author: MAXWELL, J.,

text:
    Ken E. CLEVELAND, George T. Smith-Vaniz, M.D., and Jackson HMA, Inc., d/b/a Central Mississippi Medical Center, Appellants v. Lanell HAMIL, individually and on behalf of the Wrongful Death Beneficiaries of Emmett O. Hamil, Deceased, Who Are Entitled to Recover Under the Wrongful Death and Survival Statute, Appellee.
    No. 2010-CA-01527-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.

      Mark P. Caraway, Cory Louis Radicioni, Whitman B. Johnson III, Lorraine Walters Boykin, Stephen P. Kruger, Jan F. Gadow, Kristopher Alan Graham, Jackson, attorneys for appellants.
    AJton Earl Peterson, Larry Stamps, Jackson, attorneys for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. The motion for rehearing, filed by Dr. Ken E. Cleveland, is denied. We withdraw our original opinion and substitute this modified opinion.

¶ 2. To prove medical malpractice, a plaintiff must present expert testimony on both the standard of care for the particular specialty of the doctor being sued and the doctor’s deviation from that standard of care. The details of this expert testimony must be disclosed before trial to prevent “trial by ambush” with medical theories the defendant doctor is not prepared to meet.

¶ 3. We are faced with a plaintiffs verdict in a medical-malpractice action against a surgeon and a gastroenterologist (as well as a hospital that was vicariously liable for the gastroenterologist). The malpractice case was supported by the testimony of one expert. While this expert was qualified as an expert in surgery, he was not qualified as an expert in gastroenterology. And at trial, this expert abandoned a previously disclosed opinion, which he admitted was based on incorrect information, and offered a new opinion he had developed just hours before trial.

¶ 4. Based on this expert’s testimony, we find the verdict cannot stand. Because the expert was not qualified to testify about the applicable standard of care for a gas-troenterologist, the plaintiff failed to present a cognizable medical-malpractice claim against gastroenterologist Dr. George T. Smith-Vaniz and, consequently, Jackson HMA Inc. We reverse the judgment against Dr. Smith Vaniz and Jackson HMA and render judgment in their favor.

¶ 5. We also reverse the judgment against surgeon Dr. Ken E. Cleveland. While we find no abuse of discretion in the circuit court’s finding the plaintiffs expert qualified to testify against Dr. Cleveland, the plaintiffs case against Dr. Cleveland was based on a previously undisclosed expert opinion. Thus, we remand the case against him for a new trial.

Facts and Procedural History

¶ 6. Lanell Hamil brought a medical-malpractice suit against Dr. Smith-Vaniz, Dr. Cleveland, and Jackson HMA, alleging the wrongful. death of her husband, Emmett Hamil.

I. Emmett’s Ulcer

¶ 7. Emmett had gone to the emergency room of Central Mississippi Medical Center, a Jackson HMA hospital, for severe abdominal pain. Dr. Smith-Vaniz treated Emmett’s gastrointestinal (GI) bleeding. Dr. Cleveland was called to perform surgery.

¶ 8. When opening Emmett’s abdomen, Dr. Cleveland found a perforated hole, or ulcer, in Emmett’s stomach. Dr. Cleveland performed a wedge resection — cutting out the ulcer and the area around it and then sewing the stomach back together. Emmett stayed in the hospital approximately a week after surgery. According to Dr. Cleveland, because Emmett continued to improve post-surgery, he was discharged from the hospital. But Emmett returned to the hospital early the next morning, experiencing more stomach pain and vomiting blood. A second surgery revealed a second ulcer. This ulcer had eroded a large blood vessel, causing Emmett to die of massive blood loss.

II. Medical-Malpractice Trial

¶ 9. Before trial, Dr. Smith-Vaniz filed a motion in limine to exclude “[a]ny attempts by [Lanell] to solicit expert testimony [that] was not previously designated and provided to Defendants[ ] from any medical expert.” At the motion in limine hearing, Lanell’s attorney assured the court, “We will not be attempting to offer any opinions that have not been previously provided.”

¶ 10. Lanell had previously disclosed the opinion of her sole expert, Dr. Louis Silverman. At the summary-judgment stage, Lanell had submitted Dr. Silver-man’s affidavit. This affidavit tracked La-nell’s unsworn interrogatory responses and expressed the same opinions regarding both doctors’ alleged deviations from the standard of care, “as applied to reasonably prudent, minimally competent surgeons,” and the cause of Emmett’s death. (Emphasis added).

¶ 11. At trial, Lanell tendered — and the circuit court accepted — Dr. Silverman as an expert in thoracic and cardiovascular surgery. Dr. Smith-Vaniz objected to Dr. Silverman’s expert qualifications. He specifically argued that even if Dr. Silverman was familiar with upper GI bleeds through his surgery practice, he was not sufficiently familiar with the specialty of gastroen-terology. The circuit judge clarified that Dr. Silverman was not being tendered as an expert in gastroenterology, to which Lanell’s attorney agreed. The circuit judge overruled Dr. Smith-Vaniz’s objection and held that “Dr. Silverman will be allowed to testify as an expert in the field of thoracic and general surgery.” Dr. Smith-Vaniz then lodged a continuing objection to Dr. Silverman giving any testimony outside of his qualification as an expert in surgery. At the close of Lanell’s case-in-chief, Dr. Smith-Vaniz requested a directed verdict based on insufficient expert testimony, which was denied.

¶ 12. While testifying, Dr. Silverman offered opinions that had not been previously disclosed to the doctors or hospital. He admitted one of his opinions about the deviation from the standard of care — failure to prescribe anti-ulcer medication when Emmett left the hospital — was based on incorrect information. It was not until Dr. Silverman had flown in the day before trial that he learned Emmett’s medical records showed the doctors had indeed prescribed this medication. After learning this, Dr. Silverman developed an alternative theory. Previously, Dr. Silverman had given a sworn affidavit opining that the second ulcer had promptly recurred “post discharge.” But at trial he testified the second, lethal ulcer had instead been “evolving” when Emmett was still at the hospital. According to his new theory, he claimed the ulcer should have been detected based on Emmett’s hemoglobin and hematocrit levels. Dr. Cleveland, joined by the other two defendants, objected to Dr. Silverman’s testimony as outside his designated expert opinion.

¶ 13. At the close of Lanell’s case-in-chief, the circuit court granted Jackson HMA a directed verdict on all claims against it except for vicarious liability for Dr. Smith-Vaniz — meaning it would only be deemed liable if Dr. Smith-Vaniz was found liable. The jury found for Lanell against all three defendants, without apportioning fault among them, and awarded her $500,000 in non-economic damages and $628,050 in economic damages.

¶ 14. All three defendants filed motions for a judgment notwithstanding the verdict or, alternatively, a new trial. After the circuit court denied these motions, they timely appealed.

Discussion

¶ 15. Though the doctors and hospital raise multiple issues on appeal, we find one to be dispositive — Dr. Silver-man’s expert testimony. Expert testimony is critical in a medical-malpractice action. It is necessary to prove both that the defendant physician failed to conform to the required standard of care and that this failure proximately caused the pa-, tient’s injuries. Hubbard v. Wansley, 954 So.2d 951, 955-57 (¶ 12) (Miss.2007).

¶ 16. Indeed, for Lanell to make a prima facie case of medical malpractice— “(1) after [first] establishing the doctor-patient relationship and its attendant duty” — she had to also establish: (2) “the requisite standard of care,” (3) “the defendant physician[’s] failure] to conform to the standard of care,” (4) that the “physician’s noncompliance with the standard of care caused [Emmett’s] injury,” and (5) “the extent of [her and Emmett’s] damages.” Cheeks v. Bio-Med. Applications, Inc., 908 So.2d 117, 120 (¶ 8) (Miss.2005) (citing McCaffrey v. Puckett, 784 So.2d 197, 206 (¶ 33) (Miss.2001)). Again, “[w]hen proving these elements in a medical malpractice suit, expert testimony must be used.” Hubbard, 954 So.2d at 957 (¶ 12). Such expert testimony is required to “identify and articulate the requisite standard that was not complied with” and to “establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)).

¶ 17. We find Dr. Silverman was not qualified to “identify and articulate the requisite standard” of care that Dr. Smith-Vaniz had to comply with. See id. Without proper expert testimony on the standard of care, Lanell failed to present a prima facie case against Dr. Smith-Vaniz and Jackson HMA. Therefore, Dr. Smith-Vaniz and Jackson HMA are entitled to a judgment rendered in their favor.

¶ 18. However, Dr. Silverman was qualified to testify about the requisite standard of care Dr. Cleveland allegedly failed to conform with, as well as to testify about medical causation — thus establishing a pri-ma facie case against Dr. Cleveland. But Dr. Silverman’s trial testimony differed vastly from the expert opinion Lanell disclosed in her interrogatory responses- and Dr. Silverman’s affidavit. Because of this unfair surprise, Dr. Cleveland is entitled to a new trial.

I. Dr. Smith-Vaniz and Expert Qualification

A. Scope of Dr. Silverman’s Expert Qualification

¶ 19. Mississippi Rule of Evidence 702 governs the admission of expert testimony. “A witness may testify as an expert to ‘assist the trier of fact to understand the evidence or to determine a fact issue’ if the witness is ‘qualified as an expert by knowledge, skill, experience, training, or education[.]’ ” Hubbard, 954 So.2d at 957 (¶ 13) (quoting M.R.E. 702).

¶ 20. Lanell’s attorney tendered Dr. Sil-verman — and the circuit court accepted him as qualified — as an expert in thoracic and cardiovascular surgery. Dr. Silver-man is board certified in general and thoracic surgery and has practiced general and thoracic surgery for three decades. Before practicing, he completed a five-year surgical residency. He is also a fellow of the American College of Surgeons. Based on Dr. Silverman’s knowledge, skill, training, experience, and education, we find the circuit court did not abuse its discretion in accepting him as an expert in surgery. See id. at 956 (¶ 11) (“Absent an abuse of discretion, a [trial] judge’s determination as to the qualifications of an expert witness will remain undisturbed on appeal.”).

¶ 21. But Lanell’s attorney did not tender Dr. Silverman — and the circuit court did not accept him as qualified — as an expert in gastroenterology, the sub-specialty of internal medicine that Dr. Smith-Vaniz practices. Both the Mississippi Supreme Court and this court have held that expert qualification in one specialty does not qualify the expert to testify about the standard of care applicable to another specialty. In Troupe v. McAuley, 955 So.2d 848, 857 (¶ 24) (Miss.2007), the supreme court held that a witness tendered as an expert in neurosurgery was not qualified to testify against a neuro-otolaryngologist. And in Figueroa v. Orleans, 42 So.3d 49, 52-53 (¶¶ 10-13) (Miss.Ct.App.2010), this court held that a witness offered — and accepted — as an expert in gastroenterology was not qualified to testify about standard of care of a surgeon. Here, we have the reverse. Dr. Silverman’s acceptance as an expert in thoracic and cardiovascular surgery did not qualify him to testify against a gastroenterologist.

¶ 22. Further, Dr. Silverman could not have been qualified as an expert in gastroenterology under Rule 702. While he was not required to “be of the same specialty” to testify against Dr. Smith-Vaniz, Dr. Silverman did have to “show satisfactory familiarity with the specialty” of Dr. Smith-Vaniz “in order to testify as to the standard of care [Dr. Smith-Vaniz] owed to [Emmett].” McDonald v. Mem’l Hosp. at Gulfport, 8 So.3d 175, 181 (¶ 15) (Miss.2009) (citing Hubbard, 954 So.2d at 957 (¶ 13)). “It is the scope of the witnesses] knowledge and not the artificial classification by title that should govern the threshold question of admissibility.” Id. And. here Dr. Silverman failed to establish sufficient knowledge of the specialty of gastroenterology.

¶ 23. When Dr. Smith-Vaniz’s counsel questioned Dr. Silverman about his knowledge of gastroenterology, Dr. Silverman testified he is not a gastroenterologist, has “not really” had any gastroenterology training, has not participated in any continuing medical education concerning gas-troenterology, has never performed any gastroenterologist-specific medical procedures, and has never been consulted as a gastroenterologist. In Troupe, the Mississippi Supreme Court looked at a similar lack of knowledge of a specialty and found Rule 702 had not been met. Troupe, 955 So.2d at 857-58 (¶¶ 24-25). There, a neurosurgery expert was not qualified to give an opinion about otolaryngology or neuro-otolaryngology because the expert “had no special training or experience in the field,” “had never conducted middle ear surgery, had never had privileges at any hospital to conduct middle ear surgery,” admittedly “was not qualified to conduct middle ear surgery,” and “did not hold himself out to be an expert in otolaryngology or neuro-otolaryngology.” Id. at 857 (¶ 24).

¶ 24. When pressed by Dr. Smith-Van-iz’s attorney, Dr. Silverman retreated from prior testimony in a separate trial where he admitted he was not familiar with the standard of care applicable to a gastroen-terologist. Instead, here, he claimed he was familiar with the standard of care applicable to “any physician” — and thus, could testify against Dr. Smith-Vaniz. We disagree with this articulation, as the Mississippi Supreme Court has rejected “plain M.D.” standard-of-care testimony. McDonald, 8 So.3d at 182 (¶ 18).

¶ 25. The supreme court has held the proper standard is not whether an expert is qualified to testify about the standard of care of any physician. Rather, it is •whether he or she is qualified to testify about the standard of care of a defendant doctor’s specialty. Id. In McDonald, the trial court ruled — and the supreme court affirmed — that a pathologist was not qualified to testify regarding the standard of care of a gastroenterologist. Similar to Dr. Silverman’s assertion that he would “only comment[] about the overall care provided by a physician other than somebody utilizing those special skills” of a gastroenterologist, the pathologist in Me- Donald, had testified “that he was not really there to offer standard-of-care testimony ‘other than standard of care for a proven practicing physician.’ ” Id. The supreme court found the pathologist had failed to show “that he was competent to testify to the standard of care of a gas-troenterologist.” Id. Our supreme court recognized that “it is illogical to allow a proposed expert to testify as to the standard of care of a specialty with which he has demonstrated no familiarity.” Id. (quoting Hubbard, 954 So.2d at 958 (¶ 17)). Here, we find it equally illogical to allow Dr. Silverman to testify as to the standard of care of a gastroenterologist with which he also has demonstrated no familiarity.

¶ 26. Dr. Silverman claimed he was qualified to testify about subjects where the work of a gastroenterologist “would cross [his] work as a surgeon.” But in Hubbard, the supreme court distinguished between experience with a stibject and familiarity with a speciality. Hubbard, 954 So.2d at 958 (¶ 17). In that case, the supreme court held a neurosurgeon was not qualified to testify against an internal-medicine specialist. Id. While the neurosurgeon was experienced in the subject of treating brain hemorrhages, there was no evidence the neurosurgeon was familiar with the speciality of internal medicine and the standard of care required of an internal-medicine specialist treating a brain hemorrhage. Id. at (¶¶ 17-19). And qualification as a medical expert “requires familiarity not with a particular subject, but with a specialty.” Id. at (¶ 17); see also West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995) (holding the plaintiffs failed to establish that an oncologist was familiar with the standard of care of a gastroenterologist treating colon cancer). We find Dr. Silverman’s experience as a surgeon with the subject of upper GI bleeds is not evidence he was familiar with the specialty of gastroenterology and the standard of care required of a gastroenterologist treating an upper GI bleed.

¶ 27. Thus, the circuit judge’s acceptance of Dr. Silverman as an expert in surgery did not qualify Dr. Silverman to testify about Dr. Smith-Vaniz’s specialty.

B. Lanell’s Failure to Present a Prima Facie Case

¶ 28. Without a qualified expert to testify about the standard of care of a gas-troenterologist and Dr. Smith-Vaniz’s deviation from that standard of care, Lanell was unable to present a prima facie case against Dr. Smith-Vaniz and Jackson HMA. In Troupe, the supreme court found that “[t]he practical effect” of ruling the plaintiffs expert was not qualified to testify against the defendant doctor was that the plaintiff “was undeniably left with the inability to meet her burden of proof in this medical negligence case.” Troupe, 955 So.2d at 858 (¶ 27). The court affirmed a judgment dismissing the plaintiffs claims following a directed verdict for the defendant neuro-otolaryngologist based on the patient’s failure to present a qualified expert witness in neuro-otolaryn-gology. Id. at 859 (¶ 31); see also McDonald, 8 So.3d at 182 (¶ 19) (affirming summary judgment for a gastroenterologist because patient failed to present expert witness qualified in gastroenterology); Hubbard, 954 So.2d at 958 (¶ 19) (affirming summary judgment for an internal-medicine specialist because patient failed to present expert witness qualified in internal medicine). Because Lanell similarly failed to present a qualified expert in gastroen-terology, we find the circuit judge erred by not granting Dr. Smith-Vaniz and Jackson HMA a directed verdict or a judgment notwithstanding the verdict.

¶ 29. We reverse the judgment against Dr. Smith-Vaniz and Jackson HMA and render judgment in their favor.

II. Dr. Cleveland and Trial by Ambush

A. Requirement to Disclose Changes in Expert Opinions

¶ 30. Lanell was required to identify each person she expected to call as an expert witness at trial. Under Mississippi Rule of Civil Procedure 26(b)(4)(a)(i), she also had “to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Our procedural rules also carry twin duties to seasonably supplement responses and amend prior incorrect responses. Rule 26(f)(1)(B) imposes on a disclosing party “a duty seasonably to supplement that party’s response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony.” M.R.C.P. 26(f)(1)(B). And Rule 26(f)(2)(A) also imposes “a duty seasonably to amend a prior response if that party obtains information upon the basis of which ... the party knows that the response was incorrect when made[.]” M.R.C.P. 26(f)(2)(A).

¶31. The Mississippi Supreme Court recently discussed with disapproval the failure to comply with Rule 26(f). Hyundai Motor Am. v. Applewhite, 53 So.3d 749, 757-59 (¶¶ 30-36) (Miss.2011). “The failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence.” Hyundai Motor, 53 So.3d at 758 (¶ 33) (citing Ekornes-Duncan v. Rankin Med. Ctr., 808 So.2d 955, 958 (¶ 10) (Miss.2002)). While “[rjulings ■ on discovery violations will not be overturned absent an abuse of discretion,” id., the supreme court found the trial court had abused its discretion by allowing the plaintiffs expert to testify about undisclosed changes in his opinion. Id. at 759 (¶ 36). As the supreme court emphasized, “We do not condone trial by ambush.” Id.

¶ 32. In Hyundai Motor, the plaintiffs’ accident-reconstruction expert testified “that he had to change several variables because he realized after he had been deposed that he had made some mistakes in his initial analysis.” Id. at 758 (¶ 31). The defendant, Hyundai, moved to strike the expert’s testimony, claiming these changes in calculations were a surprise. “Despite the plaintiffs’ failure to comply with Rule 26(f), the trial court refused to grant Hyundai any relief.” Hyundai Motor, 53 So.3d at 759 (¶ 36). Because “Hyundai was entitled to full and complete disclosure of the plaintiffs’ expert testimony,” and because the plaintiffs failed to formally and timely supplement their disclosed expert testimony, the supreme court reversed the judgment against Hyundai and remanded the case for a new trial. Id. at (¶¶ 36-37).

B. Failure to Supplement Changes to Dr. Silverman’s Testimony

¶ 33. Based on Hyundai Motor, we find the circuit judge abused his discretion when he denied Dr. Cleveland’s motion to strike Dr. Silverman’s testimony based on the failure to supplement and amend discovery responses. The circuit judge should have granted Dr. Cleveland’s motion for a new trial. See id. at 758-59 (¶¶ 34-37).

¶ 34. As in Hyundai Motor, Dr. Cleveland learned for the first time at trial that Lanell’s previous discovery responses were incorrect and incomplete — and Lanell made no attempt to supplement or amend Dr. Silverman’s affidavit.

¶ 35. On the witness stand, Dr. Silver-man withdrew his previous opinion about the failure to prescribe anti-ulcer medication post-discharge because his “initial opinion was based on information that it turned up not to be correct.” Dr. Silver-man testified he did not know “until last night” that his opinion about the ulcer medication was incorrect. He explained that until then, Lanell’s counsel had not provided the portion of Emmett’s medical records showing the appropriate prescription had been given.

¶ 36. Dr. Silverman also conceded his affidavit omitted any discussion about Emmett’s hemoglobin or hematocrit levels as an indication of an “evolving” ulcer. He justified this omission by asserting he “tr[ies] to make those initial statements as general as [he] can.” He suggested that, if Dr. Cleveland had wanted to know his specific opinions and factual bases for them, Dr. Cleveland should have deposed him.

¶ 37. On appeal, Lanell latches onto this suggestion by trying shift her duty to supplement under Rule 26(f) to Dr. Cleveland, arguing he could have ferreted but Dr. Silverman’s true opinion by taking a deposition. But Dr. Cleveland’s unexér-cised right to depose Dr. Silverman does not excuse Lanell’s unfulfilled duty to supplement and amend her expert’s opinion. In Nichols v. Tubb, 609 So.2d 377, 384 (Miss.1992), the plaintiff in a medical-malpractice case did not depose the defendant doctor’s experts “but depended solely upon pretrial interrogatories,” which did not give the substance of or the facts supporting the defendant’s experts’ opinions. The supreme court discussed at some length the particular importance in professional-liability cases that interrogatory responses “addressed to specialized areas of knowledge” disclose “the substance of every fact and every opinion which supports or defends the party’s claim or defense ... and set forth ... meaningful information which will enable the opposing- side to meet it at trial.” Id. Comparing Dr. Silverman’s affidavit to his trial testimony, we find Lanell neither disclosed the substance of his evolving-second-ulcer theory nor provided meaningful information ' about Emmett’s hemoglobin and hematocrit levels to enable Dr. Cleveland’s counsel to meet Dr. Silver-man’s testimony at trial. Cf. Coltharp v. Carnesale, 733 So.2d 780, 786 (¶ 27) (Miss.1999) (holding that an opposing party “cannot be expected to ask the court to compel discovery of a theory unknown to him”).

¶ 38. The unfair surprise here is highlighted by Dr. Cleveland’s failure to object to the admissibility of Dr. Silverman’s testimony based on Daubert and Rule 702. On appeal, Dr. Cleveland argues Dr. Sil-verman’s testimony about Emmett’s hemoglobin and hematocrit levels was scientifically unreliable and, thus, inadmissible. But Dr. Cleveland did not make a contemporaneous Daubert objection at trial. See Hyundai Motor, 53 So.3d at 755 (¶ 19) (holding trial court did not abuse its discretion by denying a motion to strike expert testimony under Daubert and Rule 702 that was not made contemporaneously with the expert’s testimony). Dr. Cleveland claims he was unprepared to make a Daubert objection because he had no notice Dr. Silverman would testify about hemoglobin and hematocrit levels. This is the very scenario our discovery rules were designed to prevent.

¶ 39. “Rules of discovery are to prevent trial by ambush.” Nichols, 609 So.2d at 384. “If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend or supplement the response.” Hyundai Motor, 53 So.3d at 758 (¶ 34) (citing Choctaw Maid Farms, Inc. v. Hailey, 822 So.2d 911, 916 (¶ 14) (Miss.2002)). Because Lanell’s failure to comply with Rule 26(f) resulted in a trial by ambush, we find Dr. Cleveland is entitled to a new trial.

C. Remedy of New Trial

¶ 40. Dr. Cleveland urges that we render judgment in his favor, as we do with Dr. Smith-Vaniz. He argues that, because Dr. Silverman should not have been permitted to testify about hemoglobin and hematocrit levels due to the discovery violation, we should similarly hold that Dr. Cleveland was entitled to a directed verdict, instead of a new trial. But the judge’s error against Dr. Smith-Vaniz differs from the error committed against Dr. Cleveland. Consequently, so does the proper remedy.

¶ 41. The judgment against Dr. Smith-Vaniz cannot stand because it is not supported by qualified medical expert testimony. And in cases where a plaintiff fails to offer qualified expert testimony — and, thus, fails to present a prima facie case— the supreme court and this court have held that the defendant is entitled to judgment in his favor. E.g., Univ. of Miss. Med. Ctr. v. Lanier, 97 So.3d 1197, 1203 (¶ 22) (Miss.2012) (holding that the trial court erred by not granting a directed verdict based on the plaintiffs failure to produce expert medical testimony on causation “based on a reasonable degree of medical probability”); Worthy v. McNair, 37 So.3d 609, 617-18 (¶ 31) (Miss.2010) (affirming the grant of summary judgment based on the plaintiffs failure to produce an expert who was qualified under Daubert to testify about causation); Buckley v. Singing River Hosp., 99 So.3d 248, 257 (¶¶ 29-30) (Miss.Ct.App.2012) (same).

¶ 42. In contrast, we reverse the judgment against Dr. Cleveland because he was unfairly ambushed through otherwise-qualified medical expert testimony that was not disclosed during discovery. And in cases where the prevailing party blindsides the other party with surprise expert testimony, the supreme court has consistently remedied the unfairness by remanding for a new trial. E.g., Bailey Lumber & Supply Co. v. Robinson, 98 So.3d 986, 998 (¶ 32) (Miss.2012) (reversing and remanding for new trial because plaintiffs expert, though qualified, provided testimony outside his previously disclosed opinion); Hyundai Motor, 53 So.3d at 759 (¶ 37) (reversing and remanding based on plaintiffs failure to supplement expert witness’s testimony); T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 950-51 (Miss.1992) (granting new trial in part because trial court should have never permitted expert to testify because of failure to comply with Rule 26); Jones v. Hatchett, 504 So.2d 198, 202 (Miss.1987) (granting new trial because plaintiffs expert “should not have been allowed to testify” because of the failure to supplement under Rule 26(f)); Square D Co. v. Edwards, 419 So.2d 1327, 1329 (Miss.1982) (reversing and remanding based on plaintiffs failure to supplement expert witness’s testimony).

¶ 43. Following these established precedents, we reverse the judgment against Dr. Cleveland and remand the case for a new trial.

Conclusion

¶ 44. Because the circuit court abused its discretion by permitting Lanell’s expert to offer testimony about the applicable standard of care for Dr. Smith-Vaniz and to offer surprise testimony correcting and changing his previously disclosed opinions, we reverse the judgment against all three defendants. We render judgment in favor of Dr. Smith-Vaniz and Jackson HMA. We remand this case for a new trial against Dr. Cleveland.

¶ 45. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED IN PART AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J, IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND FAIR, JJ„ CONCUR. BARNES AND JAMES, JJ., NOT PARTICIPATING.

      . Lanell also sued a third doctor, who was dismissed before trial.

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

      . In addition to requiring a witness to be qualified as an expert by knowledge, skill, experience, training, or education, Rule 702 requires the expert’s testimony to be (1) "based upon sufficient facts or data” and (2) “the product of reliable principles and methods.” Also, (3) the expert witness must have "applied the principles and methods reliably to the facts of the case.” M.R.E. 702.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Patty HOWELL, Appellant v. Peggy HOLIDAY d/b/a Salon 15, Appellee.
    No. 2011-CA-01789-COA.
    Court of Appeals of Mississippi.
    March 26, 2013.

      D. Reid Wamble, attorney for appellant.
    Terry Dwayne Little, Catherine Ash-burn Hester, .Shelly Mott Bass, Oxford, attorneys for appellee.
    Before IRVING, P.J., BARNES, and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Patty Howell appeals the judgment of the Tippah County Circuit Court, which returned a verdict in favor of Peggy Holiday d/b/a Salon 15 (“Holiday”). Howell raises the following assignments of error: whether (1) the trial court abused his discretion in refusing to allow the plaintiffs expert to testify at trial; (2) the trial court erred in instructing the jury with regard to possible joint liability between Holiday and her landlord; (3) the trial court improperly allowed the jury to determine the. status of Howell as an invitee or licensee; and (4) the trial court, erred in failing to grant a directed verdict on the issue of liability. Finding no error, we affirm.

FACTS

¶ 2. In November 2007, Holiday entered into an oral agreement with James R. Neal Sr. to rent a space in a strip mall on Highway 15 in Ripley, Mississippi, for $400 per month. Holiday opened her business, Salon 15, in the space on the far end of the strip mall, one of five storefronts on the premises. Holiday understood her rented space to include her storefront’s interior space. Holiday and Neal never discussed the exterior spaces and common areas of the strip mall in their conversations establishing their agreement.

¶ 3. When Holiday moved into the strip mall, she questioned Neal about the portable roadside signs located in front of the parking lot. Neal granted Holiday permission to use one of the signs free of charge. Through his business, Neal provided the lettering for the sign to Holiday. At the time, one of the signs received power by a worn, faded extension cord that ran across the parking lot and plugged into an exterior outlet on the building under one of Holiday’s store windows. The second sign received its power by a cord plugged into a similar exterior outlet below the window of American Cash Advance, the storefront next to Holiday’s Salon 15. Holiday notified Neal that she had replaced the cord to prevent anyone from being shocked, to which Neal stated no objection. The new extension cord was bright orange.

¶ 4. On Saturday, January 26, 2008, at approximately 4:30 p.m., Holiday turned off the interior lights and closed Salon 15 for the day. Sometime after 7:00 p.m., Howell arrived at the strip mall with the intention of attending a gospel singing event at BKN TV 19, a local television station located in the strip mall open to the public every Saturday evening for this same purpose. The television station occupied the storefront on the opposite end of the premises from Salon 15. Due to the multiple cars in the strip mail’s parking lot, Howell parked on the end of the lot closest to Salon 15. After parking, Howell proceeded to walk down the sidewalk in front of the strip mall toward the television station. Howell subsequently tripped and fell on an extension cord before she reached her destination. Henry Jeter and Jerry Jeter, also present to participate in the gospel singing at the television station, came to Howell’s aid. Henry testified that when he reached Howell’s side, she was located in the area of the third awning of the strip mail’s storefronts. Holiday later testified that the area referred to by Henry was between Mid-South Graphics and American Cash Advance, not in front of Salon 15. As stated, testimony was presented at trial that American Cash Advance, the business between Salon 15 and Mid-South Graphics, also used an extension cord to power a portable roadside sign.

COURSE OF PROCEEDINGS

¶ 5. On August 21, 2008, Howell filed a complaint in the Circuit Court of Tippah County, alleging that Holiday and Neal were liable for Howell’s injuries resulting from a fall. As reflected in Howell’s second amended complaint filed on February 5, 2010, Neal was ultimately dismissed from the suit.

¶ 6. A trial commenced on November 1, 2011. At the close of trial, the jury returned a verdict in favor of Holiday. The trial court entered a final judgment incorporating the verdict on February 28, 2012. Howell now appeals.

DISCUSSION

I. EXCLUSION OF EXPERT WITNESS

¶ 7. Howell provided Holiday with plaintiffs expert M. Derek Barrentine’s report dated February 11, 2011. Howell states that Barrentine was retained to testify in the field of civil engineering and premises liability. In the February 2011 report, Barrentine described his proposed expert opinions as based on his “professional experience as a Civil Engineer and Public Works Director.” Barrentine further stated, without any supporting authority, that the standard for “proper installation of electrical equipment is the National Electric Code (NEC).” Based solely on the “technical-consideration” standard of the NEC, Barrentine opined that the standard of care for commercial business access was not met on- the date of Howell’s injury and that “the accident would not have happened if the Defendant had observed [n]a-tional standards for portable signs.” The February 2011 report included no reference to a “national standard” other than the NEC.

¶ 8. In response, Holiday filed a motion to strike the testimony and opinion of Bar-rentine, arguing that the NEC was inapplicable to the facts of the case and that Barrentine’s opinions, based on the NEC, were irrelevant under the Mississippi Rules of Evidence and the Daubert standard. Howell responded to Holiday’s motion by supplementing her discovery responses with a second expert report from Barrentine, dated October 25, 2011. In the October 2011 report, Barrentine stated that the subject extension cord created a change in the level of the walkway, which directly violated the Americans with Disabilities Act (ADA). The October 2011 report was the first and only mention by Barrentine of the ADA Accessibility Guidelines as a “standard” applicable to the facts of the case. On October 28, 2011, Holiday filed a second motion to strike the testimony and opinion of Barrentine. In this second motion, Holiday argued that the supplemental report, containing a new theory of liability based on the ADA guidelines, was untimely and unduly prejudicial to her.

¶ 9. Prior to trial, the trial court heard Holiday’s motions to strike. Holiday argued that Barrentine’s proposed expert opinion based on the NEC should be stricken because it failed to meet the Dau-bert standard, specifically the suggested five considerations for determination of whether the opinion is reliable. Holiday contended that the NEC is a voluntary code designed to prevent fire hazards, not trip-and-fall hazards. Secondly, Holiday argued that the subsequent proposed opinion based on the ADA guidelines should be stricken as untimely and prejudicial since the October 2011 report was received by Holiday less than a week before the trial of the matter commenced. In response, Howell argued that Barrentine’s opinions had nothing “to do with any code.” Howell asserted that the issue at hand, “from a physics and an engineering standpoint,” had to do with “why an alteration in the sidewalk and, in this case, an electrical cord strung across the sidewalk!,] would cause someone to fall.” Howell contended that Barrentine’s testimony “as an accident reconstructionist” would “explain to the jury what Holiday did from a science standpoint [sic] would cause somebody to fall.”

¶ 10. After hearing argument by both parties, the trial court excluded Barren-tine’s testimony. In excluding the testimony, the trial court ruled that (1) Tippah County had not enacted the NEC, and that the NEC only applies to electrical injuries and hazards; therefore, it would not assist the trier of fact in a trip-and-fall case; and (2) Barrentine’s opinion based on the ADA guidelines should have been furnished in a more timely manner, but even if it had been, it would not assist the trier of fact.

¶ 11. Howell argues that the trial court erred in excluding Barrentine’s expert testimony. Howell asserts that the trial court’s ruling constituted an abuse of discretion because Barrentine’s testimony was both relevant and reliable, which would have guided the jury in its deliberations. Howell asserts that Barrentine should have been allowed to testify about his opinions as to how the alteration in the sidewalk would be a tripping hazzard and “how exterior walkways should be maintained in the context of ‘safety standards to prevent injury.’ ”

¶ 12. We pause to note that while Howell provides the content of Barren-tine’s proposed testimony in his appellate brief, the record shows that Howell failed to make a proffer as to Barrentine’s expected testimony either at the pretrial motion hearing or at the trial of this matter, particularly as to accident reconstruction. Thus, Howell is procedurally barred from appealing Barrentine’s alleged proposed testimony now. See M.R.E. 103(a)(2).

¶ 13. This Court’s “well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Mitchell v. Barnes, 96 So.3d 771, 776 (¶ 14) (Miss.Ct.App.2012). The Mississippi Supreme Court has concluded that the trial court’s decision will stand unless we conclude that the exercise of “discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. “The Mississippi Supreme Court has held that ‘expert testimony admitted at trial must be based on scientific methods and procedures, not on unsupported speculation or subjective belief.’ ” Thompson v. EchoStar Commc’ns Corp., 89 So.3d 696, 699 (¶ 12) (Miss.Ct.App.2012). Rule 702 of the Mississippi Rules- of Evidence states:

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

“Under Rule 702, trial courts are charged with being gatekeepers in evaluating the admissibility of expert testimony.” Mitchell, 96 So.3d at 776 (¶ 15) (quotation marks omitted). Rule 702 “recognizes the gatek-eeping responsibility of the trial court to determine whether the expert testimony is relevant and reliable.” Mitchell, 96 So.3d at 776 (¶ 15).

¶ 14. The trial court did not abuse its discretion in excluding Barrentine’s testimony. Id. at (¶ 14). The trial court struck Barrentine’s initial opinions as set forth in his February 2011 report, finding that the NEC was not relevant to the facts of this case and would not assist the trier of fact. Neither of Barrentine’s reports offered information that showed the NEC’s relevance to determining whether the presence of an extension cord across a sidewalk constituted a tripping hazard nor its relevance to determining the applicable standard of care in this case.

¶ 15. Furthermore, the record reflects that Barrentine’s October 2011 supplemental report contained an altogether new theory of liability based on ADA guidelines. This late submission of an expert report violates Rule 4.04(A) of the Uniform Rules of Circuit and County Court because Howell failed to reveal the new subject matter of Barrentine’s testimony at least sixty days before trial, and no special circumstances existed to justify Howell’s late designation of this opinion. Rule 4.04(A) provides: “Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.” This rule applies to supplementation of the reports of experts who have already been designated. See, e.g., Martin ex rel. Heirs of Martin v. B & B Concrete Co., 71 So.3d 611, 617-18 (¶¶ 23-27) (Miss.Ct.App.2011). Allowing Barren-tine to testify on this matter would result in unduly and irreversible prejudice to Holiday. Howell timely provided Barren-tine’s opinions regarding the NEC, but she neglected to provide any reference to the ADA guidelines prior to one week before trial. After reviewing the record, we find that the trial court abused no discretion in excluding Barrentine’s opinions.

¶ 16. Accordingly, we find that this issue is without merit.

II. JURY INSTRUCTION — JOINT LIABILITY

¶ 17. Howell argues that the trial judge improperly allowed Holiday’s instruction to the jury with regard to joint liability between herself and Neal, her landlord. Howell contends that Mississippi precedent makes it clear that when a property owner leases property to a tenant without a written lease, the right of possession and responsibility for the condition of the property pass to the lessee. According to Howell, this transfer of rights and responsibilities includes the areas of access to the property, such as a sidewalk in front of the property. Thus, Howell alleges that the trial court improperly allowed the jury to find Neal, the landlord, primarily responsible for Howell’s injuries despite the fact that the landlord possessed no legal responsibility under Mississippi law for the condition of the property upon which Howell fell, and Holiday held sole responsibility for the condition of the property.

¶ 18. The Mississippi Supreme Court has stated:

On appeal, this Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Defects in specific instructions do not require reversal “where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.” However, if those, instructions do not fairly or adequately instruct the jury, we can and will reverse.

Mitchell, 96 So.3d at 775 (¶ 9) (citation omitted); see also Martin, 71 So.3d at 613 (¶ 5). Upon review, we must consider any portions of the jury instructions in context since all the instructions must be considered together. Haggerty v. Foster, 838 So.2d 948, 953 (¶ 4) (Miss.2002). “When analyzing the [giving] or refusal of a jury instruction, two questions should be asked: Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?” Mitchell, 96 So.3d at 775 (¶ 9).

¶ 19. Holiday’s Jury Instruction 17M was offered and accepted as modified by the trial court to allow the jury the opportunity to allocate fault to the Holiday’s nonparty landlord, Neal. During the jury-instruction conference, the trial court stated: “I believe this will be an issue for the jury[,] and I think it will cover the defendant’s theory of the case[.]”

¶ 20. Mississippi Supreme Court precedent holds that “the refusal of a timely requested and correctly phrased jury instruction on a genuine issue of material fact is proper” only if “no hypothetical ... reasonable jury could find the facts in accordance with the theory of the requested instruction.” Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986); see also Church v. Massey, 697 So.2d 407, 410-11 (Miss.1997). An examination of the testimony in this case supports the court’s jury instruction regarding joint liability between Holiday and Neal. Holiday and Neal possessed an oral agreement regarding Holiday’s payment for space in the strip mall for Salon 15, but Holiday testified that she and Neal never discussed the space located outside or adjacent to the actual building. According to Holiday’s testimony at trial, prior to her leasing of the premises for Salon 15, an extension cord ran across the sidewalk and powered an electric roadside sign. Holiday further testified that Neal permitted her access to the sign, and that Neal possessed knowledge of the extension cord on the sidewalk in front of her storefront, as well as the second extension cord in front of an adjacent storefront leased by American Cash Advance. Holiday testified that around the time she opened her business, Salon 15, at this location, she notified Neal as to her intent to replace the worn extension cord with a newer one, to which he expressed no objection. Howell provided that on the evening of the accident, Neal was present on the property and running the video camera at the television station. The record also reflects that at the time of this broadcast, to which the public was invited, Salon 15 was closed. Again, Salon 15 was located in a storefront at the opposite end of the strip mall from the television station.

¶ 21. The evidence presented at trial supports a finding that Neal at least exercised joint control of the sidewalk in front of the strip mall. See Titus v. Williams, 844 So.2d 459, 466 (¶ 23) (Miss.2003) (“When parties fail to allocate responsibility for keeping a leased premises in a safe condition through contract, Mississippi common law places that duty squarely on the party who possesses or controls the property.”). No written agreement existed between Holiday and Neal, her landlord; therefore, no clear-cut answer existed as to who retained control over the sidewalk in front of Holiday’s storefront. The question of possession and control was a question of fact to be resolved by the jury as the fact-finder.

¶ 22. Jury instructions must be read as a whole to determine whether a jury has been correctly instructed. See Mitchell, 96 So.3d at 775 (¶ 9). Here, when so read, the instructions fairly announce the law of this case. Holiday was entitled to jury instructions regarding all genuine issues of material fact supported by the credible evidence. The potential liability of Neal, Holiday’s landlord, was supported by the evidence presented at trial. This issue is without merit.

III. PLAINTIFF’S STATUS

¶ 23. Howell argues that the trial judge improperly allowed the jury to determine the status of Howell as an invitee or licensee, when the rule in Mississippi is that' when the facts are not disputed, the issue of whether an injured person was a licensee or an invitee is a legal question to be determined by the trial court, not the jury. Howell alleges that the trial court even instructed the jury that it should enter a verdict for Holiday unless it found that she willfully and wantonly injured Howell. Howell asserts that because no basis existed for instructing the jury on determining Howell’s status, and because there is no way to determine if the jury applied the proper standard, Howell was plainly prejudiced by the trial court’s error in failing to instruct the jury on the proper standard to be applied.

¶ 24. In reviewing this assignment of error, we acknowledge that “[t]he determination of which status a particular plaintiff holds can be a jury question, but where the facts are not in disputed the classification becomes a question of law for the trial judge.” Adams ex Rel. Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986); see also Albert v. Scott’s Truck Plaza, Inc., 978 So.2d 1264, 1267 (¶ 7) (Miss.2008).

¶ 25. After reviewing the record, we find that the trial court did not err in submitting the question of Howell’s status to the jury because disputed facts existed in this case, and the parties presented conflicting evidence at trial. The appellant, Howell, testified that on the night in question, she possessed no intention to visit Salon 15; she received no services from Holiday; and she had nothing to do with Holiday’s business, Salon 15. There was no “open” sign at Salon 15, and no lights came from inside the store. Howell testified that her only intention on the night of her accident was to visit the television station located within the strip mall.

¶ 26. Holiday, the appellee, testified that she closed Salon 15, her business, and existed the premises at approximately 4:30 p.m. on the day of Howell’s injury, which occurred around 7:00 p.m. Holiday raises no dispute as to the fact that Howell’s status constituted that of an invitee of the television station; however, Holiday disputes that this same status of Howell extends to all of the businesses in the strip mall. As the testimony shows, Howell was not on the premises at the open or implied invitation of Holiday, and Holiday was unaware of Howell’s presence on the day of the accident. Further, Howell failed to present any benefit Holiday gained from Howell’s presence at the strip mall that day. The record therefore reflects a factual dispute existed as to Howell’s status with respect to Salon 15.

¶ 27. With respect to Neal, Holiday’s landlord, Howell testified that Neal was present on the premises on the evening of the accident. Other testimony indicated that Neal was aware that people would be parking in the strip mail’s parking lot and using the sidewalk that ran in front of the strip mall. As the landlord, Neal arguably maintained some possession and control of the common areas on the premises. Thus, Howell could be considered an invitee in relation to Neal, as the lessor.

¶28. As evidenced above, the facts of this case appear to be disputed, particularly those facts regarding possession and control of the common areas of the premises and responsibility for the alleged dangerous condition of the property. Because conflicting evidence exists regarding Howell’s status, the trial judge properly allowed the jury to weigh the evidence in reaching its verdict. See Fred’s Dollar Store, 497 So.2d at 1100. This issue is without merit.

IV. DIRECTED VERDICT

¶ 29. Howell argues that the trial judge erred in failing to enter a verdict for Howell as a matter of law on the issue of liability because no dispute existed as to the facts and the proximate cause of Howell’s fall. Howell contends that the evidence compelled .a finding by the trial court that Holiday was liable for Howell’s injuries because of the duty owed to Howell by Holiday as the lessee of the business and sidewalk where Howell received her injuries. Furthermore, Howell alleges that Holiday created a dangerous condition by negligently plugging an exposed extension cord into an outlet on the front of her business and running the exposed extension cord across the sidewalk in front of her business. Howell argues that the sidewalk was in a strip mall used by the general public, and that Holiday created a dangerous tripping hazard for anyone using the sidewalk, especially at night in an unlit area.

¶ 30. “Appellate courts review a circuit court’s grant or denial of a motion for directed verdict de novo.” Trapani v. Treutel, 87 So.3d 1096, 1100 (¶ 6) (Miss.Ct.App.2012). “A motion for directed verdict tests the legal sufficiency of the plaintiffs evidence.” Id. The supreme court has held:

In deciding whether a directed verdict should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue.

Id. (quoting White v. Thomason, 310 So.2d 914, 916-17 (Miss.1975)). The supreme court has found that “in considering the evidence and all reasonable inferences, the court must determine whether the evidence is so overwhelmingly against the nonmovant that no reasonable juror could have found in her favor.” Id. at (¶ 7). The appellate court considers “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id.

¶ 31. Howell and Holiday presented the jury with differing theories of the case supported by substantial evidence, including conflicting testimony regarding: (1) possession and control of the common areas of the strip mall; (2) visibility on the night in question; (3) Howell’s status on the premises; and (4) the location and cause of Howell’s fall. The duty Holiday owed Howell depended entirely on Howell’s status on the premises at the time, which the trial court properly submitted to the jury for determination due to the conflicting evidence presented at trial. Conflicting evidence was presented by the parties at trial regarding Holiday’s liability for Howell’s accident. As such, the trial court did not err in denying Howell’s request for a directed verdict on the issue of liability, because reasonable minds could differ on whether Holiday caused Howell’s injuries. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ„ CONCUR. MAXWELL, J., NOT PARTICIPATING.

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

      . See also Buckley v. Singing River Hosp., 99 So.3d 248, 255 (¶ 24) (Miss.Ct.App.2012) ("While the end result may appear to be harsh, litigants must understand that there is an obligation to timely comply with the orders of our trial courts.”).

      . Jury Instruction 17-M was modified to remove "Mid-South Graphics,” a store in the strip mall alleged to be owned and operated by Neal, since no evidence existed that Mid-South Graphics was in possession and control of the sidewalk.


author: IRVING, P.J.,

text:
    Bill Nick ARGOL, Appellant v. STATE of Mississippi, Appellee. Bill Nick Argol, Appellant v. State of Mississippi, Appellee.
    Nos. 2011-CA-01602-COA, 2011-CA-01603-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.
    Rehearing Denied Oct. 8, 2013.
    Certiorari Denied Jan. 23, 2014.

      James D. Franks Jr., attorney for appellant.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Bill Nick Argol pleaded guilty to the sexual exploitation of a minor and to three separate counts of fondling. The DeSoto County Circuit Court sentenced him to thirty years in the custody of the Mississippi Department of Corrections followed by ten years of post-release supervision. Argol filed two motions for post-conviction relief (PCR), which the circuit court dismissed. Feeling aggrieved, Argol appeals and raises five issues, which we quote below:

I. The lower ... court erred in denying Argol an evidentiary hearing on his petition(s) for post[-]conviction[-]relief.
II. The lower ... court erred in failing to find that [t]he Alford plea is prohibited under Mississippi law, and in finding no error when [t]he trial court admittedly enhanced ar-gol’s sentence due to his entry of an Alford plea.
III. The lower review court erred in finding that Argol did not receive ineffective assistance of counsel at the trial level.
IV. The lower ... court erred in finding that the trial court did not commit plain error at the plea hearing as well as the sentencing hearing.
V. The lower review court erred in finding that Argol’s sentence was not disproportionate.

¶ 2. In the interest of both clarity and brevity, we have recast Argol’s issues as follows: (1) whether Argol’s Alford plea was voluntary, in accordance with Mississippi law, and whether the circuit court improperly used his Alford plea to enhance his sentence; (2) whether Argol received ineffective assistance of counsel; (3) whether Argol’s sentences are disproportionate to his crime; and (4) whether the circuit court erred in denying Argol an evidentiary hearing on his PCR motions. Finding no error, we affirm.

FACTS

¶ 3. A DeSoto County grand jury indicted Argol on four counts of sexual battery and one count of sexual exploitation of a minor. Several days later, the State filed a bill of information charging Argol with three counts of fondling. The State offered Argol a plea agreement, in which the State would dismiss Counts I-IV of the indictment in exchange for his pleas of guilty to the three counts of fondling contained in the bill of information and the remaining count of the indictment.

¶ 4. Argol confessed to Commander Mark Blackson and Lieutenant Michael Gurley, of the DeSoto County Sheriffs Department, that he “had [had] sexual intercourse with [the victim] from [beginning when she was fifteen years], old to [the] present[,] approximately [twenty-five] times[.]” Argol later insisted that he was intoxicated at the time of the interrogation and was forced to confess.

¶ 5. Argol later filed a motion to suppress the statement that he made to Commander Blackson and Lieutenant Gurley. At the hearing on Argol’s motion to suppress, Commander Blackson testified that Argol’s wife contacted the sheriffs department and alleged that Argol had engaged in inappropriate contact with her daughter, who was also his stepdaughter. Commander Blackson stated that he and Lieutenant Gurley filled out the top portion of the sheet on which Argol wrote his statement. Commander Blackson explained that he also "wrote the question-and-answer portion on the sheet beneath Argol’s statement. Argol read this portion of the statement to ensure that Commander Blackson had written the truth and initialed underneath the question-and-answer section so that nothing would be added to the sheet after his initials. Commander Blackson insisted that he did not force Argol to make a statement and that he did not make any promises to him.

¶ 6. At the suppression hearing, Argol testified that both Commander Blackson and Lieutenant Gurley had threatened him with time in a federal prison. Additionally, Argol stated that he did not read any of the forms that the officers gave to him before he signed them. Argol insisted that he had never had any inappropriate contact with his stepdaughter and that he only confessed to the crime because he was afraid of the officers.

¶ 7. Lieutenant Gurley testified that he was in the interrogation room with Commander Blackson when Argol gave his confession. He maintained that Argol was never threatened with time in a federal prison. Additionally, Lieutenant Gurley stated that, based on what he witnessed during the interrogation, Argol’s statement was given voluntarily.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). An appellate court will not reverse a circuit court’s dismissal of a PCR motion unless the circuit court’s decision was clearly erroneous. Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010). However, questions of law are reviewed de novo. Id.

I. Alford Plea

a. Involuntary and Invalid Plea

¶ 10. Argol contends that his plea was involuntary because the circuit court failed to advise him of the elements of the charged crimes, and the court failed to independently affirm that his trial counsel had advised him of the elements of the charged crimes. A plea is considered voluntary and intelligent if the circuit court “advise[s][a] defendant of his rights, the nature of the charge[s] against him, as well as the consequences of the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009).

¶ 11. Argol entered an Alford plea. An Alford plea is valid if it is made after the defendant has “knowingly and intelligently concluded that his best interests require entry of the guilty plea.” Cougle v. State, 966 So.2d 827, 830 (¶ 14) (Miss.Ct.App.2007) (citations omitted). Although it is ideal for the circuit court to explain the elements of the offenses to a defendant when a plea is accepted, the failure to do so does not automatically render a guilty plea invalid. The United States Supreme Court has determined that the critical issue is whether the defendant was aware of the nature of the offenses from whatever source. See Bradshaw v. Stumpf, 545 U.S. 175, 182-83, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005).

¶ 12. Here, Argol’s indictment laid out the elements of the sexual-exploitation charge. Therefore, we find that Argol had sufficient notice of the elements of the sexual-exploitation charge. See Sanderson v. State, 883 So.2d 558, 561 (¶ 9) (Miss.2004). Neither the bill of information nor the plea petition laid out the elements of the fondling charges. Nevertheless, Argol acknowledged in his plea petition that his attorney had advised him of the nature of the charges and any possible defenses to the charges. Moreover, even though the circuit court did not recite the elements of the crimes during the plea hearing, the prosecutor made an on-the-record statement properly identifying the elements of both crimes.

¶ 13. This Court has previously held that a prosecutor’s on-the-record statement of the elements of the crime charged sufficiently informs a defendant of the elements of the crime. Williams v. State, 31 So.3d 69, 79 (¶ 28) (Miss.Ct.App.2010). In Williams, the circuit court failed to inform the defendant of the elements of the crimes that he had pleaded to, and it failed to inquire whether defense counsel had informed the defendant of the elements of the crimes. Id. at 77 (¶ 22). Additionally, the defendant’s plea petitions did not “set forth the elements of the crimes.” Id. However, at the plea hearing, the prosecutor gave a “detailed recitation of the facts the State intended to prove if [the defendant] had elected to proceed to trial, which expressly laid out all of the essential ele^ ments of the crimes charged.” Id. at (¶ 23). This Court stated that there was “no constitutional infirmity with the elements of the crime to which a defendant wishe[d] to plead guilty [when the elements of the crime had been] explained to the defendant by the prosecutor rather than the judge at a plea hearing.” Id. at 79 (¶ 28).

¶ 14. We see no reason to hold differently here. The prosecutor’s on-the-record statement at the plea hearing, made in front of Argol, expressly laid out all of the essential elements of sexual exploitation of a minor and of fondling. Accordingly, we find that the prosecutor’s statements made during the plea hearing sufficiently informed Argol of the elements of the charges against him, and Argol entered a voluntary Alford plea.

b. Alford Pleas Prohibited

¶ 15. Argol claims that Alford pleas are prohibited in Mississippi because Rule 8.04 of the Uniform Rules of Circuit and County Court does not list the Alford plea as an option. However, Argol gives no authority other than Rule 8.04 to support his claim. Even though Rule 8.04 does not list an Alford plea as an option for a defendant, neither the Mississippi Supreme Court nor this Court has ever stated that an Alford plea is prohibited in this state. This Court has previously held that a defendant has entered a valid Alford plea. See, e.g., Smith v. State, 86 So.3d 276, 282 (¶¶ 17-20) (Miss.Ct.App.2012). Without evidence to the contrary, we cannot hold that Alford pleas are prohibited in this state. Accordingly, this issue is without merit.

c. Sentence Enhanced

¶ 16. Argol argues that the circuit court erroneously enhanced his sentence because he entered an Alford plea. We disagree. The court noted, during sentencing, that it felt that Argol “was taking responsibility for his actions .... but[,] in this [c]ourt’s view[,] not full responsibility.” Our supreme court has determined that, at sentencing, a circuit court may consider whether a defendant takes responsibility for his involvement in a crime. Hersick v. State, 904 So.2d 116, 128 (¶ 49) (Miss.2004). Here, the circuit court did not enhance Argol’s sentence because he entered an Alford plea. It only took into consideration whether Argol was taking full responsibility for his actions. This issue is without merit.

II. Ineffective Assistance of Counsel

¶ 17. Argol asserts that he received ineffective assistance of counsel throughout the proceedings in the circuit court. When evaluating an ineffective-assistance claim regarding guilty-plea proceedings, appellate courts apply “essentially ... the same two-part inquiry as that used for challenges claiming ineffective trial assistance.” Burrough, 9 So.3d at 375 (¶ 22). The inquiry requires the defendant to show “that his counsel’s performance was deficient ..., and ... that the deficiency prejudiced his defense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). As applied to the plea process, “the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id (citing Coleman v. State, 483 So.2d 680, 683 (Miss.1986)).

a. Suppression Hearing

¶ 18. Argol contends that his trial counsel was ineffective during his suppression hearing because counsel: (1) failed to address Argol’s intoxication level during the confession and during the hearing, (2) failed to request that the witnesses be sequestered during the suppression hearing, (3) failed to object to hearsay during the hearing, and (4) failed to review a recorded statement made to a patrol officer. This Court has previously held that a voluntary guilty plea waives an ineffective-assistance-of-counsel claim “except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App.2011). As we have found that Argol entered a valid plea, his claims regarding this counsel’s failure to sequester witnesses, to object to hearsay, and to review Argol’s previously recorded statements were waived by his guilty plea.

¶ 19. Argol alleges that he told his trial counsel that he was under the influence of prescription medication during the suppression hearing. To support his claim, Argol references his and wife affidavits. First, Argol’s wife’s affidavit does not address the suppression hearing. She states only that Argol normally took six to seven Lortab pills daily and that he had told her that he had taken ten to twelve on the day of his arrest. Argol’s wife concludes that Argol was under the influence of drugs when he gave and signed his confession. However, her conclusion is based purely on a statement that Argol made to her after confessing to the crimes. Moreover, even though she states that Ar-gol’s counsel was aware of Argol’s dependency on prescription medication, she does not state that she has personal knowledge of this fact. Second, without his wife’s affidavit, there is no support for Argol’s allegations except his own affidavit, which is insufficient to support an ineffective-assistance-of-counsel claim. See Thompson v. State, 78 So.3d 939, 941 (¶ 5) (Miss.Ct.App.2012). Accordingly, this issue is without merit.

b. Plea Hearing

¶ 20. Argol maintains that his trial counsel was ineffective during his plea hearing because counsel indicated that he would receive a lighter sentence if he entered an Alford plea. Again, Argol relies on his wife’s .affidavit to support his claim. She states in her affidavit that Argol’s trial counsel told them that the circuit court would show him leniency for entering an Alford plea. However, Argol’s statements during the plea colloquy contradict this allegation. The following exchange occurred between Argol and the court during the plea hearing:

[BY THE COURT]: All right. Mr. Ar-gol, do you understand all of that?
[DEFENDANT]: Yes, Your Honor.
[BY THE COURT]: That constitutes at least some agreement that’s been reached between the State of Mississippi and your lawyer and you as to [the] recommendation to be made to this [e]ourt.
[DEFENDANT]: Yes, sir.
[BY THE COURT]: Which, if my calculations are correct, would reduce your exposure from 85 years to 40 years. Do you understand that?
[DEFENDANT]: Yes, Your Honor.
[BY THE COURT]: All right. But now, Mr. Argol, do you understand I’m not bound by that recommendation; that I can accept your pleas of guilty in these charges and sentence you to 85 years in prison?
[DEFENDANT]: Yes, Your Honor.
[BY THE COURT]: Has anybody promised you [that] you would not receive 85 years in prison?
[DEFENDANT]: No, Your Honor.
[BY THE COURT]: Has anybody promised you that I would limit myself to a 40 year maximum or that I would give you any leniency whatsoever?
[DEFENDANT]: No, Your Honor.

¶21. It is clear that Argol knew that the circuit court would not be bound by his attorney’s or the prosecutor’s sentencing recommendations. He knew that he faced up to 85 years in prison, regardless of what his attorney had promised. “[I]t is appropriate for a [circuit] court to place great weight on statements made during guilty plea hearings, as there should be a strong presumption of validity of anyone’s statement under oath.” Peckinpaugh v. State, 949 So.2d 86, 92 (¶ 16) (Miss.Ct.App.2006) (quoting Sanchez v. State, 913 So.2d 1024, 1027 (¶ 8) (Miss.Ct.App.2005)(internal quotations omitted)). Here, when the court asked Argol if he had been promised a lighter sentence, he replied that he had not. Ar-gol has failed to prove that his trial counsel promised that he would receive a lighter sentence and, as such, has failed to show that his trial counsel was deficient. Therefore, we need not consider Strickland’s second prong. Consequently, the circuit court did not err in dismissing Argol’s PCR motion as to this issue. This issue is without merit.

III. Disproportionate Sentences

¶ 22. Argol contends that his sentences are disproportionate to his crime. Appellate courts in this state have stated that a sentence will not be disturbed on appeal if it is within the limits prescribed by statute. See Johnson v. State, 950 So.2d 178, 183 (¶ 22) (Miss.2007); Miller v. State, 106 So.3d 860, 863 (¶ 12) (Miss.Ct.App.2013). Here, Argol pleaded guilty to the sexual exploitation of a minor pursuant to Mississippi Code Annotated section 97-5-33(6) (Supp.2012), and to three counts of fondling pursuant to Mississippi Code Annotated section 97-5-23(2) (Rev.2006). The maximum sentence that Argol could have received for the sexual-exploitation charge was forty years. Additionally, Ar-gol could have received a maximum of forty-five years for the three fondling charges (fifteen-year maximum per charge). In total, Argol faced up to eighty-five years in prison. The circuit court sentenced him to the maximum sentence on all charges but required the sentences to run concurrently, effectively reducing Argol’s sentence by forty-five years. As Argol’s sentences are within the limits prescribed by the statutes, we decline to disturb them on appeal.

IV. Evidentiary Hearing

¶ 23. Argol argues that he was entitled to an evidentiary hearing on his PCR motion. As stated, a PCR movant is entitled to an evidentiary hearing only when it is apparent from the face of his motion, any annexed exhibits, or the prior proceedings in the case that he is entitled to relief. Miss.Code Ann. § 99-39-11(2). Argol “bears the burden of proof by [a] preponderance of the evidence that he is entitled to post-conviction relief.” Lambert v. State, 941 So.2d 804, 811 (¶ 34) (Miss,2006) (quoting McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989) (internal quotations omitted)). Argol has failed to carry his burden. We find that his Alford plea was valid, his claims regarding the voluntariness of his confession were waived when he entered his Alford plea, and he failed to make a sufficient showing that his counsel was ineffective or that his sentence was disproportionate. As such, we cannot say that the circuit court erred in failing to grant an evidentiary hearing before dismissing Argol’s PCR motion. Accordingly, this issue is without merit.

¶ 24. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . The record reflects that Argol filed to separate notices of appeal in which he challenged the September 22, 2011 order of the circuit court — thus explaining the two separate case numbers.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).