author: PICKETT, Judge. THIBODEAUX, Chief Judge,

text:
    Lawrence ROMERO v. LOUISIANA COMMERCE AND TRADE ASSOCIATION and Circle A Farms.
    No. 11-1533.
    Court of Appeal of Louisiana, Third Circuit.
    July 13, 2012.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendants-Appellees, Circle A Farms, Louisiana Commerce and Trade Association.
    Jeffery F. Speer, Michael A. Rainey, Doucet-Speer, APLC, Lafayette, LA, for Plaintiff-Appellant, Lawrence Romero.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

_J_¡The plaintiff, Lawrence Romero, appeals the judgment of the Workers’ Compensation Judge (WCJ) dismissing his claim for workers’ compensation benefits because his employer, Circle A Farms, proved he was intoxicated at the time of his injury and because he failed to rebut the presumption that his intoxication caused his injury.

STATEMENT OF THE CASE

Romero was injured while in the course and scope of his employment for Circle A Farms as a truck driver. He had arrived at a job site at 3:00 a.m. to pick up a load of sugar cane. Because another truck was in the loading area when he arrived, Romero parked his truck on the two-lane roadway. When he saw a pickup truck turn right onto the roadway, he assumed it was his supervisor. Romero reached below his seat to retrieve an empty oil container. He opened his door and began to step out of his truck. The driver of the pickup truck, who was not Romero’s supervisor, swerved to avoid hitting the door when it unexpectedly opened, but he was unsuccessful. Romero was thrown to the asphalt and was injured.

Romero was transported by ambulance to Lafayette General Medical Center. While at the hospital, he submitted a urine sample for drug testing. The testing came back positive for marijuana metabolites. Circle A Farms and its insurer paid for the initial emergency room visit, but refused to pay any further worker compensation benefits. Romero filed a disputed claim for benefits, seeking wage benefits, payment for medical treatment, penalties and attorney fees. Circle A Farms and its insurer, Louisiana Commerce and Trade Association, pled intoxication as a defense.

12At trial, the WCJ heard evidence and found that Circle A Farms had proven that Romero was intoxicated at the time of the offense based on the drug test results. Pursuant to La.R.S. 23:1081(8), Circle A Farms was therefore entitled to a presumption that the accident was caused by Romero’s intoxication. During the initial trial, the WCJ received evidence from a toxicologist over the objection of Romero. The WCJ found that Circle A Farms had proven intoxication and was entitled to a presumption of causation. The WCJ further found that Romero’s testimony that he had not smoked marijuana for a month before the accident was insufficient to rebut the presumption of causation. The WCJ therefore denied benefits to Romero. Romero filed a Motion for a New Trial, seeking to have the toxicologist’s report excluded because he was not given sufficient notice that the toxicologist would be a witness. The trial court granted a new trial and determined that the testimony should not have been considered. Nevertheless, the WCJ reached the same conclusion that Romero was not entitled to benefits based on the admissible evidence, including the deposition testimony of the physician who interpreted the results of the test, Dr. Bryan Heinen. Romero now appeals that judgment.

ASSIGNMENTS OF ERROR

Romero asserts five assignments of error:

1. The WCJ erred in concluding that plaintiff failed to rebut the presumption that he was intoxicated at the time of the accident.

2. The WCJ erred in concluding that plaintiff failed to rebut the presumption that intoxication was a contributing cause of the accident.

3. The WCJ erred in holding plaintiff to a heightened standard of proof to rebut the presumption of intoxication at the time of the accident and the presumption that intoxication was a contributing cause of the accident.

4. The WCJ erred in considering the negligence or “poor judgment” of plaintiff in a workers’ compensation proceeding.

|a5. The WCJ erred in failing to award penalties and attorney fees for defendants’ refusal to pay any wage benefits or authorize any medical treatment for 18 months which was grounded solely on the results of a positive drug screen, when the expert administering, verifying, and interpreting the results of said drug screen testified that the level of marijuana metabolites found in plaintiffs system indicated that he had not smoked marijuana for approximately one week prior to the accident.

DISCUSSION

An employer does not have to pay workers’ compensation benefits if the injury is caused by the employee’s intoxication. La. R.S. 23:1081(l)(b). The employer bears the burden of proving intoxication. “If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.” La.R.S. 23:1081(5). If the employer proves intoxication, it is presumed that the accident was caused by the intoxication. La.R.S. 23:1081(12). The burden then shifts to the employee to prove that the intoxication was not a cause of the accident in order to defeat the employer’s intoxication defense. Id. Louisiana Revised Statutes 23:1081(8) states:

In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee’s use of the controlled substance only by a preponderance of the evidence. In meeting this burden, the results of employer-administered tests shall be considered admissible evidence when those tests are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.

We review the findings of fact of the WCJ in this case under the manifest error standard of review. See Kennedy v. Camellia Garden Manor, 02-1027 (La.App. 3 Cir. 2/5/03), 838 So.2d 99.

14Romero concedes that the drug test was administered at the emergency room pursuant to Circle A Farm’s drug policy. The test showed Romero’s sample was positive for marijuana metabolites. Romero argues in his first assignment of error that his testimony, when read in conjunction with Dr. Heinen’s testimony, was sufficient to rebut the presumption of intoxication. Dr. Heinen testified that the volume of marijuana metabolites in Romero’s test was 100 ng/ml (nanograms per milliliter). In his expert opinion, those levels indicate use of marijuana within one week, but not necessarily intoxication. He also testified that those levels are not consistent with exposure to second-hand marijuana smoke. Romero admitted that he used marijuana monthly.

The WCJ based her judgment on the fact that the accident in this case was caused by Romero’s inattention to the truck coming down the road and his slow reaction time to the oncoming vehicle when he opened the door. She found that these issues were consistent with intoxication from marijuana. Thus, she found that Romero failed to rebut the presumption of intoxication.

Romero cites Boise Cascade Corp. v. Dean, 99-1356 (La.App. 3 Cir. 5/3/00), 767 So.2d 76, writ denied, 00-2505 (La.11/13/00), 774 So.2d 146 to support his claim that he rebutted the presumption of intoxication. In Dean, after the employee tested positive for marijuana, the WCJ found that the employee proved that the accident was not caused by intoxication. This court affirmed, saying:

Numerous co-workers spoke or interacted with Defendant on the day of the accident, and not one of them found anything unusual about his behavior or thought he might be intoxicated. Further, the WCJ found that the expert testimony established the length of time of real impairment after smoking marijuana as somewhere between five and six hours. This, combined with the fact that there is nothing in the record to indicate Defendant smoked marijuana on April 8, 1998, leads this court to agree with the WCJ that the overwhelming evidence in the record supports a finding that Defendant was not acting under the effects of the drug at the time of the accident.

| Jd. at 80.

We find Dean distinguishable. In the case before us, Romero presented no evidence of anyone who saw him before the accident to testify that he was not impaired. The only expert testimony admitted into evidence was that of Dr. Heinen. He stated that typically someone who smokes a whole marijuana cigarette has a marijuana metabolite level of about 200 ng/ml. He demurred on answering further questions about whether the levels found in Romero, 100 ng/ml, was consistent with intoxication, stating that those issues were more properly answered by a toxicologist. Romero did testify that he had not smoked marijuana for a month before the accident, but his level of marijuana metabolites was not consistent with his testimony. The WCJ considered this in evaluating his credibility.

Another key difference is that the WCJ in Dean found that the employee had successfully rebutted the presumption of intoxication, and this court found no manifest error in that factual finding. Here, the record, taken as a whole, supports the conclusion of the WCJ that Romero failed to meet his burden of proving that he was not intoxicated or that his intoxication did not cause the accident. We do not find that the WCJ was clearly wrong. Romero’s first assignment of error lacks merit.

In his second assignment of error, Romero claims he introduced sufficient evidence to rebut the presumption that intoxication was a contributing cause of this accident. He argues that the evidence shows that he did nothing out of the ordinary in getting out of his truck, searching under the seat for a gallon bottle, and then closing his door. The evidence shows that Romero opened the door of his truck into the path of oncoming traffic after he saw a truck turn onto the road and drive in his direction at 3:00 a.m. When the door closed and Romero was outside his | struck, the driver of the oncoming vehicle swerved to avoid hitting Romero, but struck him with his mirror. The driver had no way of knowing that Romero was not in the truck in the dark, and swerved only at the last moment when he realized Romero was not in the cab of his truck. The WCJ found that Romero’s inattention and poor judgment were a result of his intoxication. We find no manifest error in this conclusion.

In his third assignment of error, Romero argues that the WCJ imposed a tougher standard because Romero tested positive rather than refusing the drug test. Romero mischaracterizes the WCJ’s comments in her oral reasons for judgment. The WCJ merely pointed out that the case law she reviewed showed that employees were more successful rebutting the presumption of intoxication when they refused a drug test. She did not apply a more stringent standard because Romero tested positive. This assignment of error lacks merit.

In her oral reasons for ruling, the WCJ also mentioned that the poor judgment exhibited by Romero in opening his truck door into the path of the oncoming truck was an indication of his intoxication. In his fourth assignment of error, Romero argues that the negligence of an employee should not be a bar to recovery of workers’ compensation benefits. The WCJ found that Romero’s poor judgment was an indication of intoxication and was relevant for determining the ultimate issue in this case. We find no merit in this assignment of error.

As we find the WCJ’s judgment denying benefits is supported by the evidence in this case, Romero’s fifth assignment of error regarding benefits, penalties and attorney fees is moot.

|7CONCLUSION

The judgment of the WCJ is affirmed in all respects. Costs of this appeal are assessed to Lawrence Romero.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns reasons.

COOKS, J., dissents.

THIBODEAUX, Chief Judge,

dissenting.

|,The plaintiff clearly rebutted that intoxication caused the accident. Dr. Heinen testified that the amount of marijuana found in Mr. Romero’s system would suggest smoking approximately one week before the accident. Further, the workers’ compensation judge commented that she found it difficult to believe or accept that the plaintiff could still be intoxicated a week after smoking marijuana. While she did say that the plaintiffs “poor judgment” was caused by intoxication, the record does not show that. We must give deference, of course, to the findings of the trial judge. But, the trial judge’s findings must have a reasonable basis. Those findings are not immutable. It is a stretch to say that smoking marijuana one week prior to the accident was the underlying causative factor for plaintiffs poor judgment without any corroborative evidence whatsoever. While the plaintiff may have exercised poor judgment, this judgment was simply the type of judgment that would be manifested by persons who had not even smoked marijuana.

Even assuming a credibility call, the presumption of intoxication was rebutted. If the objective evidence preponderates in favor of a permissible view, the court of appeal may indeed find manifest error in a finding purportedly based upon a credibility call. The law is so clear that this assertion needs no citation. In my view, the objective evidence, that is, the small amount of marijuana found in |2Romero’s system and the remoteness of the usage, clearly preponderates in his favor.

The trial judge, in my view, applied the wrong standard. The trial judge stated:

I do believe in my reasons for ruling that I indicated that an analysis I had done of the intoxication defenses up to a few years ago indicated to me that those cases where lay testimony was allowed to rebut the presumption involved cases where the presumption came into effect because a test was not done. There was no evidence by a test that the employee was intoxicated. The presumption came into effect because the employee refused the test....

That is an incorrect statement of the law. Lay testimony can rebut even when there is a test. For example, Simpson v. Jeanerette Sugar Co., 95-412 (La.App. 3 Cir. 11/2/95), 667 So.2d 1087, writ denied, 96-773 (La.5/3/96), 672 So.2d 688, involved a positive test for cocaine. Although the cocaine test may have been suspect, the employer was still given the benefit of the presumption. The presumption was rebutted, in part by lay testimony and the employee’s testimony. See also Bernard v. Cox Commc’ns, Inc., 01-1321 (La.App. 5 Cir. 3/26/02), 815 So.2d 259, writ denied, 02-1157 (La.6/14/02), 818 So.2d 782, which involved 69 nanograms per milliliter of marijuana. There, lay testimony also rebutted the presumption. Similarly, Forrester v. New Orleans Iron Works, 03-1194 (La.App. 5 Cir. 2/23/04), 869 So.2d 216, involved a positive test for intoxication which was rebutted by- lay testimony. Forrester also indicated that a claimant’s uncontradicted testimony may be sufficient if nothing casts doubt on that testimony. Thus, it seems, the workers’ compensation judge did not give much weight to the plaintiffs testimony because a test was done and, according to the workers’ compensation judge, lay testimony is allowed to rebut the presumption only when a test is not done. Wrong. Of course, when a legal error interdicts the fact finding process, we may do a de novo review. Upon a de novo review, 113would reverse the judgment of the Office of Workers’ Compensation and award benefits, but would not award penalties and attorney fees.

For the foregoing reasons, I dissent.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    William Mark DARBY v. QUALITY CONCRETE COMMERCIAL CONTRACTORS, INC., et al
    No. WCA 12-438.
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 2012.
    Mark Alfred Ackal, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Bridgefield Casualty Ins. Co., Quality Concrete Commercial Contractors, Inc.
    Craig Alan Davis, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, William Mark Darby.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

| jDefendants-Appellees, Quality Concrete Commercial Contractors, Inc., and Bridgefield Casualty Insurance Company, move to dismiss this appeal on the ground that Plaintiff acquiesced in the judgment at issue in this appeal. For the reasons given herein, we deny the motion.

This case arises out of a workers’ compensation claim which Plaintiff, William Mark Darby, filed against Defendants as a result of a work-related accident. Plaintiff allegedly fell into a hole and injured his back while working for Quality Concrete Commercial Contractors, Inc., on August 2, 2010. Plaintiff began receiving medical and indemnity benefits on August 6, 2010. However, Defendants subsequently terminated Plaintiffs benefits and refused to authorize medical treatment, including a recommended surgery, because Plaintiff had allegedly made false statements related to his claim. The case went to trial in October of 2011. In the judgment signed on November 30, 2011, Plaintiff was awarded workers’ compensation benefits as well as $2,000.00 in penalties and $5,000.00 in attorney’s fees. The notice of judgment was mailed on December 1, 2011. On January 23, 2012, Plaintiff filed a motion for appeal, and the order of appeal was signed on January 25, 2012.

The appeal was lodged in this court on April 12, 2012. At this time, Defendants seek to have this appeal dismissed pursuant to La.Code Civ.P. art. 2085, which provides as follows:

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

Defendants argue that the instant appeal should not be allowed because Plaintiff acquiesced in the judgment. In that regard, Defendants point out that, on December 14, 2011, they foiwarded three checks to Plaintiff to cover the workers’

12compensation benefits as well as the penalties and attorney’s fees which had been awarded to Plaintiff by the workers’ compensation court’s judgment of November 30, 2011. Defendants also point out that the checks representing the judgment amounts were negotiated and deposited by Plaintiff and his counsel on or about December 15, 2011, and that, on December 20, 2012, Plaintiffs attorney sent to Defendants’ counsel a letter acknowledging receipt of the checks representing the judgment amount. Defendants note that Plaintiff seeks to appeal only that portion of the workers’ compensation court’s judgment which pertains to penalties and attorney’s fees. However, Defendants argue that, by accepting payments for the amounts awarded for penalties and attorney’s fees, Plaintiff acquiesced in the penalties and attorney’s fees awarded. As such, Defendants assert that Plaintiff waived his right to appeal the judgment at issue in this appeal.

We note that in the judgment being appealed in the instant case, Plaintiff was awarded $2,000.00 for penalties and $5,000.00 for attorney’s fees. By this appeal, Plaintiff seeks to have the awards for penalties and attorney’s fees increased. However, Defendants argue that, pursuant to La.Code Civ.P. art. 2085, Plaintiffs appeal is prohibited. We note that Defendants’ argument that Plaintiff waived his right to appeal by acquiescing in the judgment is based solely on the fact that Plaintiff accepted payment of the $2,000,000 awarded for penalties and the $5,000.00 awarded for attorney’s fees.

While the first sentence in La.Code Civ.P. art. 2085 prohibits an appeal by a party who acquiesces in a judgment “rendered against him,” we find that the judgment at issue is not a judgment rendered completely against Plaintiff. Rather, we find that the judgment was only “against Plaintiff’ in the sense that he was denied larger awards for penalties and attorney’s fees. As such, we hold that the first sentence in La.Code Civ.P. art. 2085 does not serve to bar Plaintiffs appeal in this case.

| ^Further, we note that the second sentence in La.Code Civ.P. art. 2085 provides that “[cjonfession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.” Because Plaintiff was awarded some of the penalties and attorney’s fees he sought to recover from the workers’ compensation court, we find that the judgment at issue in this appeal was partially in Plaintiffs favor. We note that with regard to situations wherein a plaintiff files an appeal seeking an increase in quantum, the jurisprudence has held that “... one who accepts payment of or even executes upon a money judgment does not thereby acquiesce in any part of a judgment ‘against him,’ but only in the judgment insofar as it is in his favor.” Eck v. O’Flarity, 498 So.2d 1210, 1210 (La.App. 4 Cir.1986).

In the instant case, we find that while Plaintiff acquiesced in the favorable portion of the judgment which awarded him $2,000.00 in penalties and $5,000.00 in attorney’s fees, he did not acquiesce in the unfavorable portion of the judgment which denied his requests for additional amounts for penalties and attorney’s fees. As such, we conclude that La.Code Civ.P. art. 2085 does not bar Plaintiff from appealing the workers’ compensation court’s awards for penalties and attorney’s fees. We find that such a conclusion is appropriate because this court has stated that “[generally, a party who successfully gains a judgment in his or her favor may accept payment of the judgment, without forfeiting the right to an appeal. This is because appeals are favored and the forfeiture of a right to appeal through acquiescence in a judgment, is never presumed.” Johnson v. Hamilton Medical Group, 05-204 (La.App. 8 Cir. 4/20/05), 900 So.2d 841, 342 (citations omitted).

For the foregoing reasons, Defendants’ motion to dismiss the appeal is denied at Defendants’ cost.

MOTION TO DISMISS APPEAL DENIED.


author: KEATY, Judge.

text:
    Stephen FINLEY, et ux. v. CHRISTUS ST. FRANCES CABRINI HOSPITAL, et al.
    No. 12-149.
    Court of Appeal of Louisiana, Third Circuit.
    July 25, 2012.

      John E. Morton, Morton Law LLC, Alexandria, LA, for Plaintiffs/Appellees, Stephen Finley, Stacy Finley.
    Madeline Lee, R. Preston Mansour, Jr., Bolen, Parker, Brenner, Lee & Engels-man, Ltd., Alexandria, LA, for Defendant/Appellant, Dr. Charles Ugokwe.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

Lin this medical malpractice case, the trial court granted plaintiffs’ motion for partial summary judgment against defendant doctor, Charles Ugokwe, finding that he breached the standard of care by misdiagnosing Stacy Finley’s condition. Finding that the trial court’s grant of summary judgment was based on a factual finding and was not timely pursuant to La.Code Civ.P. art. 966, we reverse and remand for a trial on the merits. Further finding that the trial court has broad discretion in whether to consider untimely opposition memoranda and attachments, which was addressed by the trial court prior to proceeding with the motion for summary judgment, we deny plaintiffs’ motion to strike Dr. Charles Ugokwe’s opposition to the motion for partial summary judgment.

FACTS AND PROCEDURAL HISTORY

According to plaintiffs’ petition, Ms. Finley presented to the emergency room at Christus St. Frances Cabrini Hospital on August 30, 2002, where she was not diagnosed for nearly a week and was ultimately misdiagnosed. Her claim had previously been submitted to a medical review panel that rendered its opinion on March 10, 2005, and found that Dr. Ugokwe’s actions “did not constitute a deviation from the applicable standard of care” and that “given the multiplicity and vastly divergent symptoms with which the patient presented, [Dr. Ugokwe] took all reasonable steps in an attempt to timely reach a diagnosis of this very difficult to diagnose condition. There were differing diagnoses by various specialists, and he ordered appropriate diagnostic testing.” She then filed suit against Dr. Ugokwe and three other defendants on May 11, 2005.

1¡¡Plaintiffs’ motion for partial summary judgment that gave rise to this appeal involved Dr. Ugokwe only. In it, they alleged that Dr. Ugokwe’s expert, Dr. Robert Schwendimann, who also served on the medical review panel for this case, agreed with their expert on many issues concerning Dr. Ugokwe’s duty of care and alleged breach of that duty, thereby making those issues ripe for summary judgment. Their motion was filed on August 24, 2011. On August 31, 2011, Dr. Ugokwe filed his objection to plaintiffs’ second motion for summary judgment. The opposition was served on plaintiffs’ counsel by a runner, who left the opposition in the mail slot of the building when it was evident that plaintiffs’ attorney was not present. Plaintiffs’ counsel filed a motion to strike Dr. Ugokwe’s opposition to the summary judgment. Both matters were heard by the trial court on September 8, 2011, and the motion for partial summary judgment was granted. On September 12, 2011, judgment was signed and made final for purposes of appeal. A trial on the merits had been scheduled for September 20, 2011, and was stayed subsequent to the summary judgment hearing. Dr. Ugokwe appealed the trial court’s grant of summary judgment.

ISSUES

There are two issues for our consideration. The first issue is whether plaintiffs’ “Motion to Strike Defendants Opposition to Plaintiffs’ Second Motion for Partial Summary Judgment” should be granted. The second issue as argued by Dr. Ugokwe is whether the trial court’s grant of summary judgment was improper.

DISCUSSION

We take judicial notice that the judgment granting summary judgment was improper. Louisiana Code of Civil Procedure Article 966(D) provides: “[t]he | ¡¡court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.” In the instant case, judgment was rendered on September 12, 2011, and trial was scheduled for September 20, 2011, which constitutes reversible error. See Envtl. Operators, L.L.C. v. Natco, Inc., 08-1183 (La.App. 4 Cir. 3/18/09), 7 So.3d 1232; and Mitchell v. St. Paul Fire & Marine Ins. Co., 98-1924 (La.App. 4 Cir. 1/27/99), 727 So.2d 1245. Although this defect constitutes reversible error, we will not address an error not raised in brief. Uniform Rules — Courts of Appeal, Rule 1-3.

Motion to Strike

Plaintiffs allege that Dr. Ugokwe’s opposition to their motion for summary judgment was not timely served on them in accordance with law. In the instant case, counsel for plaintiffs, Mr. John Morton, filed his motion for summary judgment with the court on August 24, 2011, and on that same date, it was set for hearing on September 8, 2011. He included service instructions on that filing. Allegedly, counsel for Dr. Ugokwe, Ms. Madeline Lee, was not served with the motion and order until August 30, 2011. On August 31, 2011, she filed an opposition to the motion for summary judgment and asked her runner to hand-deliver the document to Mr. Morton pursuant to La.Code Civ.P. art. 1313. Mr. Morton was not in his office, and the runner deposited the opposition into the building’s mail-slot. On September 1, 2011, Mr. Morton confirmed receipt of the opposition in an e-mail to Ms. Lee. He subsequently filed a motion to strike Dr. Ugokwe’s opposition, alleging it was not properly and timely served on him. Whether Dr. Ugokwe’s opposition to the motion for partial summary judgment should be stricken from the record was decided by the trial court on September 8, |42011. Accordingly, it is appropriate for us to review the trial court’s decision under the appropriate standard of review rather than address the issue anew.

Service of motions for summary judgments and oppositions thereto are governed by La. Code Civ.P. art. 966(B), which requires that they be served within the time delays provided in “District Court Rule 9.9” and requires that oppositions be served pursuant to La.Code Civ.P. art. 1313. District Court Rule 9.9(a) mandates a memorandum in support of an exception or motion and requires that it be served on all other parties “so that it is received by the other parties at least fifteen calendar days before the hearing.” District Court Rule 9.9(b) requires service of oppositions to the exceptions or motions so that they are received “at least eight calendar days before the hearing.” Paragraph (d) of Rule 9.9 indicates that a party who fails to comply with paragraphs (a) or (b) of the Rule “may forfeit the privilege of oral argument.” Louisiana Code of Civil Procedure Article 1313 allows service by the sheriff, by mailing a copy to the counsel of record, by transmitting a copy by electronic means, or by delivering a copy to the clerk of court if there is no counsel of record and address for the adverse party is not known.

Although plaintiffs’ counsel correctly points out that the fifth circuit, in Trusty v. Allstate Insurance Co., 03-289 (La.App. 5 Cir. 11/12/03), 861 So.2d 634, found that service was insufficient when the process server put the motion in an attorney’s mail slot after being unable to locate the attorney, this non-binding case can be distinguished from the instant case because in Trusty the insufficient service of a motion to compel and a rule to show cause were at issue. Both of these pleadings set a court date, mandating service “by registered or certified mail or as provided in Article 1314.” La.Code CivJP. art. 1313(C). In the instant case, the document being served was a memorandum in opposition to a motion for summary judgment, which can be served pursuant to La.Code Civ.P. art. 1313 because it 15does not set a matter for hearing. Louisiana Code of Civil Procedure Article 1313(A)(2) allows service by “[djelivering a copy thereof to the counsel of record” but does not specify where, how, or to what degree “delivery” is sufficient for matters that need not be served by certified mail or through a process server. There is no relevant interpretive jurisprudence that we have found concerning the sufficiency of service of a memorandum so as to constitute “delivery to counsel of record.”

However, whether an opposition to summary judgment will be considered is left to the discretion of the trial court. See Guillory v. Chapman, 10-1370 (La.9/24/10), 44 So.3d 272 (finding that the trial court did not abuse its discretion in “choos[ing] to follow the mandatory language of La.Code Civ.P. art. 966(B)(2), which requires a party opposing the motion for summary judgment to serve opposing affidavits and any memorandum in support thereof ‘at least eight days prior to the date of the hearing.’ ”); Buggage v. Volks Constructors, 06-175 (La.5/5/06), 928 So.2d 536 (finding that the trial court was “within its discretion in excluding an opposition filed a few minutes before the scheduled hearing on the motion,” thereby precluding the appellate court from considering the late-filed opposition on appeal); and Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. 3 Cir. 12/8/10), 54 So.3d 739 (finding that the trial court did not abuse its discretion in granting a motion to strike an untimely opposition and affidavit). In Phillips, 54 So.3d at 743, this court stated that “the trial courts have some discretion to allow the late-filed materials. Nevertheless, these decisions indicate that it is not an abuse of discretion to disallow the late-filed materials because of the statute’s mandatory language.”

The issue of whether Dr. Ugokwe’s opposition should be stricken was considered by the trial court during the September 8, 2011 hearing on plaintiffs’ | fimotion to strike and motion for partial summary judgment. After considering the pleadings and argument of counsel on the motion to strike, the trial court stated: “Well, I don’t find any prejudice to either side. So, I’m going to deny the Motion to Strike.” We find no abuse of discretion in the trial court’s ruling. After carefully reviewing the record and the relevant law, it is clear that the trial court was exercising its right to allow late-filed oppositions and that neither party was disadvantaged by Ms. Lee’s day-late filing of the opposition, particularly since she was not properly served with the motion for partial summary judgment until August 30, 2011, only eight instead of the required fifteen days before the hearing, and she filed and served her opposition the day after she was properly served with Mr. Morton’s pleadings. The motion to strike is denied.

Summary Judgment

The motion for summary judgment is a procedural device whose purpose is to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish those ends. La. Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. The burden of proof on the motion for summary judgment remains with the movant. La.Code Civ.P. art. 966(C)(2).
However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2). The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, 17show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Appellate review of a summary judgment is de novo, applying the same standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

Bergeron v. Liberty Mut. Ins. Co., 12-86, pp. 1-2 (La.App. 3 Cir. 6/6/12), 92 So.3d 645, 647.

On August 24, 2011, plaintiffs in the instant case filed their “second motion for partial summary judgment” despite the pending trial and the denial of their previous two motions for partial summary judgment against Dr. Ugokwe. According to their motion, they had recently taken the deposition of Dr. Robert Schwendimann, expert witness for Dr. Ugokwe, a second time, and he agreed with plaintiffs’ expert witnesses on several issues, supposedly proving that Dr. Ugokwe breached standards of care, standard practices, and did not exercise proper judgment.

However, “[t]he question of whether conduct fell below the applicable standard of care is a factual determination.” Hypolite v. Columbia Dauterive Hosp., 07-357, p. 6 (La.App. 3 Cir. 10/3/07), 968 So.2d 239, 243 (citing Curtis v. Columbia Doctors’ Hosp. of Opelousas, 03-916 (La.App. 3 Cir. 12/17/03), 862 So.2d 1125). Factual findings cannot be determined by summary judgment. See La.Code Civ.P. art. 966. Accordingly, the trial court’s grant of summary judgment was improper.

CONCLUSION

Finding that summary judgment was granted on an issue of fact in violation of La.Code Civ.P. art. 966, we reverse the trial court’s grant of summary judgment and remand this matter for a trial on the merits. Costs of this appeal are assessed against plaintiffs/appellees, Stacy and Stephen Finley.

REVERSED AND REMANDED.

      . It was a partial motion for summary judgment because it only concerned Dr. Ugokwe’s liability not that of the other defendants.


author: RANDOLPH, Justice, KITCHENS, Justice,

text:
    DIALYSIS SOLUTIONS, LLC v. MISSISSIPPI STATE DEPARTMENT OF HEALTH; Mary Currier, in her Official Capacity as the Executive Director of the Department, State Health Officer; and RCG-Montgomery County, LLC.
    No. 2011-SA-01041-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.
    Rehearing Denied Sept. 20, 2012.

      Bryant Wandrick Clark, Lexington, Robert G. Clark, III, attorneys for appellant.
    Office of the Attorney General by Bea-tryce McCrosky Tolsdorf, Barry K. Cock-rell, attorneys for appellees.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. The Mississippi State Department of Health (“MDH”) entered a final order disapproving the certificate of need application of Dialysis Solutions, LLC. Pursuant to Mississippi Code Section 41-7-201, as amended, Dialysis Solutions filed a direct appeal of the MDH’s final order with this Court. See Miss.Code Ann. § 41-7-201 (Supp.2011). Thereafter, this Court entered an order on its own motion, seeking briefing from the parties and the Attorney General regarding whether Section 41-7-201, as amended, “is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the [MDH].” After due consideration, this Court concludes that Section 41-7-201, as amended, is unconstitutional under Article 6, Section 146 of the Mississippi Constitution. See Miss. Const, art. 6, § 146 (1984). This Court will not exercise appellate jurisdiction over Dialysis Solutions’ direct appeal from the final order of the MDH.

FACTS

¶ 2. On October 1, 2007, Dialysis Solutions filed a completed certificate of need application regarding its proposed capital expenditure of $179,000 to establish a six-station, end-stage renal dialysis facility in Montgomery County, Mississippi. In November 2007, the MDH staff recommended disapproval of Dialysis Solutions’ application because “[t]his project is not in substantial compliance with criteria and standards for establishment of end stage renal disease facilities, as contained in the FY 2007 State Health Plan; the [MDH’s] Certificate of Need Review Manual ...; and all adopted rules, procedures, and plans of the [MDH].” On December 4, 2007, a “Request for Public Hearing During the Course of Review” was filed by RCG-Montgomery County, LLC (“RCG”), as an “affected person” who opposed the project. RCG requested an independent hearing officer to conduct the hearing. At the October 26, 2010, hearing before Administrative Hearing Officer Cassandra B. Walter, four witnesses were subjected to direct- and cross-examination, and fourteen exhibits were introduced. On June 15, 2011, the hearing officer issued a twenty-four-page “Findings of Fact, Conclusions of Law and Recommendation.” This ruling considered all applicable criteria, then recommended denial of Dialysis Solutions’ application for failure “to substantially comply with the applicable Specific Criteria and General Goals in the State Health Plan, as well as with all applicable General Considerations in the CON Review Manual.” On June 30, 2011, Mississippi State Health Officer Mary Currier filed a “Decision of Intent” regarding Dialysis Solutions’ certificate of need application, which provided that “after considering the [MDH’s] plans, standards and criteria; staffs analysis; hearing officer’s recommendation, if any, and making written findings, that the proposed be Disapproved.An accompanying letter from Currier to Dialysis Solutions provided that “[t]his letter constitutes the Final Order disapproving the application for a CON.”

¶ 3. At the time of the June 30, 2011, final order, Section 41-7-201(2) provided, in pertinent part, that:

(2) ... any party appealing any final order of the [MDH] pertaining to a certificate of need for any health care facility as defined in Section 41-7-173(h), •with the exception of any home health agency as defined in Section 41-7-173(h)(ix):
(b) ... shall have the right of appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi, which appeal must be filed within twenty (20) days after the date of the final order. Provided, however, that any appeal of an order disapproving an application for such a certificate of need may be made to the chancery court of the county where the proposed construction, expansion or alteration was to be located or the new service or purpose of the capital expenditure was to be located. Such appeal must be filed in accordance with the twenty (20) days for filing as heretofore provided. []
(g) Appeals in accordance with law may be had to the Supreme Court of the State of Mississippi from any final judgment of the chancery court.

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

¶ 4. Effective July 1, 2011, Section 41-7-201 was amended to provide, in pertinent part, that:

any party appealing any final order of the [MDH] pertaining to a certificate of need for any health care facility as defined in Section 41-7-173(h) ... (b) ... shall have the right of direct appeal to the Mississippi Supreme Court, which appeal must be filed within twenty (20) days after the date of the final order.

Miss.Code Ann. § 41-7-201 (Supp.2011) (emphasis added).

¶ 5. On July 19, 2011, Dialysis Solutions filed notice of appeal and a “Petition to Appeal [MDH] Certificate of Need Decision” in this Court. According to Dialysis Solutions, it “exhausted its administrative remedies before the [MDH] and is entitled to appeal the decision of the [MDH] to this Court pursuant to [Section] 41-7-201.”

¶ 6. On July 25, 2011, Dialysis Solutions filed a “Motion to Approve Bond Amount” in this Court. See Miss.Code Ann. § 41-7-201(d) (Supp.2011) (“Any appeal of a final order by the [MDH] in a certificate of need proceeding shall require the giving of a bond by the appellant(s) sufficient to secure the appellee against the loss of costs, fees, expenses and attorney’s fees incurred in defense of the appeal, approved by the Supreme Court within five (5) days of the date of filing the appeal.”). On July 28, 2011, this Court entered an order on its own motion, seeking briefing from the parties and the Attorney General regarding whether Section 41-7-201, as amended, “is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the [MDH].”

ANALYSIS

¶ 7. “When a party invokes our power of judicial review [of the constitutionality of a statute], it behooves us to recall that the challenged act has been passed by legislators and approved by a governor sworn to uphold the self-same constitution as we are.” State v. Roderick, 704 So.2d 49, 52 (Miss.1997) (quoting In Interest of T.L.C., 566 So.2d 691, 696 (Miss.1990)). Accordingly, statutes “come before us clothed with a heavy presumption of constitutional validity.” Id. In determining whether the statute “violates the Constitution, ... courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.” State v. Bd. of Levee Comm’rs for Yazoo-Mississippi Delta, 932 So.2d 12, 19 (Miss.2006) (quoting Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 803 (1938)) (emphasis added). See also Natchez & S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 598 (1911) (“[i]f there is reasonable doubt of [a statute’s] constitutionality, it must be upheld by the courts. If it is susceptible of two interpretations, one in favor of constitutionality and the other against, it is the duty of the courts to uphold it.”) (citation omitted).

¶ 8. This Court has stated that:

[i]n consonance with the spirit and intent of the [separation of powers] constitutional provisions [Miss. Const, art. 1, §§ 1-2], the courts of this state have uniformly held that the Legislature is unthout power to confer upon courts jurisdiction that is not given or authorized to be given them by the Constitution, and that the Legislature can impose no duties on the judiciary but such as are of a judicial character.

Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747, 752 (Miss.1998) (citations omitted) (emphasis added). Prior to 1984, the Mississippi Constitution stated only that “[t]he Supreme Court shall have such jurisdiction as properly belongs to a court of appeals.” Miss. Const. art. 6, § 146 (1983). In 1984, that section was amended to provide:

[t]he Supreme Court shall have such jurisdiction as properly belongs to a court of appeals, and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. The legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility. The Supreme Court shall consider cases and proceedings for modification of public utility rates in an expeditious manner regardless of their position on the court docket.

Miss. Const, art. 6, § 146 (1984). Thus, under the Mississippi Constitution, the Legislature has “plenary power” over appellate jurisdiction. Drummond, 185 So. at 209.

¶ 9. The question then becomes whether a final order of the Mississippi State Health Officer constitutes a “judicial decision] rendered by a tribunal clothed with judicial power.” Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743, 743 (1913) (the “revisory,” appellate jurisdiction conferred upon this Court in Section 146 applies only to “judicial decisions rendered by a tribunal clothed with judicial power.”) (citations omitted). See also Glenn v. Herring, 415 So.2d 695, 697 (Miss.1982). If not, then Section 41-7-201, as amended, is unconstitutional because it impermissibly confers original jurisdiction upon this Court.

¶ 10. A “certificate of need” is: a written order of the [MDH] setting forth the affirmative finding that a proposal in prescribed application form, sufficiently satisfies the plans, standards and criteria prescribed for such service or other project by [the “Mississippi Health Care Certificate of Need Law of 1979”], and by rules and regulations promulgated thereunder by the [MDH].

Miss. Code Ann. § 41-7-173(b) (Rev. 2009). As such, a certificate of need is akin to a permit to provide health-care services, and its procurement is not necessarily adversarial. See Boyles v. Mississippi State Oil & Gas Bd., 794 So.2d 149, 158 (Miss.2001) (quoting McDonald v. Watt, 653 F.2d 1035, 1041-42 (5th Cir.1981)) (“The existence of a dispute concerning particular individuals is a distinguishing characteristic of adjudication.”). This distinguishes a final order of MDH regarding a certificate of need application from a ruling of the Mississippi Workers’ Compensation Commission (“Commission”), which necessarily involves an employer-employee dispute. Commission rulings are further distinguishable because that quasijudicial power was selected to “administefr]” the statutorily created mechanism under which personal-injury lawsuits “by injured workers against employers” were removed from the tort system, with “[e]mployers receiving] fixed levels of potential liability which they can anticipate and treat as a general ‘cost of doing business’ ” in exchange for “[e]m-ployees receiving] guaranteed compensation for covered injuries, bypassing the civil-litigation risks of either no recovery or uncollectible judgments against insolvent employers.” Miss.Code Ann. § 71-3-1 (Rev. 2011); Franklin Corp. v. Tedford, 18 So.3d 215, 220-21 (Miss.2009) (quoting Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 Harv. L. Rev. 1641, 1641 (1983)). In short, personal-injury, workers’ compensation cases would have been heard in the courts under the common law, until the Legislature “validly delegated quasi-judicial power” to the Commission. Alaska Pub. Interest Research Group v. State, 167 P.3d 27, 39 (Alaska 2007). By contrast, no certificate of need procedure existed at common law, as it is a statutory creation.

¶ 11. We acknowledge that similarities exist between a final order of the MDH regarding a certificate of need application and a Commission ruling. For instance, both MDH and the Commission make the final factual determination in a particular case. See Miss.Code Ann. §§ 41-7-197(2) (Rev. 2009), 41-7-201(e) (Supp.2011) (“No new or additional evidence” is to be introduced before this Court); Miss.Code Ann. § 71-3-51 (Rev. 2011) (Commission appeals “shall be considered only upon the record as made before the commission.”); Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (Miss.2010) (citations omitted) (“No court can reweigh the evidence; the Commission is the fact-finder and the judge of the credibility of witnesses.”). In reviewing a certificate of need application:

the hearing officer and any person affected by the proposal being reviewed may conduct reasonable questioning of persons who make relevant factual allegations concerning the proposal. The hearing officer shall require that all persons be sworn before they may offer any testimony at the hearing, and the hearing officer is authorized to administer oaths. Any person so choosing may be represented by counsel at the hearing. A record of the hearing shall be made, which shall consist of a transcript of all testimony received, all documents and other material introduced by any interested person, the staff report and recommendation and such other material as the hearing officer considers relevant, including his own recommendation, which he shall make within a reasonable period of time after the hearing is closed and after he has had an opportunity to review, study and analyze the evidence presented during the hearing. The completed record shall be certified to the State Health Officer, who shall consider only the record in making his decision, and shall not consider any evidence or material which is not included therein. All final decisions regarding the issuance of a certificate of need shall be made by the State Health Officer. The State Health Officer shall make his written findings and issue his order after reviewing said record.

Miss.Code Ann. § 41-7-197(2) (Rev. 2009) (emphasis added). Furthermore, a final order of MDH regarding a certificate of need application and a Commission ruling are subject to similar standards of review. See Miss.Code Ann. § 41 — 7—201(f) (Supp. 2011); Short, 36 So.3d at 1250-51. Namely, under the amended version of Section 41-7-201:

[t]he 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 [MDH] 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 [MDH], or violates any vested constitutional rights of any party involved in the appeal.[]

Miss.Code Ann. § 41-7-201(f) (Supp.2011).

¶ 12. Based upon Section 41-7-197(2), this Court has little doubt that the “Final Order” of the State Health Officer involves “the application ... of the law to a state of facts proved, or admitted to be true, and a declaration of the consequences which follow.” Dodd, 61 So. at 743 (quoting Le Blanc v. R.R. Co., 73 Miss. 463, 19 So. 211, 212 (1896)). Thus, MDH does exercise some “quasi-judicial” function. Boyles, 794 So.2d at 157. See also McCaffrey’s Food Market, Inc. v. Mississippi Milk Comm’n, 227 So.2d 459, 463 (Miss. 1969) (“[t]he quasi-judicial inquiry declares and enforces liabilities on present or past facts on law already existing.”). Furthermore, based upon either the pre- or post-amendment versions of Section 41-7-201, this Court has no doubt that a final order of the MDH is subject to review. See Glenn, 415 So.2d at 697 (“appellate jurisdiction necessarily implies that the subject matter must have been acted upon by [a] tribunal whose judgments or proceedings are to be reviewed.”).

¶ 13. Yet:
[t]he fact that there has been a decision ... is not sufficient; ... there must have been a decision by a court clothed with judicial authority and acting in a judicial capacity. The tribunal from which an appeal lies need not be called a “court”; but it must be one having the attributes of a court — a tribunal where justice is judicially administered.

Dodd, 61 So. at 743 (quoting State Auditor v. Atchison, 6 Kan. 500 (1870)) (emphasis added). See also Le Blanc, 19 So. at 212 (to constitute a “judicial decision,” that “application” and “declaration” must be by “a court of competent jurisdiction ... ”). Certificate of need applications were not heard by courts at common law, then legislatively delegated to MDH. Rather, they were nonexistent at common law. Furthermore, the nature of a certificate of need proceeding is permit-like and often nonadversarial. See Boyles, 794 So.2d at 158 (quoting McDonald, 653 F.2d at 1041-42) (“The existence of a dispute concerning particular individuals is a distinguishing characteristic of adjudication”). In such proceedings, the hearing officer is not necessarily independent, but acts as a quasi-advocate for MDH, ensuring that the evidence presented satisfies MDH’s policies as prescribed by its “plans, standards and criteria_” Miss.Code Ann. § 41-7-173(b) (Rev. 2009). Thereafter, the hearing officer does not issue an enforceable order, but only a recommendation to the agency head, the State Health Officer. Ultimately, the final order of MDH is issued by the State Health Officer, an individual not statutorily required to be an attorney. See Miss.Code Ann. § 41-3-5.1 (Rev. 2009). Because of these distinguishing factors, inter alia, this Court concludes that MDH lacks the indicia to be considered “a tribunal of the character from which the Legislature is authorized to grant appeals direct to this [C]ourt.” Dodd, 61 So. at 745. As such, the direct appeal of a final order of the MDH imper-missibly confers original jurisdiction upon this Court.

¶ 14. This conclusion of unconstitutionality is bolstered further by inconsistencies and deficiencies in the present statutory scheme. For example, Section 41-7-197(3) still provides that:

[i]f review by the [MDH] concerning the issuance of a certifícate of need is not complete within the time specified by rule or regulation, which shall not, to the extent practicable, exceed ninety (90) days, the certificate of need shall not be granted. The proponent of the proposal may, within thirty (30) days, after the expiration of the specified time for review, commence such legal action as is necessary, in the Chancery Court of the First Judicial District of Hinds County or in the chancery court of the county in which the new institutional health service is to be provided, to compel the State Health Officer to issue written findings and written order approving or disapproving the proposal in question.

Miss.Code Ann. § 41-7-197(3) (Rev. 2009) (emphasis added). The commencement of legal action in the chancery court to compel action by the State Health Officer seems inconsistent with the direct-appeal mechanism provided in Section 41-7-201, as amended. Furthermore, within the newly created direct-appeal mechanism, this Court is called upon to address ancillary issues regarding bond amounts and attorney fees for which it is unsuited. See Miss.Code Ann. § 41-7-201 (d) & (f) (Supp. 2011).

CONCLUSION

¶ 15. Based upon the above analysis, this Court concludes that, because the direct appeal of MDH’s final order to this Court impermissibly confers original jurisdiction upon this Court, then Section 41-7-201, as amended, “appears beyond all reasonable doubt to violate the Constitution.” Bd. of Levee-Comm’rs, 932 So.2d at 19 (quoting Albritton, 178 So. at 803). Accordingly, the direct appeal of MDH’s final order to this Court is impermissible and the appeal is dismissed. This disposition does not preclude a direct appeal of MDH’s final order to the appropriate chancery court.

¶ 16. APPEAL DISMISSED.

WALLER, C.J., DICKINSON, P.J., LAMAR, PIERCE AND KING, JJ., CONCUR. KITCHENS, J„ CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON, P.J., AND CHANDLER, J.

KITCHENS, Justice,

concurring in part and in result:

¶ 17. I agree with the majority’s analysis and result regarding the unconstitutionality of Mississippi Code Section 41-7-201 (Rev. 2011). However, I cannot distinguish the statute at issue in the instant case from the Legislature’s impermissible bestowal of jurisdiction upon this Court under Mississippi Code Section 71-3-51 (Rev. 2011), which allows for the direct appeal of the decisions of the Mississippi Workers’ Compensation Commission to this Court. In neither instance is this Court exercising “jurisdiction as properly belongs to a court of appeals.” Miss. Const., art. 6, § 146.

¶ 18. A hearing conducted for the purpose of reviewing a certifícate of need application allows for the “questioning of persons who make relevant factual allegations concerning the proposal,” and all those testifying are required to be placed under oath. Miss.Code Ann. § 41-7-197(2) (Rev. 2009). Parties have a right to counsel at the hearing. Id. A record of the proceedings is made, including a transcript of all adduced testimony and all documents introduced into evidence by an interested person. Id. Likewise, hearings conducted by the Mississippi Workers’ Compensation Commission are conducted “in such manner as best to ascertain the rights of the parties.” Miss.Code Ann. § 71-3-55(1) (Rev. 2011). Hearings before the Commission are “open to the public” and “steno-graphically reported or recorded and transcribed.” Miss.Code Ann. § 71-3-55(2) (Rev. 2011). I find the nature of the these proceedings indistinguishable, as both are “imbued with some indicia of a court of record.” Johnson v. Sysco, 2011-WC-01086-SCT (¶ 8) (Miss. May 5, 2011) (Kitchens, J., dissenting). However, as I noted in Johnson v. Sysco, the final orders of these agencies are “not decisions rendered ‘by a court clothed with judicial authority and acting in a judicial capacity.’ ” Id. (quoting Illinois Cent. R.R. Co. v. Dodd, 105 Miss. 23, 61 So. 743 (1913)).

¶ 19. I am not persuaded that the final orders of either of these agencies constitute judicial decisions, as a “[j]udicial decision is the application by a court of competent jurisdiction of the law to a state of facts proved or admitted to be true, and a declaration of the consequences which follow.” Le Blanc v. Illinois Cent. R. Co., 73 Miss. 463, 19 So. 211, 212 (Miss.1896) (emphasis added). Thus, I reiterate that the Legislature, in its enactment of Sections 41-7-201 and 71-3-51 has, in direct conflict with our state Constitution, bestowed original jurisdiction upon this Court over direct appeals of the decisions of the State Department of Health and the Mississippi Workers’ Compensation Commission. In reviewing the final orders of both the State Department of Health and the Mississippi Workers’ Compensation Commission, this Court becomes “the first, last, and only court to pass upon” these cases. Johnson, 2011-WC-01086-SCT (¶9). Because I discern no distinction between the unconstitutional conveyance of original jurisdiction provided in both statutes, I cannot fully join the majority’s analysis.

WALLER, C.J., CARLSON, P.J., AND CHANDLER, J., JOIN THIS OPINION.

        .See Drummond v. State, 184 Miss. 738, 185 So. 207, 209 (1938) (quoting Mississippi State Highway Dep't v. Haines, 162 Miss. 216, 227, 139 So. 168, 171 (1932)) ("The Supreme Court in all cases is bound to inquire into its own jurisdiction, and decline to exercise a power not conferred upon it by law. And, if the question of jurisdiction is not raised by either of the parties to a cause, it is the duty of the Supreme Court to raise it of its own motion.").

      . " ‘End stage renal disease (ERSD) facilities’ means kidney disease treatment centers, which includes freestanding hemodialysis units and limited care facilities.” Miss.Code Ann. § 41 — 7—173(h)(v) (Rev. 2009).

      . Dialysis Solutions and RCG were adversarial patties in Dialysis Solution, LLC v. Missis

        sippi State Dep’t of Health, 31 So.3d 1204 (Miss.2010). On appeal, Dialysis Solutions successfully argued that MDH was not statutorily authorized to grant an extension of RCG's certificate of need for a six-station "kidney-disease treatment facility” in Montgomery County after the date of expiration specified in the certificate of need. Id. at 1206-07. This Court concluded that "[i]f the [MDH] still wants to issue a CON for an ERSD facility in Montgomery County, it will have to reopen the CON application and review process as provided by statute and regulation.” Id. at 1216.

      . MDH’s "Certificate of Need Review Manual” provides that "[t]he requested hearing shall be conducted by a hearing officer designated by the [MDH]. Any party may request an independent hearing officer. If such is requested, the [MDH] shall designate a hearing officer who shall not be an employee of the [MDH] but who shall be a licensed attorney.” See Mississippi State Department of Health-Certificate of Need Review Manual, http://msdh.ms.gov/msdhsite/static/resources/ 4369.pdf (last visited June 20, 2012) (emphasis added).

      . The June 30, 2011, letter from Currier to Dialysis Solutions noted that, pursuant to Section 41-7-201(2), “any party aggrieved by this Final Order ... shall have the right of appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi.”

      . Based thereon, this Court entered an order which provided that Dialysis Solutions’ "Motion to Approve Bond Amount” would be "passed for consideration by the en banc Court” because "the request for this Court to approve the bond amount is related to the jurisdictional questions which are being briefed....” Because of the disposition of this case, that motion is now dismissed as moot.

      . Those same requirements were imposed upon the chancery court under the preamend-ed version of Section 41-7-201. See Miss. Code Ann. § 41-7-201(2)(f) (Rev. 2009).

      . In that capacity, the hearing officer may even "conduct reasonable questioning of persons who make relevant factual allegations concerning the proposal.” Miss.Code Ann. § 41-7-197(2) (Rev. 2009).

      . Additionally, MDH's argument that the streamlining provided by direct appeals to this Court is necessary to prevent certificate of need applications from becoming "lost in litigation for years” lacks merit. In reality, the preamended version of Section 41-7-201 provided, in pertinent part, that:
      [t]he chancery court shall give preference to any such appeal from a final order by the [MDH] in a certificate of need proceeding, and shall render a final order regarding such appeal no later than one hundred twenty (120) days from the date of the final order by the [MDH], If the chancery court has not rendered a final order within this 120-day period, then the final order of the [MDH] ' shall be deemed to have been affirmed by the chancery court, and any party to the appeal shall have the right to appeal from the chanceiy court to the Supreme Court

      Miss.Code Ann. § 41-7-20 l(2)(c) (Rev. 2009) (emphasis added). Thus, any purported delay created by the chancery court first addressing the matter would be no greater than four months.


author: RANDOLPH, Justice,

text:
    Darrin D. WILSON a/k/a Darrin Wilson v. STATE of Mississippi.
    No. 2011-KA-00295-SCT.
    Supreme Court of Mississippi.
    June 28, 2012.
    Rehearing Denied Sept. 20, 2012.

      Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. Darrin D. Wilson appeals his conviction of rape, burglary, extortion, and two counts of kidnapping in the Scott County Circuit Court. Finding that all of Wilson’s claims on appeal lack merit, we affirm the convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around 10:30 p.m. on April 14, 2010, Jessica Goodwin was at her home in Scott County with her infant daughter, Kaylee Alford. Goodwin lived with her daughter and fiancé, Brian Alford, but Brian had left for work at about 10:00 that night. As she was preparing to bathe Kaylee, Goodwin put the baby in her crib and walked to the living room to pick up something. While in the living room, Goodwin looked up and saw a person in a mask pointing a gun at her. Goodwin testified that the back door had been shut but unlocked, and that the person had come in through the back door. The person asked Goodwin for money and guns, and she told him that she didn’t have either. He put the gun to Goodwin’s head and walked with her to the bedroom, where Kaylee was in her crib. As they were walking to the bedroom, Goodwin saw a second person wearing a mask and carrying a gun walk in through the back door. Goodwin continued to insist that she had no money or guns, and the first person then pointed the gun at Kaylee and asked Goodwin if she wanted Kaylee to die. Goodwin screamed “no!” and promised that she didn’t have anything, and he stopped pointing the gun at the baby. Goodwin asked him if she could pick up Kaylee, and he allowed her to do so. He instructed Goodwin to put Kaylee on the bed, then told Goodwin to pull her pants down and lie on the bed. Around this time, the second person entered the bedroom and searched the room, ostensibly for guns and money. Goodwin testified that the first person “said that I didn’t have what he wanted, so we were coming with him.” He pointed the gun at her as they walked out of the house through the back door, Goodwin carrying Kaylee.

¶ 3. After leaving the house, the first person walked Goodwin down the road about 200 yards to a driveway where a car was parked. He made Goodwin, still holding Kaylee, get in the back seat of the ear, and then he got in the driver’s seat, and the second person got in the passenger seat. They drove a short distance, and the car stopped. Goodwin saw a third person, not wearing a mask, standing outside the car. As he got into the back seat with Goodwin and Kaylee, the third person put a mask on. Goodwin testified that she was able to see his face before he put his mask on, and that she recognized him from high school as Damien Pace. They continued driving, and the third person announced that he was ready to have sex. The first person asked Goodwin about her fiancé and whether she drove a black car with rims. When she said that she did, he said that he had seen her before and that she had an attitude, and then asked her whether her vagina had an attitude.

¶ 4. The first person asked Goodwin whether she could get them some money, and she told them that she could call her father, Tim Goodwin. They had taken Goodwin’s cell phone from her house, and they handed it to her and told her to call her father. She dialed the number, but no one answered. She then dialed her stepbrother’s number, and he answered. Goodwin asked to speak to her father, and her stepbrother handed the phone to Goodwin’s stepmother, Angie Goodwin. Goodwin told Angie that she and Kaylee had been kidnapped, that the kidnappers wanted money, and that they had said not to call the police, or they would kill Goodwin and Kaylee. Angie was in bed with Tim and had the phone on speaker, and, as Goodwin was talking to Angie, Tim awoke, and Goodwin repeated to him what she had told Angie. Tim could not understand Goodwin, because Kaylee was crying loudly. At some point, the first person had stopped the car in a pasture. The first person told Goodwin to give Kaylee to Pace and to get out of the car. The first person had removed his mask, and, standing outside of the car in the pasture, Goodwin saw his face. As instructed, Goodwin gave Kaylee to Pace and got out of the car, and then, at the first person’s instruction, told her father that the kidnappers wanted $2,000 and would kill Goodwin and Kaylee if he called the police. Tim told the first person that he did not have $2,000, but that he had $500. The first person instructed him to put the $500 “in something” and place it at the bottom of a stop sign at the end of the road where Goodwin lived. Tim placed the $500 in a brown paper bag and left it by the stop sign.

¶ 5. The first person instructed Goodwin to get Kaylee, because Kaylee was still crying in the back seat. As Goodwin was standing and holding Kaylee in the pasture next to the car, the first person, holding the gun, penned Goodwin against the car and raped her. The second person and Pace then got out of the car, and Pace raped Goodwin. Afterward, they told Goodwin to get back in the car, and the three men also got in the car.

¶ 6. They drove away, and the first person stopped the car to let the second and third persons get out of the car. The first person drove to a driveway, stopped the car, and got out near a trailer. When he came back, he was on the phone with Goodwin’s father, and he drove the car to the stop sign to pick up the bag of money that Tim had deposited there. He then drove back to the same driveway and, still on the phone with Tim, counted the money to make sure all $500 were there. The first person got out of the car and returned shortly with the other two men. They got in the car, and the first person drove to another driveway, and the three men got out of the car. The second person opened the car door and told Goodwin that the first person was looking for something to use to clean Goodwin, so that, if she went to a hospital, no DNA would be found. The first person returned with a plastic water bottle, and instructed Goodwin to squirt the liquid into her vagina. Goodwin testified that it burned badly and smelled like Clorox. She also testified that they had taken her underwear.

¶ 7. Afterward, they all got back into the car and began driving. The first person called Tim and told him that they were going to drop Goodwin somewhere for Tim to pick her up. The first person stopped the car, told Tim where they were leaving Goodwin, let her and Kaylee out, and Goodwin ran. In a few minutes, Tim and Goodwin’s stepbrother arrived to pick her up. They drove her to her father’s house, and her stepmother then drove her to the hospital.

¶ 8. Upon Goodwin’s arrival at the hospital emergency room, she was treated by two nurses, Kim Phillips and Kelsey Abies. Goodwin told the nurses that she had been raped. The nurses completed a rape kit, with Phillips taking samples using vaginal swabs, and Abies sealing and marking each sample in a designated envelope. After completing the rape kit, the nurses sealed it in an envelope and placed the sealed envelope in a refrigerator in a locked room, for law enforcement officials to collect. Sergeant Pete Lingle picked up Goodwin’s sealed rape kit from the hospital and gave it to Willie Anderson, an investigator with the Scott County Sheriffs Department. Anderson placed it in an evidence refrigerator at the Sheriffs Department. He later took it out of the refrigerator, still sealed, and took it to “Bose Bio-Lab” for DNA testing.

¶ 9. At some point after his arrest, Wilson completed a consent form for DNA testing, and Anderson took samples using buccal swabs. He sealed the swabs in envelopes and sent them to “Bose Bio-Lab” for testing. Kathryn Moyse, a forensic DNA analyst at Scales Biological Laboratory, analyzed Goodwin’s rape kit and Wilson’s buccal swabs, and concluded that DNA of sperm from Goodwin’s vaginal swabs matched Wilson’s DNA from his buccal swabs.

¶ 10. On November 30, 2010, a grand jury in Scott County returned an indictment charging Wilson with one count of burglary, one count of rape, two counts of kidnapping, and one count of extortion. A jury trial followed, in which Goodwin identified Wilson as the first person in the narrative above — the man who first entered her house, kidnapped her, and raped her. She testified that she had identified his picture at the police station when police presented her with one picture of Wilson. She testified that, before seeing the picture, she “kinda remembered what he looked like and I saw — when I saw his picture, I knew it was him, and they told me his name.” On February 7, 2011, the Scott County Circuit Court convicted Wilson of all five charges. On February 10, 2011, judgment was entered and Wilson was sentenced to twenty years for burglary, twenty years each for the two kidnapping charges, thirty-five years for rape, and ten years for extortion.

¶ 11. On February 16, 2011, Wilson filed a “Motion for a New Trial or Other Relief,” asserting, among others, the arguments that the trial court had erred in failing to grant peremptory jury instructions on each of the five charges and that the trial court had erred in failing to grant a directed verdict at the conclusion of the State’s case-in-chief. The trial judge overruled the motion, and Wilson appealed to this Court.

ISSUES

¶ 12. This Court will consider:
1. Whether the trial court erred in overruling Wilson’s hearsay objection to an emergency-room nurse’s testimony that Goodwin had told her that she had been raped.
2. Whether the trial court erred in admitting into evidence a rape kit and buccal swabs, because the chain of custody had not been established.
3. Whether the trial court erred in denying Wilson’s motion for a directed verdict, request for [peremptory] instruction, and motion for a new trial as to the charge of kidnapping of an infant, because all elements of the kidnapping of the infant had not been established.
4. Whether the trial court erred in admitting Jessica Goodwin’s testimony identifying Wilson, because police preju-dicially presented Goodwin with Wilson’s photograph alone for identification, rather than having her identify his photograph from a photographic lineup of six or eight possible subjects.

DISCUSSION

I. Standards of Review

¶ 13. “We review a trial court’s admission or exclusion of evidence for abuse of discretion.” Richardson v. State, 74 So.3d 317, 329 (Miss.2011). “The motion for directed verdict ... is reviewed de novo .... ” Tillis v. State, 43 So.3d 1127, 1133 (Miss.2010).

II. The Trial Court Did Not Abuse Its Discretion in Overruling Wilson’s Hearsay Objection to Kim Phillips’s Testimony.

¶ 14. The trial court did not abuse its discretion in overruling Wilson’s hearsay objection to the testimony of Kim Phillips, an emergency-room nurse, regarding Jessica Goodwin’s statement that she had been raped. Wilson objected as follows:

Q. Okay. Did she allege that she was raped—
BY MR. COLLINS [Wilson’s counsel]: (Interposing) Your Honor, this would be hearsay testimony declaring a fact that has already been testified to the Court and is available, if this is what the State wants to develop, but this is hearsay testimony.
BY THE COURT: Overruled.

Thus, at trial, Wilson challenged Phillips’s testimony on the bases that (1) it described a fact already in the record and available to the court; and (2) it was inadmissible hearsay.

¶ 15. However, on appeal, Wilson challenges the testimony solely on the ground that it was inadmissible hearsay under Mississippi Rules of Evidence 801 and 802. Rule 801 provides that hearsay is “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Miss. R. Evid. 801(c). Rule 802 provides that “[hjearsay is not admissible except as provided by law.'” Miss. R. Evid. 802 (emphasis added). We agree that Kim Phillips’s testimony regarding Goodwin’s allegation that she was raped was hearsay, because it was a statement that was not made at trial and was offered to prove the truth of the matter asserted — that Jessica Goodwin was raped. Thus, under the general rule against hearsay, the statement would be inadmissible.

¶ 16. Even so, the trial court properly overruled Wilson’s hearsay objection, because the testimony fell within an exception to the general rule against admitting hearsay evidence. Although the general rule is that hearsay is not admissible, hearsay statements are admissible when the law so provides. Miss. R. Evid. 802 (“[h]earsay is not admissible except as provided by law.”). Mississippi Rule of Evidence 803(4) provides that hearsay statements that are made for the purposes of medical diagnosis or treatment are admissible, as follows:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

Miss. R. Evid. 803(4). We have provided that:

[t]here is a two-part test for admitting hearsay statements under 803(4).... First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on ... in treatment.

Branch v. State, 998 So.2d 411, 414 (Miss.2008) (citations omitted). Goodwin’s statement to Nurse Phillips that she had been raped was consistent with the purposes of diagnosing and treating her. A patient’s statement that she has been raped is reasonably — and necessarily — relied on in discovering, diagnosing, and treating the patient.

¶ 17. Moreover, a patient’s statement to an emergency-room nurse who was treating her that she was raped is precisely the type of hearsay statement that Rule 803(4) is intended to make admissible. Such a statement informs medical personnel of the reason the patient is seeking treatment and the cause of any injuries, and is necessary to guide the diagnosis and treatment of her physical and emotional injuries. We have found similar statements admissible under Rule 803(4). See Simmons v. State, 722 So.2d 666, 671 (Miss.1998) (statements by alleged victims to an emergency-room physician describing sexual assault, including forced intercourse and penetration with a cylindrical object, were admissible).We also have found that statements describing conditions surrounding a sexual assault were admissible under the medical-diagnosis-or-treatment hearsay exception. See Branch, 998 So.2d at 415 (statement by victim identifying assaulter was admissible); Valmain v. State, 5 So.3d 1079, 1084 (Miss.2009) (statement by victim’s parent identifying her child’s assaulter was admissible); Madere v. State, 794 So.2d 200, 214 (Miss.2001) (victim’s expression of fear that her rapist was going to kill her was admissible). The testimony of an emergency-room nurse that, while the nurse was treating a patient, the patient said that she had been raped is unquestionably admissible under Rule 803(4). Accordingly, the trial court properly overruled Wilson’s hearsay objection and allowed Phillips to testify that Goodwin had told her that she had been raped.

III. The Trial Court Did Not Abuse Its Discretion in Admitting Goodwin’s Rape Kit and Wilson’s Buccal Swabs Into Evidence.

¶ 18. The trial court did not abuse its discretion in admitting Goodwin’s rape kit and Wilson’s buccal swabs into evidence. This Court has provided that:

[o]ur precedent is clear that “Mississippi law has never required a proponent of evidence to produce every handler of evidence.” In order for the defendant to show a break in the chain of custody, there must be an “indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” The defendant has the burden of proving tampering or substitution of the evidence, and “[a] mere suggestion that substitution could possibly have occurred does not meet the burden of showing probable substitution.”

Deeds v. State, 27 So.3d 1135, 1142 (Miss.2009) (citations omitted) (emphasis added). Wilson has not attempted to prove that such tampering or substitution occurred, but merely argues that the trial court erred in admitting the rape kit and buccal swabs, because “the chain of custody was broken and the gap was not explained.” During the trial testimony of forensic DNA analyst Kathryn Moyse, Wilson objected as follows:

[t]he evidence developed previously by the State indicated that this package was delivered to somewhere called Bose Laboratory, and as I understand it, this lady is here testifying for Scales Biological Laboratory. So the chain of custody would not be — did not exist.

Wilson’s mere suggestion that tampering or substitution was at issue, without any supporting evidence, did not satisfy the Deeds burden of proving probable tampering or substitution. Therefore, the trial judge did not abuse his discretion in overruling Wilson’s objection and admitting the rape kit and buccal swabs into evidence.

IV. Sufficient Evidence was Presented at Trial to Convict Wilson of the Kidnapping of Kaylee Alford.

¶ 19. Sufficient evidence existed for the jury to find Wilson guilty of the kidnapping of Kaylee Alford, Jessica Goodwin’s infant daughter. Wilson argues that he “made no effort to kidnap Kaylee Alford” and that, “[f]or a conviction to survive appeal, due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.” The following elements of the indicted crime must have been proven for this Court to uphold Wilson’s conviction of kidnapping Kaylee:

1. Willfully, unlawfully, feloniously, and without lawful authority,
2. Wilson forcibly seized and confined Kaylee Alford.

See Miss.Code Ann. § 97-3-58 (Rev. 2006). We find that Wilson forcibly seized and confined both Kaylee Alford and Goodwin when he pointed a gun at Goodwin, informed her — while she was holding Kay-lee — that Goodwin was coming with him, and did not instruct Goodwin to leave Kay-lee behind.

¶ 20. The trial testimony reveals that Wilson did not affirmatively tell Goodwin to take Kaylee when he ordered Goodwin to go with him. However, there was sufficient evidence, considering the totality of the circumstances, to conclude that Wilson willfully used force to seize and confine both Goodwin and Kaylee: Goodwin was holding Kaylee when Wilson ordered her to leave with him, Wilson did not instruct Goodwin to leave the infant behind, and Wilson sought money from Tim Goodwin in exchange for the safe return of both Goodwin and Kaylee. During direct examination, Goodwin testified as follows:

He had the gun to my head and brought me back into my bedroom where my daughter was in her crib and he kept telling me to give me [sic] money and guns, and I kept telling him I didn’t have anything, and he made me open my closet and I offered him, you know, whatever was in the closet, and then, he pointed the gun to my daughter and asked me if I wanted her to die. (Witness crying.) And — that’s—and I screamed, “No!” and I told him I promised I didn’t have anything, and so, he took the gun away from her and I asked him if I could get her and he let me.
A. The second guy came into the room and started digging through all our drawers and stuff and he said that I didn’t have what he wanted, so we were coming with him.
Q: And which one of them said this about going with them?
A. The first one.
Q: The first one. Okay. What did they make you do?
A. My daughter, all she had on was a diaper, so I just grabbed a blanket and he had the gun to me and we walked through — back down the hallway, through the kitchen, out the back door.

During cross-examination, Goodwin testified that her kidnappers had not told her to take Kaylee with her, as follows:

Q. Okay. During your response to Mr. Duncan, I understood that you were told to come on and go with us.
A. Right.
Q. Okay. Did they tell you to bring Kaylee with you?
A. No. I had her — well, he told me— when I asked him to get her out of the crib, I had her in my hands, and he said, “Well, you’re coming with me because you don’t have what I want.”

However, the kidnappers sought money from Tim Goodwin in exchange for the safe return of both Goodwin and Kaylee: they instructed Goodwin to call her father and stepmother and “to tell them that no cops or that he’d kill me and my daughter [,]” and, as instructed, Goodwin “told him [Tim] that they wanted two thousand dollars and he’d better not call the cops, or they’d kill us.” We find that there was sufficient evidence for the jury to find that Wilson willfully used force to seize and confine Kaylee Alford, because he instructed her mother to come with him at gunpoint while her mother was holding her and sought money in exchange for the safe return of both Goodwin and Kaylee.

¶21. We conclude that the trial court did not abuse its discretion in denying Wilson’s request for a perfunctory instruction to return a verdict of not guilty as to the charge of kidnapping Kaylee Alford or in denying Wilson’s motion for a new trial as to that charge. We likewise find that the verdict of “guilty” of kidnapping of Kaylee Alford was neither against the overwhelming weight of the evidence nor contrary to law, and, therefore, that the trial court properly denied Wilson’s motion for a directed verdict.

V. Wilson Waived His Objection to Goodwin’s Identification Testimony by Failing to Contemporaneously Object.

¶ 22. Goodwin testified that her identification of Wilson at trial was based on her recollection of him from the night of the crimes, not on the photograph she was shown at the police station. Before showing Goodwin the photograph of Wilson, police officers had her look at pictures in a high school yearbook to attempt to identify her kidnappers, and she identified Damien Pace from his yearbook picture. The officers then showed her the photograph of Wilson, after Wilson already had confessed to having raped her. Wilson called 911 on the afternoon of April 15, 2010, the day after the kidnapping and rape, and confessed as follows:

Caller: the Police come over here talking about the man done raped some white — -he ain’t did nothing, man. He was with his girlfriend.
Operator: Okay. Well, you done it?
Caller: Yeah, I did it.

The 911 dispatcher, Rhonda Weathersby, was a cousin of Wilson’s and testified at trial that she had recognized his voice on the phone before he identified himself as Darrin Wilson. A sheriffs department investigator testified that he had known Wilson for twelve to fourteen years and that he also had recognized Wilson’s voice on the 911 call. A recording and transcript of the 911 call were admitted into evidence, and the recording was played for the jury.

¶ 23. Wilson argues that Goodwin’s testimony was inadmissible because police officers had suggestively presented her with a single photograph of Wilson rather than a photographic lineup of multiple individuals. However, Wilson did not object at trial when Goodwin identified him as her assailant and testified that police had presented her with a single photo and, after she had affirmed that the man in the photograph had attacked and raped her, told her that the man’s name was Darrin Wilson. We have been clear in providing that “[cjounsel must object contemporaneously to inadmissible evidence in order to preserve the error for appeal.” Boyd v. State, 977 So.2d 329, 337 (Miss.2008) (citations omitted). We have specifically provided that:

[w]hen there is no attempt to suppress the in-court identification by a pre-trial motion, and no contemporaneous objection is offered to the in-court identification, the issue is not preserved for appellate review except as an attack on the sufficiency of the evidence.

Brown v. State, 829 So.2d 93, 102 (Miss.2002). Further, we recognize that:

[preservation serves important purposes. A timely and specific objection alerts the trial court and the adversary to the alleged error, giving both an opportunity to correct the problem or take ameliorative action, thus potentially obviating the need to raise the issue on appeal. It thus encourages truth-seeking, the efficient resolution of the case, and the conservation of appellate resources. Preservation also discourages gamesmanship by preventing a party from saving a “trump card” argument until appeal.

Larry Cunningham, Appellate Review of Unpreserved Questions in Criminal Cases: An Attempt to Define the “Interest of Justice, ” 11 Journal of Appellate Practice and Process 285-86 (Fall 2010). As Wilson’s counsel did not make a timely and specific objection during trial when Jessica Goodwin identified Wilson as the man who had burglarized her home and raped and kidnapped her, the only permissible ground for this claim is as a challenge to the sufficiency of the evidence. See Brown, 829 So.2d at 102. Wilson does not challenge the photograph procedure to attack the sufficiency of the evidence, but solely claims that “[s]uch a procedure is prejudicial because it suggests that the person in the photograph is the miscreant.” Accordingly, Wilson waived this claim by not objecting at trial.

CONCLUSION

¶ 24. We conclude that the trial court did not abuse its discretion by overruling Wilson’s hearsay objection to Nurse Phillips’s testimony; by admitting Goodwin’s rape kit and Wilson’s buccal swab, over Wilson’s objection that the prosecution had not established a chain of custody; by denying Wilson’s motion for a directed verdict, request for perfunctory jury instruction, and motion for a new trial as to the charge of kidnapping Kaylee Alford; or by allowing Goodwin’s identification testimony in the absence of a contemporaneous objection. Accordingly, we affirm the jury verdict finding Wilson guilty of rape, two counts of kidnapping, burglary, and extortion and the sentences imposed by the Scott County Circuit Court.

¶ 25. COUNT I: CONVICTION OF BURGLARY OF A DWELLING HOUSE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF KIDNAPPING AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF KIDNAPPING AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF RAPE AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF EXTORTION AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT V SHALL RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I, II, III AND IV, FOR A TOTAL OF ONE HUNDRED AND FIVE (105) YEARS TO SERVE, WITH CONDITIONS. APPELLANT IS TO BE GIVEN CREDIT FOR JAIL TIME SERVED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . During direct examination, Goodwin used the word "we,” but on cross examination, she testified that the men had not told her to take Kaylee with her, but that: "I had her — well, he told me — when I asked him to get her out of the crib, I had her in my hands, and he said, ‘Well, you're coming with me because you don't have what I want.’ "

      . Goodwin used the word "vagina” during her testimony, but testified that her kidnapper had used "the ‘P’ word.”

      . The lab that analyzed the vaginal swabs and Wilson’s buccal swabs was Scales Biological Laboratoiy. The owner of the laboratory is Dr. Bo Scales.

      . The trial record suggests that the witnesses who testified that the rape kit and buccal swabs were sent to "Bose Laboratory” were not referring to a different laboratory, but to Scales Biological Laboratory itself. Moyse testified that the owners of Scales Biological
      Laboratory were Bo and Barbara Scales. Thus, where the transcript reads “Bose Laboratory,” the witnesses’ meaning was likely the identically-sounding "Bo's Laboratory,” referring to Scales Biological Laboratory, owned by Bo and Barbara Scales.