author: COLEMAN, Justice, CHANDLER, Justice,

text:
    Danielle HINGLE a.k.a. Danielle Marie Hingle a.k.a. Daniella Marie Hingle v. STATE of Mississippi.
    No. 2012-KA-01654-SCT.
    Supreme Court of Mississippi.
    Oct. 9, 2014.
    Eehearing Denied Jan. 15, 2015.

      Office of State Public Defender by Mollie Marie McMillin, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   COLEMAN, Justice,

for the Court:

¶ 1. Danielle Hingle was convicted of sale of morphine, a controlled substance, and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. On appeal, Hingle argues that admission of the testimony of a crime laboratory analyst who reviewed and signed the lab report but did not test the pills violated her Sixth Amendment right of confrontation. She also argues that the trial court erred by admitting the pills due to flaws in the chain of custody. We hold that the trial court did not err by allowing the reviewing analyst to testify or by allowing the pills to be admitted.

Factual Background

¶ 2. On June 21, 2011, Deputy Max Herring met confidential informant Billy Wheater for an undercover operation. After Wheater was searched, Herring, in an undercover role, drove Wheater to Hin-gle’s workplace, a Sonic restaurant in Horn Lake. A video was played at trial showing that, when they arrived, Hingle walked up to the passenger window and Wheater handed money to Hingle. Hingle then handed pills to Wheater. Hingle counted the money and thanked Wheater; then Herring drove off. Herring testified that Wheater held the package Hingle had given him until they arrived at the post-buy location, where Wheater gave the pills to Agent Coleman. Coleman placed the pills in a bag, which he initialed and sealed. Wheater was searched at the post-buy location.

¶3. Gary Fernandez, a drug analyst with the Mississippi Crime Laboratory, testified that he reviewed the results of a test conducted by Bob Reed, which had concluded that the pills contained morphine. Fernandez testified that, although he had not observed Reed performing the test, he had reviewed Reed’s report line-by-line, had reached an independent conclusion that the pills contained morphine, and had signed the report as the technical and administrative reviewer. Hingle testified in her defense, and her primary defense theory was that Wheater had staged the sale to collect the confidential-informant fee. She admitted that Wheater had passed her money to “hold” for him, but she claimed that she had not given him drugs in exchange. She speculated that Wheater had produced the drugs after having concealed them from Herring by hiding them in his navel.

Analysis

¶ 4. Hingle claims that admission of Fernandez’s testimony violated her Sixth Amendment right of confrontation because he only signed off on the lab report, but did not test the pills. She also argues that the trial court erred by admitting the pills into evidence because the State failed to lay a proper foundation due to flaws in the chain of custody.

I. Admission of the reviewing analyst’s testimony did not violate Hingle’s right of confrontation.

¶ 5. Hingle argues that the lower court violated her right of confrontation because the State did not produce Bob Reed, the Mississippi Crime Laboratory analyst who actually tested the pills and determined that they contained morphine. Reed’s report was not admitted into evidence, so Hingle does not challenge the admissibility of the report through Fernandez’s testimony; she takes issue with his testimony only. Hingle failed to object to Fernandez’s testimony on Confrontation Clause grounds at trial, therefore, the issue is procedurally barred. Conners v. State, 92 So.3d 676, 682 (¶ 15) (Miss.2012). Thus, for reversal on the issue, plain error must have existed.

¶ 6. “Under the plain-error doctrine, we can recognize obvious error [that] was not properly raised by the defendant ... and which affects a defendant’s ‘fundamental, substantive right.’ ” Id. at 682 (¶ 15) (quoting Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008)). We have held “that a Confrontation Clause violation is a violation of a ‘fundamental, substantive right.’ ” Conners, 92 So.3d at 682 (¶ 15). Therefore, although Hingle did not object at trial, it is appropriate to determine whether a Confrontation Clause violation occurred. For reversal under the plain error doctrine, there must have been an error that “resulted in a manifest miscarriage of justice.” Williams v. State, 134 So.3d 732, 736 (¶ 15) (Miss.2014) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). Even if there was an error of the nature alleged — and even if that error resulted in a violation of the Confrontation Clause — if the error did not result in “a manifest miscarriage of justice,” then it can be deemed harmless. Conners, 92 So.3d at 684-85 (¶¶ 20-21) (concluding that Conners’s right to confrontation was violated, but it did not result in a manifest miscarriage of justice, and the error was harmless).

¶ 7. Under both the United States Constitution and the Mississippi Constitution, an accused has a right to confront and cross-examine the witnesses against him. U.S. Const, amend VI; Miss. Const, art. 3 § 26 (1890). In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of testimonial hearsay unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. 1354. Generally, testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. (citation omitted). Laboratory reports created to serve as evidence against the accused at trial are testimonial statements covered by the Confrontation Clause. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico,-U.S.-, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011); Conners, 92 So.3d at 684 (¶ 19).

¶ 8. In Melendez-Diaz, the Supreme Court held that sworn certificates of analysis — stating that the substance taken from the defendant had been tested and found to be cocaine — were testimonial, therefore, the certificates were inadmissible unless the analysts who prepared them were unavailable and there had been a prior opportunity to cross-examine them. Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. 2527. In Bullcoming, the State introduced a forensic laboratory report, which certified Bullcoming’s blood alcohol level, through an analyst who was familiar with the lab’s procedures but had not participated in or observed the testing of Bullcoming’s blood. Bullcoming, 131 S.Ct. at 2712. The Supreme Court held that the State’s use of a surrogate analyst “who did not sign the certification or perform or observe the test” fell short of satisfying Bullcoming’s right of confrontation. Id. at 2710.

¶ 9. Applying the rules from Melendez-Diaz and Bullcoming, we have held that a defendant’s right of confrontation is satisfied by the testimony of an analyst who reviewed the report for accuracy and signed it as a technical reviewer. Grim v. State, 102 So.3d 1073, 1081 (Miss.2012); Jenkins v. State, 102 So.3d 1063, 1069 (Miss.2012). The Court wrote the following about the testifying analyst in Grim:

[The analyst] was able to explain competently the types of tests that were performed and the analysis that was conducted. He had performed “procedural checks” by reviewing all of the data submitted to ensure that the data supported the conclusions contained in the report. Based on the data reviewed, [he] had reached his own conclusion that the substance tested was cocaine. His conclusion was consistent with the report, and he had signed the report as the technical reviewer. [He] satisfied the McGowen test because he had “intimate knowledge” of the underlying analysis and the report prepared by the primary analyst.

Grim, 102 So.3d at 1081 (¶ 20) (citing McGowen v. State, 859 So.2d 320 (Miss.2003)). The instant case is similar to both Grim and Jenkins, in which the Court held that “a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was actively involved in the production of the report and had intimate knowledge of anal-yses even though he .or she did not perform the tests first hand.” Grim, 102 So.3d at 1081 (¶ 22); Jenkins, 102 So.3d at 1069 (¶ 19) (internal citations omitted). In each ease, the Court held that the defendant “had the opportunity to confront and cross-examine [the analyst] at trial, which satisfied his Sixth Amendment right to confront the witness against him.” Grim, 102 So.3d at 1081 (¶ 22); Jenkins, 102 So.3d at 1069 (¶ 19).

¶ 10. In Conners v. State, former Presiding Justice Carlson wrote a specially concurring opinion to expound on the admissibility of forensic laboratory reports that are testimonial in nature. Because “laboratory work and testing often involve multiple analysts,” there are instances .in which “someone other than the primary analyst who conducted the test can testify regarding the results.” Conners, 92 So.3d at 689-90 (¶ 39) (Carlson, P.J., specially concurring).

The central inquiry for whether a witness can satisfy a defendant’s right to confrontation is twofold. First, we ask whether the witness has “intimate knowledge” of the particular report, even if the witness was not the primary analyst or did not perform the analysis firsthand. [McGowen, 859 So.2d at 340.] Second, we ask whether the witness was “actively involved in the production” of the report at issue. Id. We require a witness to' be knowledgeable about both the underlying analysis and the report itself to satisfy the protections of the Confrontation Clause. If an analyst can discuss competently the analysis performed, as well as the particular document being offered — in other words, the analyst can testify live regarding the testing, methodology, and results of the analysis, rather than simply relying on the document to speak for itself — a defendant is adequately protected by the Confrontation Clause. ...

Id. at 690 (¶ 41) (Carlson, P.J., specially concurring, joined by Waller, C.J., Diekin-son, P.J., Randolph, Lamar, Kitchens, Chandler, and Pierce, J.J.) (emphasis added, footnote omitted). In Conners, two forensic reports that were testimonial in nature had been admitted at trial through a detective who “had no involvement whatsoever in the tests or the generation of the reports as a result of the tests.” Id. at 691 (¶ 44). Certainly, it was error for the reports to be admitted through the detective, but the Court still held that the error was harmless. Id.

¶ 11. In the instant case, the report itself was not admitted into evidence, but Fernandez testified about the results of the tests. Fernandez provided meaningful testimony and adequately responded to all questions asked on direct and cross-examination. Fernandez was well versed in the general process for substance testing as well as the specific testing of the substance at issue. He explained that every test performed at the Mississippi Crime Laboratory must be reviewed by a second analyst of equal accreditation before the test is considered complete. The second analyst, or the “technical and administrative reviewer,” reviews the report “line by line to make sure everything is correct” and ensures that the “results are commensurate with the information provided by his instrumentation and his other tests.” The reviewing analyst reaches a conclusion based on his review of the report, and he signs the report if he is confident that it is correct.

¶ 12. Regarding the specific test at issue, Reed performed the original test on the substance, and Fernandez acted as the “technical and administrative review.” Fernandez explained that Reed “took one half of two tablets from this particular submission and then he extracted from them the suspected components of it, and he ran it on an instrument called the GC mass spec to determine exactly what was in [it].” Fernandez testifíéd that Reed’s test of the pills had revealed them to contain morphine. He testified that, as the technical reviewer, he went over Reed’s report in detail to ensure that it was correct, and he reached an independent conclusion that the pills contained morphine based his review of Reed’s work. Fernandez signed the report after reviewing it and reaching his own conclusion that the report was correct and that the substance was morphine.

¶ 13. Fernandez’s testimony about the report was admissible because Fernandez had intimate knowledge of the testing and he was actively involved in the production of the report because he served as the reviewing analyst. His signature as the reviewing analyst was required for the report to be completed. Fernandez competently diseussed the testing performed, the results of the analysis, and his role as the reviewing analyst. A review of the record of Fernandez’s testimony confirms that he answered every question posed to him on cross-examination by defense counsel and never averred that his role rendered him without the requisite knowledge to respond. The admission of Fernandez’s testimony was not error and did not result in prejudice to Hingle. Accordingly,- his testimony did not result in a “manifest miscarriage of justice.” Burdette v. State, 110 So.3d 296, 305 (¶26) (Miss.2013) (Where constitutional errors “did not prejudice the outcome of the trial, there was no manifest miscarriage of justice and no reversible error.”). Reversal under the plain error doctrine is not warranted.

II. The trial court did not err in admitting the pills into evidence.

¶ 14. The pills were admitted into evidence during Fernandez’s testimony. Hingle objected, arguing that the State had failed to lay a foundation for the admission of the pills because the chain of custody had not been established. The trial court overruled the objection and admitted the pills. We review the trial court’s admission of evidence for abuse of discretion. Deeds v. State, 27 So.3d 1135, 1141 (¶ 15) (Miss.2009).

¶ 15. Under Mississippi Rule of Evidence 901, “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Miss. R. Evid. 901(a). The State need not produce every person who has handled the evidence. Deeds, 27 So.3d at 1142 (¶ 20). “[F]or the defendant to show a break in the chain of custody, there must be an ‘indication or reasonable inference of probable tampering .with the evidence or substitution of the evidence.’ ” Id. (quoting Spann v. State, 771 So.2d 883, 894 (Miss.2000)). The defendant cannot meet her burden with a mere suggestion that tampering or substitution possibly has occurred. Deeds, 27 So.3d at 1142.

¶ 16. Hingle complains that the State did not account for what happened to the pills after Hingle gave them to Wheater and that nothing showed that the drugs were handled in a secure, controlled manner. Herring testified that, after Hingle gave the pills to Wheater, Wheater held them until they reached the post-buy location. At the post-buy location, Agent Coleman took the pills from Wheater, put them in a bag, and initialed and sealed the bag. Herring testified that Wheater was searched before and after the transaction. A photocopy of Exhibits 2 and 3, containing the pills, bears a notation stating “Coleman to Evidence 1846.” Fernandez testified that the barcode on the evidence bag that contained the pills showed that they were received by the crime lab and resealed after Reed tested them. The above-described facts do not support a reasonable inference of substitution or tampering. The trial court’s admission of the pills into evidence was not an abuse of discretion.

Conclusion

¶ 17. The admission of the reviewing analyst’s testimony did not violate Hingle’s right to confrontation, and Hingle’s chain-of-custody claim is without merit. We affirm the judgment of the DeSoto County Circuit Court.

¶ 18. CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF SEVEN (7) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. UPON RELEASE, APPELLANT SHALL BE PLACED ON EIGHT (8) YEARS POST-RELEASE SUPERVISION WITH THREE (3) YEARS OF REPORTING AND FIVE (5) YEARS OF NON-REPORTING, WITH CONDITIONS. SENTENCE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. APPELLANT SHALL PAY COURT COSTS, A FINE OF $1,000, CRIME VICTIM COMPENSATION FUND FEE OF $100, CRIME LAB FEE OF $707.15 AND RESTITUTION OF $200. APPELLANT IS GIVEN CREDIT FOR ONE (1) DAY SERVED.

WALLER, C.J., RANDOLPH, P.J., LAMAR AND PIERCE, JJ., CONCUR. CHANDLER, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING, JJ.

CHANDLER, Justice,

dissenting:

¶ 19. For the reasons cogently set forth in the dissents of Presiding Justice Dickinson and Justice Kitchens in Grim v. State, 102 So.3d 1073 (Miss.2012), and Jenkins v. State, 102 So.3d 1063 (Miss.2012), I respectfully dissent. I cannot sanction this Court’s holding that testimony from a lab supervisor who merely reviewed and signed a lab report, but did not perform, or even observe, the test at issue satisfies the Confrontation Clause. Because Gary Fernandez did not perform or observe the testing in this case, he lacked any knowledge of the particular test and testing process and could not meaningfully respond to cross-examination. I would find that the admission of the test results through Fernandez’s testimony constituted plain error that entitles Hingle to a new trial.

¶ 20. The United States Supreme Court has held that laboratory reports created to serve as evidence against the accused at trial are within the “core class of testimonial statements” covered by the Confrontation Clause. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the prosecution placed into evidence sworn certificates of analysis stating that the substance taken from the defendant had been tested and found to be cocaine. Id. at 308, 129 S.Ct. at 2531. The Court held that the certificates were testimonial because they were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at 310, 129 S.Ct. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). The Court held that, because the certificates were testimonial, they were inadmissible unless the analysts were unavailable and there had been a prior opportunity to cross-examine them. Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. at 2532. Explaining its rationale for requiring live testimony from the analysts, the Court stated:

Confrontation is one means of assuring accurate forensic analysis. While it is true ... that an honest analyst will not alter his testimony when forced to confront the defendant, ... the same cannot be said of the fraudulent analyst. ... Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony.
Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.
[TJhere is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts.

Id. at 318-20,129 S.Ct. at 2537-88.

¶21. In Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011), the Supreme Court found that the Confrontation Clause prevents the state from introducing a forensic laboratory report through the testimony of an analyst “who did not sign the certification or. perform or observe the test reported in the certification.” In Bullcoming’s drunk-driving prosecution, the State did not produce the analyst who had signed the lab report certifying that Bullcoming’s blood alcohol level was above the threshold for aggravated driving while intoxicated. Id. at 2709. Rather, the State presented another analyst who was familiar with the lab’s procedures but had not participated in or observed the test of Bullcoming’s blood. Id. The Supreme Court held that the State’s use of a surrogate analyst who had not signed the certification or performed or observed the test fell short of satisfying Bullcoming’s right of confrontation; the surrogate analyst “could not convey what [the tester] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part.” Id. at 2710, 2715.

¶ 22. The Supreme Court faced a variation on this theme in Williams v. Illinois, — U.S.—, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, an expert testified that a DNA profile developed by an outside lab from a rape victim’s vaginal swabs matched a DNA profile of the defendant developed by the state crime lab. Id. at 2227. The State did not introduce live testimony from an analyst from the outside lab. Id. A plurality of the Court held that the admission of the outside lab’s DNA profile did not violate the Confrontation Clause because it had not been offered to prove the truth of the matter asserted. Id. at 2236. Rather, the testimony about the outside lab’s DNA profile was admitted to explain the basis for the expert’s opinion that the two profiles matched. Id. at 2239; see M.R.E. 703 (“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”). The plurality held that, because the outside lab’s DNA profile was not offered for its truth, but instead to show the underlying facts and data the expert used to reach her opinion, the Confrontation Clause did not apply. Id. at 2240. The plurality also found that the outside lab’s report was not testimonial because it was not created for the primary purpose of accusing “a targeted individual.” Id. at 2243.

¶23. In this case, Fernandez testified that Reed’s test of the pills had revealed them to contain morphine. He testified that he went over Reed’s report “line by line” to make sure everything was correct, that is, that the report was “what it says it is,” and that the results were commensurate with the testing methods. Fernandez testified that he reached his own conclusion that the pills contained morphine based his own independent review of Reed’s work. Reed’s report was not admitted into evidence. Nonetheless, because the sole purpose of Fernandez’s testimony was to relay the contents of that report to the jury, Fernandez was a “mere conduit[ ] for hearsay.” Id. at 2241. Unlike in Williams, Fernandez did not rely on the report to reach his own independent, expert opinion, because his opinion was entirely based on the results of another analyst’s test.

¶ 24. The facts of today’s case are virtually indistinguishable from those in Bull-coming. As in Bullcoming, the State presented the testimony of an analyst who was familiar with the lab’s procedures but had neither participated in nor observed the test at issue. Relying on Grim v. State, 102 So.3d 1073 (Miss.2012), and Jenkins v. State, 102 So.3d 1063 (Miss.2012), the majority finds that this case is distinguishable from Bullcoming because, here, the testifying analyst peer-reviewed the report and signed it. In Grim and Jenkins, the testifying analyst’s involvement was limited to having reviewed and signed a report of testing performed by another analyst. Grim, 102 So.3d at 1077; Jenkins, 102 So.3d at 1065. The testifying analysts had neither observed the tests nor performed any part of the tests. Grim, 102 So.3d at 1077; Jenkins, 102 So.3d at 1065. Relying heavily on pre-Crawford precedent, this Court held that “when the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, such as by performing procedural checks, then the testifying witness’s testimony does not violate a defendant’s Sixth Amendment rights.” Grim, 102 So.3d at 1079 (quoting McGowen v. State, 859 So.2d 320, 339 (Miss.2003)); Jenkins, 102 So.3d at 1067-68 (quoting McGowen, 859 So.2d at 339). The Court held that “a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was ‘actively involved in the production of the report and had intimate knowledge of [the] analyses even though [he or] she did not perform the tests first hand.’ ” Grim, 102 So.3d at 1081 (quoting McGowen, 859 So.2d at 340); Jenkins, 102 So.3d at 1069 (quoting McGowen, 859 So.2d at 340). .

¶ 25. Applying these rules, the Court in Jenkins and Grim held that the individual defendant’s right of confrontation was satisfied by the testimony of an analyst who had reviewed the report for accuracy and signed it as a technical reviewer. Grim, 102 So.3d at 1081, Jenkins, 102 So.3d at 1069. In Grim, the analyst

was able to explain competently the types of tests that were performed and the analysis that was conducted. He had performed “procedural checks” by reviewing all of the data submitted to ensure that the data supported the conclusions contained in the report. Based on the data reviewed, [he] had reached his own conclusion that the substance tested was cocaine. His conclusion was consistent with the report, and he had signed the report as the technical reviewer. [He] satisfied the McGowen test because he had “intimate knowledge” of the underlying analysis and the report prepared by the primary analyst.

Grim, 102 So.3d at 1081.

¶ 26. Three justices dissented in Grim and four in Jenkins. Grim, 102 So.3d at 1082 (Kitchens, J., dissenting, joined by Dickinson, P.J., and Chandler, J.; King, J., not participating) (Dickinson, P.J., dissenting to the denial of rehearing, joined by Kitchens and Chandler, JJ.); Jenkins, 102 So.3d at 1070 (Kitchens, J., dissenting, joined by Dickinson, P.J., Chandler and King, JJ.). The dissents would have held that a lab supervisor who reviewed and signed the report but did not perform or observe the test is a surrogate witness for the analyst who actually performed the test. Grim, 102' So.3d at 1083; Jenkins, 102 So.3d at 1070. The dissents opined that presenting the test results through technical reviewers who neither observed nor performed the tests violated the defendants’ right to confrontation. Grim, 102 So.3d at 1083; Jenkins, 102 So.3d at 1070. This is because such a witness lacks firsthand knowledge of the specific test at issue, depriving the defendant of the caliber of cross-examination demanded by the Sixth Amendment. Jenkins, 102 So.3d at 1070.

¶ 27. Problematically, the majority relies upon McGowen, which is pre-Craw-ford, pre-Bullcoming precedent, to conclude that testimony from an analyst who has performed procedural checks, but has not performed or observed the test at issue, satisfies the Confrontation Clause. I would find that this Court’s approval of testimony by a supervisor who merely reviewed and signed off on the report of another’s test results does not comport with what is required by Bullcoming. In Bullcoming, the Supreme Court held that testimony by an analyst “who did not sign the certification or perform or observe the test reported in the certification” did not satisfy the defendant’s confrontation rights. Bullcoming, 131 S.Ct. at 2710. The Court held that such “surrogate testimony” could not convey what the testing analyst knew or observed about the particular test and testing process. Id. at 2715. The use of surrogate testimony could not “expose any lapses or lies on the certifying analyst’s part.” Id. Although Bullcoming stated that an analyst who “sign[ed] the certification” could testify, it emphasized that the testifying analyst must have knowledge of the events of the particular test, such as whether the sample received was intact with the seal unbroken, and whether the tester precisely adhered to the proper protocol in conducing the test, because these issues are “meet for cross-examination.” Id. at 2714. Plainly, Bull-coming contemplates that an analyst who signed the report must have knowledge of the events of the particular test in order to satisfy the Confrontation Clause. Merely reviewing and signing off on another analyst’s test report is not enough to satisfy the requisites outlined in Bullcoming— that the testifying analyst have personal knowledge of the particular test and testing process employed so that any deviations from protocol or lapses or lies on the testing analyst’s part can be identified. Id. at 2715, 2716 n. 8.

¶ 28. Fernandez, who merely reviewed a report of a test generated by Reed, lacked personal knowledge of the events of the specific test. Certainly, Fernandez reviewed the test results, was familiar with the testing process, and was equipped to testify on whether the written report showed that the test comported with proper procedures and whether the results of the test were commensurate with the testing devices used. He testified in terms of what Reed “would” have done to conduct the test, and that it appeared from the report that Reed’s result was correct. But he could not testify as to whether Reed had received the sample intact, whether Reed had dropped or mishandled the sample, or whether Reed had encountered any problems with the testing equipment. Additionally, Fernandez’s surrogate testimony could not “expose any lapses ór lies on [Reed’s] part.” Id. at 2715. Fernandez’s testimony did not afford Hingle the opportunity to cross-examine the analyst who had performed or observed the test on what that analyst “knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed,” as required by Bullcoming. Id. I observe that the State could have satisfied the Confrontation Clause here by simply having had Fernandez retest the pills and testify about the results of the retest. Id. at 2718.

¶29. Because Grim and Jenkins are inconsistent with the strictures of Bull-coming, I would overrule those cases. I would hold that, although Fernandez reviewed and signed the test report, because he did not perform or observe the testing of the pills, his surrogate testimony did not satisfy Hingle’s confrontation rights under the Sixth Amendment. Without evidence establishing that the pills contained morphine, the State would not have been able to prove the elements of sale of morphine. Therefore, permitting Fernandez to testify as a surrogate for Reed, in violation of the Confrontation Clause, constituted a manifest injustice amounting to plain error. “[T]he [Confrontation] Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.” Id. at 2716. I would reverse and remand for a new trial.

DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . Agent Coleman did not testify and his first name is not in the record.

      . The dissenting justices would overrule Grim and Jenkins, saying they relied on pre-Bull-coming precedent. (Dis.0p.1l1127, 29.) , Be that as it may, that does not render Grim and Jenkins defective. In both cases, the Court recognized Bullcoming and Melendez-Diaz and addressed that line of cases in depth. See Jenkins, 102 So.3d at 1066-69 (¶¶9-19); Grim, 102 So.3d at 1078-81 (¶¶ 12-22).

      . In a separate opinion in Bullcoming, Justice Sotomayor wrote about several circumstances to which Bullcoming did not apply, including instances "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” Bull-coming, 131 S.Ct. at 2722 (Sotomayor, J., concurring in part) (citing Fed.R.Evid. 703). The Court had the opportunity to address that issue soon thereafter in Williams v. Illinois, -U.S.-, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).
      We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert's testimony did not violate the Sixth Amendment.

        Williams, 132 S.Ct. at 2228. In the instant case, Fernandez was admitted as an expert to testify about the report, and the report was not admitted as evidence at trial. However, the instant case is distinguishable from Williams because, in addition to being an expert in the field, Fernandez also had firsthand knowledge about the specific report being discussed.


source: Caselaw Access Project

author: PIERCE, Justice, COLEMAN, Justice, LAMAR, Justice,

license: Public Domain

text:
    ENTERGY MISSISSIPPI, INC. v. Mary Bethanne ACEY.
    No. 2013-IA-01291-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2014.
    Rehearing Denied Jan. 15, 2015.

      John H. Dunbar, Oxford, James W. Snider, Jr., Jackson, attorneys for appellant.
    Charles Buckley Graves, Jr., Tunica, Fred M. Ridolphi, Jr., attorneys for appel-lee.
   PIERCE, Justice,

for the Court:

¶ 1. One afternoon in Tunica County, Mississippi, A.A., a minor, was electrocuted while playing on the farmland of David and Sherry Melton. Riley Berry, who worked for the Meltons, had parked a cotton picker under an allegedly sagging power line, which was owned by Entergy Mississippi, Inc. Ultimately, A.A. climbed onto the cotton picker, touched the power line, and was electrocuted. Berry’s deposition provides that he and his sons were unaware that A.A. and the Meltons’ daughter were playing nearby. One of Berry’s sons saw a flash out of the corner of his eye, while the men were working on their vehicles. Berry stated that they immediately began running in the direction of the flash and discovered A.A. on top of the cotton picker. Berry’s son was able to move A.A. and hand her to Berry, who held A.A. until emergency medical responders arrived.

¶ 2. At the time of the accident, A.A.’s mother, Mary Bethanne Acey, was en route to Moon Lake, in Coahoma County, Mississippi, with her son and Charles Graves. A Tunica County 911 dispatcher called Graves to inform him of the accident. Graves immediately turned the car around to proceed to the Meltons’ home. Acey then spoke with the dispatcher, who explained the gravity of the situation to Acey and informed her that A.A. had been “shocked.” Acey arrived at the accident scene and saw her daughter in Berry’s arms. Acey’s affidavit explains that she observed smoke coming from her daughter’s skin, skin flaking and turning gray, fingers missing and bones exposed, and she could smell the odor of burning flesh.

¶ 3. Emergency medical responders arrived shortly after Acey’s arrival. A.A. suffered severe burns to both of her arms and her hip. A.A. subsequently was airlifted to Le Bonheur Children’s Hospital in Memphis, Tennessee, and was later transferred to Shriners Hospitals for Children in Cincinnati, Ohio, which specializes in treating burn patients.

¶ 4. Thereafter, Acey commenced legal action on behalf of A.A., and individually, against Entergy, David and Sherry Melton, Melton Farms, Mary Mac, Inc., and Norfleet Investments, LP (“Defendants”). Defendants settled all claims on behalf of A.A. Regarding Acey’s individual bystander claims for emotional distress, En-tergy moved for summary judgment and moved to strike the affidavits of Acey and Dr. William Hickerson. The trial court subsequently denied each motion. According to the trial court, based on the nature of A.A.’s injuries, this case “cries out for the expansion of’ the factors provided by the California Supreme Court in Dillon [v. Legg, 68 Cal.2d 728, 740-41, 69 CalRptr. 72, 81, 441 P.2d 912, 920 (Cal.1968)], adopted by this Court in Entex, Inc. v. McGuire, 414 So.2d 437, 444 (Miss.1982), Thereafter, Entergy was granted interlocutory appeal by this Court on the following issues:

I. Whether the trial court erred in denying Entergy’s Motion for Summary Judgment on Plaintiffs bystander claim for emotional distress.

II. Whether the trial court erred in denying Entergy’s Motion to Strike the Affidavit of Dr. William Hickerson.

III. Whether the trial court erred in denying Entergy’s Motion to Strike the Affidavit of Mary Be-thanne Acey.

¶ 5. Because this Court finds that En-tergy’s motion for summary judgment should have been granted, we will discuss the merits of only Issue I.

STANDARD OF REVIEW

¶ 6. We review the denial of summary judgment de novo and consider all evidence before this Court. Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002). The evidence is examined in the light most favorable to the nonmoving party. Id. The movant is entitled to judgment as a matter of law, having summary judgment entered in its favor, if there is no genuine issue of material fact. Id.

ANALYSIS

I. Whether the trial court erred in denying Entergy’s Motion for Summary Judgment on Plaintiff’s bystander claim for emotional distress.

¶ 7. As both parties point out, Ace/s bystander claim for emotional distress is subject to the test provided by this Court in Entex, where this Court adopted the test established by the California Supreme Court in Dillon. Entex, 414 So.2d at 444. Dillon is the seminal case which instituted the bystander theory of recovery, by allowing a plaintiff to recover for emotional distress after witnessing her child’s death, based on the theory that liability should turn not on the risk of physical injury to the plaintiff (the “impact doctrine”), but on foreseeability of emotional harm to the mother. Dillon, 69 Cal.Rptr. 72, 441 P.2d at 920.

¶ 8. Briefly, by way of background, courts originally were reluctant to allow any recovery for intangible harms such as fright or emotional distress resulting from negligent conduct. See Prosser and Keeton, The Law of Torts § 54, 360 (5th ed. 1984). Later, plaintiffs were allowed to recover for the emotional distress occasioned by the fear for their own safety, but only when accompanied by physical impact. Prosser and Keeton, supra § 54, 363-64. The “impact doctrine” later became regarded as inherently arbitrary because of the apparent discontinuity between the rule’s scope and underlying purpose. As one commentator observed, “a near miss may be as frightening as a direct hit.” Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm-A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L.Rev. 477, 488 (1982). The “impact doctrine” eventually was replaced by a rule allowing recovery for the emotional distress resulting from threats to the plaintiffs physical safety, regardless of physical impact, if the plaintiff was within the “zone of physical impact or danger.” Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 832 (1989) (Kaufman, J., specially concurring).

¶ 9. In First National Bank v. Langley, 314 So.2d 324 (Miss.1975), this Court abandoned the “impact doctrine.” We held that “genuine cases of injury growing out of negligent acts of another — which are reasonably foreseeable as in other negligent cases — will not be dismissed simply because there was no trauma nor impact on the body of the injured claimant.” Id. at 339. Notably, Langley was not a bystander case. Rather, the plaintiff there was the person upon whom the negligent conduct was inflicted. Id. at 325. Because Langley was not a bystander case, Langley made no mention of the “zone of danger” rule adopted by a majority of jurisdictions after they abandoned the “impact doctrine.”

¶ 10. Significantly, Dillon rejected the “zone of danger” rule, finding it “hopeless[ly] artificial ].” Dillon, 69 CaLRptr. 72, 441 P.2d at 915. In Dillon, the plaintiff’s daughter was struck and killed by an automobile. Id., 69 CaLRptr. 72, 441 P.2d at 914. The plaintiff witnessed the accident, but from a location where the plaintiff herself was not in physical danger. Id., 69 CaLRptr. 72, 441 P.2d at 915. The Dillon Court reasoned that the “zone of danger” concept inevitably collapses under similar reasons for rejecting the “impact rule,” because “the only reason for the requirement of presence in that zone lies in the fact that one within it will fear the danger of [i]mpact.” Id.

¶ 11. Finding Dillon persuasive, Entex set forth the following factors, taken verbatim from Dillon, that must be considered when determining whether a bystander may recover for emotional-distress damages:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Entex, 414 So.2d at 444 (citing Dillon, 69 CaLRptr. 72, 441 P.2d at 920). In Entex, this Court made no mention of the “zone of danger” rule. The Entex Court simply noted that Langley had abandoned the “impact doctrine” and found Dillon’s bystander rule persuasive.

¶ 12. Here, because Acey undisputably fails to meet the first two Dillon or Entex factors, she does not qualify for emotional-distress recovery under Mississippi bystander law. Inexplicably, the dissent finds these two factors neutral. They are not. And, as will be explained, not even under California’s bystander law would Acey’s bystander claim prevail under these two factors. Contrary to the dissent’s understanding, the Dillon factors — under present California law — are not merely guidelines that should be “take[n] into account” in determining whether a plaintiff is a foreseeable victim of the defendant’s negligence; they indeed are matter-of-law prerequisites that a claimant must meet. See Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 830 (1989); see also Bird v. Saenz, 28 Cal.4th 910, 123 CaLRptr .2d 465, 51 P.3d 324, 327 (2002) (noting that La Chusa made the Dillon factors mandatory requirements that bystander claims for emotional distress must satisfy to be accepted as valid) (emphasis added).

¶ 13. Further, there are numerous problems with the dissent’s rationale, which we will point out because, if it were to be applied in this state, Mississippi’s bystander law would no doubt result in infinite liability in almost every negligence action. See, e.g., Dillon, 69 Cal.Rptr. 72, 441 P.2d at 919 (“In order to limit the otherwise potential infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.”).

¶ 14. The first problem with the dissent’s rationale is its sole focus on the fact that Acey witnessed her daughter’s injury, but not the accident itself. This goes squarely against both Dillon’s and En-tex ’s second foreseeability factor, which inquires whether the mental/emotional shock “resulted from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.” Entex, 414 So.2d at 444 (emphasis added). Every parent will witness the result(s) of his or her child’s accident, but Dillon and Entex limited the range of foreseeable plaintiffs to those who sensorily or contemporaneously observed the accident.

¶ 15. Here, the record evidence undis-putably shows that Acey did not witness the accident. Rather, Acey learned of the accident from her son, who learned of the accident from a 911 dispatcher. This circumstance raises numerous questions that the dissent fails to take into consideration. Because Acey was not present at the scene of the accident when the accident occurred, did anyone owe Acey a duty not to allow her onto the premises after she learned of the accident in order to prevent the mental/emotional distress Acey claims resulted from witnessing her daughter’s injuries? Likewise, did anyone owe Acey a duty not to inform her of the accident? Or did Acey owe a duty to herself not to go to her daughter?

¶ 16. These, of course, are inane questions from a common-sense standpoint. But they are very real inquiries that must be considered with regard to the degree of Entergy’s foreseeability — the cornerstone of a defendant’s duty and liability. Is this for the factfinder to resolve, or is it a legal question reserved for the court? Assuming the former, what type of evidence must be put before the factfinder to allow the factfinder to determine foreseeability?

¶ 17. In La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 819 (1989), the California Supreme Court examined these types of rhetorical, legal questions and acknowledged that subsequent interpretation of Dillon’s guidelines by California courts had produced arbitrary and conflicting results and “ever widening circles of liability.” The La Chusa Court corrected course. In place of Dillon’s “nonexclusive” guidelines, the La Chusa Court made the Dillon factors mandatory requirements that bystander claims for emotional distress must satisfy to be accepted as valid. Specifically, La Chusa held “that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” In applying these requirements to the facts before it, the La Chusa Court held that, as a matter of law, the plaintiff/mother could not state a claim for negligent infliction of emotional distress. The plaintiff mother had been nearby when the defendant’s automobile struck and injured her child, but the mother had not seen and heard the accident. The mother, like Acey, became aware of the accident only when someone told her it had occurred, and the mother rushed to the scene and saw her child lying injured and unconscious on the road. The La Chusa Court found that, under these facts, the mother could not satisfy the requirement of having been present at the scene of the injury-producing event at the time it occurred and of having been aware that it was causing injury to the victim. The La Chusa Court reinforced its conclusion by disapproving the suggestion in prior California cases (proceeding on rationale similar to the dissent here) that a negligent actor is liable to all persons “who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct” rather than on viewing the injury-producing event itself. Id., 257 CalRptr. 865, 771 P.2d 814 at 830,

¶ 18. A California case noted by the La Chusa Court is Hathaway v. Superior Court, 112 Cal.App.3d 728, 169 Cal.Rptr. 435 (1980), which addressed a very similar type claim as the one here before us. In Hathaway, parents alleged a cause of action for negligent infliction of emotional distress for their son’s death. Hathaway, 112 Cal.App.3d at 730, 169 Cal.Rptr. 435. While parents were at their inlaws’ residence, their son was playing outside and was electrocuted by an evaporator cooler just installed outside the inlaws’ home. Id. Another child had come into the home and told the parents their son was hurt. Id. at 731, 169 Cal.Rptr. 435. The parents immediately went outside, saw their son lying in a puddle of water, and watched efforts to save the boy’s life. Id. The trial court denied the parents’ claim under Dillon’s forseeability standard, because when the parents arrived outside approximately one minute after the event, the event which had constituted the accident had ended. The Court of Appeal, Fifth District of California, affirmed the trial court’s dismissal because the evidence was uncontradicted that the plaintiffs did not sensorily perceive the injury-causing event, but saw only the results after the accident was over. Id. at 736,169 CalRptr. 435.

¶ 19. Here, as Entergy asserts, Mississippi law has been consistent regarding bystander recovery for emotional-distress damages. No case from either this Court or a federal court construes or guesses Mississippi substantive law and sustains a cause of action by a third-party plaintiff against an alleged tortfeasor on the theory of bystander recovery, where the plaintiff was not present at the time of the accident and learned of the accident only after its occurrence. See Miss. State Fed’n of Colored Women’s Club Housing for Elderly in Clinton, Inc. v. L.R., 62 So.3d 351, 359 (Miss.2010) (affirming trial court’s directed verdict against mother’s bystander claim for emotional distress because mother was not present on the premises of apartment complex where her eleven-year daughter was statutorily raped); Summers ex. rel. Dawson v. St. Andrew’s Episcopal Sck, 759 So.2d 1203, 1210 (Miss.2000) (holding that parents of young student molested by other students on school playground were not foreseeable plaintiffs for third-party, emotional-distress recovery because the parents were not located near the scene when the events occurred); see also Miles ex rel. Miles v. VT Halter Marine, Inc., 792 F.Supp.2d 919, 925-26 (E.D.La.2011) (summary judgment entered against father of worker killed in shipyard accident claiming mental distress because alleged distress suffered by father was not caused by contemporaneous observance of accident; even though father was working nearby and came upon scene shortly after accident when resuscitation efforts were underway, father did not witness accident); Moore v. Kroger Co., 800 F.Supp. 429, 433 (N.D.Miss.1992) (denied emotional-distress claims of family members of victim of motor-vehicle accident when family members did not witness accident); Campbell v. Beverly Enters., 724 F.Supp. 439, 440 (S.D.Miss.1989) (denied emotional distress claim of family members of an allegedly mistreated nursing-home patient because family members did not observe the alleged mistreatment).

¶ 20. The dissent finds Entergy’s precept — and our acknowledgment of it — disingenuous because the federal courts made Erie guesses as to prevailing Mississippi bystander law. The dissent, however, overlooks all the Mississippi case law that plainly rejects the dissent’s position and rationale.

¶ 21. The dissent next calls us out for spending the first seven pages of our analysis relying principally on California case-law to point out why the dissent is wrong instead of analyzing the case at hand. Here is why we did so. Prior to the dissent, our opinion began by thoroughly analyzing this case under the Dillon factors adopted by Entex (see supra and infra ). The dissent, however, realizing that the undisputed facts of this case do not ascribe to the plain language of the Dillon/Entex factors, responded by contending that we had misinterpreted Entex. According to the dissent, because the En-tex Court favorably quoted from Dillon, where the Dillon Court stated that courts should “take into account” the three Dillon factors when evaluating whether a bystander was a foreseeable plaintiff, we were wrong to treat these factors as prerequisites. And, according to the dissent, “a jury should decide whether the unique aspects of this burn injury should entitle Acey to relief.” In response, we posed a number of questions that we had hoped the dissent would take into consideration, as California ultimately was forced to do. The dissent’s response: “I simply am not concerned with post-Dillon jurisprudence in California. My concern is [Mississippi’s] bystander liability jurisprudence, and [that] this Court never has said — until today — that the Dillon factors are ‘mandatory requirements.’ ”

¶ 22. We failed. Rather than offer any legal explanation (or-rather-reasoning) why or how someone who was neither at or near the scene of the accident when it occurred, nor experienced a sensory or contemporaneous observation of the accident, may constitute a foreseeable plaintiff for bystander recovery under the Entex standards, the dissent stresses that Entex instructs that the Dillon factors need only - be taken “into account.” The only conclusion this logic yields is that Entex provides no standard at all. We do not so interpret Entex.

¶ 23. Briefly, the following language from Entex is all the Entex Court relayed from Dillon:

The reasoning of the California Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968) in setting out the following factors in this type of claim is persuasive:
In determining, ... whether defendant should reasonably foresee the injury to plaintiff, or, ... whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Dillon [68 Cal.2d at 740-41, 69 Cal.Rptr. at 80, 441 P.2d at 920].

Entex, 414 So.2d at 444 (emphasis added).

¶ 24. Again, the Entex Court provided no discussion whatever as to why it found Dillon persuasive, only that it did so under the facts of the case before it. The Entex Court found all three Dillon factors were affirmatively met (not neutral). Thus, the plaintiff, McGuire, had presented a valid claim for bystander recovery. McGuire was located between fifteen and twenty feet from his home when it exploded. En-tex, 414 So.2d at 439. McGuire’s wife was inside the home. Id. McGuire heard his wife’s screams and saw their home consumed in flames. Id. McGuire assisted his wife in escaping from the burning home right before a second explosion occurred. Id. After considering the Dillon factors, this Court affirmed a verdict in McGuire’s favor. Id. at 444.

¶25. In the case before us, Acey analogizes her situation to that in Entex and argues that her claims satisfy the Dillon factors. It is undisputed that Acey satisfies the third factor of Dillon, because Acey is A.A.’s mother, therefore, they are closely related. Entex, 414 So.2d at 444 (citing Dillon, 69 CaLRptr. 72, 441 P.2d at 920). But Acey fails under the first two factors.

¶ 26. Acey argues that factor one, whether plaintiff was located near the scene of the accident, is satisfied, because she arrived at the accident scene within minutes; her daughter was continuing to be injured as a result of the accident, since her body was still smoking and her skin was flaking, and A.A. was still located at the accident scene. Entex, 414 So.2d at 444 (citing Dillon, 69 Cal.Rptr. 72, 441 P.2d at 920). Acey compares her subsequent presence at the accident scene to the situation in Entex by stating that Acey helped pull her daughter from the cotton picker, which is comparable to McGuire pulling his wife from a burning house. Entex, 414 So.2d at 439. However, unlike McGuire, Acey was not present during the negligent event, and witnessed only the result of Entergy’s alleged negligence. See, e.g., Hathaway, 169 Cal.Rptr. 435. The deposition testimony of Acey, Berry, and Berry’s son states that Berry’s son moved A.A. from the top of the cotton picker and handed her to Berry, who held A.A. on the side-platform of the cotton picker until emergency responders arrived to remove A.A. from the machinery.

¶ 27. Regardless • of who removed A.A. from the cotton picker, it is undisputed that Acey was not present when A.A. grabbed the power line or when Berry and his son pulled A.A. down from the top of the cotton picker. Accordingly, we find that Acey does not meet the first factor of the Dillon or Entex test.

¶ 28. Next, Acey argues that factor two, whether plaintiff suffers from the sensory and contemporaneous observation of the accident, as contrasted with learning of the accident from others after its occurrence, is satisfied, because she was not informed of her child’s specific injuries before she arrived at the scene, and A.A.’s injuries were still developing when she arrived. Id. Acey goes on to compare this argument to the situation in Entex, because' McGuire, at the time of the explosion, had his back turned away from the home. En-tex, 414 So.2d at 439. Acey therefore argues that McGuire saw only the aftereffects, which is the same as Acey seeing the aftereffects when she arrived at the accident scene minutes later. However, as previously stated, Entex states that McGuire was present at the very moment the accident occurred and simultaneously heard his wife cry out. Id. at Undoubtedly, McGuire experienced a sensory and contemporaneous observation of the accident itself, not the aftereffects, as Acey contends.

¶ 29. Acey next calls attention to Campbell. In Campbell, the federal district court found that plaintiffs could not recover emotional-distress damages for injuries inflicted on their mother as a result of alleged mistreatment while she was living in a nursing home. Campbell, 724 F.Supp. at 440. The court opined that the Mississippi Supreme Court would not consider recovery without the occurrence of a “traumatic physical injury” or “threatened violent physical injury,” and therefore denied plaintiffs’ claim. Campbell, 724 F.Supp. at 442. In the case sub judice, Acey misconstrues the district court’s statement to mean that bystanders who do not witness the negligent act can recover if direct physical injury or threatened violent physical injury was witnessed. As pointed out by the federal district court in Moore, Campbell, in making an Erie determination, merely assumed without deciding that even if third-party plaintiffs could recover without witnessing the actual event, the Campbell plaintiffs could not recover from such a claim because they could not make out a case for actual physical injuries suffered by the patient as a result of defendants’ alleged negligence. Moore, 800 F.Supp. at 434 (construing Campbell, 724 F.Supp. at 441-442).

¶ 30. Further, this Court in Summers noted that Campbell did not expand the holding in Entex — nor could it. Summers, 759 So.2d at 1210. In Summers, parents brought an action against St. Andrew’s Episcopal School, alleging they had suffered emotional distress resulting from their daughter’s involvement in an incident while she was under the school’s supervision. Summers, 759 So.2d at 1206-10. This Court upheld the trial court’s grant of summary judgment, holding that the parents’ emotional distress did not equate to a contemporaneous observation because they were not located at or near the scene of the incident when the incident occurred. Summers, 759 So.2d at 1211. In its opinion, this Court pointed to the fact that the plaintiffs in Moore argued that the language in Campbell expanded the holding of Entex, thus recognizing recovery for emotional distress even when the plaintiff was outside the area of “immediate sensory perception.” Summers, 759 So.2d at 1210 (citing Moore, 800 F.Supp. at 433). Summers agreed with Moore’s holding that “after-the-fact witnesses” cannot be included in the class of foreseeable plaintiffs. Summers, 759 So.2d at 1210 (citing Moore, 800 F.Supp. at 434).

¶ 31. Lastly, Acey argues that the facts of this case are similar to a California Court of Appeals case in which the Court chose not to bar the plaintiffs claims alleging emotional distress from arriving at his home after emergency responders had arrived to extinguish a fire at his residence and to rescue his family members who were still inside. Zuniga v. Housing Auth., 41 Cal.App.4th 82, 103, 48 Cal.Rptr.2d 353, 364 (Cal.Ct.App.1995), abrogated on other grounds by Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1138, 119 Cal-Rptr.2d 709, 45 P.3d 1171 (Cal.2002). However, the California court specified that recovery was not barred because the accident was still occurring when plaintiff arrived at the scene. Id. At the time the plaintiff arrived, the fire was still blazing, and his family members were still trapped inside. Id. The court distinguished the situation from Fife v. Astenius, in which the court barred recovery for family members who heard a vehicle collision and subsequently climbed over a wall to find a family member inside one of the vehicles. Zuniga, 41 Cal.App.4th at 103, 48 Cal. Rptr.2d at 364 (citing Fife v. Astenius, 232 Cal.App.3d 1090, 1092-93, 284 Cal.Rptr. 16 (Cal.Ct.App.1991)). The court in Fife held that the family did not contemporaneously observe the accident. Id. Accordingly, we find the facts of the case before us are distinguishable from Zuniga because, as previously stated, Acey was not at the scene of the accident when it occurred.

¶32. Therefore, Acey does not satisfy factor two of the Dillon test because she did not experience a sensory or contemporaneous observation of the accident. Summers, 759 So.2d at 1211. Acey was an after-the-fact witness, thus, an unforeseeable plaintiff. Summers, 759 So.2d at 1210. The United States District Court for the Eastern District of Louisiana recently interpreted and applied Mississippi law regarding bystander claims. Miles ex rel. Miles v. VT Halter Marine Inc., 792 F.Supp.2d 919, 925-26 (E.D.La.2011). In Miles, a father and son were employed at the same shipyard but were, at the time, working on different parts of the barge, when the son fell and ultimately died. Miles, 792 F.Supp.2d at 926. Testimony revealed that the father was informed of the accident and then walked to the accident scene, which was a five-to-ten minute walk. Id. When the father arrived, “he witnessed the aftereffects of the accident, namely five or six others performing resuscitation efforts and attempting to aid his son by placing an oxygen mask around his neck and a stretcher under his body.” Id. The district court determined that Mississippi law would not allow the father to recover because he did not “actually witness the accident,” which resulted in his son’s injuries and later death. Id: Again, it is important to note that caselaw focuses on the individual’s observation of the accident rather than the observation of the resulting injury caused by the accident. See Summers, 759 So.2d at 1210 (Miss.2000); Moore, 800 F.Supp. at 434; Miles, 792 F.Supp.2d at 925-26; Fife, 232 Cal. App.3d at 1092-93, 284 Cal.Rptr. 16.

CONCLUSION

¶ 33. The Entex factors are mandatory requirements that bystander claims for emotional distress must satisfy to be accepted as valid under Mississippi law. Acey is barred from recovery because she was not near or at the scene of the accident, nor did she experience a sensory or contemporaneous observation of the accident. Therefore, summary judgment should be entered in favor of Entergy, and the judgment of the Circuit Court of Tuni-ca County is reversed and remanded for proceedings consistent with this opinion.

¶ 34. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., CHANDLER AND COLEMAN, JJ., CONCUR. COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., CHANDLER AND PIERCE, JJ. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING, JJ.

COLEMAN, Justice,

specially concurring:

¶ 35. I concur with the majority. As I appreciate it, the question before the Court in the case sub judice is whether Entergy owed a legal duty of due care to the plaintiff, Mary Bethanne Acey. I agree with the majority that, upon application of the Entex factors, Entergy did not and that the case should be reversed. I write separately for two purposes. First, I think it worth the time to emphasize that the question of whether a legal duty of due care exists is one of law and not fact. That it presents a question of law matters in the summary judgment context, as I explain more fully below. Second, I write to further explore Campbell v. Beverly Enterprises, 724 F.Supp. 439 (S.D.Miss.1989), and the ways in which various courts have confused the effect it has, if any, on the law governing bystander recovery in Mississippi.

¶ 36. The Court in Entex v. McGuire, 414 So.2d 437 (Miss.1982), gave two purposes for which the three-factor test at issue in the instant appeal — whereby courts in Mississippi could ascertain whether a defendant would be liable for emotional distress damages suffered by a bystander — could be used. One of the two was for a determination of “whether [a] defendant owes [a] plaintiff a duty of due care.... ” Id. at 444. In our four-part negligence framework — duty, breach, causation, and damages — the question of whether one owes a duty of due care to another is one of law and lies within the sole province of the court. Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (¶ 29) (Miss.2004) (“In analyzing an actor’s alleged negligence, this Court' asks whether a duty exists and whether it has been breached. That is a question of law.”) The judge, not the jury, decides whether an injury is reasonably foreseeable for the purpose of determining the first of the four negligence prongs — the existence of a legal duty. Id. (citing Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)).

¶ 37. Summary judgment is appropriate when the question presented for determination — such as whether a legal duty exists in a negligence action — is one of law rather than fact. City of Jackson v. Gardner, 108 So.3d 927, 928 (¶ 4) (Miss.2013). When no disputed facts exist, even mixed questions of law and fact become questions of law only. Hernandez v. Vickery Chevrolet-Oldsmobile Co., Inc., 652 So.2d 179, 182 (Miss.1995). Neither my review of the case nor the dissent has revealed to me any contested issues of fact that the jury would need to determine in order for the Court to now conduct its de novo review of the issue presented. Although there are some contested issues of fact, e.g., when the plaintiff learned of the accident that injured her daughter, I agree with the majority and am of the opinion that taking all disputed facts in a light most favorable to plaintiff still yields the result that, as a matter of law, the defendant owed no duty of due care to the plaintiff in the case sub judice.

¶ 88. In a final matter, the majority discusses at length Campbell, 724 F.Supp. at 489, as well as a long line of cases that followed it. I write separately to explain my opinion that Campbell does not apply to the instant facts, and misapplication of Campbell threatens to confuse the test for whether a bystander can recover under negligent infliction of emotional harm.

¶ 39. Acey called attention to Campbell, arguing that bystanders who witness the injury can recover if there was direct “physical” or “threatened violent physical injury.” See Campbell, 724 F.Supp. at 442. Acey takes the above-quoted language directly from Campbell, but — as the majority notes — she misconstrues it. The majority argues that Acey misconstrues Campbell because it is an isolated statement that does not simply mean bystanders can recover when the victim suffers threatened or physical injury.

¶40. In Campbell, the children of a nursing home patient sued as a third party in a negligent infliction of emotional harm suit claiming “prolonged neglect toward their mother [that was] allegedly caused by acts which were intentional, outrageous, callous, willful, wanton and in a reckless disregard of the their mother’s rights.” Id. at 441 (emphasis added). The plaintiffs could not point to any one “accident” that caused injury to their mother. See Entex, 414 So.2d at 444 (citing Dillon v. Legg, 68 Cal.2d 728, 740-41, 69 Cal.Rptr. 72, 441 P.2d 912 (1968)) (listing the factors for third party emotional distress recovery). Faced with an issue of first impression, the district court surmised what the Mississippi Supreme Court would do in a similar situation — a situation where there is no specific traumatic event. The court determined that recovery would be an option, in the absence of a specific traumatic event, only when there was a “specific and serious physical injury” or “at least threatened violent physical injury” to the immediate victim — not the children bringing the suit. Campbell, 724 F.Supp. at 441-42. The Campbell court denied recovery, stating that the children had not alleged that the mother had “suffered a violent or traumatic injury at the hands of defendant.” Id. at 442.

¶ 41. The statements by the Campbell Court, as presented here by Acey, could be interpreted to mean that all a third party would need to prove to recover is that the victim suffered a physical injury; however, the judge in Campbell wrote that he read Entex to allow a bystander to recover only when the bystander witnesses “a sudden and unexpected traumatic event rather than a continuous series of events.” Campbell, 724 F.Supp. at 441. The judge then hedged his Erie bet by continuing,

However, even were this court of the view that the Mississippi Supreme Court would allow third-party mental distress recovery in the absence of a specific traumatic event, it is this court’s opinion that such recovery would not be permitted without a specific and serious physical injury to another with whom a plaintiff shares a close relationship.

Id. at 441-442; see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

¶42. Later courts have misconstrued Campbell in another way. Because Campbell was an issue of first impression — of whether a third party can recover for mental distress in the absence of a specific traumatic event — the Campbell court first traced the law for whether a plaintiff who was directly harmed by the defendant’s negligence can recover mental distress damages. The court then shifted to explain the law at issue, the law for third party recovery for mental distress when the third party’s family member was directly harmed. The Campbell opinion contains two distinct parts, and each part of the opinion traces different, yet related, areas of the law. However, courts have misinterpreted and mixed up Campbell’s treatment of the two distinct areas of the law. Courts have implanted language dealing solely with direct plaintiff recovery to third party plaintiff recovery. Campbell states, in reference to direct-plaintiff recovery:

Thus, a person subjected to the negligent act of another can recover mental distress damages if that distress results ■in a medically cognizable condition for which treatment is required; if, rather than merely negligent, the defendant’s conduct is malicious, intentional or grossly negligent, recovery may be had despite the absence of any physical manifestation of the emotional distress of the affected individual so long as the conduct is such thát the resulting emotional distress was reasonably foreseeable.

Campbell, 724 F.Supp. at 440 (emphasis added). Campbell appends that the standard for direct plaintiff recovery is simply the “garden variety” negligence standard. Id.

¶ 43. Courts have interpreted the above “malicious, intentional, or grossly negligent” language in the context of third party recovery. Summers ex rel. Dawson v. St. Andrew’s Episcopal School, Inc., 759 So.2d 1208 (Miss.2000), stated, under the issue determining whether third party recovery survived summary judgment, that “[t]he plaintiffs ... fail under the premises of Campbell because there is no documented physical injury to [the child] nor is there evidence of malicious, gross negligence on the part of [the school].” Id. at 1211. Moore v. Kroger Co., 800 F.Supp. 429 (N.D.Miss.1992), correctly draws the distinction between the two parts of the Campbell opinion stating:

[I]n a discussion leading to [the] holding, the Campbell court traced the law in Mississippi concerning mental distress damages in the absence of physical manifestation. The court first discussed the law with respect to the immediate victim, who, depending on the maliciousness and gross nature of the negligence, could seek recovery despite the absence of actual physical injury.
Campbell’s discussion of grossly negligent behavior was in conjunction with the emotional distress of the immediate victim.

Id. at 433 (emphasis added). Thus, following the same reasoning promulgated by Moore, malicious-and gross negligence applies where the immediate victim is seeking recovery, and as outlined above, Campbell’s holding applies to fact situations where there is no specific traumatic event. In the instant case, Acey is not the immediate victim, and there was a specific traumatic event: A.A. touched the power wire and was electrocuted. Therefore, Campbell does not apply, and Summers does not provide a valid argument for Acey to recover.

RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.

LAMAR, Justice,

dissenting:

¶ 44. I do not agree that — at this stage of this proceeding and on this record — we can find as a matter of law that Acey cannot recover as a bystander.

¶ 45. As the majority points out, there are generally three factors that this Court considers to determine if a defendant should reasonably foresee injury to a bystander:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Entex, Inc. v. McGuire, 414 So.2d 437, 444 (Miss.1982). But the majority then proceeds to treat these three factors as a bright-line rule that absolutely bars recovery. This, in my view, is an incorrect interpretation of Entex. In fact, the En-tex Court favorably quoted the Supreme Court of California in Dillon v. Legg, where the California Court stated that Courts should “take into account” the factors quoted above when evaluating whether a bystander was a foreseeable plaintiff — which is a far cry from treating the factors as “mandatory requirements” that a bystander must meet. Entex, 414 So.2d at 444.

¶46. Importantly, a closer review of the analysis in Dillon reveals that these factors are to be evaluated as a whole:

The evaluation of these factors will indicate the [djegree of the defendant’s fore- ■ seeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person’s injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.

Dillon, 69 Cal.Rptr. 72, 441 P.2d at 920-21.

¶ 47. Here, it is undisputed that factor three weighs heavily in Ace/s favor. And I find that, as this case currently stands, factors one and two are neutral at best. There is testimony in the record that Acey arrived at the accident scene within seven minutes, where her daughter was still experiencing the effects of the severe electrical shock. Specifically, Acey testified via affidavit that she observed smoke coming from her daughter’s skin, the skin flaking and turning gray, her daughter’s fingers missing and bones exposed, and that she could smell the odor of burning flesh — in other words, the injury was still occurring. Also, Acey’s daughter had not been removed from the accident site when she arrived — she was being held by one of the farmers on the platform of the cotton-picker.

¶ 48. I agree with Justice Coleman that “the question of whether a legal duty of due care exists is one of law and not fact.” But that determination cannot be made in a vacuum, because it is axiomatic that the existence of a duty necessarily depends on the specific facts of each case. And for purposes of a summary-judgment review, we are to view the facts in the light most favorable to Acey. If we do as instructed by the Entex Court and simply take these factors “into account,” I cannot join the majority’s conclusion that Acey may not recover as a matter of law.

¶ 49. Moreover, I note that virtually all of the authority relied on by the majority is from federal courts making Erie guesses as to the current state of Mississippi bystander law. So the majority’s statement that “Mississippi law has been consistent regarding bystander recovery for emotional-distress damages” is disingenuous. (Maj.OpJ 19). The majority relies heavily on federal court opinions waxing eloquently on Mississippi bystander law instead of actually analyzing the Dillon factors as Entex instructs. There is simply nothing in Entex or any of this Court’s other precedent that categorically bars Acey’s recovery here.

¶ 50. As a final note, it is interesting to me that the majority spends the first seven pages of its analysis pointing out all the reasons I am wrong instead of analyzing the case at hand, relying principally on caselaw from California. I do not “misunderstand” the application of the Dillon factors; rather, I simply am not concerned with post-Dillon jurisprudence in California. My concern is our bystander liability jurisprudence, and the fact remains that this Court never has said — until today— that the Dillon factors are “mandatory requirements.”

¶ 51. I stress again that Entex instructs this Court to take the Dillon factors “into account.” My response to the majority’s statement that I am overlooking “all the Mississippi caselaw that plainly rejects” my position is simple: “What law?” Simply because the majority has been able to locate some cases in which bystander recovery was ultimately denied does not mean that our jurisprudence — properly interpreted — transforms the Dillon factors into mandatory requirements or categorically bars recovery here. The majority’s concern that my rationale will “no doubt result in infinite liability” is simply unfounded. I say nothing more than that our current jurisprudence does not, as a matter of law, bar Acey’s recovery here.

¶ 52. For these reasons, I would dismiss this interlocutory appeal and allow the parties to proceed with discovery and trial.

DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . Entex incorporated language from Dillon with no discussion as to why it found the case persuasive. Entex, 414 So.2d at 444.

      . The special concurrence in La Chusa noted that a majority of jurisdictions have rejected bystander liability in favor of the zone-of-danger rule, for the reason that “Dillon’s confident prediction that future courts would be able to fix just and sensible boundaries on bystander liability has been found to be wholly illusory- — both in theory and in practice.” La Chusa, 257 Cal.Rptr. 865, 771 P.2d at 833 (Kaufman, J., specially concurring).

      . Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . Again, we point out that, even under Dillon or pre-La Chusa, Acey would not have been entitled to bystander recovery under California law, as the Hathaway case, supra, illustrates.

      . For the sake of thoroughness, Acey contends that she arrived at the accident scene in seven minutes; however, this is based upon the usual travel time between where Acey was located when she learned of the accident and the accident scene. More than seven minutes would have elapsed between the time of the accident and the time Acey arrived at the scene. There is no indication in the record of the exact time A.A. was electrocuted, however, the record shows the following course of events: (1) the 911 call was placed at 10:45 a.m., reporting A.A.'s accident; (2) emergency responders were dispatched at 10:55 a.m.; (3) Acey received a phone call from the 911 dispatcher informing her of the accident at an unknown time after the accident was reported; (4) emergency responders arrived at the accident scene at 11:12 a.m.; (5) Acey's testimony states that she thinks that the emergency responders arrived within a few minutes of her arrival; (6) twenty-seven minutes elapsed between the time the 911 call was made and the time that emergency responders arrived on the scene.

      . 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968).


author: KING, Justice,

text:
    Willie CROWELL v. Anne BUTTS d/b/a Magnolia Wrecker & Towing Service and Fani Atkinson.
    No. 2012-CT-00763-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2014.
    Rehearing Denied Jan. 15, 2015.

      Andrew Ross Wilson, Jackson, attorney for appellant.
    Michael Lee Dulaney, Tupelo, Daniel Sidney Dale, attorneys for appellee.
   ON WRIT OF CERTIORARI

KING, Justice,

for the Court:

¶ 1. In this replevin action, a tenant sued his landlord and a towing company, alleging wrongful possession of several vehicles towed from the property he leased from the landlord. The County Court of Hinds County granted the defendants’ motion for involuntary dismissal, and also found that the landlord’s use of self-help was lawful. The Hinds County Circuit Court affirmed. Finding that the plaintiff presented sufficient evidence to maintain the replevin action, the Court of Appeals reversed and remanded the replevin action for a trial de novo between the plaintiff and the towing company. It also found the landlord’s use of self-help to be unlawful, and reversed and rendered that issue in favor of the plaintiff. Because we find that both the trial court and the Court of Appeals improperly addressed the issue of the landlord’s use of self-help, we reverse the judgments and remand the replevin action to the trial court for a trial de novo.

FACTS AND PROCEDURAL HISTORY

¶2. Most of the facts are taken from the Court of Appeals opinion.

On December 21, 2009, Crowell entered a handwritten one-year lease agreement with Fani Atkinson for the rental of one acre of land and a metal building owned by Atkinson. • The term of the lease was from January 1, 2010, to December 1, 2010. Crowell used the premises as an auto-repair shop. After Crowell became several months delinquent in his rent, Atkinson issued Crowell a notice of default on August 18, 2010. As of the date of the notice, Crowell owed $2,250 in past-due rent. The notice informed Crowell that he had until September 19, 2010, to clear his delinquency or vacate the property. The notice also provided that on September 18, 2010, all equipment on the premises would be towed and impounded, and Crowell would be denied access to the premises after that date.
According to Crowell, he approached Atkinson on Friday, September 17, 2010, and offered to give her $2,800 in cash to extinguish his delinquency, but Atkinson refused. However, Atkinson denies this allegation. Atkinson contacted Anne Butts of Magnolia Wrecker & Towing Service to remove thirty-seven vehicles from the premises in the early morning hours between midnight and 5 a.m. on Sunday, September 19, 2010. Butts towed all thirty-seven vehicles to her business establishment. After the vehicles were towed, Atkinson replaced the lock on the property gate with a new one. Later that day, Crowell arrived at the property and found that he had been locked out, and that all of his personal property, including the thirty-seven vehicles he claimed he rightfully possessed, had been removed.
On October 12, 2010, Crowell filed a replevin action in the County Court of Hinds County, naming Atkinson and Butts, d/b/a Magnolia Wrecker, as defendants.

Crowell v. Butts, 2012-CA-00763-COA, 153 So.3d 719, 721-22, 2013 WL 6442149, at *1 (Miss.Ct.App. Dec. 10, 2013). On October 14, 2010, Crowell filed a Complaint to Enforce Right of Possession in Realty in the County Court of Hinds County solely against Atkinson, alleging that her entry onto the property and her removal of the vehicles were improper. On November 4, '2010, the court entered an Agreed Order of Consolidation of the two cases. On January 4, 2011, Crowell moved to sever the two cases, admitting that the proper venue for one of the cases was in a different judicial district of Hinds County. The court granted severance on January 7, 2011, and a trial was held solely on the replevin action on May 3, 2011.

A bench trial was held in county court on May 3, 2011. Crowell testified and called Atkinson and Butts as adverse witnesses. Atkinson claimed her reentry was lawful because Crowell was behind on his rent, and Butts claimed that she rightfully possessed the vehicles through a statutory lien for the unpaid towing/storage fees. Crowell countered that because Atkinson unlawfully ordered the vehicles towed, he should not have to pay the towing/storage fees. Crowell also sought to discuss Atkinson’s breach of the lease agreement. However, the trial court was informed that Crowell had a separate civil action pending against Atkinson and Butts covering all matters surrounding the lease agreement. Thus, the trial court declined to address those issues.

Crowell, 153 So.3d at 722, 2013 WL 6442149, at *1.

¶ 3. During Crowell’s testimony, he began to testify about Atkinson’s entry onto the property. The defense objected to the “whole line of questions” as irrelevant, noting that the defense had stipulated that Butts had the cars, and it was not relevant how they were obtained. The court sustained the objection. Crowell continued to testify as to Atkinson’s entry rato the property, and the defense then renewed the objection regarding relevance. The court then ruled that “I’ve already ruled that the issue of how or why Mrs. Atkinson engaged people to re-enter that land is irrelevant to the issue of replevin.” The court then expressed displeasure with Cro-well’s counsel in continuing the line of questioning. Crowell’s counsel then asked: ‘You ruled that she had the right to re-enter the property?” The court responded “I’m ruling that she had the right to re-enter that property, and I’m ruling that the evidence that you are trying to ■ enter right now is absolutely irrelevant to this proceeding.”

¶ 4. At the conclusion of Crowell’s casein-chief, Atkinson and Butts moved for directed verdict. The trial court granted the motion. Crowell appealed to the Hinds County Circuit Court, which affirmed the county court’s decision. He then appealed to the Court of Appeals. The Court of Appeals found that Crowell had presented sufficient evidence to maintain his replevin action against Butts; thus the trial court’s dismissal was manifestly erroneous. It thus reversed and remanded the issue for a trial de novo on the merits between Crowell and Butts. The Court of Appeals also found that the trial court had the jurisdiction to rule on the self-help “claim,” and then found that Atkinson’s use of self-help was unlawful, and thus reversed and rendered this issue.

¶ 5. Butts and Atkinson each filed a motion for rehearing with the Court of Appeals, both of which the Court of Appeals denied. Each filed a petition for certiorari with this Court. We denied Butts’s petition for certiorari, but granted Atkinson’s, which argued that the trial court and Court of Appeals improperly addressed the issue of whether her use of self-help was lawful, and in the alternative, that Atkinson’s use of self-help was indeed lawful. Therefore, we limit our opinion to addressing the issues surrounding Atkinson’s use of self-help.

ANALYSIS

¶ 6. “A motion for directed verdict granted by the court, sitting without a jury, is procedurally a dismissal on the merits under Mississippi Rule of Civil Procedure 41(b).” Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So.2d 826, 829 (Miss.2008). This Court reviews a grant or denial of a Rule 41(b) motion to dismiss under the substantial evidence/manifest error standard. Id. “In considering a motion to dismiss, the trial judge should consider the evidence fairly, as distinguished from in the light most favorable to the nonmovant, and should dismiss the case if it would find for the movant.” Id. (internal quotations omitted). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Stewart v. Merchants Nat’l Bank, 700 So.2d 255, 259 (Miss.1997) (quoting Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 869 (Miss.1992)).

¶ 7. The trial court found, on an objection to a line of questioning for relevance, that Atkinson’s use of self-help was lawful. The Court of Appeals found that, under Hall v. Corbin, 478 So.2d 253 (Miss.1985), the trial court had the jurisdiction to address the self-help issue as an “ancillary claim” to the replevin action, and then found that Atkinson’s use of self help was unlawful. We find that both the trial court and the Court of Appeals erred by rendering judgment on this issue.

¶8. The Court of Appeals found that the trial court had jurisdiction to rule on the claim regarding self-help under Hall. We find this to be error, because Hall is inapposite. In Hall, a party moved to intervene in a replevin suit, presenting its claims in a complaint. Hall, 478 So.2d at 254. The Court noted that “once a court acquired actual subject matter jurisdiction of an action, other claims ..., ancillary or pendant to the original claim could also be litigated in that action even though the ancillary or pendant claim standing alone may have been beyond the court’s jurisdiction.” Id. at 255. “[T]he intruding claim must arise out of the same transaction or occurrence as the principal claim, or, as others put it, out of a common nucleus of operative fact.” Id. In the case at hand, no formal ancillary or pendant “claim” exists. Indeed, the claims against Atkinson are the subject of a separate lawsuit. Thus, neither the trial court nor the Court of Appeals had before it a formal claim regarding Atkinson’s use of self-help; thus, rendering a formal judgment on the issue was inappropriate, as the claim was not before either court. Moreover, the Court of Appeals correctly noted that an action in replevin “ ‘lies alone against the party in possession at the time the action is begun,’ ” and that “Atkinson has never possessed any of the vehicles, nor has she ever sought possession of the vehicles.” Id. at 723, 2013 WL 6442149, at *2 (quoting Ainsworth v. Blakeney, 232 Miss. 297, 98 So.2d 880, 883 (Miss.1957)). We therefore reverse the judgments of the County Court of Hinds County, the Hinds County Circuit Court, the Court of Appeals on this issue, as no ancillary claim regarding the use of self-help was before any of these courts.

¶ 9. We do not suggest, however, that the trial court is prohibited from examining the issue of Atkinson’s use of self-help in the context of the replevin action. Cro-well must show that Butts “wrongfully took and detains or wrongfully detains” the automobiles. Miss.Code Ann. § 11-37-101(e) (Rev. 2012). As the Court of Appeals noted, “Crowell claims he has the superior right to possession through bailment” and title, and “Butts claims she rightfully possesses the vehicles because of the unpaid towing/storage fees.” Crowell, 153 So.3d at 724, 2013 WL 6442149, at ⅜4.

The owner of a motor vehicle that has been ... towed upon request of a real property owner upon whose property the vehicle has been left without permission of the real property owner for more than five (5) days, shall be liable for the reasonable price of towing and storage of such vehicle; and the towing company to whom the price of such labor and storage costs may be due shall have the right to retain possession of such motor vehicle until the price is paid.

Miss.Code Aun. § 85-7-251(1) (Rev. 2011). It is unclear from the record, given that a complete trial was not held, whether the vehicles in question met the standards outlined in the statute, including whether the vehicles had been left without permission of the property owner'for more than five days. Furthermore, as the Court of Appeals noted, “[tjhis section does not distinguish between a property owner’s lawful or unlawful towing request.... It remains unclear whether Atkinson’s request gave Butts superior authority to retain possession of the vehicles under the statute. This is for the trial court to determine.” Crowell, 153 So.3d at 725, 2013 WL 6442149, at *4. If the trial court reaches this issue, it is certainly conceivable that the trial court will need to examine, and even make findings on, the issue of whether Atkinson’s self-help was lawful. However, that issue is not a “claim” for which the trial court should render formal judgment.

CONCLUSION

¶ 10. We affirm the judgment of the Court of Appeals on the issue of replevin.

However, because no formal claim exists in this case on the issue of Atkinson’s use of self-help, no formal judgment should have been rendered on the issue. Therefore, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the judgments of the County Court of Hinds County and the Hinds County Circuit Court are thus reversed and the case remanded to the Hinds County Circuit Court, for further proceedings consistent with this opinion.

¶11. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P JJ., KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. LAMAR,'J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.