempted by the National Bank Act according to 12 U.S.C. Section 548 and 12 C.F.R. Section 7.4009(c)(2). Any limitations imposed by 12 U.S.C. Section 484, 12 C.F.R. Section 7.4000, or 12 C.F.R. Section 7.4006 are not applicable to MDOR’s assessment and enforcement of state taxes. Because MDOR was attempting to enforce state tax laws when it issued the subpoena to Pikco, the issuance of the subpoena was not an exercise of a visitorial power. Pikco is subject to MDOR’s subpoena because it is a permissible means to enforce the state tax law, and limitations otherwise imposed by federal law are not applicable.

C. Pikco is not exempt from the Finance Company Privilege Tax under Mississippi Code Section 27-21-3.

¶ 17. Pikco argues that it is exempt from the Finance Company Privilege Tax under Mississippi Code Section 27-21-3, which provides exemption to state and national banks. It is undisputed that Pik-co is not a state or national bank. However, Pikco claims that it is to be treated the same as its parent national bank according to 12 C.F.R. Section 7.4006, and because its parent national bank would be exempt under Mississippi Code Section 27-21-3, Pikco also should be exempt. Pikco is correct that, as a licensed operating subsidiary of Pike National Bank, under 12 C.F.R. Section 7.4006, it would be treated the same as its parent national bank with regard to federal law. However, Pikco erroneously attempts to apply 12 C.F.R. Section 7.4006 to the assessment of taxes under Mississippi’s Finance Company Privilege Tax, which is a matter of state law.

¶ 18. It is MDOR’s position that a bank could be exempt from the Finance Company Privilege Tax only under Mississippi Code Section 27-21-3, which is a direct result of the action of the Mississippi Legislature, not the National Bank Act or 12 C.F.R. Section 7.4006. We agree. This Court’s standard regarding tax exemptions is as follows:

Since taxation is the rule and exemption is the exception, and since exemptions from taxation are not favored, [the] general rule is that a grant of exemption from taxation is never presumed; on the contrary, in all cases having doubt as to legislative intention ... [the] presumption is in favor of taxing power, and [the] burden is on claimant to prove or establish clearly his right to exemption, bringing himself clearly within terms of such conditions that statute may impose.

Miss. State Tax Comm’n v. Med. Devices, Inc., 624 So.2d 987, 990 (Miss.1993) (quoting U.S. v. State of Miss., 578 F.Supp. 348, 349 (S.D.Miss.1984)). Because Section 27-21-3 is a state-granted exemption, Pikco is required to prove that it clearly falls within the terms of the exemption. Id. See Miss.Code Ann. § 27-21-3 (Rev.2010).

¶ 19. Pikco’s claim of exemption from the Finance Company Privilege Tax fails as a matter of law, because Pikco is not a state or national bank. Pikco’s contention that it is exempt under 12 C.F.R. Section 7.4006, because state laws apply to a national bank’s operating subsidiary to the same extent as to the national bank, is an erroneous attempt to combine state and federal law. Pikco is not a state or national bank, so it is not exempt under Mississippi Code Section 27-21-3.

CONCLUSION

¶ 20. The circuit court held that Pikco, as an operating subsidiary of a national bank, was not required to comply with MDOR’s subpoena under the provisions of 12 C.F.R. Sections 7.4000 and 7.4006. The circuit court erred in basing its decision on federal law when this is a matter of state law. According to 12 U.S.C. Section 548 and 12 C.F.R. Section 7.4009, state taxation is not preempted by the National Bank Act; therefore, Pikco is subject to the Finance Company Privilege Tax. Because taxation is a matter of state law, federal protections and limitations do not apply. Finally, Pikco cannot claim exemption from the tax under Section 27-21-3, because it is not a state or national bank.

¶ 21. MDOR has the authority to enforce state tax laws against Pikco, and Pikco is subject to the subpoena issued by MDOR. MDOR’s use of its statutory subpoena power in the administration of the Finance Company Privilege Tax is not preempted by the National Bank Act. For these reasons, we reverse the judgment of the Circuit Court for the First Judicial District of Hinds County and remand for proceedings consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

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

      . MDOR also presented a second issue. In the event that this Court found MDOR's subpoena power was preempted by the National Bank Act, MDOR asked whether the circuit court’s order impeded its authority to issue the tax assessment without a subpoena. Because the first issue is determinative, the second issue will not be addressed.

      . We do not address whether Pikco is subject to the specific amount of taxes assessed by MDOR following the circuit court’s decision.

      . The National Bank Act was revised by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), which went in effect July 21, 2011. The official title of the bill was: "A bill to promote the financial stability of the United States by improving accountability and transparency in the financial system, to end ‘too big to fail,’ to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes.” H.R. 4173, 111th Cong. (2009). The Dodd-Frank Act changed the financial regulatory structure, put regulation of the financial industry in the government’s hands, and increased oversight of financial institutions.

      . Initially, national banks were immune from state taxation. See Miss. State Tax Comm’n v. Brown, 188 Miss. 483, 193 So. 794, 798 (1940). However, Section 548 was amended in 1969 to remove immunity from state taxation. The amended statute went into effect in 1972, and national banks are now treated the same as state banks for the purpose of state taxation. Lake County Nat’l Bank of Painesville v. Kosydar, 36 Ohio St.2d 189, 305 N.E.2d 799, 802 (Ohio 1973). The amendment was meant to "promote equality in state taxation of state banks vis-á-vis national banks, and banks vis-á-vis non-bank corporations.” U.S. v. State Bd. of Equalization, 639 F.2d 458, 464 (9th Cir.1980).

      . Section 7.4009 was rescinded by the Dodd-Frank Act, but 12 U.S.C. Section 548 is still in place, leaving national banks subject to state taxation. See 12 U.S.C. § 548 (2006).

      . Section 7.4000(a) provides:
      (1)Only the OCC or an authorized representative of the OCC may exercise visitorial powers with respect to national banks, except as provided in paragraph (b) of this section. State officials may not exercise visitorial powers with respect to national banks, such as conducting examinations, inspecting or requiring the production of books or records of national banks, or prosecuting enforcement actions, except in limited circumstances authorized by federal law. However, production of a bank's records (other than non-public OCC information under 12 CFR part 4, subpart C) may be required under normal judicial procedures.
      (2) For purposes of this section, visitorial powers include: (i) Examination of a bank; (ii) Inspection of a bank's books and records; (iii) Regulation and supervision of activities authorized or permitted pursuant to federal banking law; and (iv) Enforcing compliance with any applicable federal or state laws concerning those activities.
      (3) Unless otherwise provided by Federal law, the OCC has exclusive visitorial authority with respect to the content and conduct of activities authorized for national banks under Federal law.
      12 C.F.R. § 7.4000(a)(l)-(3) (this version was effective until July 21, 2011, but changes after the Dodd-Frank Act were minimal, see 12 C.F.R. § 7.4000(a) (2012)).

      . The Dodd-Frank Act rescinded 12 C.F.R. Section 7.4006; therefore, an operating subsidiary is no longer treated the same as its parent national bank. The following provision was added to clarify the law applicable to national bank subsidiaries; "No provision of this title ... shall be construed as preempting, annulling, or affecting the applicability of State law to any subsidiary, affiliate, or agent of a national bank (other than a subsidiary, affiliate, or agent that is chartered as a national bank).” Dodd-Frank Act, Pub.L. No. 111-203, § 1045, 124 Stat. 1376, 2017 (2010) (to be codified at 12 U.S.C. § 25b). This change overturned judicial precedent like Watters and rescinded preemption of state law as to national bank subsidiaries and affiliates. See O.C.C. Inter. Ltr. No. 1132, 2011 WL 2110224 (May 12, 2011) ("The [Dodd-Frank] Act eliminates preemption of state law for national bank subsidiaries, agents[,] and affiliates.”).


author: RANDOLPH, Justice,

text:
    Shane CORK v. STATE of Mississippi David Smith a/k/a David Samuel Smith and Chris Lott v. State of Mississippi Craig Wells v. State of Mississippi William R. Moon a/k/a Rick Moon v. State of Mississippi.
    Nos. 2010-KM-01393-SCT, 2010-KM-01674-SCT, 2010-KM-01410-SCT, 2010-KM-01466-SCT.
    Supreme Court of Mississippi.
    Sept. 20, 2012.

      Frank W. Trapp, Gregory Todd Butler, Joel W. Howell, III, Jackson, Lindsey McGee Turk, Ridgeland, Todd Christian Richter, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. Appellants appeal direct criminal contempt orders for failing to serve or improperly serving process on defendants in paternity and child-support proceedings and for notarizing proof-of-service affidavits outside the presence of the affiants. The chancellor initially found Appellants in civil contempt and ordered a sentencing hearing. However, after conducting that hearing, he proceeded to hold all in direct criminal contempt. Appellants submit, and the State concedes, that the alleged conduct was not direct criminal contempt, but constructive criminal contempt. As the conduct was not civil contempt or direct criminal contempt, the chancellor should have recused himself from the proceedings. The Appellants were entitled to the due-process safeguards required for constructive criminal contempt proceedings. Accordingly, we reverse the contempt judgments and remand the cases to the Jackson County Chancery Court for entry of an order of recusal, and otherwise order proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mississippi Department of Human Services (“DHS”) retained the law firm of Young Williams, P.C., for a large number of paternity and child-support cases. The law firm contracted process-service companies to serve defendants in the DHS cases. Individual process servers were instructed to serve process on a defendant, complete a proof-of-service affidavit, and send it to the owners of the process-service companies. Upon receipt of the affidavits, the owners, who were notaries public, would notarize them outside the presence of the individual process servers.

¶ 3. In four cases, the DHS defendants testified that they had not been served personally. The chancellor then issued show-cause orders for a hearing and issued subpoenas instanter, requiring the process servers (Lott, Corr, and Moon) to appear and demonstrate why they should not be held in contempt for failing to serve process as set forth in their proof-of-service affidavits and for signing the affidavits outside the notary’s presence. The chancellor also issued show-cause orders and subpoenas instanter, requiring the owners of the process-service companies (Smith and Wells) to appear and show cause why they should not be held in contempt for notarizing proof-of-service affidavits without administering oaths and witnessing the process servers signing the affidávits. At the show-cause hearings for Lott, Corr, Smith, and Wells, Lott and Corr testified that they had served process as set forth in their affidavits. No one disputed that the process servers had signed the proof-of-service affidavits outside the notary’s presence and the notaries later had signed and sealed them outside the process servers’ presence. At the conclusion of that hearing, the chancellor held Lott, Corr, Smith, and Wells in civil contempt. Thereafter, he conducted a combined “sentencing hearing,” and then found Lott, Corr, Moon, Smith, and Wells in direct criminal contempt and sentenced each of them to thirty days in'jail and a $100 fine.

ISSUES

¶ 4. Appellants raised numerous issues. Our holding requires us to address only the following two:

1. Whether the chancellor’s judgments holding Appellants in direct criminal contempt should be reversed, because the chancellor failed to recuse himself where he initiated, prosecuted, and adjudicated the criminal contempt proceedings.
2. Whether the judgments holding Appellants in direct criminal contempt should be reversed, because the alleged contemptuous conduct occurred outside the presence of the court, and Appellants were not given notice of the criminal nature of the proceedings and served with summonses.

LAW AND ANALYSIS

I. Standard of Review

¶ 5. We apply a de novo standard when reviewing procedural issues raising questions of law. See Kumar v. Loper, 80 So.3d 808, 812 (Miss.2012) (“On questions of law, appellate courts use a de novo standard of review.”) (citation omitted).

II. The chancellor violated Appellants’ due-process rights by failing to recuse himself from the proceedings for constructive criminal contempt and failing to provide appellants notice of the criminal nature of the charges.

¶ 6. The State concedes that these cases involved neither civil contempt nor direct criminal contempt, but that, instead, the proceedings were for constructive criminal contempt. Thus, Appellants were entitled to due-process protections. Accordingly, the chancellor was required to recuse himself from the proceedings and to issue summonses giving Appellants notice of the criminal contempt charges against them. See In re Smith, 926 So.2d 878, 888 (Miss.2006) (“The citing judge must recuse himself from conducting the [constructive] contempt proceedings involving the charges.”) (emphasis added) (citation omitted); Premeaux v. Smith, 569 So.2d 681, 684 (Miss.1990) (“defendant must be afforded minimum due process rights” and “[d]ue process includes notice to the alleged contemnor that she was being considered for criminal contempt.”) (citation omitted).

¶ 7. Appellants’ argument, the State’s concession, and the record convince us that the proceedings were for criminal contempt, not civil contempt. This Court has provided that:

[i]n classifying a finding of contempt as civil or criminal, this Court focuses on the -purpose for which the power was exercised. On appeal, the trial court’s classification is not conclusive. Thus, the determination should focus on the character of the sanction itself and not the intent of the court imposing the sanction.

Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 867-68 (Miss.2004) (emphasis in original) (citations omitted). “The purpose of civil contempt is to compel compliance with the court’s orders, admonitions, and instructions, while the purpose of criminal contempt is to punish.” Graves v. State, 66 So.3d 148, 151 (Miss.2011) (citations omitted). The chancellor did not hold Appellants in contempt to compel compliance with an order, admonition, or instruction, but rather as punishment for alleged past

offenses — failure to serve process personally and their signing and notarizing of proof-of-service affidavits without the notary being physically present to witness the signatures.

¶ 8. The proceedings were for constructive (indirect) criminal contempt, “that is, for acts that — in whole or in part — occurred outside the presence of the judge[,]” not for direct criminal contempt, and, therefore, Appellants were entitled to due-process protections. Graves, 66 So.3d at 153. “A direct criminal contempt is one which takes place in the very presence of the judge making all the elements of the offense personal knowledge.” Varvaris v. State, 512 So.2d 886, 887-88 (Miss.1987) (emphasis added) (citation omitted). This Court has provided that:

[d]irect criminal contempt involves words spoken or actions committed in the presence, of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed
Unlike direct contempt, constructive contempt involves actions which are committed outside the presence of the court .... In the case of constructive criminal contempt, we have held that defendants must be provided with procedural due process safeguards, including a specification of charges, notice, and a hearing.

In re Williamson, 838 So.2d 226, 237 (Miss.2002) (emphasis added) (citation omitted).

¶ 9. The chancellor’s order recited that Appellants’ conduct occurred in the court’s presence — and, thus, that he properly held them in direct criminal contempt — because they filed proof-of-service affidavits with the clerk’s office and “knew or should have known that the Clerk’s office constituted part of th[e chancery c]ourt.” However, on appeal, the State does not adopt the chancellor’s ruling that the filing of the affidavits was a basis for holding Appellants in direct contempt. Rather, in its reply briefs, the State takes the position that:

the Chancellor by the use of the phrase “... knew or should have known” ... was describing negligent behavior as the basis of direct contempt. However as the Mississippi Supreme Court has noted “... gross negligence does not rise to the level [of] willful conduct which is required to support a finding of criminal contempt.”

(Citation omitted.) We agree with the Appellants and the State that the conduct at issue did not occur in the court’s presence. Finding that the allegedly improper service and the improperly executed affidavits occurred outside the court’s presence, we conclude that the contempt proceedings were for constructive criminal contempt, despite the chancellor’s characterization of them as being for civil contempt and direct criminal contempt. See Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994) (finding that “[t]he essence of the trial court’s ruling was founded on constructive criminal contempt regardless of what acts the chancellor said were attributed with the penalty imposed”).

A. Mandatory Recusal

¶ 10. The State conceded that “since it would appear the actions were more in the nature of a constructive attempt[,] it would have required the judge to have the actual contempt hearing conducted by another judge.” (Citation omitted.) This Court has provided that:

in cases of indirect or constructive criminal contempt, “where the trial judge has substantial personal involvement in the prosecution, the accused contemnor must be tried by another judge.” ... [E]xamples of “substantial personal involvement in the prosecution” warranting recusal include cases where the trial judge acts as a “one-man grand jury;” where the trial judge is “instrumental in the initiation of the constructive-contempt proceedings;” and where the trial judge “acts as prosecutor and judge.”

Graves, 66 So.3d at 154 (citations omitted). This Court repeatedly has found that a judge who initiates constructive contempt proceedings has substantial personal involvement and must recuse himself. Graves, 66 So.3d at 153-54 (providing that “[the judge] was the complainant for alleged criminal contempt that occurred, at least in part, outside his presence[,]” and that “[the judge] should not have presided over Graves’s contempt proceeding”); In re Smith, 926 So.2d at 888 (“The citing judge must recuse himself from conducting the [constructive] contempt proceedings involving the charges.”) (quoting Cooper Tire, 890 So.2d at 869) (emphasis added); Terry v. State, 718 So.2d 1097, 1105, (Miss.1998) (“Because [the judge] was instrumental in the initiation of the constructive contempt proceedings, this Court holds that he should not have heard the contempt proceedings.”). It is undisputed that the chancellor initiated the contempt proceedings when he issued show-cause orders requiring that Appellants appear and demonstrate why they should not be held in contempt. As the proceedings were for constructive criminal contempt, we conclude that the chancellor was required to recuse himself from conducting them. His failure to do so violated Appellants’ due-process rights and warrants reversal of the contempt judgments.

B. Notice of Contempt Proceedings

¶ 11. The Mississippi Constitution provides that, “[i]n all criminal prosecutions the accused shall have a right ... to demand the nature and cause of the accusation....” Miss. Const, art. 3, §26 (1890). For indirect criminal contempt, this Court requires notice of the charges and the specific conduct alleged to be contemptuous and a hearing. See Purvis, 657 So.2d at 798 (“constructive contempt requires a specification of charges, notice and a hearing.”) (citing Wood v. State, 227 So.2d 288, 290 (Miss.1969)); Moulds v. Bradley, 791 So.2d 220, 225 (Miss.2001) (“Without notice of [constructive] criminal contempt sanctions, [the accused’s] due process rights were violated.”); Premeaux, 569 So.2d at 684 (“defendant must be afforded minimum due process rights” and “[d]ue process includes notice to the alleged contemnor that she was being considered for criminal contempt.”) (citing Mabry v. Howington, 569 So.2d 1165,1167 (Miss.1990), and Cook v. State, 483 So.2d 371, 375 (Miss.1986)). The chancellor issued orders in the underlying DHS cases notifying Appellants of show-cause hearings and instructing them to “be prepared to present evidence as to why they should not be found in contempt of court and sanctions, including incarceration and/or a fine, should be entered.... ” Thus, Appellants received a modicum of actual notice of the contempt proceedings.

¶ 12. However, the chancellor did not issue summonses to the proceedings. Criminal-contempt defendants are entitled to notice under Mississippi Rule of Civil Procedure 81(d), which requires service of process. Miss. R. Civ. P. 81(d)(2). This Court has explained that, “[although contempt proceedings ... often are filed in the same cause number and proceed with the underlying ... case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So.2d 397, 402 (Miss.2008) (citation omitted); see Hanshaw v. Hanshaw, 55 So.3d 143, 146 (Miss.2011) (“Because contempt proceedings are distinct actions, they require notice consistent with Mississippi Rule of Civil Procedure 81(d).”). “In contempt proceedings, ‘[c]omplete absence of service of process offends due process and cannot be waived.’ Dennis v. Dennis, 824 So.2d 604, 609 (Miss.2002) (brackets in original) (emphasis added) (citations omitted). Thus, notice by the issuance of summonses under Rule 81 must occur before contempt proceedings are conducted. The failure to issue Appellants summonses for the contempt proceedings violated Appellants’ due-process rights and likewise warrants reversal.

CONCLUSION

¶ 13. We conclude that the contempt proceedings were for constructive (indirect) criminal contempt, and, therefore, the chancellor was required to recuse himself from the contempt proceedings and issue Rule 81 process giving Appellants notice of the criminal charges against them. As he failed to do so, the chancellor violated Appellants’ due-process rights. Accordingly, we vacate the contempt judgments of the Jackson County Chancery Court, remand the cases for entry of an order of recusal, and otherwise order proceedings consistent with this opinion.

¶ 14. VACATED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS AND KING, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J„ NOT PARTICIPATING.

      . Four cases are consolidated in this appeal, all related to a chancellor's holding of owners of process-service companies and individual process servers (collectively “Appellants”) in contempt.

      . The chancellor did not hold a show-cause hearing for Moon or hold him in civil contempt. Instead, he issued an order directing Young Williams to prepare a subpoena for Moon to appear and show cause why he should not be held in contempt for filing a false proof-of-service affidavit. Moon’s first appearance before the chancellor on the contempt charge was at the combined sentencing hearing.