author: EZELL, Judge.

text:
    Rodney R. DUHON, Sr. v. The LAKE CHARLES ELECTRICAL JOINT APPRENTICE, et al.
    No. CA 08-1106.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Edward J. Fonti, Jones, Tete, Fonti, & Belfour, L.L.P, Lake Charles, LA, for Plaintiff/App ell ant, Rodney R. Duhon, Sr.
    Louis L. Robein, Jr., Robein, Urann, Spencer, Picard & Cangemi, Metairie, LA, Kenneth Michael Wright, Lake Charles, LA, for Defendant/Appellee, the Lake Charles Electrical Joint Apprentice & Training Committee.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|) Rodney Duhon appeals the trial court’s granting of a summary judgment in favor of the Lake Charles Joint Apprenticeship and Training Committee (the JATC). For the following reasons, we affirm the decision of the trial court.

The JATC operates a training program in which apprentice electricians receive a combination of on-the-job training and classroom instruction in electrical work. The program is a joint venture between the National Electrical Contractor Association (contractors) and the International Brotherhood of Electrical Workers (IBEW). The National JATC (the NJATC) sets the standards to which the local programs are to comply. Under those standards, an apprentice is to complete five years and 8,000 hours of training to be certified as a journeyman electrician.

The JATC is governed by a joint committee of three contractors and three members of the IBEW. Prior to his termination, Mr. Duhon served under the JATC board as Apprenticeship Coordinator and Director. He was responsible for the day-to-day business of the training program.

On June 7, 2006, the JATC met and voted four to two to terminate Mr. Du-hon’s employment contract. Mr. Duhon sued, claiming he was terminated without cause, in violation of the terms of his employment contract. The JATC filed a motion for summary judgment, claiming there were no genuine issues of material fact and that Mr. Duhon had been fired for just cause. The motion for summary judgment was granted by the trial court, dismissing Mr. Duhon’s claims. From that decision, Mr. Duhon appeals.

Mr. Duhon asserts one assignment of error on appeal, that the trial court erred in ruling that cause existed for his termination.

12When an appellate court reviews a trial court judgment on a motion for summary judgment, it applies the de novo standard of review “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. The motion should be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

In reviewing this judgment, we must apply the burden of proof imposed upon a movant in a motion for summary judgment, which is set forth as follows in La. Code Civ.P. art. 966(C)(2):

The burden of proof remains with the movant. 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.

Mr. Duhon’s contract stated that disciplinary action taken against him would be subject to a “just cause” standard. “The Louisiana Civil Code explains that ‘cause’ is synonymous with ‘reason.’ ” Voitier v. Church Point Wholesale Beverage Co., Inc., 99-1777, p. 9 (La.App. 3 Cir. 4/5/00), 760 So.2d 451, 458, writ denied, 00-1920 (La.9/29/00), 770 So.2d 350 (citing La.Civ. Code art.1967 cmt. (a)). Black’s Law Dictionary (8th ed.2004), defines just or good cause as “[a] legally sufficient reason.” Therefore, it is our task to determine if there is no genuine issue of material | .-¡fact that Mr. Duhon was fired for a legally sufficient reason.

The JATC provided Mr. Duhon a list of ten reasons for his termination, including failure to attend JATC meetings or training seminars, neglect of duties, failure to maintain proper business hours in his office, improperly awarding hours to apprentices, and failing to implement changes mandated by the NJATC.

Mr. Duhon’s main argument is that the trial court relied on the JATC’s claim that he was not running a program in line with that mandated by the NJATC while they were the ones who ordered him to go from a five-year to a four-year program. However, we find this argument unconvincing.

While it is true that the JATC board did order the change, the record clearly shows that Mr. Duhon certified false apprentice records to the Louisiana Department of Labor, the NJATC, and the IBEW. These falsifications concerned the number of years apprentices attended the program and the number of hours they worked. Gail Miller, Mr. Duhon’s former secretary, stated in her affidavit that Mr. Duhon would have her wait one year after the completion of the four-year program to submit diplomas, so that it would indicate to the Louisiana Department of Labor and the NJATC that the apprentices had completed a five-year program. Her affidavit gave several specific examples of instances of manipulation of hours to benefit specific apprentices even beyond the lying about their having reached the required 8,000 hours needed for journeyman status. This fact is uncontradicted, as Mr. Duhon admits falsifying these documents.

Despite his arguments in brief to the contrary, there is no evidence in the record whatsoever that shows that the board was aware of this behavior. Even if his argument concerning the reduction in the number of years of schooling had merit, nowhere does Mr. Duhon even argue that the board ordered him to change the 14number of hours required for certification as a journeyman. Thus, there is no genuine issue as to the fact that Mr. Duhon inappropriately certified false information concerning apprentice schooling and hours.

Mr. Duhon attempts to argue that this information was discovered after the firing and could not retroactively constitute just cause under Voitier. We find that argument also to be lacking. Most notably, he refers to the specific example of hour manipulation contained in Gail Miller’s affidavit. However, the fact that specific examples were given after the fact in Mrs. Miller’s affidavit certainly does not mean that they were not known prior to the termination. Mrs. Miller clearly knew she was filling out false documents at the time he told her to prepare them. Jeff Sanders stated that while he was assistant business manager to the IBEW, prior to the termination, he knew of one apprentice who miraculously rose from a one-year helper to a four-year (at best) journeyman a scant one year later. Although he stated that he could not name one specific person off the top of his head during his deposition, Tink Reeves stated that he knew of instances where Mr. Duhon had manipulated hours for an apprentice. Further, the record contains uncontradicted testimony that the practice was generally known throughout the IBEW. It is clear that Mr. Duhon’s behavior was well known prior to his termination. This argument is without merit.

Additionally, the record is also clear that Mr. Duhon did fail to attend the JATC seminars and training courses and that his office hours were unusual, to be generous. It is clear from the record that the JATC had ample just cause to terminate Mr. Duhon’s contract and that there is no genuine issue of material fact pertaining to that matter.

Finally, the JATC answers Mr. Du-hon’s appeal, seeking attorney fees for work done on appeal and claiming that the appeal is frivolous and brought solely for the | ¡¡purpose of delay. We find no frivolity in the appeal and, therefore, deny the JATC’s answer to it.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are assessed against Mr. Duhon.

AFFIRMED.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Frank CAVAZZO v. GRAY INS. CO., et al.
    No. 08-1407.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 2009.
    Jeffrey M. Cole, Plauche, Smith & Neis-et, Lake Charles, LA, for Defendants/Appellants, Gray Insurance Company, Dun-ham Price Group, L.L.C., and Material Handling, LLC.

      Rex D. Townsley, The Townsley Law Firm, Lake Charles, LA, J. Mac Morgan, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee, Frank Cavazzo.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

|, Following the lodging of the appeal record in the instant suit, this court sua sponte issued a rule for the defendants/appellants to show cause why the appeal should not be dismissed as having been improperly designated as appealable pursuant to La.Code Civ.P. art.1915. For the reasons assigned, we recall the rule and maintain the appeal for good cause shown.

At issue in the instant appeal is the trial court’s judgment granting the plaintiffs motion for summary judgment, finding that the plaintiff is entitled to seaman status under the Jones Act, 46 U.S.C.A. §§ 30104, et. seq. Judgment was originally signed on July 31, 2008. No motion for new trial was filed after the signing of the judgment. However, on motion made by defendants, the trial court entered a revised judgment on September 18, 2008, which designated the judgment as final and immediately appealable pursuant to La.Code Civ.P. art. 1915(B); no reasons for designation were given. The defendants filed a motion for appeal on September 18, 2008. The trial court granted the motion for appeal, and the instant appeal was lodged in this court on November 19, 2008.

The defendants submit that the judgment from which appeal is being sought is appealable pursuant to La.Code Civ.P. art. 1915(B) and submit that despite the lack of reasons supporting designation, this court should maintain the appeal. As mentioned above, the judgment sub judice determined that the plaintiff was entitled to seaman status under the Jones Act. This constitutes a judgment on a motion for partial summary judgment as to a single issue. Accordingly, we find that this judgment falls within the scope of La.Code Civ.P. art. 1915(B), thus requiring designation as to why the judgment should be immediately appealable.

In Succession of Jones, 08-1088, pp. 2-4 (La.App. 3 Cir. 10/29/08), 999 So.2d 3, this court set forth the following discussion examining the procedure tó bejjfollowed in reviewing an Article 1915(B) judgment that was not designated as appealable by the trial court:

The trial court failed to designate the judgment from which appeal is being sought as immediately appealable. Because the trial court did not designate the judgment as final or give reasons why the judgment should be allowed an immediate appeal, we find the de novo standard of review is applicable. See generally R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113.
Louisiana Code of Civil Procedure Article 1841 provides that a final judgment is one that “determines the merits in whole or in part.” Louisiana Code of Civil Procedure Article 1915 further provides, in pertinent part, the following:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
B. (1) When a court renders a partial judgment ... as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconven-tional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties shall ... not constitute a final judgment for the purposes of appeal.

In Messinger, 894 So.2d 1113, the supreme court found that a trial court should give express reasons why there is no just reason for 13delay of an appeal of a partial final judgment. However, should the trial court fail to certify a partial final judgment, the Messinger court found that an appellate court cannot summarily dismiss the appeal. Instead, when the trial court fails to give reasons for designating a partial summary judgment as appealable, the Mes-singer court held that the appellate court should make a de novo determination by looking to the record for the existence of any justification for maintaining the appeal. The Messinger court additionally found that the appellate court could alternatively issue a rule to show cause why the appeal should not be dismissed.

Recently, in Fakier v. State, Bd. of Supervisors for Univ. of La. Sys., 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, this court examined the issue of whether a partial judgment was a final judgment for purposes of an immediate appeal. The court noted that Messinger, 894 So.2d 1113, adopted from Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360 (3rd Cir.1975), several non-exclusive factors for use by trial courts when determining certification of a judgment and for use by appellate courts when conducting de novo reviews when no reasons are given by the trial court for designation. The factors for examining certification are:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Fakier, 983 So.2d at 1029, quoting Messinger, 894 So.2d at 1122.

As in Succession of Jones, we find that remanding this matter for designation would be a waste of judicial resources, and therefore, we will proceed to review whether an immediate appeal is appropriate. La. Const. art. 5, § 10; La.Code Civ.P. art. 2201. For the reasons given below, we find that the judgment in the instant case was properly designated immediately appealable.

14Here, applying the factors set forth above in Fakier, 983 So.2d 1024, the defendants argue that a reversal of the judgment granting the plaintiff seaman status would terminate the plaintiffs Jones Act claims. While acknowledging that even if the judgment on seaman status were reversed, the plaintiff still has a claim existing under the Longshore and Harbor Worker’s Compensation Act, 33 U.S.CA.. § 905(b), the defendants argue that the claims are mutually exclusive. As a result, the defendants contend that there would be no possibility that the issue of seaman status would be again considered. In addition, the defendants argue that determining seaman status now would result in only one trial, as opposed to having a trial under the Jones Act, which could be reversed, and then having a trial on the alternative 905(b) claim. Finally, the defendants suggest that determination of seaman status now will facilitate resolution of the litigation, reduce the costs of litigation, and foster judicial economy.

We find the above-discussed application of the Fakier factors persuasive in making our determination that this appeal was properly designated as immediately ap-pealable. The determination of seaman status in this case is an important issue that warrants appellate review at this juncture. This determination impacts the remedies available to the plaintiff. Accordingly, based on the reasoning set forth above, we find that the instant appeal should be maintained.

APPEAL MAINTAINED.

PETERS, J., dissents and would dismiss the appeal.


author: TERRI F. LOVE, Judge.

text:
    Danae L. JENS, Patricia A. Jens and Thomas M. Jens v. John S. JONES; Pittman Construction Company, Inc., The AETNA Casualty and Surety Company; Datsun, a/k/a Nissan Motor Corporation in U.S.A.; Bill Garrett Nissan, Inc.; Firestone Tire and Rubber Company, Inc., et al.
    No. 2007-CA-0487.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 18, 2009.

      Jack L. Dveirin, New Orleans, LA, for Danae L. Jens, et al.
    James D. “Buddy” Caldwell, Attorney General, Thomas M. Brahney, Assistant Attorney General, La. Dept, of Justice, Lit. Div., New Orleans, LA, for State of Louisiana, Through the Department of Transportation and Development.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

This appeal arises from a suit on damages resulting from a car accident. The trial court allocated seventy-five percent of the fault for the accident to one of the drivers, who was also a plaintiff, and the remaining twenty-five percent to the State of Louisiana, through the Department of Transportation and Development. We find that the trial court did not commit manifest error in its liability determination or fault allocation and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Danae Jens (“Ms. Jens”) was travelling eastbound on Interstate 12 in St. Tammany Parish in a construction zone on December 21, 1988, when she was involved in an automobile accident with John Jones (“Mr. Jones”), who was driving an 18-wheeler for his employer, Pittman Construction Company (“Pittman”). Ms. Jens alleged that she thought Mr. Jones was encroaching on her lane and she moved to the left. Her vehicle exited the interstate and when she attempted to get back in her lane, Ms. Jens’ vehicle drove into the right lane in the path of the 18-wheeler. Ms. Jens sustained serious injuries as a result of the accident.

|2Ms. Jens, her mother, Patricia Jens (“Mrs. Jens”), and father, Thomas Jens (“Mr. Jens”), (collectively “Plaintiffs”), filed a petition for damages against Mr. Jones; Pittman; Aetna Casualty and Surety Company (“Aetna”), as Pittman’s insurer; Datsun a/k/a Nissan Corporation (“Datsun”); Bill Garrett Nissan, Inc. (“Bill Garrett”); Firestone Tire and Rubber Company, Inc. (“Firestone”); and State of Louisiana, Department of Transportation and Development (“DOTD”). Subsequently, the Plaintiffs filed an amended petition to include Champion Insurance Company (“Champion”) as an additional defendant. Howeyer, Champion later went into receivership, which led the Plaintiffs to substitute the Louisiana Insurance Guaranty Association (“LIGA”) for Champion.

The Plaintiffs filed a motion for a partial dismissal to dismiss their claims against Datsun, Bill Garrett, and Firestone without prejudice. Mr. Jones, Pittman, and Aetna filed a third party demand against Cook Construction Company, who was responsible for markings and signage in the road construction area.

LIGA subsequently filed a motion for summary judgment, asserting that there was no evidence that Champion insured the Plaintiffs at the time of the accident. A consent judgment granted LIGA’s motion for summary judgment and dismissed the Plaintiffs’ claims. The Plaintiffs settled and dismissed their claims against Mr. Jones, Pittman, and Aetna. The DOTD filed a cross-claim against Mr. Jones, Pittman, and Aetna seeking indemnity for any alleged liability. Mr. Jones, Pittman, and Aetna filed a motion for summary judgment as to the DOTD’s cross-claim for indemnity. However, the DOTD later dismissed the cross-claim without prejudice. The DOTD file a peremptory exception of prescription, which was 13denied.

After a bench trial on the merits, the trial court found in favor of the Plaintiffs and awarded damages as follows:

Ms. Jens
Pain, suffering, and mental anguish $ 800,000
Medical bills $ 120,607.41
Future lost wages $ 142,600
Past lost wages $ 78,621.20
Mr. Jens
Loss of consortium 50,000
Special damages 2,492.48
Mrs. Jens
Loss of consortium_$ 50,000
TOTAL $1,244,321.09

The trial court also allocated seventy-five percent of the fault for the accident to Ms. Jens and twenty-five percent of the fault to the DOTD. The trial court reduced each of the Plaintiffs’ awards by Ms. Jens’ allocation of fault. The DOTD’s timely appeal regarding liability and fault allocation followed.

STANDARD OF REVIEW

Great deference must be given to a trial court’s allocation of fault. Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158, p. 31 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 186. After weighing evidence and testimony, the factfinder finds an acceptable range of liability. Id. An allocation of fault within that reasonable range cannot be clearly wrong, as it is not an “exact science.” Id.

The trial court, as the factfinder in a bench trial, considers “the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed.” Id. Fault allocated by the trial court will not be altered by the appellate courts absent evidence that it was “clearly wrong or manifestly erroneous.” Adams v. Rhodia, Inc., 07-2110, p. 15 (La.5/21/08), 983 So.2d 798, 809. “Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Cormier v. Comeaux, 98-2378, p. 5 (La.7/7/99), 748 So.2d 1123, 1127.

LIABILITY

The DOTD asserts that the roadway construction was not the proximate cause of the accident because both drivers were driving in excess of the 45 mph speed limit.

In order to prove that the DOTD was negligent, the Plaintiffs must prove that:

(1) DOTD had custody of the thing that caused the plaintiffs injuries or damages;
(2) the thing was defective because it had a condition that created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect in the thing was a cause-in-fact of the plaintiffs injuries.

Netecke v. State ex rel. DOTD, 98-1182, p. 7 (La.10/19/99), 747 So.2d 489, 494. However, because the accident occurred in 1988, the Plaintiffs do not have to prove the third prong regarding knowledge. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. The DOTD is not responsible for every accident on state highways. Bush v. State, Dep’t of Transp. & Dev., 542 So.2d 721, 723 (La.App. 4th Cir.1989). However, the highways must be kept in a reasonably safe condition. Id. This duty is non-delegable. Roberts v. State, Dep’t of Transp. & Dev., 576 So.2d 85, 88 (La.App. 2nd 1991). The duty extends “also to motorists who are slightly exceeding the speed limit or momentarily inattentive.” Rosen v. State, Dep’t of Transp. & Dev., 01-0499, p. 11 (La.App. 4 Cir. 1/30/02), 809 So.2d 498, 507.

“The DOTD’s standard of care in an area of highway under construction is not the same as that required on a normal highway not under construction.” Alford v. Estate of Zanca, 552 So.2d 7, 12 (La.App. 5th Cir.1989). The DOTD has a duty to warn motorists of construction conditions in a manner that alerts the “ordinary, reasonable motorist, having in view the probable traffic, the character of the road, and the use reasonably to be anticipated.” Hardenstein v. Cook Const., Inc., 96-0829, p. 9 (La.App. 1 Cir. 2/14/97), 691 So.2d 177, 183-184.

Ms. Jens testified that she was attempting to pass Mr. Jones and she went off the edge of the road when she thought Mr. Jones was encroaching on her lane. She stated that when she tried to get back on the road, her steering wheel jerked in the path of Mr. Jones. Ms. Jens testified that she had been looking for edge lines and trying to watch the lane’s edge.

Robert Canfield (“Mr. Canfield”), the Plaintiffs’ traffic engineering expert, testified regarding the overlay project in which Ms. Jens was driving. He stated that the pavement on the interstate at the time of the accident on December 21 was the same pavement from October. He testified that the center lines on the interstate were not in compliance with the standards of the Manual on Uniform Traffic Control Devices (“MUTCD”). Mr. Canfield stated that the lines were crooked; the lines were too far apart, and too short. He further testified that these | (¡inconsistencies would make the drivers perceive that the lanes were shifting. Edge lane lines, which were not in place, should have been in place by mid-November. Further, Mr. Canfield testified as to a series of letters indicating that the DOTD knew the striping on the interstate was inadequate and deficient.

Franklin Griffith (“Mr. Griffith”), the Plaintiffs’ expert in accident reconstruction and highway engineering, testified that edge lane lines should have been in place on the interstate. He stated that the drop off from the lane was between four to six inches. Mr. Griffith also testified that Ms. Jens could have been driving sixty to sixty-five miles per hour.

Ray Burkhardt (“Mr. Burkhardt”), the Plaintiffs’ expert in accident reconstruction, testified that Ms. Jens probably thought Mr. Jones was crossing the center line. He stated that construction had ceased for such a long period of time, it had become a regulatory site and that most drivers would drive the normal speed due to the confusion. Further, he testified that the lack of proper striping created differing driver perceptions. The primary cause of the accident, according to Mr. Burkhardt, was the lack of visual cues.

Jeffrey Milburn (“Mr. Milburn”), an engineer for the defense, testified that the cause of the accident was Ms. Jens’ driving reactions, coupled with her speed, and Mr. Jones’ speed. Mr. Milburn estimated Ms. Jens’ speed at around seventy-five miles per hour and Mr. Jones’ at sixty miles per hour. As opposed to Mr. Griffith’s testimony, he stated that the drop off was around two inches or flush and would have made no difference when driving off the edge of the interstate. Mr. Milburn also alleged that edge lane lines would not have made a difference. However, on cross-examination, he agreed that spacing and length of the center lines were in violation of MUTCD.

|7As to the first prong, it is undisputed that the DOTD had custody of the interstate upon which the accident occurred. As to a defect that caused an unreasonable risk of harm, the trial court concluded that the portion of the interstate on which Ms. Jens was driving was inadequately striped. In fact, the record revealed that the striping, notably the centerline, was not in compliance with temporary or permanent requirements. The existence of lane striping is to maintain traffic flow in the proper lane and direction. However, Ms. Jens testified that she perceived that Mr. Jones was encroaching on her lane. Mr. Can-field and Mr. Burkhardt testified that the lack of proper striping could alter drivers’ perceptions, which would cause drivers to think the person in the parallel lane was encroaching on their own. Furthermore, the trial court made the factual finding that the “inadequate or lack of striping” was a “contributing factor” in causing the accident. Given Ms. Jens’ testimony regarding her perception of Mr. Jones’ truck encroaching on her lane, and the expert testimony regarding the inadequate striping on the interstate, which caused her to turn her wheel to the left and leave the unmarked edge of the interstate, we cannot say that the trial court committed manifest error in the factual finding that the inadequate striping and Ms. Jens’ accelerated rate of speed caused the accident.

FAULT ALLOCATION

The Louisiana Supreme Court enumerated factors utilized in apportioning fault:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger,
(2) how great a risk was created by the conduct,
(3) the significance of what was sought by the conduct,
(4) the capacities of the actor, whether superior or inferior, and,
| r(5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). The “relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.” Id. Additionally, “[t]he fact that a motorist involved in an accident was speeding or intoxicated does not in and of itself require a finding of liability.” Bland v. Interstate Fire & Cas. Co., 311 So.2d 480, 482 (La.App. 4th 1975).

The DOTD maintains that the trial court erred in assessing it twenty-five percent of the fault for causing the accident. As noted above, we found no clear error in the trial court’s finding of the DOTD’s liability. In regards to the Watson factors and as established at trial, the DOTD was aware of the inadequate striping on the interstate, which violated the DOTD’s duty to Ms. Jens and created a risk that drivers would be unsure as to their lane restrictions. The DOTD was in the best position to remedy the striping to ensure that drivers could safely traverse the roadway and be able to properly discern their lane and its direction. Finally, the record reveals no extenuating circumstances that prevented the DOTD from ensuring that the proper striping was placed on the interstate.

The record revealed that Mr. Jones was exceeding the posted speed limit at the time of the accident. However, he began to decelerate when he saw Ms. Jens’ begin to veer off the interstate. The record lacks any evidence of the negligence of Mr. Jones apart from excessive speed. As speed is not in and of itself sufficient to maintain a finding of liability, we do not find that the trial court erred by not finding Mr. Jones liable for the accident. Therefore, given the DOTD’s liability factored in with Ms. Jens’ speed, we find that it was reasonable for the trial court |9to conclude that the DOTD was twenty-five percent at fault for causing the accident

DECREE

For the above mentioned reasons, we find that the trial court did not commit manifest error in allocating twenty-five percent fault of the accident to the DOTD and affirm.

AFFIRMED.

      . The trial transcript indicates that Cook Construction Company later filed for Chapter 7 bankruptcy and was dismissed.

      . Even if the Plaintiffs are required to prove that the DOTD had actual or constructive knowledge, the letters in the record reflect that the DOTD knew that the striping was inadequate and in violation of MUTCD.

      . Donavan v. Jones, 26883, p. 12 (La.App. 2 Cir. 6/21/95), 658 So.2d 755, 763, held that the DOTD is “legally required to follow the MUTCD.”


author: DIAZ, Presiding Justice,

text:
    Grace K. AIKENS and Joseph W. Aikens v. Dr. Dayton WHITES.
    No. 2007-CA-00573-SCT.
    Supreme Court of Mississippi.
    Oct. 2, 2008.
    Rehearing Denied Feb. 5, 2009.
    Margaret P. Ellis, James W. Kitchens, Jackson, attorneys for appellant.
    Matthew D. Miller, Hattiesburg, attorney for appellee.
    Before DIAZ, P.J., CARLSON and GRAVES, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. This appeal is before the Court to consider the grant of summary judgment in a medical malpractice case.

Facts

¶2. On March 12, 1993, Grace Aikens was seen by the defendant, Dr. Dayton Whites, at the Community Medical Center in Lucedale, Mississippi. After Dr. Whites performed a physical, he ordered a mammogram. On March 17, 1993, the mammogram was performed.

¶ 3. After several weeks, Aikens requested the results of the mammogram, but was informed the results would not be provided until she produced all previous mammogram results obtained from other medical facilities. Aikens continued to request her test results until February 1994.

¶ 4. In February 1994, Aikens reached Dr. Whites by telephone and was informed her mammogram from the previous March revealed a presence of a six-millimeter oval density in the left breast. Dr. Whites then ordered a follow-up mammogram which revealed an increase in the mass of two millimeters. Further testing revealed the mass was malignant. As a result, Aikens was instructed to undergo surgery and a regimen of radiation therapy.

¶ 5. On March 17, 1995, plaintiffs filed their complaint against Dr. Whites, alleging medical malpractice arising out of the above-mentioned care. The plaintiffs claim that Aikens suffered damages that could have been prevented if Dr. Whites had timely provided the results of the mammogram. Also included was a loss of consortium claim on behalf of Aikens’ husband. The complaint was amended on March 30,1995.

¶ 6. Defendant filed his answer on April 28, 1995. The answer contained the affirmative defenses of failure to state a cause of action and contributory negligence. Discovery ensued, including more than ten depositions, one of which was the deposition of the plaintiffs’ expert.

¶ 7. On May 1, 2006, Dr. Whites filed a motion for summary judgment, and for the first time raised the affirmative defense of immunity under Mississippi Code Section 11-46-1, et seq., because his practice had been purchased by George County Hospital in November 1992. Thereafter, the trial judge granted summary judgment in his favor.

Issues

¶ 8. The plaintiffs argue that Dr. Whites waived the affirmative defense of MTCA immunity because of the unreasonable delay of eleven years in asserting the defense.

Standard of Review

¶ 9. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment. Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). The evidence must be viewed in the light most favorable to the party against whom the motion has been made, and the moving party bears the burden of demonstrating that no genuine issue of fact exists. Id. “[T]his Court looks at all evidentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228 (Miss.2005) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). If there is no genuine issue of material fact, then the moving party is entitled to judgment as a matter of law. Heigle, 771 So.2d at 345. On the other hand, “[i]f there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the non-moving party.” Aetna, 669 So.2d at 70 (Miss.1996) (citing Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986)).

Discussion

¶ 10. Dr. Whites claims summary judgment was warranted because he is an employee of a community hospital. The Mississippi Tort Claims Act provides immunity to employees when acting within the course and scope of their employment. Miss.Code Ann. § 11-46-5 (Rev.2002). Even so, the plaintiffs argue summary judgment was granted erroneously because the defendant waived immunity due to the unreasonable delay in pursuing the defense.

¶ 11. Our Court has held that MTCA immunity is an affirmative defense. See City of Ellisville v. Richardson, 913 So.2d 973, 975 (Miss.2005); Dixon v. Singing River Hosp. Sys., 632 So.2d 951, 952 (Miss.1994). This Court has also recently held that “failure to actively and specifically pursue the Mississippi Tort Claims Act affirmative defense while participating in the litigation served as a waiver of the defense.” Estate of Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008).

¶ 12. The facts of Grimes are very similar to those of this particular case. Grimes brought suit against the defendant for medical malpractice. Discovery ensued, and the defendant proceeded to engage in the discovery process. After five years, the defendant moved for summary judgment. The motion for summary judgment was based solely on the ground that the defendant was entitled to immunity as an employee of an entity covered by the Mississippi Tort Claims Act. Id. at 3. This court considered the defendant’s participation in the litigation, coupled with the failure to pursue the affirmative defense, as a waiver. Id. at 15.

¶ 13. In the case at hand, the defendant participated in the litigation for eleven years. As this nearly doubles the time frame that constituted a waiver in Grimes, Dr. Whites’ has waived his immunity defense. Therefore, the trial court erred by granting summary judgment.

Conclusion

¶ 14. For the above-mentioned reasons, the trial court’s grant of summary judgment is reversed and the case remanded for further proceedings.

¶ 15. REVERSED AND REMANDED.

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


author: LAMAR, Justice,

text:
    Lee Darreln NIX v. STATE of Mississippi.
    No. 2007-KA-02279-SCT.
    Supreme Court of Mississippi.
    Feb. 19, 2009.
    Rehearing Denied May 14, 2009.

      Benjamin A. Súber, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before WALLER, C.J., DICKINSON and LAMAR, JJ.
   LAMAR, Justice,

for the Court.

¶ 1. Lee Darrein Nix was convicted in the Harrison County Circuit Court on two counts: Count I — touching a child for lustful purposes, and Count II — kidnapping. Nix was sentenced to ten years for each of the two counts, with the sentences to run consecutively. Nix now appeals his conviction, asserting that trial counsel was ineffective and that the verdict was against the overwhelming weight of the evidence.

¶ 2. Finding no merit to Nix’s claims, this Court affirms the conviction.

FACTS

¶ 3. On September 5, 2005, Jane left the Beauvoir Manor apartments at around 9:00 p.m., walking home to the Covenant Square apartments. Jane, fourteen years old at the time, frequently made this journey, using the same route that she walked that evening.

¶ 4. As Jane walked through the parking lot of El Rancho, defendant Nix approached her in a green vehicle. Nix asked Jane if she was the girl who stayed at Covenant Square apartments, stating that he had seen her before. Because she believed that he may have known her mother, Jane spoke to Nix. After a brief conversation, Jane continued on her way to Covenant Square apartments.

¶ 5. When she turned the corner after walking behind Popeye’s, Jane saw Nix running across the street toward her. Nix stopped to talk to Jane and asked where she was going. Jane kept walking toward the apartments, and Nix walked with her. As they walked, Nix offered to pay Jane if she would let him put his hand up her skirt. Jane told Nix no. Nix then grabbed Jane by the shirt collar, making a ripping sound, and put his hand up her skirt, touching her private area.

¶ 6. Nix continued to hold Jane and begged to stick his hand up Jane’s skirt again, but Jane refused. Nix took Jane toward a ditch and held her by the wrist while he urinated. As Nix continued to pull Jane toward the ditch, Jane kicked Nix in the leg and ran to Covenant Square apartments.

¶ 7. Upon reaching the apartments, Jane joined her friends, who were outside, and told them what had transpired. Jane then saw Nix come out from the other side of a building, and pointed him out to her friends. Cory Robinson, a friend of Jane’s, chased Nix on foot, and Nix fled toward Walgreens and Back Yard Burgers. Nix got in his car and drove away from the scene. As Nix drove away, however, he passed Robinson, and Robinson kicked the rear passenger side of the car.

¶ 8. Officer Kit Manning was dispatched to Covenant Square apartments at approximately 8:50 p.m. Officer Manning took Jane’s statement and issued a “be on the lookout” for a vehicle as described by Jane. A few hours later, a vehicle matching the description was reported at 1626 Perry Drive, where the officers located and questioned Nix and his girlfriend, Dianne May-field. Officer Manning testified that a footprint was visible on the vehicle’s right rear quarter panel, consistent with Robinson’s statement.

¶ 9. While being questioned that night by Manning, Nix stated that he had returned home that evening sometime between 6 and 6:30 p.m. At trial, Nix testified that on that evening, he met Angela Fletcher at 6:30 p.m. at Hardy Court Shopping Center in Gulfport. Nix testified that he arrived home at approximately 8:30 p.m. that evening. Fletcher testified that she met with Nix, and he left between 7:30 and 8:30 p.m.

¶ 10. Jane testified that on the date of the incident, Nix, the man who grabbed and touched her, was wearing a jersey. Robinson testified that the man he chased, whom he identified at trial as Nix, was wearing a Kobe Bryant Los Angeles Lak-ers jersey. Mayfield told Officer Manning that when Nix arrived home at around 8:30 p.m., he was wearing his Kobe Bryant Los Angeles Lakers jersey.

ANALYSIS

1. Whether defense counsel’s assistance was ineffective in failing to object to jury instruction.

¶ 11. Nix argues that his conviction should be reversed and remanded for a new trial due to ineffective assistance of counsel. Specifically, Nix asserts that trial counsel should have objected to jury instruction S-l offered by the prosecution. According to Nix, the jury instruction contained language that differed from the language of the indictment. Nix claims that he was prejudiced by counsel’s failure to object and was convicted under a lesser burden of proof than required by the indictment.

¶ 12. The United States Supreme Court has held that “the benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To determine whether counsel’s conduct undermined the fairness of the proceedings, the defendant must show that: (1) counsel’s performance was deficient; and (2) the deficient performance deprived him of a fair trial. Stringer v. State, 454 So.2d 468, 476 (Miss.1984). If the defendant is not able to make both showings, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 13. Deficiency of the conduct and any resulting prejudicial effect are assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995) (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)). The right to effective counsel entitles a defendant to competent counsel, not perfect counsel. Davis v. State, 897 So.2d 960, 966 (Miss.2004). A strong but rebut-table presumption exists that counsel’s conduct fell within the wide range of reasonable professional assistance. Hiter, 660 So.2d at 965. The failure of counsel to make certain objections may fall within the ambit of trial strategy, and therefore may not give rise to a claim for ineffective assistance of counsel. Bell v. State, 879 So.2d 423, 440 (Miss.2004), Cole v. State, 666 So.2d 767, 777 (Miss.1995).

¶ 14. Count I of the grand jury indictment (Touching of a Child for Lustful Purposes) stated that Nix “... did unlawfully, wilfully and feloniously handle, touch or rub with his hands, the vagina of [Jane].... ” (Emphasis added). The jury instruction offered by the State, however, differed by stating that Nix “... did unlawfully, wilfully and feloniously handle, touch or rub with his hands, the body of [Jane]....” (Emphasis added).

¶ 15. Nix argues that trial counsel should have objected to the jury instruction because it differed from the language of the indictment. The jury instruction, however, followed the language of the Mississippi statute under which Nix was charged, which requires that there be a handling, touching, or rubbing of a child for the purpose of gratifying lust or indulging depraved licentious sexual desires, regardless of which part of the child’s body is handled, touched, or rubbed. See Miss. Code. Ann. § 97-5-23(1) (Rev.2006).

¶ 16. The first prong of the Strickland test requires counsel’s conduct to be deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. If the jury instruction offered by the State was not error, then counsel’s failure to object could not rise to the level of deficient conduct. The purpose of the indictment is to give the defendant fair notice of the crime charged. Bell v. State, 360 So.2d 1206, 1208-1209 (Miss. 1978). This Court has held that, although jury instructions generally should track the language of indictments, an instruction is not necessarily fatally defective for failure to do so, so long as the instruction “accurately follow[s] the requisite elements of the crime.” Duplantis v. State, 708 So.2d 1827, 1343-1344 (Miss.1998). A jury instruction’s variance from the language of the indictment “must be material to accurately categorize an instruction as error.” Williams v. State, 445 So.2d 798, 806 (Miss.1984).

¶ 17. In Williams, the indictment charged the defendant with taking a money box, a billfold, and some money. Id. The instruction, however, directed the jury to determine whether the defendant took the money box, billfold, or anything of value. Id. This Court found that the jury instruction, although a variance from the indictment, did not constitute error. Id. In support of its finding, this Court noted that the instruction did not: materially vary from the charge alleged in the indictment, accuse the defendant of a crime separate and distinct from that of the indictment, or refer to alleged facts of which the defendant had no notice. Id.

¶ 18. Applying these factors to the instant case, the differing language of the instruction should not be characterized as material, since it follows the language of the statute under which Nix was charged. The instruction did not accuse Nix of any other separate or distinct crime other than that of the indictment, nor did it refer to facts of which Nix had no notice. Although the language of the instruction varied from that of the indictment, it was not a material variance and therefore did not constitute error. As allowing the instruction was not error, it cannot be said that trial counsel’s conduct was deficient based on a failure to object on that basis.

¶ 19. Even if counsel’s conduct can be viewed as deficient, Nix has not satisfied the second prong, that the conduct deprived him of a fair trial.

¶ 20. Nix argues that the language of the jury instruction effectively amended the indictment, and that he was prejudiced by such amendment. In support of this contention, Nix cites Quick v. State, 569 So.2d 1197 (Miss.1990). In that case, this Court reversed and remanded the conviction, holding that the jury instructions contained additional language that amounted to an amendment of the substance of the indictment. Id. at 1200. In Quick, the defendant was charged in the indictment with “wilfully, unlawfully, feloniously, purposely and knowingly” committing aggravated assault. Id. at 1198. The jury instruction added language that provided for a guilty verdict if the jury found that the assault was committed “recklessly under circumstances manifesting extreme indifference to the value to human life.” Id.

¶ 21. Quick, however, is easily distinguished from the instant case. In Quick, this Court held that “though the defendant may have defended against the elements of purposely and knowingly, he was caught off guard by not having been put on notice that he must also defend against the element of recklessness.” Id. at 1200. Nix’s defense presented at trial was that he was not present when the incident occurred and therefore could not have committed the crime. His defense, if found credible, would have been a complete defense, whether he was charged with touching the body or touching the vagina. His defense was not affected by the change in language in the jury instruction, and therefore, Nix is unable to show prejudice that deprived him of a fair trial.

¶ 22. To pass the Strickland test, Nix must demonstrate that, but for the errors of trial counsel, there is a reasonable probability that he would have received a different outcome in the trial. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). Nix has not satisfied either prong of the Strickland test, and therefore, this argument is without merit.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 23. Nix argues that the circuit court erred in denying his motion for a new trial, as the guilty verdict returned by the jury is against the overwhelming weight of the evidence. Nix asserts that the evidence presented could not support a finding that the prosecution had proved the elements of the offense charged beyond a reasonable doubt.

¶ 24. The standard of review applied to claims that a conviction is against the overwhelming weight of the evidence is as follows:

[This Court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.

Todd v. State, 806 So.2d 1086, 1090 (Miss.2001). “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court.” King v. State, 857 So.2d 702, 731 (Miss.2003) (citing Branch v. State, 347 So.2d 957, 958 (Miss.1977)).

¶ 25. A review of the record reveals that evidence supporting the jury’s verdict was presented throughout the trial. Jane testified as to what transpired that night and identified both Nix and his vehicle. Robinson also identified Nix and testified to what he saw that night and where he kicked the vehicle. Officer Manning testified that Nix’s vehicle had a footprint on the rear passenger door, corroborating Robinson’s testimony. Photographs of the vehicle and footprint were entered into evidence. Jane testified that her assailant was wearing a jersey, and Robinson testified that Nix was wearing a Kobe Bryant jersey. Mayfield testified that Nix was wearing a Kobe Bryant jersey when he returned home that evening.

¶ 26. During his testimony, Nix denied being at the location of the incident on the night in question. Fletcher corroborated his alibi and testified about their meeting that night. This testimony, however, merely created an issue of fact for the jury to resolve. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991).

¶ 27. The circuit court did not err in denying Nix’s motion for a new trial, as the verdict was not so contrary to the overwhelming weight of the evidence as to sanction unconscionable injustice.

CONCLUSION

¶ 28. Finding Nix’s arguments to be without merit for the foregoing reasons, this Court affirms the conviction.

¶ 29. COUNT I: CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF KIDNAPPING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS I AND II SHALL RUN CONSECUTIVELY.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . This Court uses the fictional name "Jane” in order to protect the victim.

      . Jane identified the man as the defendant, Lee Darrein Nix, in a photo lineup on the evening of the incident and during her testimony.

      . This Court adopted the Strickland test in Gilliard v. State, 462 So.2d 710 (Miss.1985).

      . See also Dixon v. State, 519 So.2d 1226, 1228 (Miss.1988); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); and Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963).


author: CARLSON, Presiding Justice, PIERCE, Justice, KITCHENS, Justice,

text:
    Barthel D. WAGGONER and Jacqueline M. Waggoner v. Edward A. WILLIAMSON, Individually; Edward Williamson, P.A.; and Michael J. Miller, Individually.
    No. 2007-IA-00565-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2009.
    Rehearing Denied May 21, 2009.

      David Jefferson Dye, Gregg Lindsey Spyridon, Philip Gipson Smith, attorneys for appellants.
    Matthew Anderson Taylor, James P. Streetman, III, Jeremy Peter Diamond, Robert C. Latham, attorneys for appellees.
   CARLSON, Presiding Justice,

for the Court.

111. Barthel D. Waggoner and Jacqueline M. Waggoner (the Waggoners) sued attorneys Edward A. Williamson, Edward Williamson, P.A. (Williamson), and Michael J. Miller (Miller), in the Adams County Circuit Court alleging breach of fiduciary duty, breach of contract, and negligent misrepresentation arising from the aggregate settlement in Annette Williams, et al. v. American Home Products Corp., et al. In their complaint against Williamson and Miller, the Waggoners requested a disgorgement of attorneys’ fees; compensatory damages; punitive damages, based on allegations of actual malice and gross negligence evincing a willful, wanton and reckless disregard for their rights and commission of actual fraud; attorneys’ fees and costs; an accounting of the settlement proceeds; rescission of the representation agreement; and an award of attorneys’ fees to Williamson and Miller based upon quantum meruit. Williamson and Miller filed motions for summary judgment which the trial court granted in part and denied in part. The Waggoners thereafter filed with us a petition for an interlocutory appeal, which we granted. See M.R.A.P. 5. Finding error in the trial court’s order granting in part defendants’ motions for summary judgment, we reverse the trial court’s order and remand this case to the Circuit Court of Adams County for a jury trial consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. In 1999, Barthel D. Waggoner alleged that he sustained severe injuries resulting from the ingestion of diet drugs manufactured by American Home Products Corporation (AHP). Waggoner decided not to join a class-action suit against AHP and sought individualized representation from attorney Edward A. Williamson, who undertook the representation of Wag-goner and his wife, Jacqueline, and included these claims in Annette Williams, et al. v. American Home Products Corp., et al. (hereinafter “the Annette Williams litigation”) filed on May 23, 2000. Although the Waggoners contend that Williamson indicated they would be represented individually, Williamson represented more than thirty (30) named and unnamed plaintiffs from Mississippi in the Annette Williams litigation.

¶ 3. Williamson also associated with and entered into fee-sharing agreements with attorney Michael J. Miller of Virginia and Edward Blackmon, Jr. of Madison County. The Waggoners assert that Williamson never disclosed this attorney association to them, and they never approved it. At the time of this association, Miller represented fourteen clients located in Washington, D.C., and Virginia in substantially similar litigation against AHP. Subsequent to his association by Williamson, Miller represented these fourteen clients against AHP through the Annette Williams litigation.

¶ 4. On April 24, 2001, Miller negotiated an aggregate settlement in the amount of $78,500,000 with AHP. This settlement included thirty-one Mississippi claimants, including the Waggoners, and Miller’s fourteen Virginia and Washington, D.C., claimants. Based on an aggregate settlement agreement drafted by a representative for AHP and approved by Williamson and Miller, AHP would not allocate the $55 million offered to the Mississippi claimants and the $18.5 million to the Washington, D.C., and Virginia claimants, but rather required the settling attorneys to comply with the American Bar Association’s Model Rules of Professional Conduct or the counterpart state rules of professional conduct. Paragraph 5a of the settlement agreement stated:

AHP shall not be responsible for, or participate in, any allocation, whether (i) as between the Settling Attorneys and the Settling Claimants or (ii) as among any of the Settling Attorneys or (iii) as among any of the Settling Claimants. The Settling Attorneys represent that they have complied and will Comply with Rule 1.8 of the ABA Model Rules of Professional Conduct or its applicable state counterpart(s).

(Emphasis added). The settling attorneys determined the distribution of the $55 million among the Mississippi claimants. The Waggoners allege that, notwithstanding the agreement of Williamson and Miller to comply with Mississippi Rule of Professional Conduct 1.8, Williamson and Miller did not disclose the following to the Wag-goners and the other Mississippi claimants participating in the aggregate settlement: (1) the existence and amount of the aggregate settlement received from AHP and the resulting allocation of funds between the Mississippi, Washington, D.C., and Virginia claimants; (2) the existence and nature of all claims included within the aggregate settlement; and (3) the financial allocation to or participation of each claimant in the aggregate settlement reached with AHP, including the basis for related calculations, distributions of funds, and the required accounting for the aggregate settlement proceeds.

¶ 5. The Waggoners also allege that, although the settlement was reached in April 2001, they first learned of the aggregate settlement approximately two months later, on or about June 25, 2001, when they received a telephone call directing them to meet Williamson and his assistant at the Adams County Airport. According to the Waggoners, at the airport, Williamson presented the Waggoners with a disbursement statement setting forth the following monetary allocations:

Client Name: Barthel Waggoner
Attorney(s): Edward Williamson
Settlement Amount: $3,008,961.75
Attorney’s Fee (45%): $1,354,032.79
MDL fees 3%: $90,268.85
MTLA Contribution: $30,042.87
Expenses:
Miller & Associates (case
specific): $-0-
The Williamson Law Firm
(case specific) $15,041.64
Generic Expenses: $47,475.10
Total Expenses: $62,516.74
Net to Client: $1,472,100.50

The Waggoners alleged that the meeting at the airport lasted less than twenty minutes, and the Waggoners contend that they did not have an adequate opportunity to review and question the disbursement statement or the means by which the amounts were determined. The Waggon-ers assert that Williamson required their signatures on the disbursement statement, otherwise they would face possible forfeiture of any right to the settlement.

¶ 6. As asserted by the Waggoners, the April 24, 2001 aggregate settlement agreement required the settling attorneys to comply with Rule 1.8 of the American Bar Association Model Rules of Professional Conduct or its applicable state counterparts. Mississippi Rule of Professional Conduct 1.8(g) states in pertinent part “[a] lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients ... unless each client consents after consultation, including disclosure of the existence and nature of all the claims ... involved and of the participation of each person in the settlement.” The Waggoners further assert that they would not have signed the settlement documents with AHP had Williamson and Miller fully disclosed to them the items required by the AHP Settlement Agreement and Mississippi Rule of Professional Conduct 1.8(g).

¶ 7. The Waggoners likewise allege that subsequent to the signing of the disbursement statement, they became aware of other alleged wrongdoing by Williamson and Miller; therefore, they requested an accounting of the “case-specific” and “generic” expenses deducted from the gross recovery allocated to the Waggoners. Williamson, as asserted by the Waggoners, did not cooperate with this request, and instead, filed suit seeking a declaratory judgment in the Chancery Court for the First Judicial District of Hinds County to validate his performance of the representation agreement signed by Mr. Waggoner; however, the Waggoners filed and served the underlying action in the Adams County Circuit Court before receiving service of process in Williamson’s chancery court action. The Hinds County Chancery Court matter was transferred to the Adams County Circuit Court where it remains idle, and only the action now before this Court was pursued by the parties.

¶ 8. On June 30, 2004, after filing a motion for leave to file an amended complaint and receiving permission from the circuit court via entry of an order, the Waggoners filed their Amended Complaint, which added Michael J. Miller, individually, as a defendant, and which alleged breach of fiduciary duty, breach of contract, and negligent misrepresentation against the defendants. In this amended complaint, the Waggoners requested, inter alia, disgorgement of the attorneys’ fees taken by Williamson and Miller and an award of attorneys’ fees to Williamson and Miller based upon quantum meruit, compensatory damages, punitive damages due to actual fraud by defendants, costs, attorneys fees, and other relief. Likewise, in their amended complaint, the Waggoners detailed alleged wrongdoing by Williamson and Miller with respect to each line-item on the disbursement statement, and they also provided instances in which Williamson and Miller purportedly allocated settlement funds to the detriment of the Wag-goners and other claimants in the Annette Williams litigation. Williamson and Miller admitted via deposition testimony that they purposefully did not disclose information to the Waggoners regarding the aggregate settlement with AHP.

¶ 9. Williamson and Miller filed motions for summary judgment on August 15, 2005, and August 25, 2005, respectively. The Circuit Court of Adams County, Judge Forrest A. Johnson presiding, granted partial summary judgment as to “the settlement, the amount of the attorney’s fees, about disgorging attorney’s fees or having it decided on quantum meruit basis ... the MDL fees, the MTLA contribution.” The trial court denied summary judgment as to the other expenses as listed on the disbursement statement. Therefore, the Waggoners’ claims were left intact only with respect to “case-specific” and “generic” expenses.

¶ 10. Aggrieved, the Waggoners appeal to us, asserting three issues. However, for the sake of discussion, we combine and restate the crucial issue before us.

DISCUSSION

WHETHER THE TRIAL COURT ERRED IN GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS WILLIAMSON AND MILLER.

¶ 11. In reviewing a trial court’s grant or denial of summary judgment, the well-established standard of review is de novo. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007) (citing Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007)). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “A summary judgment motion is only properly granted when no genuine issue of material fact exists.” Jackson Clinic for Women, P.A. v. Henley, 965 So.2d 643, 649 (Miss.2007) 0citing PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (Miss.2005); Miller v. Meeks, 762 So.2d 802, 304 (Miss.2000)). “[T]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” One South, 963 So.2d at 1160; Green v. Allendale Planting Co., 954 So.2d 1032, 1037 (Miss.2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006)). “The moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. (quoting Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss.Ct.App.2006)). Partial summary judgment is also permissible under our rules, utilizing the same criteria for a grant or denial of a summary judgment and the same standard of review on appeal. Id. See Miss. R. Civ. P. 56(d); Brown v. Credit Ctr., Inc., 444 So.2d 358, 363 (Miss.1983).

¶ 12. The trial court found that the Waggoners knowingly agreed as a matter of law to the terms of their settlement agreement. The Waggoners argue, however, that, although they did sign a settlement agreement, they were not aware that it was a part of an aggregate settlement or that other attorneys were involved. They assert that if they had been adequately informed of the nature of the aggregate settlement, they would have demanded a larger portion of the aggregate settlement due to the fact that Barthel Waggoner suffered actual injuries, unlike other Williamson/Miller Annette Williams claimants. The trial court found that a question of fact existed only as to whether the Waggoners knowingly agreed to the generic and case-specific-expenses portion of the disbursement statement, but that the Waggoners did, as a matter of law, agree to the attorney’s fees, the multi-district litigation fees, and a contribution to the Mississippi Trial Lawyers’ Association. Therefore, the Waggoners could pursue their claims only with respect to the “generic” and “case-specific” expenses. In considering the provisions of Mississippi Rule of Civil Procedure 56, it is clear that the trial court inappropriately granted partial summary judgment when there existed genuine issues of material fact, including, inter alia, the issue of Waggoner’s share of the aggregate settlement.

¶ 13. The trial court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Pollard v. Sherwin-Williams Co., 955 So.2d 764, 769 (Miss.2007) (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)). When material facts are in dispute, it is not the province of the trial court to grant summary judgment, thereby supplanting a full trial with its ruling. Id. (quoting Daniels, 629 So.2d at 599). The trial court in this case decided genuinely disputed issues of material fact by deciding that the Waggoners knowingly agreed to the gross settlement amount, attorney’s fees, multi-district litigation fees, and the contribution to the Mississippi Trial Lawyers’ Association. The Waggoners contend that they could not have agreed to the terms of the disbursement statement because Williamson and Miller withheld information vital to the Waggoners’ informed consent. They maintain that they were not even informed that the settlement was aggregate. The Waggoners further assert the disclosures specified under Mississippi Rule of Professional Conduct 1.8(g), which requires “disclosures of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement,” were withheld from them.

¶ 14. During the initial litigation between the Waggoners and American Home Products Corporation (AHP) in which Williamson represented the Waggoners, Williamson caused a representation agreement to be sent to Barthel Waggoner, and it was subsequently signed only by Mr. Waggoner. The agreement required Williamson to diligently represent Mr. Wag-goner and stated that “[t]he lawyer shall not compromise or settle said right of action without the knowledge and consent of said client(s).” The other agreement at issue in the case sub judice is the aforementioned contract between AHP and Williamson and Miller settling the diet drug cases. Under the AHP agreement, Williamson and Miller had a contractual duty to comply with Rule 1.8 of the ABA Model Rules of Professional Conduct or the state counterpart. The record reveals the existence of genuine issues of material fact as to whether this contract was breached, whether the Waggoners were negligently misrepresented, and whether Williamson and Miller breached their fiduciary duty.

¶ 15. In Owen v. Pringle, this Court held:

Today a lawyer owes his client duties falling into three broad categories: (a) the duty of care, (b) a duty of loyalty, and (c) duties provided by contract ...
Each lawyer owes each client a second duty, not wholly separable from the duty of care but sufficiently distinct that we afford it its own label, viz. the duty of loyalty, or, sometimes, fidelity. We speak here of the fiduciary nature of the lawyer’s duties to his client, of confidentiality and of candor and disclosure.
That an action may lie for the lawyer’s breach of these duties is settled.
Singleton v. Stegall, 580 So.2d 1242, 1244-45 (Miss.1991) (citations omitted) (emphasis added).

Owen v. Pringle, 621 So.2d 668, 671 (Miss.1993). As such, summary judgment was improper in the case sub judice. The record establishes that there are genuine issues of material facts in support of the Waggoners’ claim of breach of fiduciary duty. “Without doubt, a lawyer has a duty to inform his client of all matter? of reasonable importance related to the representation or arising therefrom.” Tyson v. Moore, 613 So.2d 817, 827 (Miss.1992) (citation omitted). The Waggoners argue that “Williamson’s and Miller’s secretive allocation of aggregate settlement funds themselves among the thirty-one (31) Mississippi clients and the fourteen (14) Washington, D.C. and Virginia clients and the inherent conflicts of interest associated therewith is the clearest example of the breach of common law duty of loyalty presented by the instant case.” In Tyson, this Court stated:

The duty of loyalty is fiduciary in nature. In the present context its breach may take one of two forms. The first involves situations in which the attorney obtains an unfair personal advantage, such as acquiring property from a client; the second involves situations' in which the attorney or other clients have interests adverse to the client in question. We have recently defined the lawyer’s duty of loyalty to include a duty to:
safeguard the client’s confidences and property, avoid conflicting interests that might impair the representation, and not employ adversely to the client powers conferred by the client-lawyer relationship.

Id. at 823 (quoting Singleton v. Stegall, 580 So.2d 1242, 1245 (Miss.1991)).

¶ 16. Furthermore, with respect to the Waggoners’ claim of negligent misrepresentation, there are also genuinely disputed issues of material fact. In order to recover on the basis of negligent misrepresentation, the Waggoners must prove:

(1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the person charged with the negligence failed to exercise that degree of diligence and expertise the public is entitled to expect of such persons; (4) that they reasonably relied upon the [attorneys’] misrepresentation or omission; (5) that they suffered damages as a direct and proximate result of such reasonable reliance.

Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss.1992) (emphasis added). The record in the case sub judice reveals the existence of genuine issues of material fact concerning the Waggoners’ claim of negligent misrepresentation, and summary judgment was inappropriate. The Wag-goners assert that the nature of the settlement -with AHP was misrepresented by Williamson and Miller, and they signed the disbursement statement only as a result of the misrepresentations made to them by counsel.

¶ 17. Genuinely disputed issues of material fact also exist with respect to damages. “In order to mature into a tort, the negligent act must proximately produce recoverable damages.” Caves v. Yarbrough, 991 So.2d 142, 147 (Miss.2008) (citing Methodist Hosp. of Miss. Annual Conference v. Gammel, 252 Miss. 229, 172 So.2d 762 (1965)). The Waggoners’ expert, Donna Ingram (Ingram), a Certified Public Accountant, a Certified Fraud Examiner, and a Certified Forensic Accountant, accounts that the Waggoners sustained $1,165,228.10 in compensatory damages. The Waggoners contend that the injuries to Barthel Waggoner were equal to or greater than W89, another Annette Williams claimant, who received $1,103,286 more than the Waggoners. As such, according to Ingram, the Waggon-ers are entitled to an increase of $551,642.99. Also, the Waggoners argue that claimants W3 and W91 should not have been included in the gross settlement with AHP, and claimant W17 was improperly allocated additional funds ranging from $450,000 to $885,000. If this is accurate, Ingram states the Wag-goners’ settlement amount should be increased $309,653.67. Ingram also sets forth the damages the Waggoners allegedly incurred for excessive attorney’s fees, multi-district litigation fees, Mississippi Trial Lawyers Association contributions, and other client specific and common benefit adjustments. When viewing this evidence in the light most favorable to the Waggoners, it is clear that genuine issues of material fact exist, and summary judgment is improper. See Jackson Clinic for Women, P.A., 965 So.2d at 649 (citing PPG Architectural Finishes, Inc., 909 So.2d at 49; Miller, 762 So.2d at 304); One South, 963 So.2d at 1160; Green, 954 So.2d at 1037 (quoting Price, 920 So.2d at 483).

¶ 18. The trial court did not cite legal authority to support its ruling dismissing the Waggoners’ claims with respect to the gross settlement amount and certain fees or contributions. However, we discuss here the trial court’s ruling by considering the theories of waiver and es-toppel and accord and satisfaction. In a recent case, this Court stated that it does not “accept the proposition that, simply because the plaintiffs accepted the settlement funds, that they waived any right to sue for malpractice.” Channel v. Loyacono, 954 So.2d 415, 426 (Miss.2007). Clients maintain their right to sue for malpractice even after accepting settlement funds. Id. As a result, waiver and estop-pel do not support the trial court’s grant of partial summary judgment, given the circumstances of this case. With respect to accord and satisfaction, Mississippi law sets forth four elements: “ ‘(1) something of value offered in full satisfaction of a demand; (2) accompanied by acts and declarations as amount to a condition that if the thing is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and (4) the party actually does accept the item.’ ” Id. (quoting Medlin v. Hazlehurst Emergency Physicians, 889 So.2d 496, 498 (Miss.2004) (citations omitted)). In the case sub judice, the Waggon-ers did not demand anything of Williamson and Miller except “reasonable care in legal service.” Id. at 427. For the same reason, this Court in Channel determined that the signing of settlement agreements releases the person or entity settling with one’s client, not the attorney representing his or her client. Id. at 426-27. Thus, in this respect, the settlement agreement signed by the Waggoners released AHP from liability and future claims, not Williamson and Miller, and accord and satisfaction does not undergird the trial court’s grant of partial summary judgment.

¶ 19. The inconsistency in the trial court’s ruling must also be noted. Contradicting its earlier reasoning, the trial court held that the Waggoners could present the factual circumstances related to “generic” and “case-specific” expenses to the jury, since the Waggoners could not have known whether these expenses were proper at the time they signed the disbursement statement. The Waggoners maintain that Williamson and Miller never disclosed to them the existence of an aggregate settlement and that they represented to the Waggon-ers that their settlement with AHP was individually negotiated and effectuated. This has a bearing on the Waggoners’ acceptance of the settlement amount, the fees, the expenses, and any other amounts stated on the disbursement statement.

¶ 20. Given that the Waggoners contend that the existence of an aggregate settlement was not disclosed to them, and that the disclosures required by law and the Mississippi Rules of Professional Conduct were not made to them it is apparent that genuine issues of material fact exist as to whether the Waggoners knowingly agreed to any of the items on the disbursement sheet. Certainly one cannot knowingly agree to the terms of an aggregate settlement without even the mere knowledge that an aggregate settlement exists. We find that the trial court erred and exceeded its authority in finding that the Waggoners knowingly agreed to some but not all items on the disbursement statement; therefore, this issue has merit.

¶ 21. Because we have found that the trial court erred in granting partial summary judgment in favor of Williamson and Miller on the crucial issue before us, the trial court’s judgment must be reversed and this case must be remanded to the trial court for a jury trial on all claims asserted by the Waggoners in their amended complaint. Based on the disposition of this issue, the remaining issues presented in today’s appeal need not be discussed.

CONCLUSION

¶ 22. For the reasons stated, the Adams County Circuit Court’s grant of partial summary judgment is reversed, and this case is remanded to the Circuit Court of Adams County for a jury trial on all of plaintiffs’ claims.

¶ 23. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. PIERCE, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.; WALLER, C.J., JOINS IN PART. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.

PIERCE, Justice,

Concurring in Result Only:

¶ 24. I respectfully concur in result only with the majority opinion today. I write separately to express my view that, but for this Court’s prior precedent in Williamson v. Edmonds, 880 So.2d 310 (Miss.2004), I would have affirmed the trial court’s ruling to grant summary judgment, in part, on the attorney’s fees, multi-litigation district (MLD) fees, and Mississippi Trial Lawyers Association (MTLA) contributions, and deny summary judgment, in part, on the case specific and generic expenses.

¶ 25. The basis of this case is a dispute over the allocation of proceeds from a settlement to a former client, Waggoner, from his attorney, Williamson. While Waggoner disagrees with the manner in which the funds were allocated, he believes that the gross amount of his settlement was fair. In other words, Waggoner is satisfied with the total amount of his settlement. However, Waggoner claims that he is entitled to a larger portion of the proceeds from the aggregate settlement and Williamson, consequently, was over paid for his services. In addition, Waggoner disagrees with the allocation of a portion of the gross settlement amount for various fees, contri-buttons, and expenses that were deducted from the gross settlement amount.

¶ 26. In my opinion, this is a contract dispute as to certain disbursements. While Waggoner artfully couches his suit in terms of a breach of fiduciary duty, breach of contract, and negligent misrepresentation -with underlying allegations that Williamson failed to comply with various Rules of Professional Conduct, the record reveals that Waggoner agreed to deductions for certain fees and contributions. That being said, the trial court granted summary judgment in part as to all causes of action for the attorneys fees, MDL fees, and MTLA contribution. The trial court left all claims intact as they related to the case specific expenses and the generic expenses.

¶ 27. The record reveals that the Wag-goners signed numerous documents throughout their representation. Barthel Waggoner signed a Representation Agreement which stated, in part:

2. COMPENSATION: In the event of any recovery had by, settlement obtained for, or payment made to the clients in connection with the above referred to claim or right of action, EDWARD A. WILLIAMSON, shall be entitled to and shall be paid a percentage of the gross proceeds in accord with the following schedule:
c. In the event settlement is obtained after suit is filed, and after time permitted for discovery, final pretrial hearing or the commencement of trial preparation, whichever is earlier
.45%

¶ 28. Barthel and Jacqueline Waggoner both signed a form itemizing the expenses that would be deducted from their gross settlement amount on May 5, 2001. This form provided that “1/we realize that the following categories of expenses will be deducted from my/our net proceeds.” The first item on the list was for a six percent deduction for MDL fees. The form stated, in part:

Three percent of the gross recovery for expenses ordered to be deducted from each settlement by the multi-district litigation authority and an additional three percent is to be deducted from attorneys’ fees, making a total of six percent.

Therefore, the settlement provided for six percent of the Waggoners’ gross settlement amount to be deducted for the multi-district litigation fees of which three percent of the fees would be deducted from each settlement and three percent would be deducted from attorney’s fees.

¶ 29. In addition, this form provided authorization check-boxes for contributions to the Mississippi Trial Lawyers’ Association. The form stated, in part:

Authorization for contribution to the Mississippi Trial Lawyers’ Association. I/We recognizing the dedicated efforts of the Mississippi Trial Lawyers Association in preserving access to justice for injured individuals, I/We authorize a contribution to the Mississippi Trial Lawyers Association in order to allow full access to justice for those wrongfully injured in the state of Mississippi.
A contribution in the amount of two percent of my recovery is to be made directly to the Mississippi Trial Lawyers Association, Political Fund.
□ I authorize
□ I do not authorize
The purpose of this contribution is the (sic) preserve our system of justice for others through political activities and educational efforts of the Mississippi Trial Lawyers Association.

The Waggoners checked the “I authorize” box to contribute two percent of their recovery to the MTLA. Barthel and Jacqueline Waggoner also signed a confidential release, indemnity, and assignment form on May 5, 2001.

¶ 30. On June 25, 2001, Barthel and Jacqueline Waggoner signed a qualified settlement fund settlement agreement and general release which specified the amount of net proceeds that would be received by them. On June 25, 2001, the Waggoners also signed a disbursement statement which itemized the gross settlement amount, deductions, and net proceeds to them. Included in the itemized disbursement were deductions taken for forty-five percent in attorney’s fees, three percent for MDL fees, and MTLA contributions. The disbursement statement provided:

DISBURSEMENT STATEMENT
CLIENT NAME: Barthel Waggoner
ATTORNEY(S): Edward Williamson
SETTLEMENT AMOUNT: $3,008,961.75
Attorney’s fee (45%) $ 1,354,032.79
MDL fee (3%) (See-Item lof the Expense Agreement): $ 90,268.85
MTLA contribution: $ 30,042.87
EXPENSES:
MILLER & ASSOCIATES (case spscific) $ -0-
THE WILLIAMSON LAW FIRM (case specific) $ 15,041.64
GENERIC EXPENSES: $ 47,475.10
TOTAL EXPENSES: $ 62,516.74
NET TO CLIENT: $1,472,100.50
I, the undersigned agree to accept the above settlement regarding my case against American Home Products, et al. and my attorneys have informed me of ifiy rights and options regarding this matter. The settlement of the above case was made with my consent and approval. I have read the above statement of cost and distribution of settlement and I agree to the terms of this disbursement. I acknowledge receiving a copy of this statement. I understand that I am personally responsible for the payment of medical bills incurred by me in connection with this claim, including but not limited to liens or subrogation claims from any insurance company or governmental agency. I further agree to hold the offices of Miller & Associates, The Williamson Law Firm, Black-mon & Blackmon and any other attorney associated with my case harmless from any medical, hospital, nurses or other liens or claims which may exist now or in the future in connection with this matter.

¶ 31. Further, in his deposition testimony, Barthel acknowledged that the settlement was fair:

Q. My question is whether or not — but and excuse me, and it’s not a question here today with regard to whether or not you think the gross amount of money is fair, because you’ve testified that you think the $3,000,000.00 as the gross amount is fair, is that right?
A. Yeah.

¶ 32. Barthel signed the disbursement statement even though he thought the expenses were excessive. When asked why he signed the disbursement statement under these circumstances, Barthel stated “I wanted the money. That’s the only way I would get [it] is to sign it.” (Emphasis added). In his deposition, Barthel also stated that he thought that the attorney’s fees were excessive. Nevertheless, Bar-thel first stated that twenty-five percent fees were reasonable and later added that thirty-five percent attorney’s fees were reasonable.

¶ 33. The record is clear that the Wag-goners agreed to have the attorney’s fees, MDL fees, and MTLA fees deducted from the gross settlement amount. In Russell v. Performance Toyota, Inc., 826 So.2d 719, 726 (Miss.2002), this Court found that “In Mississippi, a person is charged with knowing the contents of any document that he executes.” Id. (citing J.R. Watkins Co. v. Runnels, 252 Miss. 87, 96, 172 So.2d 567, 571 (1965)). The Waggoners signed documents authorizing the deduction of these fees and contributions from their gross settlement amount.

¶ 34. Notwithstanding this evidence, this Court in Edmonds, a similar case concerning disclosure of an aggregate settlement, stated what constituted disclosure for an aggregate settlement pursuant to Rule 1.8(g).

¶35. Mississippi Rule of Professional Conduct 1.8(g) provides:

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

¶ 86. In Edmonds, this Court stated:

Under Mississippi Rule of Professional Conduct 1.8(g), Williamson obtained a lump sum aggregate settlement for all of his clients during settlement negotiations. In determining whether the proceeds of the aggregate settlement were improperly or fraudulently distributed among the various plaintiffs in the American Home suit, the information requested by the Edmondses is highly relevant to their claims of breach of contract and breach of the duties of care and loyalty. The client is entitled to know the amount of the settlement, and the basis for the calculations, distributions and accounting of the proceeds of the settlement with American Home.

Edmonds, 880 So.2d at 320 (emphasis added). This Court further interpreted this disclosure to mean that “[f]or each person, the defendant shall provide: (1) the medical diagnosis, (2) additional information, if any, which affected the amount of settlement, and (3) the amount of settlement.” Id. at 321.

¶ 37. The Waggoners clearly agreed to all the deductions from the disbursement statement via written documentation and deposition testimony to that effect. Notwithstanding this evidence and based on the precedent set by Edmonds, there is a factual dispute as to whether all required information was disclosed to the Waggon-ers at the time of the settlement. Thus, the Waggoners now will have an opportunity to prove to a jury that they should have received more money from the aggregate settlement. Thereafter, appropriate deductions and fees as agreed to by the Waggoners should be assessed therefrom pursuant to the documents they knowingly signed. Therefore, the granting of summary judgment was not proper in this case.

¶ 38. For the foregoing reasons, I concur in result only.

CHANDLER, J., JOINS THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.

KITCHENS, Justice,

Dissenting:

¶ 39. Today’s decision rests centrally on the Waggoners’ allegation that their attorneys violated the Rules of Professional Conduct, an allegation that, for the purposes of appeal from summary judgment, we consider in the light most favorable to the Waggoners. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007). Even so, this Court’s precedent is clear that this allegation provides no support to the Waggoners, and the trial court’s grant of summary judgment should, therefore, be affirmed. Because it is not, I respectfully dissent.

¶ 40. ‘^Violation of a Rule of Professional Conduct does not give rise to a cause of action nor does it create a presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers.... They are not designed to be a basis for civil liability.” Pierce v. Cook, 992 So.2d 612, 625-26 (Miss.2008) (Carlson, J.) (quoting Miss. R. Prof'l Conduct, Scope). See also Singleton v. Stegall, 580 So.2d 1242, 1244-45 (Miss.1991). Each of the Waggoners’ claims flies in the face of this principle. The breach of contract claim rests upon the theory that “one cannot knowingly agree to the terms of an aggregate settlement without even the mere knowledge that an aggregate settlement exists,” Maj. Op. at 157; the negligent misrepresentation claim argues that by failing to comply with Rule 1.8, Williamson and Miller “failed to exercise that degree of diligence and expertise the public is entitled to expect of’ an attorney, Hazlehurst Lumber Company v. Mississippi Forestry Commission, 983 So.2d 309, 313 (Miss.2008) (listing elements of negligent misrepresentation); and the breach of fiduciary duty claim contends that Rule 1.8 imposed an actionable duty upon Williamson and Miller. See Callicutt v. Prof'l Servs. of Potts Camp, Inc., 974 So.2d 216, 221 (Miss.2007) (listing elements of breach of fiduciary duty). Under our holdings in Pierce and Singleton, each of these arguments must fail as a matter of law. Therefore, even cast in the light most favorable to the Waggoners, the allegations against Williamson and Miller do not create a genuine issue of material fact regarding the duty owed by the attorneys to their clients.

¶ 41. The majority purports to be mindful of this principle, despite its ultimate conclusion. Maj. Op. at 153-54, n. 8. But to the extent that this case implicates Rule 1.8, the issue arises only in the agreement between American Home Products and Williamson; therefore, the rule itself is irrelevant in the dispute between the Wag-goners and Williamson. Why the majority insists on relying repeatedly upon Rule 1.8, therefore, escapes me. See Maj. Op. at 150, 151, 153-54. Nevertheless, given the majority’s assurance, I do not read today’s decision as one that creates new law in this area. And although I disagree with his ultimate conclusion, I agree with Justice Pierce’s thoughtful conclusion that today’s decision need not be governed by new law.

¶ 42. But because I believe that the majority has taken ill-advised steps toward the creation of new law that is at odds with the explicit purpose of the Mississippi Rules of Professional Conduct, I respectfully dissent.

GRAVES, P.J., JOINS THIS OPINION.

      . Annette Williams, et al. v. American Home Products Corp., et al., No.2002-207, Circuit Court of Holmes County, Mississippi.

      . The Waggoners did not bring suit against Blackmon.

      . Williamson and Miller dispute whether the settlement was aggregate; however, this contention is without merit based on this Court’s ruling in Williamson v. Edmonds, 880 So.2d 310, 314 (Miss.2004) (stating "Williamson negotiated an aggregate settlement on behalf of the 31 clients and their spouses”).

      . Multi-District Litigation.

      . Mississippi Trial Lawyers Association.

      . ABA Model Rule of Professional Conduct 1.8(g) states in pertinent part that “[a] lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients ... unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims ... involved and of the participation of each person in the settlement.” For the purposes of today's discussion, we will rely on Mississippi Rule of Professional Conduct 1.8(g).

      . During the pendency of this appeal, the Court entered an order staying the appeal as to Miller pursuant to 11 U.S.C. § 362, based on a Suggestion of Bankruptcy. However, after the United States Bankruptcy Court for the Southern District of Mississippi entered an order lifting the stay ‘‘for the limited purpose of resolving the issues in this interlocutory appeal,” this Court entered an order lifting the stay of the appeal and directing the re-issuance of a briefing schedule.

      . We are mindful of the fact that under the Scope to the Mississippi Rules of Professional Conduct, there appears the following language:
      Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
      However, compliance with Rule 1.8 was a term of the AHP contract with which Williamson and Miller agreed to comply. Under his contract with Waggoner, Williamson agreed that he would not settle the Waggon-ers’ claims "without the knowledge and consent of said client(s).” Likewise, in Singleton, this Court acknowledged the above quoted caveat contained in the Scope of the Mississippi Rules of Professional Conduct, and yet discussed in detail the fiduciary nature of a lawyer's duties to the client and the duties created by the "contract” arising from the agreement to represent a client. Singleton v. Stegall, 580 So.2d 1242, 1244-45 n. 4 (Miss.1991).

      . The numbers or codes represent the various Annette Williams claimants in order to protect their privacy.

      . The Court in Channel v. Loyacono, 954 So.2d 415 (Miss.2007), addressed a similar appeal involving alleged fraudulent conduct by attorneys in the settlement of a case against AHP.

      . Our colleague. Justice Pierce, in his separate opinion, states: "While Waggoner disagrees with the manner in which the funds were allocated, he believes that the gross amount of his settlement was fair. In other words, Waggoner is satisfied with the total amount of his settlement.” (Emphasis in original). However, to clarify Waggoner’s position on this issue, we refer to Waggoner’s deposition testimony:
      Q: Do you believe that the overall settlement amount of $3,000,000.00 was fair as a gross settlement of your lawsuit?

        A: If I had gotten my fair share it would have been very fair.

      Q: My question is whether or not — but and excuse me, and it’s not a question here today with regard to whether or not you think the gross amount of money is fair, because you’ve testified that you think the $3,000,000.00 as the gross amount is fair, is that right?
      A: Yeah.
      (Emphasis added).

      . The Waggoners received a $30,000 refund because the MDL judge determined that the fund had an excess amount of funds.

      . The Waggoners received an almost $5,000 refund on these expenses,