author: IRVING, P.J., GRIFFIS, P.J.,

text:
    Laura KARPINSKY, Appellant v. AMERICAN NATIONAL INSURANCE COMPANY and Oraclean, Inc., Appellees.
    No. 2010-CA-02084-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.
    Rehearing Denied July 17, 2012.
    William Carl Miller, Biloxi, attorney for appellant.
    Mark Edward Norton, Scott Derrick Smith, Vick K. Smith, attorneys for appel-lees.
   IRVING, P.J.,

for the Court:

¶ 1. Laura Karpinsky commenced this action by filing a complaint in the Harrison County Circuit Court against American National Insurance Company (ANIC) and OraClean, Inc., seeking damages as a result of a slip-and-fall accident at Edge-water Mall in Biloxi, Mississippi. OraCle-an timely answered the complaint and later moved for summary judgment, which the circuit court granted. Feeling aggrieved, Karpinsky appeals and argues that the circuit court erred in granting summary judgment in favor of OraClean.

¶ 2. After a careful review of the record, we find that a genuine issue of material fact exists as to whether OraClean had sufficient time to remedy the hazardous condition that led to Karpinsky’s fall and resulting injuries. Accordingly, we reverse the judgment of the circuit court and remand this case for a trial on the merits.

FACTS

¶ 3. On August 24, 2005, Karpinsky slipped and fell in a puddle of water in front of Lane Bryant, a retail store located in Edgewater Mall. ANIC owns Edge-water Mall and contracts with OraClean to provide housekeeping services for the mall.

¶ 4. In her complaint, Karpinsky alleged that OraClean was negligent for failing to take reasonable steps to ensure her safety or provide her with adequate warning of the liquid on the floor. Karpinsky maintains that OraClean had actual notice of the spill because a customer had notified the mall’s Guest Services of the spill more than five minutes prior to her accident.

¶ 5. Gail Clark witnessed Karpinsky’s fall. During her deposition, Clark testified that when she entered Lane Bryant, there was nothing on the floor. She stated that she shopped in Lane Bryant for “about five minutes,” and when she came out of the store, she saw a spill and a cup with ice in it on the floor. She testified that she walked around the spill as she exited the store. Approximately ten seconds later, Clark saw Karpinsky fall. Clark and her husband came over to assist Karpinsky and encouraged her to report the incident at the information booth, which Karpinsky eventually did. Clark further testified that she did not know how the spill had occurred.

¶ 6. Additional facts, as neeessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. An appellate court reviews the grant or denial of a summary-judgment motion de novo. Angle v. Koppers, Inc., 42 So.3d 1, 4 (¶ 6) (Miss.2010). The evidence in the record is viewed in the light most favorable to the non-moving party. Id. A party is entitled to summary judgment when “the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). “When a motion for summary judgment is made and [properly] supported ..., an adverse party may not rest upon the mere allegations or denial of his pleadings, but his response, by affidavits or [otherwise] ..., must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

¶ 8. The Mississippi Supreme Court has held:

A business owner has a duty to keep his premises in a reasonably safe condition for invitees. Where an injured party demonstrates that the dangerous condition was created by the negligence of the business or its employees, the injured party need not prove notice to the business. However, if the dangerous condition was created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.

Miller v. R.B. Wall Oil Co., 970 So.2d 127, 132 (¶ 17) (Miss.2007) (citing Drennan v. Kroger Co., 672 So.2d 1168, 1170-71 (Miss.1996)).

¶ 9. It is uncontested that Karpinsky was a business invitee on the day of the accident. Karpinsky never claimed that OraClean caused the spill or that anyone connected to it did. Karpinsky’s only claim was that OraClean had actual knowledge of the spill and had sufficient time to clean it up prior to her fall but failed to do so. Thus, to be entitled to summary judgment, OraClean carried the burden of producing credible evidence that it had neither actual nor constructive knowledge of the spill, or if it had knowledge of it, that it did not have sufficient time to clean it up prior to Karpinsky’s fall. We find that it failed to produce such evidence.

¶ 10. Attached to OraClean’s motion for summary judgment were the following items: Karpinsky’s complaint, a portion of her deposition, Clark’s deposition, and an itemization of facts. Based on the depositions, OraClean proved that the spill could not have been on the floor for more than five minutes and that Karpinsky did not know who caused the spill. OraClean did not offer any evidence that it lacked actual knowledge of the spill. It simply contended at the summary-judgment hearing that Karpinsky could not meet her burden of proof at trial. However, whatever evidence Karpinsky could or could not produce at trial was not an issue until Ora-Clean produced credible evidence at the summary-judgment stage that there were no genuine material issues for trial. It did not produce any evidence that it lacked knowledge of the spill or any evidence regarding the amount of time required to allow it a reasonable opportunity to clean up the spill. Neither Clark nor Karpinsky gave any testimony indicating either the distance between housekeeping’s physical location within the mall and the area where the spill occurred, or the amount of time that would have been required for housekeeping to arrive at the scene after being notified of the spill.

¶ 11. In response to OraClean’s motion for summary judgment, Karpinsky filed the affidavit of Dempsey M. Levi, her former attorney. Attached to the affidavit as exhibits were an Incident Report of Kar-pinsky’s fall, prepared by an employee of Edgewater Mall, and the transcript of a statement that Clark had given to Levi regarding the incident. In the statement, Clark said that it appeared to her that the spill had been on the floor for quite some time because it had spread and had been tracked through. In the Incident Report, Powell stated: “Guest Services advised prior to the alleged incident a customer had informed of a spill in front of Lane Bryant, at which time Guest Services notified housekeeping.” The Incident Report does not indicate the time that the customer reported the spill.

¶ 12. It is clear that Clark’s statement to Levi and the Incident Report create a genuine issue of fact that requires resolution by a jury. Clark’s statement that it appeared that the spill had spread and had been tracked through creates an issue as to how long the spill had been on the floor, notwithstanding her deposition testimony that the spill could not have been there longer than five minutes. The Incident Report proves that OraClean received notification of the spill.

¶ 13. While Levi’s affidavit was objectionable because it did not comport with the requirements of Rule 56(e), OraClean did not file a motion to strike it. The affidavit was filed a day before the summary-judgment hearing. M.R.C.P. 56(c) (permitting an adverse party to a summary-judgment motion to serve opposing affidavits prior to the day of the hearing). There is ample case law holding that if a party fails to move to strike a non-complying affidavit, he waives the matter. See, e.g., Bd. of Educ. of Calhoun County v. Warner, 853 So.2d 1159, 1163 (¶ 16) (Miss.2003). Therefore, for purposes of summary judgment, the affidavit should have been considered.

¶ 14. In summary, we find that OraCle-an failed to present any evidence that it lacked actual knowledge of the spill, or that more than five minutes were required to afford it a reasonable opportunity to clean it up. Additionally, we find that since OraClean failed to carry its burden of production to show that there were no genuine issues as to any material fact for trial, the burden of persuasion never shifted to Karpinsky to “set forth specific facts showing that there is a genuine issue for trial.” Nevertheless, Karpinsky presented facts by affidavit that showed: (1) OraCle-an had actual knowledge of the spill and did not clean it up until after she had fallen and (2) the existence of a triable issue as to whether the spill had been on the floor long enough for OraClean to have had a reasonable opportunity to clean it up prior to her fall.

¶ 15. The dissent apparently confuses plaintiff Karpinksy’s burden of proof at trial with her burden, as a non-moving party, at the summary-judgment stage. Our jurisprudence is well settled that “[t]he party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.” Smith v. Malouf 597 So.2d 1299, 1302 (Miss.1992) (citations omitted). The “proponent of [a] summary judgment motion ⅛ not permitted to rest exclusively on the weakness of [the] opponent’s response.’” Id. at 1303 (quoting Brown v. Credit Ctr., Inc., 444 So.2d 358, 364 (Miss.1983)). Therefore, “[b]efore [an appellate court] can affirm the summary judgment, [it] must ascertain that the strength of [the] proponent’s showing is such that it is entitled to judgment as a matter of law.” Id. (quoting Brown, 444 So.2d at 364). “[E]ven in the absence of a response [by the non-moving party,] the court may enter judgment only ‘if appropriate,’ i.e., if no genuine issue of material fact exists.” Price v. Purdue Pharma Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006) (quoting Foster v. Noel, 715 So.2d 174, 180 (Miss.1998)).

¶ 16. The dissent also cites J.C. Penney Co. v. Sumrall, 318 So.2d 829 (Miss.1975) and asserts that Sumrall provides guidance, given its similarity to this case. While the Sumrall court reversed and rendered a verdict in favor of the plaintiff, it is clear to us that the dissent has mis-analyzed the facts that led to that decision. A recitation of the facts in Sumrall is sufficient to point out the stark contrast between that case and ours. In Sumrall, Ruth Jones Sumrall fell in some vomit outside of the entrance to a J.C. Penney store. Sumrall, 318 So.2d at 829. Sumrall sued J.C. Penney and its store manager, Holcombe C. White, claiming negligence on the part of the store manager for failing to use ordinary care to immediately remove the vomit. Id. at 829-30. J.C. Penney offered the testimony of store employee Mary Rhymes, who observed the person vomiting in the foyer outside the store’s entrance. Id. at 830. We quote the relevant portion of Rhymes’s testimony:

Q. Now, when you saw her vomit, what did you do?
A. I stepped to the telephone to call Lee McDonald [the store’s janitor].
Q. About how far were you from that ‘phone?
A. Just a few steps I would say — four feet. Three or four feet. Across the aisle.
Q. Mrs. Rhymes, how long did it take you to get from where you were standing to the telephone?
A. Just a few seconds, I would say, because I was almost at it.
Q. All right, and what did you do when you got to the telephone?
A. I called Lee McDonald in the basement [and told him] to hurry, that we had something in front of the store that needed to be cleaned up, and he hurried.
Q. All right, while you were on the telephone did you see the plaintiff?
A. As I was hanging the ‘phone up[,] she came around the corner[,] and I yelled, ‘Look out.’
A. I just said, “[L]ook out!” And I was on my way out and — but she was falling.
A. [Y]es, ordinarily I would have run and got [sic] some paper and put [the paper] over it.
Q. And what would you have done with the paper?
A. Put [it] over it.
Q. And how much time elapsed between the time that this customer, Lucille Millsaps, vomited, until the time you shouted to the plaintiff?
A. I would say just a couple of seconds, because she was right behind her, you know.
Q. All right, when you got off the ‘phone you say you ran towards the door and she had already slipped?
A. Yes.
Q. Now, when did you see Lee McDonald?
A. Almost by the time I turned around. He came right up just in a few seconds.
Q. What would be your best estimate of the time that elapsed from the moment you saw the vomiting occur and the time that Lee McDonald got there?
A. I would say a minute and a half, or something like that.
Q. And do you know about how far you were from the place where the vomit was located?
A. Fifteen feet. I would say around fifteen feet.

Id. at 830-31.

¶ 17. It is abundantly clear that these facts are substantially different from ours. In Sumrall, the store’s employee tried to warn the plaintiff about the vomit by shouting out to her to watch out. Further, the store proved that it responded immediately to the notice that vomit was on the floor but that it did not have a reasonable time to remove it before the plaintiff fell. In our case, the summary-judgment evidence conflicts as to how long the spill had been on the floor. OraClean produced evidence showing that it could not have been on the floor for longer than five minutes. Karpinsky produced evidence that shows that the spill could have been on the floor for a longer period because it had spread and had been tracked through. The Incident Report shows that the fall occurred at approximately 18:45 hours and that the floor was mopped at 18:48 hours. It also shows a “reported time” of 18:50 hours. However, it is unclear as to whether this “reported time” is (1) when Karpin-sky reported her fall, (2) when the unidentified customer reported the spill, or (3) when the incident was reported to the author of the Incident Report. More importantly, as previously stated, OraClean produced no evidence to show that it had insufficient time to clean up the spill before Karpinsky fell. As stated, neither Clark nor Karpinsky gave any testimony indicating either the distance between housekeeping’s physical location within the mall and the area where the spill occurred, or the amount of time that would have been required for housekeeping to arrive at the scene after being notified of the spill. There is simply nothing in the record on this point. Therefore, we find that the circuit court erred by granting summary judgment. Consequently, we reverse the judgment of the circuit court and remand this case for further proceedings.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE, J.; BARNES, J., JOINS IN PART.

GRIFFIS, P.J.,

dissenting:

¶ 19. The majority finds that a genuine issue of material fact exists as to whether OraClean had sufficient time to remedy the dangerous condition that caused Kar-pinsky’s fall and injuries. I can find no fact in dispute.

¶ 20. The majority determines that OraClean was not entitled to a judgment as a matter of law. In the majority’s opinion, the triable issue was whether the spill had been on the floor long enough for OraClean to have had a reasonable opportunity to clean it up prior to the fall. The majority simply concludes that since the spill may have been on the floor for no longer than five minutes, it is a jury question as to whether that was long enough to create a question of negligence on the part of OraClean. I disagree. I am of the opinion that Karpinsky had the burden to prove that OraClean had a reasonable opportunity to clean up the spill prior to her fall, but did not and was negligent.

¶ 21. Therefore, I respectfully dissent.

A The standard of review for a motion for summary judgment.

¶ 22. In Haggard v. Wal-Mart Stores, Inc., 75 So.3d 1120, 1122 (¶ 1) (Miss.Ct.App.2011), this Court considered a business invitee’s appeal of a summary judgment where the business invitee slipped on a “clear, unknown substance on the floor and sustained injuries.” There, we stated the correct standard for the review of a motion for summary judgment:

The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt. Further, the' facts must be viewed in the light most favorable to the non-moving party. The non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial. Issues of fact are present where one party swears to one version of the matter in issue and another says the opposite. A material fact is one that tends to resolve any of the issues properly raised by the parties. A fact is material if it is outcome determinative. Additionally, summary judgment is appropriate “where the non-movant fails to establish the existence of an essential element of that party’s claim.”

Id. at 1124 (¶ 8) (emphasis added and citations and quotations omitted).

¶ 23. To prevail on the motion for summary judgment, OraClean had the burden to demonstrate only that there “are no genuine issues of material fact.” Id. Ora-Clean may prevail on the motion if the “non-movant (Karpinsky) fails to establish the existence of an essential element of [her] claim.” Id.

¶ 24. The majority correctly states the law of premises liability. The majority notes that knowledge of the spill is not enough. Indeed, if knowledge alone was sufficient to establish a premises owner’s negligence, then premises-liability claims would be strict liability claims. Such is not the case. Karpinsky, as a plaintiff in a premises-liability claim, must have present some proof of negligence by the premises owner. In paragraph 8, the majority states that “the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.” (Citing Miller v. R.B. Wall Oil Co., 970 So.2d 127, 132 (¶ 17) (Miss.2007)) (emphasis added).

¶ 25. Yet, in the following paragraph, the majority concludes that “to be entitled to summary judgment, OraClean carried the burden of producing credible evidence that it had neither actual nor constructive knowledge of the spill, or if it had knowledge of it, that it did not have sufficient time to clean it up prior to Karpinsky’s fall.” The majority cites no authority for this legal principle. The majority continues, in the next paragraph, by stating that, “whatever evidence Karpinsky could or could not produce at trial was not an issue until OraClean produced credible evidence at the summary-judgment stage that there were no genuine issues for trial.” Yet again, the majority cites no authority for this legal principle.

B. The movant and non-movant’s burdens of proof, production and persuasion.

¶26. In Daniels v. GNB, Inc., 629 So.2d 595, 600 (Miss.1993), the supreme court held:

The party moving for summary judgment bears the burden of persuading the trial court that no genuine issue of material fact exists, and that they are, based on the existing facts, entitled to judgment as a matter of law. The mov-ant and non-movant bear the burdens of production corresponding to the burdens of proof they would bear at trial. Thus, the movant only bears the burden of production where they would bear the burden of proof at trial. Palmer at 1355. Correspondinyly, the non-mov-ant, provided they would bear the burden of proof at trial on the issue in question, is responsible for produciny supportive evidence of siyniñcant and probative value in opposition to the motion for summary judyment.

(Emphasis added and internal citations and quotations omitted).

¶ 27. In Galloway v. Travelers Insurance Co., 515 So.2d 678, 684 (Miss.1987), the court held:

Our own construction of Rule 56 embodies this concept that when a party, op-posiny summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law. In Chatham v. Gulf Publishing Company, Inc., 502 So.2d 647 (Miss. 1987), we reviewed the circuit court’s entry of summary judgment in favor of the defendant in a defamation case. We enumerated the elements of the tort: 1) false and defamatory statement concerning another, 2) unprivileged publication to a third party, 8) fault amounting to at least negligence on the part of the publisher, and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Chatham, 502 So.2d at 649. We then affirmed summary judgment for the defendant based on our holding that the statements involved were not defamatory. Chatham, 502 So.2d at 650. Thus, we affirmed summary judgment where the nonmoving party, who would have had the burden of proof at trial, failed to make a showing sufficient to establish an essential element of the claim.
In the case at bar, Galloway failed to make an adequate showing on an essential element on which he would bear the burden of proof at trial. Therefore, summary judgment in favor of Travelers on this claim was appropriate.

(Emphasis added).

¶ 28. To survive OraClean’s motion for summary judgment, it was Karpinsky, not OraClean, who must produce “supportive evidence of a significant and probative value” that OraClean had sufficient time to clean up the spill prior to Karpinsky’s fall. I am of the opinion that the majority has misstated and misplaced the burden of proof.

C. Whether there was a genuine issue of a material fact in dispute.

¶ 29. I examine whether there were any genuine issues of a material fact in dispute. The majority concludes that OraClean failed to present evidence that it lacked actual knowledge of the spill or that more than five minutes were required to afford it a reasonable opportunity to clean it up. The majority also recognizes that neither Clark nor Karpinsky gave any testimony to indicate either the distance between housekeeping’s physical location and the area where the spill occurred, or the amount of time that would have been required for housekeeping to arrive at the scene after being notified of the spill. Further, Karpinsky offered no evidence regarding OraClean’s policies and procedures with respect to this type of situation. The majority is simply incorrect; based on Daniels and Galloway, Karpinsky, not OraClean, has the burden to prove these issues.

¶ 30. To support its motion, OraClean offered the depositions of the plaintiff and the only eyewitness. Karpinsky testified that she slipped on a liquid but did not really look at it. She did not know if it was water or if it was hot or cold. Karpin-sky had no idea how the liquid got on the floor and did not see any footprints in the liquid. She presented no evidence about how long the spill had been there.

¶ 31. Gail Clark was the only eyewitness. She testified that she went into the Lane Bryant store while her husband went to the bathroom. Clark testified that she did not see any water, cup or spill on the floor when. she went into the store. She also testified that she believed that if a spill would have been there when she entered the store, she would have seen it. Clark testified that she was in the store for “about 5 minutes.” As she left the store, she saw a liquid spill with a cup just outside the store entrance. She remembered seeing a cup with ice still in it. She walked around the cup and about ten seconds later, Karpinsky fell. Clark’s testimony established the spill had been on the floor for less than five minutes. Karpin-sky’s lawyer did not ask any questions of Clark during her deposition.

1132. Karpinsky did not file a response to the motion for summary judgment. However, the day before the hearing, Kar-pinsky’s attorney submitted an affidavit signed by Dempsey M. Levi, Karpinsky’s former lawyer, to oppose the motion. In the affidavit, Levi swore under oath that he has personal knowledge of the matters set forth in the affidavit. Levi’s affidavit offered two documents as exhibits: (1) a transcript of an unsworn recorded statement that Levi took of Clark; and (2) a copy of the Edgewater Mall “Incident Report” regarding Karpinsky’s fall. In the affidavit, Levi stated that:

I was Laura Karpinsky’s former attorney and in connection with that representation I took a recorded statement (a transcript of the recorded statement of Gail Clark is hereby attached to affidavit as Exhibit 1) wherein Gail Clark stated that the spill in front of the Lane Bryant store had been there “quite a while” and that there were tracks, etc. in the spill.

¶ 33. At the hearing on the motion, OraClean’s counsel argued that Clark’s un-sworn recorded statement was hearsay and inadmissible. In response, Karpinsky’s counsel agreed. Her counsel admitted that Clark’s statement was not offered as admissible evidence, but was offered as “impeachment material.” Karpinsky’s counsel argued:

Your Honor, I submit in defense of [OraClean’s counsel’s] allegation that these documents submitted through affidavit are rank hearsay, first off, the recorded statement is [Mississippi Rule of Evidence] Rule 613(a) impeachment material. At trial all I need to do is remind her of the situation [wherein] she gave that recorded statement which is in conflict with what she said at the deposition, and then give her an opportunity to deny or explain. So that’s impeachment material. It’s not hearsay.

¶ 34. Karpinsky offered Clark’s un-sworn recorded statement only to contradict Clark’s sworn deposition testimony, not as substantive evidence. Clark’s recorded statement was clearly hearsay, and was not admissible as substantive evidence at trial. See M.R.E. 801; M.R.E. 802. If offered as a prior inconsistent statement, it can be offered only for purposes of impeachment and cannot be used as substantive evidence. See King v. State, 994 So.2d 890, 898-99 (¶ 30) (Miss.Ct.App.2008).

¶ 35. Mississippi Rule of Civil Procedure 56(e) requires that “opposing affidavits ... on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” In the majority’s de novo review of the motion for summary judgment, it may not rely upon an unsigned, unsworn transcript of a witness interview to conclude that there was a genuine issue of material fact in dispute. The majority’s holding is contrary to Rule 56 and sets a dangerous precedent.

¶ 36. In my de novo review of the motion for summary judgment, I accept the statement of Karpinsky’s lawyer that the recorded statement was not admissible evidence; i.e., it was not offered as substantive evidence, but only as impeachment material. Thus, based on Rule 56(e), I am of the opinion it is improper to consider such inadmissible evidence. I also believe it error for the majority to consider the transcript of Clark’s unsworn statement at all.

¶ 37. The incident report, however, is admissible evidence. It could have been simply attached to a response if one had been filed. Moreover, OraClean does not allege that it is improper for the Court to consider it. The incident report, in pertinent part, states:

Date of report: 11/15/02 Type of Incident: Personal Injury
Occurred: 8/24/05-Approx 18:45 to 8124105 Approx 18:45
Reported: 8124/05-18:50
Location of Occurrence: common area in front of Lane Bryant
Subject: Laura Karpinsky
Reported by: Laura Karpinsky
Witness: Vincent Milanese
Witness: N/A
Summary: On 8/24/05 at approximately 1850, Officer Katy Odell responded to a call from Guest Services in reference to an alleged sliplfall. Upon arrival, Officer Odell made contact with the claimant, Laura Karpinsky. The claimant advised that she has slipped and fell [sic] in some water in front of Lane Bryant as she was walking_The witness, Vincent Milanese[ ] (claimant’s son) stated that he was walking with his mother when she slipped [and] fell. Gail Clark ... also witnessed the alleged incident and walked with the claimant to Guest Services but departed without providing any additional information. Guest Services advised prior to the alleged incident a customer had informed of a spill in front of Lane Bryant, at which time Guest Services notified housekeeping. The claimant advised that she slipped prior to housekeeping[’]s arrival because she did not see a wet floor sign. The sign was visible upon security’s arrival[,] and the area was clear of any spill.
VI. The Incident. Give the claimant’s version of how the incident occurred and detail below. Specifically, what does the claimant think caused the incident? If the claimant is unable to tell you, reconstruct as much as you can from physical evidence/witnesses. Walking in front of Lane Bryant, slipped an fell in a puddle of water. Claimant also stated that another customer assisted her from the floor and advised her to report the incident to Guest Services.
A. Description of the scene. Type of walkway: Floor [X] ...
Special Conditions — (NOTE: If you did personally observe the following conditions, place a check mark in the box[) ].
1. Foreign substance present? (Water, ice, soda, etc.) [X] YES
Color: Clear Odor: None Amount: 2'X2'
Spill pattern: round Texture: wet Consistency: water
Skid/streak marks: [X] NO Material on shoe soles? [X] NO
How did substance come to be on floor? Unknown
What does substance appear to be? Wader
F. Maintenance
1. Indicate the date and time the incident location was most recently:
Date Time By Whom
Patrolled 8/24/05 1825 B. Melching
Mopped 8/24/05 1848 Housekeeping
3. Before the incident, was any employee aware of the conditions which you have noted? [X] YES [X] NO
If YES, how did the employee become aware of the condition and who was the employee? Reported to Housekeeping prior to this incident that we had a wet spill. An unknown housekeeping employee responded but arrived after the incident.
4. Were any precautions taken prior to the incident to warn, prevent and/or correct the condition? [X] YES

¶ 38. The facts reported in the incident report are not in dispute. The incident report reveals when Karpinsky’s fall occurred, when it was reported, and when housekeeping mopped up the spill. The incident report also reveals that someone had reported the spill to “Guest Services” prior to Karpinsky’s fall. Yetm the majority recognizes that “the report does not show the time that the unidentified customer reported the spill to Guest Services.” The facts are not inconsistent with the depositions of Karpinsky and Clark. Karpinsky did not offer any evidence from OraClean’s employees or staff who were present about the spill or its timing; when OraClean had notice; what it did once it received notice; why there was a delay in cleaning the spill; or what were the proper procedures for OraClean’s staff to follow in the event of a spill or other dangerous condition. Karpinsky offered no evidence to show that OraClean breached any duty or did any thing wrong.

¶ 39. Considering all of the information before the trial court and this Court, the undisputed facts are:

1. Karpinsky was a business invitee of Edgewater Mall on the date of the incident.
2. Karpinsky was walking just outside of the Lane Bryan store when she stepped in some water on the floor and fell.
3. OraClean did not cause the water to be on the floor.
4. The water was on the floor for no more than five minutes.
5. OraClean was informed of the spill.
6. OraClean notified its housekeeping staff and responded to clean up the spill.
7. Karpinsky slipped and fell before OraClean’s staff arrived to clean up the spill or place a sign.

¶ 40. The majority finds that there is a disputed fact as to whether OraClean had sufficient time to clean up the spill before Karpinsky fell. In essence, the majority claims it is a jury question as to whether OraClean was negligent because less than five minutes was more than a reasonable opportunity to clean up the spill prior to the fall.

¶ 41. The problem with the majority’s reasoning is that Karpinsky presented no evidence to determine when or how Ora-Clean was advised of the spill. She presented no evidence that OraClean did not respond immediately with its staff to clean up the spill. And she presented no evidence that OraClean did not respond in a reasonable and prompt manner.

¶ 42. Karpinsky must show more than just notice. She must establish some negligence, i.e., failure to exercise reasonable care, by OraClean. Karpinsky’s argues in her brief that “reasonable minds could differ as to whether there was sufficient time after notice for the premises owner to warn its business invitees of the dangerous condition.” She cites one case and argues:

[T]he duty of the proprietor is to eradicate the known dangerous condition within a reasonable time or to exercise reasonable diligence in warning those who were likely to be injured because of the danger. J.C. Penney Co. v. Sumrall, 318 So.2d 829, 832 (Miss.1975). Ms. Karpinsky urges that since this is an actual notice/failure to warn case-once the mall had actual notice of the condition, it should have fulfilled its duty to take reasonable measures to warn its invitee of the danger.

In the J.C. Penney case, the Mississippi Supreme Court held that because of the extremely short time span between notice and Ms. Sumrall’s fall, the proprietor had done all it could do by immediately notifying its janitor to come clean the vomit off the floor. The Court spoke of “the limited few seconds” between actual notice and Ms. Sumrall’s fall. Id. at 832.

In contradistinction to the Penney facts, here we face a much longer time span — five minutes by the mall owner’s theory — during which the proprietor and/or its cleaning contractor had ample time to warn of the danger. Put simply, the question becomes whether or not those whom Ms. Karpinsky charges with negligence exercised reasonable diligence within the putative time frame to warn of the danger. This is the type question we let juries resolve....

¶ 43. In Sumrall, the plaintiff slipped and fell in the foyer of a J.C. Penney store. Sumrall, 318 So.2d at 829. The jury returned a verdict for the plaintiff. The evidence established that a customer had vomited in the front of the store. Id. at 830. A store employee witnessed the event, but rather than cleaning up the vomit immediately or warning other customers of the vomit, the employee went to a telephone and called for the janitor to come clean it up. Id. The plaintiff stepped in the vomit and fell as the employee was hanging up the telephone. Id. The plaintiff alleged that the premises owner was negligent in failing to immediately clean up the vomit and warn customers. Id. at 831.

¶ 44. The supreme court ruled that the premises owner’s duty was to eradicate the known dangerous situation within a reasonable time or to exercise reasonable diligence in warning those who were likely to be injured because of the danger. Id. at 832. The court held that “there must be some evidence of negligence given a jury before it can determine that a defendant is guilty of negligence.” Id. at 832. The Court concluded that “[t]he mere fact that a customer succeeded in reaching the vomit and falling before the janitor, the manager and other agents ... had a reasonable opportunity to correct the situation is not sufficient evidence to establish negligence on the part of the defendants. Consequently, there is nothing for the jury to decide.” Id.

¶ 45. Karpinsky’s case is no different than Sumrall. Karpinsky has the burden to offer some evidence of OraClean’s negligence. “The mere fact that [Karpinsky] succeeded in reaching the [spilled water] and falling before the janitor, the manager and other agents ... had a reasonable opportunity to correct the situation is not sufficient evidence to establish negligence on the part of the [OraClean], Consequently, there is nothing for the jury to decide.” Id.

¶ 46. In Hardy ex rel. Hardy v. K Mart Corp., 669 So.2d 34, 36 (Miss.1996), the plaintiff alleged K-mart was on notice of a paint spill before the plaintiff slipped in it. According to the plaintiff, when he told a K-mart employee of the paint spill and his fall, the employee explained that they already knew about the spill and were trying to get somebody to clean it up. Id. The trial court granted K-mart’s motion for summary judgment, and the supreme court affirmed. Id. at 39. The supreme court concluded that whether K-mart had actual notice prior to the spill was irrelevant because it was undisputed that as soon as K-mart learned of the spill it began the steps to clean it up. Id. The court noted the principle in Sum,rail that allows •the premises owner a reasonable time to respond. Id. The majority does not address Hardy.

¶ 47. The majority is correct that Ora-Clean owed Karpinsky a duty. OraClean was required “to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or [to] warn of dangerous conditions not readily apparent, which [the] owner ... knows of, or should know of, in the exercise of reasonable care.” Fulton v. Robinson Indus., 664 So.2d 170, 175 (Miss.1995).

¶ 48. To establish a breach of the duty, Karpinsky must also show: (1) a negligent act by the defendant caused the dangerous condition; or (2) the defendant had actual knowledge of the dangerous condition but failed to warn the plaintiff; or (3) the dangerous condition remained long enough to provide the defendant with constructive knowledge. Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992). Actual or constructive knowledge of the spill is not enough. OraClean is not strictly liable for injuries occurring on the premises, nor is it an insurers of its invitees’ safety. Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988); Martin v. Rankin Circle Apartments, 941 So.2d 854, 864 (¶ 45) (Miss.Ct.App.2006). And mere proof that a slip and fall occurred “is insufficient to show negligence on the part of the proprietor[.]” Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966). Here, Karpinsky relies on “mere proof that a slip and fall occurred to show negligence, and the majority agrees.

¶ 49. Having reviewed the motion for summary judgment, the pleadings, the admissible evidence offered in support of and in opposition to the motion, I find that there is no genuine issue of a material fact in dispute. I find that Karpinsky had the burden to prove by a preponderance of the evidence that OraClean committed some negligent act, i.e., establish that OraClean did not respond to the notice of the spill in a timely manner. I also conclude that she failed to offer any evidence of a negligent act by OraClean. Accordingly, I conclude that OraClean was entitled to a judgment as a matter of law. I would affirm the trial court.

¶ 50. For these reasons, I respectfully dissent.

ISHEE, J., JOINS THIS OPINION. BARNES, J., JOINS THIS OPINION IN PART.

      . For purposes of this opinion, we will refer to ANIC and OraClean collectively as OraCle-an unless the context requires otherwise.

      . An unknown housekeeping employee responded to the call but arrived after Karpin-sky fell.

      . "[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” M.R.C.P. 56(e).

      . The affidavit of a lawyer does not appear to be the type of affidavit contemplated by Mississippi Rule of Civil Procedure 56. In fact, Rule 56(e) requires that the court only consider "opposing affidavits ... on personal knowledge, [which] shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” Levi was not a witness to Karpinsky's fall. Instead, Levi’s affidavit was only offered to introduce Clark’s unsworn interview transcript. Karpinsky’s counsel admitted that the only way Levi could testify at trial was to impeach Clark, if she gave testimony inconsistent with her prior unsworn statement. See M.R.E 613. In such case, neither Levi’s affidavit testimony nor what he claimed Clark said would be admissible evidence at trial.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Susan Sammie SMITH, Appellant v. SYSCO FOOD SERVICES and Fidelity & Guaranty Insurance Company, Appellees.
    No. 2011-WC-01161-COA.
    Court of Appeals of Mississippi.
    July 31, 2012.
    Rehearing Denied Dec. 4, 2012.
    Certiorari Denied March 14, 2013.

      David N. Gillis, Jackson, attorney for appellant.
    Michael D. Young, attorney for appel-lees.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Susan Sammie Smith filed a claim for benefits with the Mississippi Workers’ Compensation Commission (Commission) for injuries she claims she suffered while working for Sysco Food Services (Sysco). Her request for benefits was denied by the administrative judge and, subsequently, by the full Commission, which found that Smith failed to prove she sustained cumulative trauma to her hands and neck “manifesting in mid-September 2001” as a result of work-related injuries. She appealed the decision to the Hinds County Circuit Court, which upheld the denial of benefits. On appeal, we find that the Commission’s decision was supported by substantial evidence and affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Smith began working for Sysco in 1994. Initially, she was employed as a selector and pulled orders to be placed on trucks for delivery. Later, she obtained a position unloading trucks in Sysco’s shipping and receiving department. This entailed the use of a hand or electric jack to move pallets of food. Subsequently, Smith worked in the damage area, pulling damaged goods and restocking items. Lastly, Smith worked in the customer service department, pulling orders for customers. All of these positions required Smith to lift and move heavy boxes.

¶ 3. Smith suffered a workplace injury in 1994 when some cases of food hit her in the face.' She was treated for neck and face pain and received a cervical MRI, which was “within normal limits,” although there was some mild posterior spurring at C6-C7. Smith received physical therapy for her cervical strain as a result. She subsequently had another accident when some boxes fell and hit her; although she reported this accident to her supervisor, she did not require medical treatment. In 1996, Smith was treated for arm, face, and head injuries from a chemical spill. On August 21, 1998, Smith was treated for a work-related injury to her left ankle and foot when she slipped on ice in the freezer. Smith’s various injuries were covered by workers’ compensation insurance. Smith claims she also suffered other minor injuries at work, none of which she reported to her supervisor.

¶ 4. On May 18, 1999, Dr. Gary Nelson, Smith’s family practitioner, diagnosed her with acute lumbar strain, a result of a work injury and referred her to Dr. Michael Vise, a neurosurgeon. Smith complained of numbness in her legs. Dr. Vise diagnosed Smith with chronic lumbosacral strain.

¶ 5. In mid-September 2001, Smith was driving to work when she blacked out. Smith said she contacted Sysco to inform the company of her illness and to notify the company of her absence. Smith sought treatment from Dr. Nelson on September 19, 2001, for symptoms of dizziness and nausea. He diagnosed Smith with an upper respiratory infection and sinusitis. A few days later, Smith contacted the clinic, complaining that she was still dizzy, faint, and nauseated. Dr. Nelson concluded that the dizziness likely was caused by Smith’s sinusitis medicine. He provided Smith with a work absence excuse, stating she could return to work on October 8, 2001. As Smith was also experiencing abdominal pain, Dr. Nelson referred her to Dr. James Lewis, an obstetrics and gynecology doctor (OB/GYN), who provided her with a work excuse from October 9 through October 23, 2001. Smith never returned to work at Sysco.

¶ 6. Sysco terminated Smith’s employment on October 26, 2001, for violation of its attendance policy, as she failed to return to work after her doctor’s excuse had expired. In a letter dated November 5, 2001, Sysco notified Smith that due to her unexcused absences totaling eight consecutive days, she was considered to have abandoned her job. The letter also informed Smith that she could elect to continue insurance coverage. Denise Jones, Sysco’s human resources director since 1998, later testified that Smith was terminated because Sysco did not hear from Smith for two days (October 24-25, 2001) after her work excuse had expired. Jones said she was never in contact with Smith regarding her absences and refuted Smith’s allegation that when Smith requested medical leave, she told Smith it would be denied. Jones stated that she sent Smith some Family Medical Leave Act (FMLA) forms, but Smith never returned them.

¶ 7. Deciding not to seek further treatment from Dr. Lewis, Smith sought treatment from Dr. Ted Roth, an OB/GYN at the University of Mississippi Medical Pavilion. During her initial visit to Dr. Roth on October 8, 2001, he noted in her records that she worked in a warehouse and had “some repetitive motion injury to her hands.” He also stated that she had “[i]n-termittent numbness and tingling of her hands secondary to repetitive motion injury.” However, he did not treat her for this condition; these observations were merely part of her medical history. On her follow-up visit on November 8, 2001, Dr. Roth only noted Smith had reflux and severe abdominal pain. No mention was made of her hands.

¶ 8. In May 2002, Smith sought treatment at Jackson-Hinds Comprehensive' Health Center for numbness in her hands and feet and chest pain. A medical report, dated June 21, 2002, stated that Smith had paresthesia in her hands and feet. A few days later, she was treated for a sore throat and temple pressure. On June 21, 2002, Smith reported neck and lower back pain, along with numbness in the hands and feet, and was diagnosed with degenerative disc disease in the cervical spine. On July 1, 2002, Smith had a cervical MRI that showed disc degeneration at the C5-C6 and C6-C7 levels.

¶ 9. On August 27, 2002, Smith sought medical treatment from Dr. Adam Lewis, a neurosurgeon with the Jackson Neurosurgery Clinic, for neck and lower back pain and numbness in her hands and feet. During a follow-up visit on October 5, 2002, she “reported there was no improvement in the carpal tunnel syndrome.” Dr. Lewis performed an endoscopic right carpal ligament release on Smith on October 9, 2002, to relieve the pain. When she returned on December 12, 2002, Smith reported that her right-hand numbness had resolved. On January 15, 2003, Dr. Lewis operated on Smith to treat her cervical spondylosis, and he also performed an endoscopic left carpal ligament resection. On June 20, 2003, Dr. Jacob Mathis, also with the Jackson Neurosurgery Clinic, reported that the fusion was solid, and Smith should only return to the clinic as needed.

¶ 10. Smith returned to the Jackson Neurosurgery Clinic in February 2004, complaining that she was dropping things and being awakened by tingling and numbness in her hands. Wrist splints and physical therapy were recommended; however, when Smith returned in March 2004, it was determined that she did not have a “neurosurgical treatable condition,” and she was referred to a rheumatologist. It was reported that Smith had reached maximum medical improvement on March 10, 2004, with a 25% permanent partial disability.

¶ 11. In the meantime, Smith filed a petition to controvert with the Commission on November 8, 2002, claiming that she was suffering from work-related injuries to her hands, neck, and lower back. Smith claimed that she had experienced tingling and numbness in her hands since 1994. A hearing was held on November 3, 2008, for the purpose of determining whether Smith sustained a compensable injury during her employment at Sysco. On January 7, 2009, the administrative judge denied Smith benefits, concluding that she “ha[d] not proven she sustained cumulative trauma, work-related injuries to her hands and neck manifesting in mid-September 2001[.]” The full Commission affirmed the administrative judge’s order on June 19, 2009.

¶ 12. Smith appealed the decision to the circuit court, which upheld the denial of benefits. Finding that the Commission’s decision to deny benefits was supported by substantial evidence, we affirm.

STANDARD OF REVIEW

¶ 13. “The standard of review by which an appellate court resolves a workers’ compensation case is that of substantial evidence; however, where the issue is one of law and not of fact, the standard of review is de novo.” Hugh Dancy Co., Inc. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2011) (quoting Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998)). The Commission is “the ultimate fact finder in addressing conflicts in medical testimony and opinion.” Smith v. Tronox LLC, 76 So.3d 774, 780 (¶ 23) (Miss.Ct.App.2011) (quoting Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss.2003)). “Even if this Court would not have reached the same decision as the Commission, we must affirm when the Commission’s findings are supported by substantial evidence and are neither arbitrary nor capricious.” Id. (citing Raytheon, 861 So.2d at 338 (¶ 25)). We will only reverse the Commission’s decision “for an error of law or an unsupported finding of fact.” Mixon v. Greywolf Drilling Co., LP, 62 So.3d 414, 417 (¶ 10) (Miss.Ct.App.2010) (quoting Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003)).

DISCUSSION AND ANALYSIS

¶ 14. The only issue on appeal is whether the Commission erred in denying workers’ compensation benefits to Smith concerning her alleged work-related injuries to her hands, neck, and lower back. Smith contends that she experienced a “gradual and progressive onset of disability caused by the cumulative and repetitive impact activities of her employment” with Sysco.

¶ 15. To support her assertion, she notes testimony by Dr. Lewis, the neurosurgeon who operated on her hands. Dr. Lewis was first deposed on April 13, 2005. Dr. Lewis stated that Smith came to him for treatment, complaining of “neck and low back pain” and “numbness in the hands and feet.” Dr. Lewis noted that there was “no precipitating event.” He further stated that the fact that Smith did not see a doctor for carpal tunnel syndrome while working at Sysco, but rather had pain afterwards paired with a “rheu-matologic disease[,] may tie it into something that’s not work related.” At that time, Dr. Lewis admitted that he was not familiar with the type of work Smith performed in 2001, stating he thought she was a secretary.

¶ 16. At a second deposition on December 16, 2006, Dr. Lewis reiterated that Smith had signs “indicative of carpal tunnel syndrome.” He also reviewed Dr. Roth’s records, testifying that “the numbness and tingling in her hands is related to the carpal tunnel syndrome, and repetitive motion is a classic presentation for carpal tunnel syndrome.” Unlike his earlier testimony, however, he claimed that these symptoms were “temporally related to her difficulties which began in September of '01.” He concluded: “The answer is that the patient has bilateral carpal-or had bilateral carpal tunnel due to repetitive hand motion injury and also had neck and left radicular arm pain due to cervical spondy-losis and her work-related injury, again, using the objects over 100 pounds.”

II17. Dr. Mathis also stated that it was his “impression that the bilateral carpal tunnel syndromes, which required surgery for treatment, relate directly to the repetitive actions which [Smith] performed during her employment with Sysco Food Service.” He said that her pre-existing cervical spondylosis “was aggravated during the course of employment.”

¶ 18. Yet, when asked whether Smith reported any work injury upon her initial visit, Dr. Lewis admitted that she had not done so. He also acknowledged that carpal tunnel syndrome can be “related to thyroid disease, pregnancy, vitamin A deficiency, and a variety of other causes.” Further, Dr. Lewis admitted that there was no medical evidence that Smith had issues with her hands in the year prior to her leaving work.

Q. Do you have any medical evidence whatsoever that she had any type of complaints, pain, or problems with her hands since the year 2000, which would go back actually one year and nine months before this allegedly occurred?
A. No.
Q. Okay. So you don’t have any from 2000 until September the 19th of 2001 when this allegedly occurred, and you don’t have any from September 19th until there is a secondary notation in Dr. Roth’s report dated October 18, 2001. Correct?
A. Yes.

In a May 16, 2007 deposition, Dr. Lewis was asked about the relationship between Smith’s cervical spondylosis and her employment:

Q. Do you have an opinion based upon a reasonable degree of medical probability as to whether the degenerative condition for which you ultimately performed surgery was causally related to her employment?
A. Again, if we look at that issue, what we would have to look at is was there anything in the medical record that suggests neck and arm pain causally related to her work. I don’t recall seeing anything like that.

Dr. Lewis said that Smith complained to him of “stabbing” neck and lower back pain that began in September 2001; however, he acknowledged that Smith’s complaints of neck pain are not supported by Dr. Nelson’s medical records. Dr. Lewis later asserted at the same deposition: ‘You know, the more I see that, I think you may be able to put the neck and back pain to the work history because she even missed work because of it.... So I think, you know, I have to revise my testimony earlier and state that the neck pain and the spondylosis was related to work.” The missed work to which Dr. Lewis is referring, however, occurred prior to 2000. He admitted that there was nothing in Smith’s medical history regarding lower back or neck pain after 1999.

¶ 19. Dr. Alan Freeland, “an expert in orthopaedic subspecialty in hand surgery,” reviewed Smith’s medical records and the deposition transcripts and concluded in his report that “within a reasonable medical probability[,] Ms. Smith’s bilateral carpal tunnel syndrome are not work related and do not merit controversion to Workers’ Compensation injuries.” He also refuted Dr. Lewis’s findings:

Dr. Lewises] first reason for declaring the patient’s problems as “occupationally-related” is her job as a manual worker. The relationship of repetitive manual work to injuries in the work place is quite controversial. Broad sweeping conclusions cannot be reached on either side of the argument.... Repetitive forces may or may not be a risk factor for carpal tunnel syndrome. It is my view that each case must be evaluated individually and on the basis of its independent merit.

Dr. Freeland later testified that symptoms such as the numbness and swelling experienced by Smith are “usually indicative of a systemic problem.” Dr. Freeland noted that although Smith claims her tingling and numbness in her hands began in 1994, she “never related these complaints to her work nor reported them as work related.” He stated: “I could not find any evidence that substantiated that this problem occurred on the job.”

¶ 20. Smith claims that she stopped working at Sysco “because her pain had worsened, her hands were numb and purple-colored when not at work[,] and she blacked out while driving to work.” However, except for the dizziness, none of Smith’s previous injuries at work, for which she sought medical care, were related to any issues with the tingling and numbness of her hands. Dr. Nelson, a family practitioner, had been treating Smith since May 16, 1996, for various illnesses, none related to her hand or cervical spondylosis. Smith was treated by Dr. Nelson in September 2001 for sinusitis. There is no mention of any issues with Smith’s hands, feet, or neck. During Dr. Nelson’s deposition on March 30, 2007, he testified that he saw Smith frequently during the end of September, but all of her medical issues concerned her sinusitis.

¶ 21. Furthermore, Smith admitted that she did not seek medical treatment for almost two years prior to her appointment with Dr. Nelson on September 19, 2001. Smith acknowledged this during her testimony:

Q. You testified earlier that your problems were severe for the last three years prior to you stopping work, however, you did not seek any type of medical treatment during the year of 2001 before you went to Dr. Nelson on September the 19th of 2001. True?
A. True.
Q. You didn’t seek any type of medical treatment from Dr. Nelson or anybody else during the year 2000, correct?
Q. Do you have medical reports that support your allegations?
A. No.

¶ 22. Thus, our review of the record supports the administrative judge’s finding that Smith “has not met her burden of proof that she sustained cumulative trauma to her bilateral upper extremities and neck which manifested in mid September 2001.” Accordingly, we affirm the Commission’s denial of benefits.

¶ 23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING and GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL and FAIR, JJ., CONCUR.

      . Sysco’s employee handbook states: “Failure to report an absence for two consecutive days is considered a voluntary resignation."

      . 29 U.S.C.A. § 2612 (1993).

      . There is an FMLA form in the Court's record, but it only covers the period from September 17, 2001 to October 8, 2001.

      . Although Smith sought treatment from two Dr. Lewises, any further reference to Dr. Lewis will refer to Dr. Adam Lewis, since Dr. James Lewis did not testify or make a statement regarding this case.

      .Smith does receive social security disability benefits.


author: MAXWELL, J.,

text:
    Julius FEDERICK a/k/a J.J., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00209-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2012.
    Rehearing Denied Dec. 4, 2012.
    Certiorari Denied March 14, 2013.
    W.S. Stuckey Jr., attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., ROBERTS, CARLTON, and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Julius Federick, a/k/a J.J., appeals his robbery conviction. His counsel filed a Lindsey brief, claiming there are no arguable issues for appeal. After an independent review of the record, we agree. We affirm Federick’s judgment of conviction and sentence.

BACKGROUND

¶ 2. Aldric Davis was walking home late at night when five men ambushed him and attacked him with a baseball bat, sticks, and a brick-like object. The men stole three hundred dollars in cash, a two-hundred-dollar cell phone, and a pair of Nike Shox shoes Davis was wearing.

¶ 3. Davis identified Federick as one of the robbers in a six-photo lineup. During the robbery, Davis heard another assailant refer to Federick as “J.J.” And during Federick’s arrest, the booking officer noted Federick had “J.J.” tattooed on his right bicep.

¶ 4. Federick was charged with armed robbery. At the close of trial, the jury was instructed on armed robbery and simple robbery. The jury found Federick guilty of simple robbery, and the trial court sentenced him to fifteen years’ imprisonment.

¶ 5. After an unsuccessful post-trial motion, Federick timely filed a notice of appeal. Federick’s appellate counsel, who had also represented Federick at trial, filed a Lindsey brief. Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005). Counsel represented to this court that, after a thorough review of the trial record, he found no arguable issues for appeal. See id.

DISCUSSION

¶ 6. When appellate counsel determines the record shows no appealable issues, counsel must follow the procedure outlined in Lindsey:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7); see also Smith v. Robbins, 528 U.S. 259, 280-81, 120 S.Ct. 746 [145 L.Ed.2d 756] (2000) (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding arrest;
(b) any possible violations of the client’s right to counsel;
(c) the entire trial transcript;
(d) all rulings of the trial court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Catchings v. State, 58 So.3d 53, 54-55 (¶ 6) (Miss.Ct.App.2011) (quoting Lindsey, 939 So.2d at 748 (¶ 18)).

¶ 7. By previous order, this court found the brief filed by Federick’s attorney was consistent with Lindsey’s requirements. The brief complied with Rule 28(a)(l)-(4) and (7), including a statement of the case and a statement of the facts with record citations. Counsel gave his opinion that, based on a thorough examination of the record, there are no arguable issues supporting Federick’s appeal. And counsel sent a copy of his brief to Federick, advising Federick that, while he found no arguable issues in the record, Federick had the right to file a pro se supplemental brief. Federick did not file a pro se brief.

¶ 8. We have reviewed the record and find no issue that requires supplemental briefing. Federick received proper notice of the charge of robbery, which is a lesser-included offense of armed robbery. See Fulcher v. State, 805 So.2d 556, 560 (¶ 11) (Miss.Ct.App.2001) (finding indictment charging armed robbery sufficiently charged defendant with simple robbery). The circuit court permitted Federick’s alibi witness to testify over the State’s objection that it was not sufficiently notified of this witness. The jury was properly instructed on the elements of robbery and the State’s burden of proof. The evidence was sufficient to convict Federick of robbery. And Federick’s fifteen-year sentence is within the statutory maximum. See Miss.Code Ann. § 97-B-75 (Rev.2006).

¶ 9. Thus, we affirm Federick’s conviction and sentence.

¶ 10. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR.

      . Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005).


author: FAIR, J.,

text:
    BIG RIVER OILFIELD SERVICES, LLC and Steven Ford, Appellants v. WILCOX DRILLING CO., LLC, Callon Group, LLC and John Chase Callon, Appellees.
    No. 2011-CA-00699-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2012.
    Rehearing Denied Mar. 12, 2013.

      Jeffrey Todd Waycaster, attorney for appellants.
    Walter Brown Jr., Philip Elmer Carby, Natchez, Edgar Hyde Carby, attorneys for appellees.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Steven Ford and his limited-liability company, Big River, appeal a judgment in favor of John Callón and his limited-liability companies, Wilcox Drilling and Callón Group, for damages based on breach of contract. Ford asserts two errors at the trial level: (1) transfer to the circuit court by the chancery court, and (2) admission of the testimony of Callon’s expert witness. Finding that the testimony of the expert witness was properly admitted and that transfer to the circuit court was not reversible error, we affirm the decision of the trial court.

FACTS

¶ 2. Callón and Ford contracted to form an oil and gas drilling company, Big River Oilfield Services, as a successor to Wilcox Drilling. Callón believed that he would be a joint owner of Big River and that he would manage the new company. Acting on that belief, Callón transferred equipment to Big River valued at around $700,000. After three months of managing Big River, Callón was pushed out and ultimately fired.

¶ 3. Callón sued Ford in the Adams County Chancery Court seeking specific performance, other equitable relief, and money damages. The chancery court entered a temporary restraining order enjoining use of the drilling equipment. According to Callón, there were several settlement attempts. But it became apparent that his return to Big River as an owner or employee would not work, so he abandoned his equitable claims. Callón amended his complaint without objection from Ford. He removed and dismissed any claims for equitable relief and sought only legal remedies for breach of contract. On Callon’s motion, the case was then transferred to the Adams County Circuit Court.

¶ 4. After a bench trial, the circuit court awarded Callón a judgment for $258,352 plus interest. Expert Jack Blaney’s testimony was presented as to the value of the equipment Callón brought to Big River. Ford moved to strike this testimony because Blaney had no first-hand knowledge of the equipment’s condition. This motion was denied. Ford now appeals.

STANDARD OF REVIEW

¶ 5. “When reviewing a trial court’s decision to allow or disallow evidence, including expert testimony, we apply an abuse of discretion standard.” Can. Nat’l/ Ill. Cent. R.R. v. Hall, 953 So.2d 1084, 1094 (¶29) (Miss.2007) (citation omitted). Unless the trial court’s decision was arbitrary or clearly erroneous, its decision will stand. See Irby v. Travis, 935 So.2d 884, 912 (¶ 79) (Miss.2006).

¶ 6. Jurisdiction is a question of law that is reviewed de novo. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 950 (¶ 4) (Miss.2000). When considering the ruling on a motion to transfer from chancery court to circuit court, our review is de novo. See Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1178 (112) (Miss.2004).

1. Blaney’s Expert Testimony

¶ 7. Blaney was the only expert who testified regarding the value of the equipment Callón brought to Big River. During cross-examination, Blaney admitted that he had not personally examined the condition of each piece of equipment but stated he was familiar with the types of equipment used. He relied on Callon’s testimony that the equipment was all in working order to formulate his opinion. Ford argues that Blaney’s testimony should have been stricken because his opinion regarding value was not based on sufficient facts.

¶8. Mississippi Rule of Evidence 702 requires that an expert witness’s opinion be based on sufficient facts or data. Rule 703 states: “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.” M.R.E. 703. Thus, Blaney’s testimony did not have to be based on his personal perception of the equipment; he was entitled to rely upon the facts made known to him by Callón.

¶ 9. “[T]o be admissible, the expert’s opinion need not be based on firsthand knowledge.” Worthy v. McNair, 37 So.3d 609, 615 (¶ 19) (Miss.2010). That an expert witness did not examine the equipment goes to the weight of his testimony, not its admissibility. See McCaffrey v. Puckett, 784 So.2d 197, 203 (¶ 19) (Miss.2001). Moreover, Ford did not object to Blaney being qualified as an expert. Once a witness is qualified as an expert, it is up to the trier of fact to assign weight and credibility to his testimony. See Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995). “[E]xpert opinions are only advisory in nature and are not binding on a trier of fact.” Utz v. Running & Rolling Tracking, Inc., 32 So.3d 450, 460 (¶ 19) (Miss.2010). It was Ford’s responsibility to offer evidence that would rebut Blaney’s opinion, as well as evidence to rebut Callon’s testimony on the condition of the equipment. We conclude that the trial court did not abuse its discretion in refusing to strike Blaney’s testimony.

2. Transfer to Circuit Court

¶ 10. The Mississippi Constitution of 1890 prohibits this Court from reversing for lack of subject-matter jurisdiction after a final judgment has issued unless we find another error in the proceedings. Miss. Const, art. 6, § 147. As we find no error regarding testimony by the expert witness, we do not reverse the trial court’s decision, but we discuss the jurisdictional matter for clarity.

¶ 11. Article 6 recognizes the circuit court as a court of general jurisdiction and the chancery court as one of limited jurisdiction. “To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought.” RAS Family Partners v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (¶ 11) (Miss.2007) (citations omitted). If it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, then a chancery court may hear and adjudge legal claims. RE/Max Real Estate Partners, Inc. v. Lindsley, 840 So.2d 709, 711-12 (¶ 13) (Miss.2003). Conversely, “if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction and adjudge pendant equitable claims.” RAS Family Partners, 968 So.2d at 928 (¶ 11).

¶ 12. If there is some doubt, the case is better tried in circuit court because “it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law....” Burnette, 770 So.2d at 952 (¶ 14) (citation omitted). In Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 717 (¶ 13) (Miss.2009), the Mississippi Supreme Court reviewed several recent breach-of-contract cases in which the chancery court’s jurisdiction was challenged. The court noted that in contract cases in which damages were the appropriate remedy, the circuit court has exclusive jurisdiction. Id. But in Derr Plantation, the primary relief sought was specific performance; therefore, the breach-of-contract claim was an equitable claim. Id. at 717-18 (¶¶ 15-16). Transfer to circuit court in that case by the chancellor was reversed and the matter remanded to the chancery court for decision. Id. at 720 (¶ 20).

¶ 13. This Court recently applied the Derr Plantation rule and found that a contract claim requesting damages should have been heard in circuit court even though the plaintiff also asserted an unjust-enrichment claim. Mark S. Bounds Realty Partners v. Lawrence, 34 So.3d 1224, 1229-1230 (¶ 16) (Miss.Ct.App.2010). Because all of the plaintiff’s other claims requested a legal remedy, they should have been raised in a court of law. Id. at 1230 (¶ 16).

¶ 14. Here, Callon’s original complaint requested specific performance along with legal remedies. After nine months, Callón amended his complaint, and Ford offered no objection. In the amended complaint, Callón abandoned all equitable claims and requested only damages. Upon our review of the amended complaint, there is no remaining basis for equity jurisdiction, and the chancery court properly transferred the case to the circuit court.

¶ 15. Even if Callon’s specific-performance claim had not been dismissed, the result would be the same. The supreme court, in Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 234 (¶¶ 12-13) (Miss.2006), addressed a breach-of-contract claim for damages and specific performance. The contract in question did not involve title to real estate, and ordering specific performance would have required periodic supervision by the court. Id. at 234 (¶ 12). The supreme court held that the claim was within the exclusive jurisdiction of the circuit court and should have been transferred from chancery court to circuit court. Id. In ERA Franchise Sys., Inc., 931 So.2d 1278, 1283-84 (¶ 15) (Miss.2006), the supreme court noted that the breach of a contract governing the parties’ business relationship was best determined in the circuit courts.

¶ 16. Ford argues under Derr Plantation that because the chancery court assumed jurisdiction and granted Callón a temporary restraining order, the court was required to retain jurisdiction. But in Derr Plantation, litigation had proceeded for two years, and the court had denied summary judgment to both parties before the plaintiffs sought to transfer their case. Derr Plantation, 14 So.3d at 715 (¶¶ 5-6). Here, no dispositive motions were heard or adjudicated by the chancery court, and litigation had only proceeded for nine months. The chancery court was under no obligation to retain the case once the complaint was amended to remove any and all claims for equitable relief.

¶ 17. Ford also makes much of the language used in Callon’s motion to transfer. The motion requests a transfer to the circuit court for a jury trial. After the case was transferred, the parties proceeded to a bench trial. Ford asserts that this behavior evidences judge shopping, but we disagree. The language “for a jury trial” in the motion to transfer appears to be pro forma, and Callón explained his reason for requesting the transfer in the body of the motion. This suggestion of nefarious behavior is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . For convenience, we refer to the parties collectively as Ford and Callón throughout this opinion.