author: ISHEE, J.,

text:
    Rodney WILLIAMS, Individually and as Administrator for the Estate of Mannie Earl Williams, and on Behalf of the Wrongful Death Beneficiaries of Mannie Earl Williams, Appellant. v. MANHATTAN NURSING & REHABILITATION CENTER, LLC, Appellee.
    No. 2013-CA-00372-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2014.

      W. Eric Stracener Jr., Walter Andrew Neely, Bay St. Louis, attorneys for appellant.
    W. Davis Frye, Barry W. Ford, Jackson, Andrea La’Verne Ford Edney, Bradley Clayton Moody, attorneys for appellee.
    Before LEE, C.J., BARNES, ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal stems from a medical-negligence action filed by Rodney Williams against Manhattan Nursing & Rehabilitation Center LLC (Manhattan) in the Hinds County Circuit Court. At the conclusion of Williams’s case-in-chief, Manhattan moved for a directed verdict. The circuit court granted the motion. Aggrieved, Williams appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Williams filed a complaint on November 3, 2008, alleging that Manhattan breached a nursing standard of care when his grandmother, Mannie Earl Williams (Mannie), developed an ulcer that Williams claims caused her death. This case went to trial twice. The first trial ended in June 2011 with a jury verdict in favor of Williams. Manhattan then filed a motion for a new trial, which was granted. Williams did not appeal this decision, and the second trial was set for January 22, 2013.

¶ 3. Mannie was admitted to Manhattan’s facilities on September 6, 2006, for rehabilitation after she fell at home and fractured her pelvis. Mannie was eighty-six years old and had significant medical problems, including: end-stage renal disease, hypertension, congestive heart failure, atrial fibrillation, and enlargement of the heart. A few years prior to being admitted to Manhattan, she had been hospitalized for respiratory infections, pneumonia, and bronchitis. During her residency with Manhattan, she was hospitalized on multiple occasions for pulmonary issues.

¶ 4. On February 13, 2007, Mannie developed a reddened area on her coccyx. The area became infected with fungal dermatitis, and eventually advanced into a stage-four ulcer. This ulcer serves as the focus of Williams’s claim that Manhattan was negligent in caring for Mannie and that Mannie’s death was a result of Manhattan’s negligence. On February 19, 2007, Mannie was admitted to St. Dominic’s Hospital. Five days later, Mannie died. The death certificate listed the cause of death as cardiopulmonary failure, pneumonia, and other significant conditions, including end-stage renal disease and pleural effusions. The final diagnoses listed on Mannie’s discharge summary included: end-stage renal disease, congestive heart failure, bilateral pleural effusions, bilateral infiltrates, chronic deep venous thrombosis, and sepsis.

¶ 5. Williams presented Nurse Luanna Trahant to establish that Manhattan breached a nursing standard of care. According to Trahant, Manhattan breached the standard of care by failing to provide Mannie with a planned program to reduce the risk of her becoming completely incontinent. Trahant testified that Mannie should have been placed on a toileting schedule upon admission to Manhattan, where she would be assisted in using the bathroom herself instead of becoming dependent on briefs and diapers. Trahant established that Mannie was completely incontinent and unable to participate in a toileting program by December 22, 2006. Trahant stated under oath that she did not have any issue with Manhattan’s ability to care for an incontinent patient. Further, she testified that Manhattan followed the nursing standard of care with regard to cleaning Mannie, checking her, and repositioning her.

¶ 6. Williams then presented the testimony of Dr. Keith Miller to establish medical causation. At the first trial, Dr. Miller testified in person but was unavailable for the second trial. As such, Dr. Miller’s videotaped deposition from September 28, 2012, was presented to the jury. After reviewing Mannie’s medical records, progress notes, and the discharge summary, it was Dr. Miller’s opinion that Mannie’s immediate cause of death was sepsis or severe infection caused by the infection in her pressure sore and her lungs, made worse by her malnourished state. Dr. Miller was critical of Manhattan in three separate areas: pressure ulcers, malnutrition, and infections. Although Dr. Miller provided testimony regarding his concern for Manhattan’s contribution to Mannie’s malnourished state, the jury was instructed that this issue was not in dispute.

¶ 7. Dr. Miller opined that Mannie’s ulcer was the product of Manhattan’s failure to adequately turn and position Man-nie, as well as relieve pressure from her ulcer. He also alleged that Manhattan failed to keep Mannie clean so as to prevent the wound from becoming infected. Dr. Miller declined to allow the lack of a toileting plan to factor into his opinions. He stated that “[a] toileting [plan] may well have been some of the reasons for infections, but that’s not my opinion. I have no opinion about that_ A toileting plan had nothing to do with my opinions because I don’t know how to write toileting plans.”

¶ 8. After hearing Williams’s expert testimony, Manhattan moved for a directed verdict. Manhattan argued that the testimony failed to establish a prima facie case for medical negligence. Subsequently, the circuit court entered a judgment directing a verdict in favor of Manhattan. Aggrieved, Williams appealed.

STANDARD OF REVIEW

¶ 9. A motion for a directed verdict challenges the sufficiency of the evidence. McGee v. River Region Med. Ctr., 59 So.3d 575, 577 (¶ 8) (Miss.2011) (citation omitted). In reviewing a motion for a directed verdict, this Court will consider “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. (citation omitted). The evidence will be viewed in the “light most favorable to the non-moving party[,] and ... that party [will be given] the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial.” Griffin v. N. Miss. Med. Ctr., 66 So.3d 670, 672 (¶5) (Miss.Ct.App.2011) (citing Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). If a question of fact arises “from which reasonable minds could differ,” the motion for a directed verdict should not be granted. Id.

¶ 10. Williams argues that the circuit court erred in granting Manhattan’s motion for a directed verdict because the expert testimony established a prima facie case for medical negligence. The Mississippi Supreme has found:

In order to establish a prima facie case of medical malpractice, a plaintiff must prove (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.

Cleveland v. Hamil, 119 So.3d 1020, 1023 (¶ 10) (Miss.2013) (citations omitted). In a case for medical negligence, expert testimony must be provided to establish the second and third prongs. Id. at (¶ 11). “Nurses cannot testify as to medical causation.” Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 652 (¶ 20) (Miss.2009).

¶ 11. Williams cites McComb Nursing & Rehabilitation Center, LLC v. Lee, 99 So.3d 776 (Miss.Ct.App.2012), in support of his argument. In Lee, Masumi Lee brought suit on behalf of Robert Lee, a patient with the defendant, McComb Nursing and Rehabilitation LLC (McComb). Id. at 777 (¶ 2). During his residency with McComb, Lee fell from his bed and broke his hip. Id. Masumi alleged that McComb was negligent in caring for Lee and that his hip injury was a result of this negligence. Id. At the conclusion of the testimony, the jury returned a verdict in favor of Masumi. Id. at 778 (¶6). McComb moved for a directed verdict on the basis that Masumi failed to establish that any alleged breach in the standard of care proximately caused Lee’s injuries. Id. The motion was denied, and McComb appealed. Id.

¶ 12. At trial, Masumi’s nursing expert, Susan Lofton, testified that McComb failed to give Lee a fall-risk assessment, failed to determine that he was at a high risk for falls, failed to minimize the risk of falling, failed to establish a procedure to prevent Lee from moving on his own or sitting for long periods, and failed to check on Lee. Id. at (¶ 3). Lofton also stated that McComb failed to meet the standard of care in the post-fall assessment. Id. at (¶4). Masumi’s medical expert was Dr. William Meeks, who testified that Lee suffered a fall and sustained a fractured hip. Id. at (¶ 5). Dr. Meeks stated that he did not believe McComb breached the applicable standard of care, but later admitted that the nursing-related issues were outside of his scope of expertise. Id.

¶ 13. In reviewing the denial of McComb’s motion for a directed verdict, this Court quoted the trial court, which stated “that the testimony and inferences flowing from that testimony are sufficient to have met the burden of proof.” Id. Further, this Court concluded that “Lof-ton’s testimony in conjunction with Dr. Meeks’s testimony is sufficient to establish the necessary elements of proximate cause for medical negligence.” Id. at 780 (¶ 12).

¶ 14. In the instant case, the circuit court provided the following reasoning for granting Manhattan’s motion for a directed verdict in its final judgment:

This court cannot allow any logical leap to be made connecting Dr. Miller’s causation testimony to Trahant’s standard of care/breach testimony. The two must connect for the plaintiff to survive [a] directed verdict and they do not. The only breach complained of by Trahant is Manhattan’s failure to place [Mannie] on a toileting program in the first approximate two months of her stay[;] not only does Dr. Miller’s testimony not link this breach to causation of injury (sacral ulcer and death)[,] he specifically states he did not consider the breach in forming his causation opinion.

Although Trahant acknowledged a breach in the standard of care for Manhattan to develop a toileting schedule, Trahant stated that Mannie was completely incontinent by December 22, 2006, and incapable of participating in a toileting plan after that date. Specifically, Trahant testified that, at the time Mannie developed the excoriation of her coccyx, Mannie was no longer able to participate in a toileting plan. Further, Dr. Miller concluded that Man-nie’s death was caused by sepsis due to a combination of her medical problems, including not only her ulcer, but the infection in her lungs, as well as her malnourished state.

¶ 15. After a review of the record, we cannot find that the testimony provided a nexus between the breach of a standard of care by Manhattan and the proximate cause of Mannie’s death. Specifically, the expert testimony failed to establish that Mannie’s ulcer was the proximate cause of her death due to Manhattan’s failure to provide an effective toileting plan. As such, this issue is without merit, and the judgment of the circuit court is affirmed.

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

LEE, C.J., IRVING, P.J., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Kevin Wayne SHERROD a/k/a Kevin Sherrod a/k/a Kevin W. Sherrod, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00720-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Kevin Sherrod was tried and convicted of possession of a controlled substance. On appeal, he seeks a new trial, asserting that: (1) the court erred in excluding a packet of powdered sweetener from evidence, and (2) the verdict runs contrary to the weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On or about April 20, 2011, Gennice Hayes and Sherrod were riding around a Walmart parking lot in Pascagoula, Mississippi. Walmart security charged Hayes with trespassing According to the record, she had been caught trespassing on the property once before. Walmart Loss Prevention called the police to remove Hayes from the property. During the arrest, one of the officers returned to the vehicle to retrieve Hayes’s purse. Sherrod asked the officer if he could keep the purse to bail Hayes out of jail. The officer informed Sherrod that the purse needed to be inventoried and that he would have to come to the station to post bond for Hayes. Sherrod complied. At the station, the police inventoried the purse and found a pack of cigarettes containing two clear bags. Hayes saw the bags through the booking window and repeatedly stated they did not belong to her. The dispatch supervisor informed Sherrod that he could not collect the purse because narcotics had been found. At that point, Sherrod stated that the narcotics belonged to him. Testing at the Mississippi Crime Laboratory revealed that the substances were a combined 11.8 grams of cocaine. Sherrod was indicted pursuant to Mississippi Code Annotated section 41 — 29—139(e)(1) (Rev. 2013) for possession of Schedule II controlled substance.

¶ 3. Sherrod pled not guilty at trial. He testified that although he originally stated the narcotics were his, he did so to protect Hayes. The jury found Sherrod guilty. He was sentenced to serve twenty-four years in the custody of the Mississippi Department of Corrections, with eighteen years to serve and six years of post-release supervision. Sherrod’s motion for a new trial was denied, and he now appeals.

DISCUSSION

1. Exclusion of Evidence

¶ 4. “The standard of review governing the admission or exclusion of evidence is abuse of discretion.” Catchings v. State, 39 So.3d 943, 950 (¶29) (Miss.Ct.App.2009) (citing Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008)). Further, “the admission or exclusion of evidence must result in prejudice or harm if the cause is to be reversed on that ground.” Lenard v. State, 77 So.3d 530, 534 (¶ 13) (Miss.Ct.App.2011) (quoting Harper v. State, 887 So.2d 817, 829 (¶ 57) (Miss.Ct.App.2004)).

¶ 5. At trial, the State presented Velveda Harried as an expert in forensic science and drug analysis. Harried testified that she tested the two bags police recovered from Hayes’s purse. She further testified that the two bags, which were entered into evidence, contained a total of 11.8 grams of cocaine. On cross-examination, defense counsel handed Harried a sweetener packet and asked her to identify it. The State objected. Defense counsel stated that the one-gram sweetener packet was intended to provide the jury a visual of a substance weighing one gram. The circuit court ultimately concluded the evidence was irrelevant. The judge reasoned that the actual drugs seized were in evidence and an expert witness testified the drugs weighed 11.8 grams combined.

¶6. Mississippi Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

¶ 7. Sherrod argues that the court committed reversible error by excluding the sweetener packet from evidence. He asserts that the packet was relevant to show the jury the quantity of narcotics found in Hayes’s purse. We disagree. The sweetener packet does not “make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” See M.R.E. 401. The expert who tested the substances testified to their weight and classification. There was no testimony that the sweetener has the same consistency and weight, occupies the same volume, or has any other similarity to the seized narcotics. More importantly, the seized substances were themselves admitted into evidence. Sherrod’s theory of defense did not challenge the weight of the substance. For these reasons, we cannot find that the circuit court abused its discretion in excluding the sweetener packet from evidence. Nor can we find Sherrod was prejudiced by the exclusion. This issue is without merit.

2. Weight of the Evidence

¶ 8. ‘When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). New trials should only be granted in “exceptional cases.” Id. (citation omitted). When making this determination, “the evidence should be weighed in the light most favorable to the verdict.” Id. (citing Herring, 691 So.2d at 957).

¶ 9. Officers Dale Gordon and James Catchot, both present at the scene, testified at trial. Officer Gordon stated that when he opened the door to Hayes’s vehicle, Sherrod was holding onto Hayes’s purse. Officer Gordon further testified that Sherrod insisted on keeping the purse so that he could bail Hayes out of jail. Officer Catchot stated that he inventoried Hayes’s purse and discovered the substances in the cigarette package. Daniel Lebatard, the dispatch supervisor, testified that Sherrod claimed the drugs at the station.

¶ 10. Sherrod testified at trial that the drugs did not belong to him, and that he only claimed them so that Hayes could go home to her children. Sherrod also stated that, contrary to Officer Gordon’s testimony, he never held onto Hayes’s purse during Hayes’s arrest.

¶ 11. “It is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence.” Watson v. State, 127 So.3d 270, 272 (¶ 9) (Miss.Ct.App.2013) (citing Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003)). We cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice. Given two conflicting statements by Sherrod, the jury found one more credible. It resolved conflicts in the evidence in the favor of the State, a resolution within its power and in accord with its duty. This issue is without merit. The judgment of the circuit court is affirmed.

¶ 12. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWENTY-FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHTEEN YEARS TO SERVE AND SIX YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


author: JAMES, J.,

text:
    Hilary MASLON, Appellant v. Kenny BROWN, Appellee.
    No. 2013-CA-00700-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2014.

      Laurance Nicholas Chandler Rogers, New Albany, attorney for appellant.
    Kent E. Smith, Holly Springs, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. This case arises out of an action initiated by Kenny Brown against Hilary Maslon in the Justice Court of Marshall County for damages he suffered as a result of Maslon’s cattle trespassing onto his property. The justice court ruled in favor of Brown, awarding him $3,500 in damages. Maslon appealed to the Circuit Court of Marshall County, where a bench trial de novo was held. The trial court awarded damages of $2,150 to Brown. Maslon appeals raising the following issues: whether damages to Brown’s property were established with reasonable certainty, and whether the failure to itemize the damages award requires a new hearing. Finding no error, we affirm.

FACTS

¶ 2. Brown and Maslon own adjacent parcels of property. Brown sought relief for the trespass of Maslon’s cattle onto his property in the justice court. On May 5, 2012, the justice court issued an order awarding Brown $3,500 in damages. Mas-lon did not attend the proceedings in justice court. Maslon appealed to the circuit court and retained counsel. Brown retained counsel on appeal as well. A bench trial was held on February 21, 2013.

¶ 3. At trial, Brown testified that he called the sheriffs department several times as a result of the trespass. Brown further testified that the cattle had trespassed onto his property at least twenty-five times since he started to document the incidents, but many times before he started to keep record of the incidents. On cross, Brown gave a “rough estimate” that there were “probably closer to fifty total” incidents of trespass on his property. Brown also estimated that the cows consumed seven or eight bales of hay over the years of trespassing.

¶4. Brown estimated that he spent eighty hours repairing the fence and rounding up cattle. Brown stated that if he hired a laborer to fix the fence and round up the cattle he would pay them $10 an hour. Brown also stated that the cows destroyed fifty oak trees and twenty-five cypress trees during the trespass incidents and the cost of replacing the trees was $165. However, Gene Ash, an employee of Maslon, also testified that during the five to six years working there, he never saw any trees planted along the fence. Maslon testified that she did not see any trees planted along the fence.

¶ 5. Maslon testified that she moved the cattle to a different field once she learned of her cattle crossing the fence. However, after a calf wandered into the road, she moved the cattle back to the field adjacent to Brown’s property. At the conclusion of the trial, the trial judge awarded Brown $2,150 in damages and ordered that Brown and Maslon share the cost in building a hogwire fence to separate their properties. Maslon appealed.

STANDARD OF REVIEW

¶ 6. When reviewing a circuit court’s judgment after a bench trial, the circuit court judge receives “the same deference with regard to his findings as a chancellor.” Falkner v. Stubbs, 121 So.3d 899, 902 (¶ 8) (Miss.2013). “Therefore, we review the circuit court’s interpretation and application of the law de novo, and its findings of fact will not be reversed if supported by substantial evidence.” Id. When a chancellor’s findings are reviewed, the appellate court applies the “manifest error/substantial evidence rule.” Warren v. Derivaux, 996 So.2d 729, 734 (IT 10) (Miss.2008). That is, this Court will not disturb the findings of the chancellor unless they are “manifestly wrong or clearly erroneous.” Id. at 734-35 (¶ 10).

¶ 7. “This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Callahan v. Ledbetter, 992 So.2d 1220, 1224 (¶ 8) (Miss.Ct.App.2008).

DISCUSSION

I. Whether damages to Brown’s property were established with reasonable certainty.

¶ 8. Maslon argues that Brown failed to provide records or other documentation to support his claim of damages. Maslon contends that Brown only offered speculation and conjecture as to his damages. Maslon asserts that the evidence ultimately offered did not support Brown’s claim of damages with a reasonable certainty.

¶ 9. It is undisputed that Mas-Ion’s cattle trespassed onto Brown’s property. It is also undisputed that the trespass caused damage to Brown’s property. The value of the damages suffered by Brown, however, Maslon disputes. The plaintiff has the burden of proving damages. Evans v. Clemons, 872 So.2d 23, 29 (¶ 21) (Miss.Ct.App.2003). It is the character of damage assessments that it “contain a measure of conjecture.” Id. “The question then is whether the judgment is based upon excessive speculation.” Id.

¶ 10. At trial, Brown testified that Maslon’s cattle trespassed onto his property several times. Due to the nature of the trespass, some speculation is to be expected as to the exact number of times cattle wandered over the fence. Brown also estimated how many hours he spent repairing his fence, what he would charge to do such work, the bales of hay he lost, and the amount of money each lost bale was worth. The supreme court has stated: “[W]here it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages.” TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1016 (¶80) (Miss.1997).

¶ 11. Mississippi Code Annotated section 69-13-19 (Rev. 2012) provides:

Every owner of livestock referred to in Section 69-13-1 shall be liable for damages for all injuries and trespasses committed by such animals by breaking and entering into or upon the lands, grounds, or premises of another person; and the person injured shall have a lien upon the animal, or animals, trespassing for all such damage. The damages for such trespass shall not be less than ten dollars ($10.00) for each horse, cow or hog, and five dollars ($5.00) for each of the other kinds of stock; and for every succeeding offense, after the owner has been notified of the first trespass or injury, double damages shall be recovered with costs. For breaking or entering into a pasture or waste ground, however, double damage shall not be recoverable, and the damages in such cases may be assessed as low as eight dollars ($8.00) for each horse, cow or hog and two dollars ($2.00) for each of the other kinds of livestock.

The statute provides a guideline for the trial court to follow when calculating damages. The damages can be assessed for as little as eight dollars, but the statute does not limit the court’s ability to impose heftier sums per trespassing event. It is within the trial court’s discretion to assess damages in order to make the injured party whole.

¶ 12. Here, the damage to Brown’s property was temporary in nature and could be corrected through repairs. When the injury to land is temporary and can be restored, the appropriate measure of damages is the cost of restoration. R & S Dev. Inc. v. Wilson, 534 So.2d 1008, 1012 (Miss.1988). The Supreme Court of Mississippi has held “[t]he rule that damages, if uncertain, cannot be recovered, applies to their nature, not to their extent. If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.” Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 516 (¶ 62) (Miss.2007). As we noted earlier, it is undisputed that the cattle trespassed and caused damage. Accordingly, this issue is without merit.

II. Whether the failure to itemize the damages required a new hearing.

¶ 13. Maslon asserts that the damages should be itemized and determined in a new hearing. Maslon also argues that Brown should not be awarded attorney’s fees because they are not authorized contractually and do not satisfy any statute. Maslon claims that Brown attempted to recover damages for lost profits. Additionally, Maslon argues that the number of times Maslon’s cows trespassed onto Brown’s pasture is essential in the itemization of damages.

¶ 14. Maslon relies on Witty v. Alpha, 99 So.3d 830 (Miss.Ct.App.2012), to substantiate her claim that the damages were too general to support the award. However in Witty, Wilty alluded to the fact that the wife was very unhappy and had been prescribed Zoloft. Id. at 836 (¶ 29). Other than testimony that the wife was generally unhappy, which was out of character, there was no documentation or testimony as to what specifically made her unhappy or how she was injured as a result. Id. at (¶¶ 30-31). In the case at bar, Brown and his wife testified about the damages and the nature of them, as opposed to a generalization of possible injuries to the property. It is evident, however, from the trial court’s statements at trial that a portion, if not all, of the damages are to reimburse Brown for the injuries he suffered as a result of the trespass. In short, there is testimony and evidence in the form of police reports that establish damages to Brown’s property.

¶ 15. Further, this Court has held that “[i]n a bench trial, the chancellor determines the amount of damages. This amount will not be set aside unless it is unreasonable and outrageous.” DiMa Homes Inc. v. Stuart, 873 So.2d 140, 146 (¶30) (Miss.Ct.App.2004). The damages awarded by the circuit court were not unreasonable and outrageous.

¶ 16. It should also be noted that Maslon makes arguments against an award of attorney’s fees. Generally attorney’s fees are awarded when there is statutory authority, a contractual provision that allows for attorney’s fees, or punitive damages have also been awarded. T. Jackson Lyons & Assocs. v. Precious T. Martin, Sr. & Assocs., 87 So.3d 444, 452 (¶ 29) (Miss.2012). Nothing in the record suggests that any portion of the damages were attorney’s fees. It is true that Brown requested attorney’s fees at trial, but Brown does not mention the fees in his brief or as an assignment of error. It is reasonable to infer that attorney’s fees were not part of the award. Therefore, this issue is also without merit.

CONCLUSION

¶ 17. Brown suffered damages as a result of Maslon’s cattle trespassing onto his property. There is substantial evidence to support the circuit court’s award of damages. Therefore, we affirm the judgment of the circuit court.

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

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


author: MAXWELL, J.,

text:
    Kenneth J. TAYLOR a/k/a Kenneth Taylor a/k/a Kenneth Joe Taylor, Appellant. v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2013-CP-01102-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2014.

      Kenneth J. Taylor, appellant, pro se.
    Office of the Attorney General by Anthony Louis Schmidt Jr., attorney for ap-pellee.
    Before IRVING, P.J., MAXWELL and JAMES, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Inmate Kenneth Taylor was reclassified from trusty to non-trusty status after being caught with a cell phone in violation of Mississippi Department of Corrections (MDOC) policy. 'While Taylor argues he never received notice of a rule-violation hearing, Taylor signed two documents acknowledging he received notice. When it was time for the hearing, Taylor refused to come out of his jail cell. So the hearing officer found him guilty in his absence after reviewing a witness statement and the investigative report. After review, we find substantial evidence supports MDOC’s finding of a rule violation and affirm.

Facts and Procedural History

¶ 2. Taylor is an inmate in MDOC custody, jailed at the Central Mississippi Correctional Facility. On February 13, 2013, Taylor was caught with an AT & T cell phone and charger. MDOC policy prohibits prisoners from possessing these items. A rule-violation report (RVR) notified Taylor a hearing would take place within twenty-four hours to seven days. Taylor signed the notice. Taylor also signed a separate document titled “24 Hour Rule Violation Notice.” By signing this notice, Taylor “verified] that I, Taylor, Kenneth, MDOC# 177361[,] have been given a scheduled notice to appear on 2-15-13 for a rule violation hearing.”

¶ 3. On the RYR, the hearing officer noted Taylor “refused to come out” of his cell for the hearing. The hearing officer found him guilty of the violation “based on the evidence presented at the hearing,” which included a witness statement and incident report detailing the cell-phone seizure. Though the recommended punishment was to reclassify his status and revoke 180 days of earned time, the loss of earned time was “disapproved.” So Taylor was merely reclassified from trusty status to non-trusty status.

¶ 4. On March 19, 2013, Taylor filed a formal request for an MDOC administrative-remedy appeal. On March 26, 2013, the legal-claims adjudicator (LCA) for MDOC’s administrative-remedy program denied his appeal as untimely.

¶ 5. On April 25, 2013, Taylor appealed the LCA’s dismissal to the circuit court. And on April 29, 2013, the circuit court entered an order requiring Taylor to file a response addressing whether the MDOC’s decision was unsupported by substantial evidence, arbitrary or capricious, outside the MDOC’s scope, or unconstitutional. Taylor never filed a response.

¶ 6. On May 17, 2013, the circuit court entered a judgment of dismissal. In dismissing Taylor’s appeal, the circuit judge did not address the timeliness of Taylor’s appeal to the LCA through the administrative-remedy program. Instead, the judge found “MDOC’s decision was supported by substantial evidence, was not arbitrary or capricious, was within the scope and powers of MDOC[,] and did not violate the constitutional rights of [the] petitioner.” Taylor appealed.

Discussion

¶ 7. “The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Foster v. Bennamon, 116 So.3d 182, 184-85 (¶ 10) (Miss.Ct.App.2013) (quoting Ross v. Epps, 922 So.2d 847, 849 (¶ 4) (Miss.Ct.App.2006)). “There is a rebuttable presumption which favors the agency’s decision, and the challenging party has the burden of proving the contrary.” Id. at 185 (¶ 10).

I. Notice of Hearing

¶8. Though Taylor complains he never received notice of his rule-violation hearing, he signed a “24 hour rule violation notice,” notifying him of a February 15, 2013 rule-violation hearing. And before that he was issued an RVR advising him that “a hearing will be held within, no less than, twenty-four (24) hours to no more than seven (7) working days.” There is also a notation on the RVR that Taylor “refused to come out” of his cell for the hearing. Thus, the record refutes his lack-of-notice argument.

II. Loss of Earned Time

¶ 9. Taylor complains the MDOC violated his constitutional rights in revoking his earned time. But the RVR shows the recommended 180 days of lost earned time was “disapproved.” We do note however that Taylor eventually lost earned time due to distinct later-occurring violations. But those violations were never challenged through MDOC’s administrative-remedy program and were not appealed to the circuit court. Because there is no record proof that Taylor exhausted his administrative remedies for his later-occurring violations, we are without jurisdiction to consider challenges to these violations and earned-time losses. McKenzie v. State, 66 So.3d 1274, 1275 (¶ 2) (Miss.Ct.App.2011).

III. Substantial Evidence

¶ 10. As to the merits, we find substantial evidence supports MDOC’s finding that Taylor possessed a cell phone and charger in violation of MDOC’s policy. Officer Jason Kimbley reported he “noticed offender [Taylor] hav[ing] in his possession a black AT & T cell phone along with a charger.” Taylor received an RVR for this possession. And when given notice of the hearing, Taylor refused to attend. In his absence, the judge considered the uncontested witness statement and details of Taylor’s cell-phone possession from the incident report. After being found guilty, Taylor refused to acknowledge the finding of guilt. On appeal to the circuit court, the judge ordered Taylor to address whether MDOC’s decision was based on substantial evidence. Yet Taylor failed to respond to the judge.

¶ 11. Now on appeal to this court, Taylor offers nothing more than bare allegations to refute the finding of guilt. Our review shows substantial evidence supported MDOC’s decision; thus we affirm.

¶ 12. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . On July 26, 2012, Taylor was convicted of receiving stolen property. He was sentenced to eight years and one day.

      . Taylor argues this document was forged, but he provides no evidence to support his contention other than his bare allegation.

      . The LCA found the administrative appeal from the hearing officer was untimely because there had been a lapse of more than fifteen days since the RVR hearing. But by MDOC rule, Taylor had thirty days to seek administrative review from MDOC. So the finding of untimeliness was incorrect. Like the circuit judge, we will assume Taylor timely appealed. Thus, we address the merits of his claims.

      . Taylor was issued two additional RVRs. An April 15, 2013 RVR states Taylor was hiding a cell phone under his pillow, so he lost 180 days of earned time. And a May 21, 2013 RVR shows Taylor lost an additional 180 days of earned time for hiding a cell phone in his leg brace.

      . See Amerson v. Epps, 63 So.3d 1246, 1251 (¶ 16) (Miss.Ct.App.2011) (citing Barnes v. State, 937 So.2d 1006, 1009(¶ 6) (Miss.Ct.App.2006)) (noting that appellate courts can only consider facts in the record, not mere allegations in a brief).


author: IRVING, P.J.,

text:
    Jennifer MASSEY, Appellant v. Stephen MASSEY, Appellee.
    No. 2013-CA-00471-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2014.

      Elizabeth P. Todd, attorney for appellant.
    Jonathan Michael Farris, attorney for appellee.
    Before IRVING, P.J., MAXWELL AND JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Stephen and Jennifer Massey were granted a divorce on the ground of irreconcilable differences by the Lamar County Chancery Court. The chancery court awarded Stephen and Jennifer joint legal and physical custody of their oldest child, and joint legal custody of their two youngest children; and the chancery court awarded primary physical custody of the two youngest children to Jennifer. The court also awarded Jennifer child support for the two youngest children but declined to award child support for the oldest child, who would turn twenty-one years old within six months of the date of the judgment. However, the chancery court did not award Jennifer any alimony. Jennifer now appeals, contending that the trial court erred in the amount of child support that it awarded and in its failure to award her any alimony.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Jennifer and Stephen were married on October 1, 1988. They lived in Canada but moved to Hattiesburg, Mississippi, in 1998, so that Stephen, a physician, could pursue his medical profession. Eventually, Stephen opened his own clinic, which Jennifer helped manage. Three children were born to the marriage: Kayla, born March 31, 1992; Brandt, born September 7, 1993; and Brendan, born April 25, 1997. The parties separated on January 1, 2011. On April 8, 2011, the parties filed a joint complaint for divorce on the ground of irreconcilable differences. However, they did not attach an agreement for the custody and support of their minor children and the settlement of property rights between them. On July 21, 2011, they consented to a divorce on the ground of irreconcilable differences but reserved certain issues for decision by the court if they were unable to resolve them.

¶ 4. A trial was held on November 22, 2011, and June 6, 2012. At the commencement of the trial, the parties announced that they had agreed that: (1) they would share joint legal and physical custody of Kayla and Brandt, and (2) they also would share joint legal custody of Brendan, but the issue of Brendan’s physical custody remained unresolved, as well as the issue of support for all three children. With the exception of attorney’s fees, all other issues presented in the July 21, 2011 consent to divorce remained unresolved as well.

¶ 5. On September 27, 2012, the court entered its opinion and final judgment on the issues of division of marital assets and debts, custody, visitation, medical expenses, and child support. In its judgment, the chancery court awarded Stephen and Jennifer joint legal custody of all three children and joint physical custody of Kayla pursuant to the parties’ agreement. The court also awarded Jennifer primary physical custody of Brandt and Brendan and ordered Stephen to pay monthly child support to Jennifer in the amount of $2,717 for Brandt and Brendan. The court declined to order any support for Kayla. The parties were ordered to divide equally any uncovered medical expenses and extracurricular expenses for the children. Further, Stephen was ordered to pay for Brendan and Kayla’s auto insurance; Jennifer would pay for Brandt’s. The court also ordered Jennifer to pay twenty-five percent of the children’s college expenses and ordered Stephen to pay the remainder. As stated, the court did not award any alimony to Jennifer.

DISCUSSION AND ANALYSIS OF ISSUES PRESENTED

¶ 6. Jennifer argues that the chancery court erred in setting the child support in an amount that was less than twenty percent of Stephen’s adjusted gross income. However, the record reflects that Jennifer did not raise this specific objection during trial or in her post-trial motion to alter or amend the judgment, which the chancery court denied. The Mississippi Supreme Court has stated: “It is well settled that [an appellate court] will not address issues raised for the first time on appeal.” Smith v. Franklin Custodian Funds Inc., 726 So.2d 144, 147 (¶ 12) (Miss.1998). Therefore, this issue is procedurally barred.

¶ 7. Jennifer also argues that the chancery court erred in failing to award her alimony. She maintains that because she spent her time rearing the children, maintaining the house, and managing Stephen’s business, she has no income to live off of since she will no longer be able to work at Stephen’s clinic. Jennifer explains that she has a degree in nutrition and food chemistry and at one time was a certified dietician in Canada. However, she is no longer certified in Canada, and to become a certified dietician in the United States would require her to take classes. Furthermore, she claims she cannot afford to go back to school or start her own business. Jennifer asserts that the rental properties that she received as a part of the distribution of the marital estate do not generate income. She claims that, at best, she breaks even, as the monthly mortgage on the rental properties absorbs all of the rental income. Finally, Jennifer asserts that Stephen dissipated assets by settling a $30,000 sexual-harassment lawsuit against him. Jennifer argues that, although she was frugal, she lived a comfortable lifestyle, and now she will have to adjust to a “drastically different one.”

¶8. Alimony should be considered if one spouse is left with a deficit after the equitable division of the marital assets. Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss.2003). An appellate court’s “scope of review in domestic[-]relations matters is limited by our familiar substantial evidence/manifest error rule.” Jones v. Jones, 995 So.2d 706, 712 (¶ 19) (Miss.2008) (quoting Clark v. Clark, 754 So.2d 450, 458 (¶48) (Miss.1999)). “The equitable distribution of marital assets is committed to the discretion of the chancellor, whose findings will not be disturbed by [an appellate court] unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Arthur v. Arthur, 691 So.2d 997,1003 (Miss.1997)).

¶ 9. Here, the court allocated the marital assets so that Jennifer received $720,613.53 in total equity, and Stephen received $798,940.17 in total equity. To offset Stephen’s excess, the chancery court ordered Stephen to pay Jennifer $39,163.32, resulting in each party receiving an equal share of the marital estate.

¶ 10. Jennifer does not offer any authority for the proposition that the amount of money used to settle the sexual-harassment claim constitutes a dissipation of marital assets. Furthermore, the chancery court did not attribute any dissipation to either party. The debt Jennifer refers to is for the rental properties that she was given as a part of the marital distribution. The court noted that there was no debt on the marital home that Jennifer was given, but that there was significant debt on their business holdings, which he allocated to Stephen during the distribution of the property. While Jennifer argues that she is unable to take the necessary courses to become a certified dietician, the chancery court apparently was not persuaded, as the court noted that Jennifer appeared to possess the skills necessary to succeed on her own. It further recognized that her income would not likely come close to Stephen’s, but pointed out that because of the substantial marital estate, each party would have some degree of security going forward. We agree.

¶ 11. In light of the fact that the chancellor essentially split the marital estate equally and because Jennifer does not suffer from a deficit, we cannot find that the chancery court abused its discretion in denying her an award of alimony. Accordingly, we affirm.

¶ 12. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.


author: MOORE, Chief Justice. SHAW, Justice

text:
    Ex parte SAFEWAY INSURANCE COMPANY OF ALABAMA, INC. (In re Richard Thomas Kimbrough v. Safeway Insurance Company of Alabama, Inc.).
    1120439.
    Supreme Court of Alabama.
    Oct. 4, 2013.
    As Modified on Denial of Rehearing Dec. 13, 2013.

      Robert R. Kracke and Clifton S. Price II of Kracke & Price, Leeds, for petitioner.
    Brief in support of the petitioner’s application for rehearing filed by Joseph L. Cowan II, Mark J. Hart, and John E. Rollins of Hand Arendall, LLC, Birmingham.
    J. Barton Warren of Warren & Simpson, P.C., Huntsville, for respondent.
    De Martenson, Walter J. Price III, and David M. Fleming of Huie, Fernambucq & Stewart, LLP, Birmingham, for amicus curiae Allstate Insurance Company, in support of the petitioner’s application for rehearing.
   MOORE, Chief Justice.

Safeway Insurance Company of Alabama, Inc. (“Safeway”), petitions this Court for a writ of mandamus directing the Jackson Circuit Court to grant Safeway’s Rule 12(b)(1), Ala. R. Civ. P., motion to dismiss a bad-faith claim against it for lack of subject-matter jurisdiction. For reasons explained below, we deny the petition.

I. Facts and Procedural History

Richard Thomas Kimbrough alleges that, on November 19, 2011, a deer ran across Jackson County Road 33, causing a truck in the southbound lane to swerve into the northbound lane, where Kim-brough was driving. According to Kim-brough, the truck struck his vehicle and ran him off the road and into a creek bed. The driver of the truck allegedly fled and remains unknown.

As a result of the accident, Kimbrough broke his right femur, right hand, and nose. As part of his medical treatment, screws were inserted into his leg, and he required plastic surgery to his face. His medical expenses totaled $96,947.70.

At the time of the accident, Kimbrough held an insurance policy with Safeway that included uninsured-motorist benefits of $25,000 per vehicle or a stacked policy limit of $50,000 per occurrence. Kim-brough submitted a claim to Safeway for uninsured-motorist coverage, alleging that the driver of the “phantom vehicle” was an uninsured motorist. He sought the full policy limit of $50,000 because his expenses ($96,947.70) exceeded his coverage. The parties dispute whether Safeway denied the claim.

On February 6, 2012, Kimbrough sued Safeway, asserting claims of breach of contract and bad faith, alleging that Safeway, without lawful justification, had intentionally refused to pay Kimbrough’s claim. On June 7, 2012, Safeway moved to dismiss the case for lack of subject-matter jurisdiction, arguing that a claim for uninsured-motorist benefits is not ripe for adjudication until liability and damages have been established. The trial court denied the motion to dismiss, as well as Safeway’s subsequent motion to reconsider. Safeway now petitions this Court for a writ of mandamus directing the trial court to dismiss only the bad-faith claim, not the breach-of-contract claim, without prejudice, for lack of subject-matter jurisdiction.

II. Standard of Review

“Mandamus is an extraordinary remedy and, will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). This Court will not issue the writ of mandamus where the petitioner has ‘full and adequate relief by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).”

Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003). “ ‘The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ ” Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005) (quoting Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003)).

III. Analysis

Safeway argues that the trial court lacked subject-matter jurisdiction over Kimbrough’s bad-faith claim and, therefore, that it was required to dismiss it pursuant to Rule 12(h)(3), Ala. R. Civ. P., which provides: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

Safeway’s claim that the trial court lacked subject-matter jurisdiction is based on the holding in Pontius v. State Farm, Mutual Automobile Insurance Co., 915 So.2d 557 (Ala.2005). Pontius involved a husband and wife who were in a car accident with a vehicle driven by an uninsured driver, a minor. The husband and wife sued the minor and the minor’s parents and then filed a claim with State Farm for uninsured-motorist benefits. State Farm denied the claim and intervened in the case. The husband and wife amended their complaint to add State Farm as a defendant and alleged, among other things, that State Farm had denied their claim in bad faith. State Farm filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., or for a judgment on the pleadings pursuant to Rule 12(c), Ala. R. Civ. P. The trial court granted the motion and entered a judgment in favor of State Farm.

On appeal, the issue before this Court was whether an action for bad-faith failure to pay an uninsured-motorist claim could be maintained against an insurance company before the plaintiff demonstrated that she was legally entitled to recover damages from the uninsured motorist. This Court held that “ ‘[t]o be “legally entitled to recover as damages” the insured must establish fault on the part of the uninsured motorist, which gives rise to damages, and must then prove the extent of those damages.’ Pontius, 915 So.2d at 560 (quoting State Farm’s motion to dismiss and LeFevre v. Westberry, 590 So.2d 154, 157 (Ala.1991)). Consequently, ‘“[t]here can be no breach of an uninsured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover.’ ” LeFevre, 590 So.2d at 158 (quoting Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983)).

The Court then cited LeFevre and Bowers v. State Farm Mutual Automobile Insurance Co., 460 So.2d 1288, 1290 (Ala.1984), for the proposition that a tort of bad-faith failure to pay uninsured-motorist benefits is not ripe for adjudication until the insurer and the insured become adversarial and that bad faith can arise only after that time, provided also that the dispute is legitimate and that the issues of fault and damages are resolved. “As to [the] bad-faith claim arising out of [the uninsured-motorist] coverage with State Farm,” the Court concluded, the husband and wife “had to demonstrate [that they were] ‘legally entitled to recover’ damages for bad-faith failure to pay under the policy, and ... ‘ “must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages.” ’ ” Pontius, 915 So.2d at 564. Because the husband and wife failed to meet that burden, their claims were not ripe and, the Court held, the trial court lacked subject-matter jurisdiction. Id. at 564-65.

Safeway argues that the reasoning in Pontius controls and that the trial court should have dismissed this case as unripe because Kimbrough has not proven liability or damages:

“[B]ecause (1) liability had not been established and (2) damages were ques-tionablef,] ... Safeway is entitled to litigate liability and damages without being subjected to a pretrial tort of bad faith discovery and the threat of an extra contractual judgment at trial of what is a simple automobile accident case.”

Petition, at 6. We disagree that the trial court lacks subject-matter jurisdiction. The trial court does have the authority to hear the case and may dismiss it on the merits. The outcome of the case ought to depend on a Rule 12(b)(6) motion to dismiss, not a Rule 12(b)(1) motion to dismiss, and proving fault and damages ought to be an evidentiary or elemental prerequisite for showing an insurer’s bad-faith failure to pay benefits, not a jurisdictional prerequisite.

Subject-matter jurisdiction is a simple concept:

“Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong. The principle of subject matter jurisdiction relates to a court’s inherent authority to deal with the case or matter before it. The term means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs.”

21 C.J.S. Courts § 11 (2006). In determining a trial court’s subject-matter jurisdiction, this Court asks “ ‘only whether the trial court had the constitutional and statutory authority5 to hear the case.” Russell v. State, 51 So.3d 1026, 1028 (Ala.2010) (quoting Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006)). Problems with subject-matter jurisdiction arise if, for example, a party files a probate action in a juvenile court, a divorce action in a probate court, or a bankruptcy petition in a circuit court, because the nature or class of those actions is limited to a particular forum with the authority to handle them. There are, however, no problems with subject-matter jurisdiction merely because a party files an action that ostensibly lacks a probability of merit.

Alabama’s uninsured-motorist statute, § 32-7-23, Ala.Code 1975, protects “persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” We have held that “[ujnknown phantom drivers ... are included within the definition of an uninsured motorist.” Walker v. GuideOne Specialty Mut. Ins. Co., 834 So.2d 769, 772 (Ala.2002) (citing Criterion Ins. Co. v. Anderson, 347 So,2d 384, 386 (Ala.1977)); see also Wilbourn v. Allstate Ins. Co., 293 Ala. 466, 468, 305 So.2d 372, 373-74 (1974). Our analysis in Walker is relevant here:

“A motorist ‘legally entitled to recover damages’ under § 32-7-23 is one who presents facts sufficient to prove that the motorist was involved in an accident under circumstances that would entitle the motorist to uninsured-motorist coverage. Such a motorist is ‘legally enti-tied’ to damages if the motorist meets his or her burden of presenting substantial evidence to survive a motion for a summary judgment or a judgment as a matter of law and the fact-finder is reasonably satisfied from the evidence that the motorist should recover damages. See § 12-21-12, Ala.Code 1975. In [the plaintiff motorist’s] case, the only evidence of a culpable phantom vehicle is [the plaintiff motorist’s] own testimony, which could constitute substantial evidence.”

Walker, 834 So.2d at 772. Like the plaintiff motorist in Walker, Kimbrough has a chance to prove fault on the part of the phantom motorist. The holding in Pontius requires that Kimbrough first establish the fault of the phantom motorist before he may seek damages from Safeway for bad-faith failure to pay. We see no reason why ripeness and subject-matter jurisdiction must be implicated for this to happen. If Kimbrough cannot establish the fault of the phantom driver, then he cannot prove bad faith and, accordingly, Safeway may prevail on a Rule 12(b)(6) motion to dismiss.

In light of the foregoing, Safeway has not clearly demonstrated that this case is not ripe or that the trial court lacks subject-matter jurisdiction. Therefore, Safeway does not have a clear legal right to mandamus relief.

IV. Conclusion

Safeway has not demonstrated a clear legal right that would necessitate the intervention of the Court into this ongoing litigation. Therefore, we deny the petition for the writ of mandamus.

PETITION DENIED.

PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

STUART, BOLIN, and SHAW, JJ., dissent.

SHAW, Justice

(dissenting).

Because I am unable to distinguish the facts of the present case from this Court’s controlling decisions in Ex parte Safeway Insurance Co. of Alabama, 990 So.2d 344 (Ala.2008), and Pontius v. State Farm Mutual Automobile Insurance Co., 915 So.2d 557 (Ala.2005), and because no party to the present appeal requests that we overrule either decision,1 respectfully dissent from the main opinion’s conclusion that mandamus relief is not warranted.

Here, as in both Safeway and Pontius, Safeway has presented unrefuted evidence establishing that both damages and liability are in dispute. Thus, in accordance with both of those decisions, Kimbrough’s bad-faith claim is, as a matter of law, not ripe. Safeway, 990 So.2d at 352. As we explained in Safeway, which, as Safeway argues, appears procedurally identical:

“Safeway has established a clear legal right to a dismissal without prejudice of Galvin’s bad-faith claim because that claim is not ripe for adjudication, and, consequently, the trial court lacks subject-matter jurisdiction. ‘[TJhere can be no bad-faith action based on conduct arising before the uninsured motorist’s liability is established and damages are fixed; therefore, “there can be no action based on the tort of bad faith based on conduct arising prior to that time, only for subsequent bad faith conduct.” ’ Pontius, 915 So.2d at 565 (quoting LeFevre [v. Westberry, 590 So.2d 154] at 159 [ (Ala.1991) ]).”

Id. at 352-53 (emphasis added; footnote omitted).

In light of the foregoing, this Court’s prior decisions in Pontius and Safeway both appear directly on point and to mandate this Court’s granting the requested relief. I would, therefore, grant Safeway’s petition and direct the trial court to dismiss Kimbrough’s bad-faith count without prejudice.

BOLIN, J., concurs.

      . "When the owner or operator of the vehicle causing the accident is unknown, the motorist is an 'uninsured motorist.’ When the operator is unknown, these are usually referred to as 'hit-and-run' cases or 'phantom vehicle’ cases.” Ronald G. Davenport, Alabama Automobile Insurance Law § 20:5 (3d ed. 2012).

      . A distinction between the facts in Pontius and the facts before us complicates the application of the Pontius holding here: The present case allegedly involves a phantom driver, whereas Pontius involved a known driver. Decisions following the Pontius holding involved known uninsured drivers, not phantom drivers. See, e.g., State Farm Mut. Auto. Ins. Co. v. Smith, 956 So.2d 1164 (Ala.Civ.App.2006); Ex parte Safeway Ins. Co. of Alabama, 990 So.2d 344 (Ala.2008). The predecessor cases to Pontius likewise relied on decisions involving known uninsured drivers. See, e.g., LeFevre; Bowers; Quick; Shelter Mut. Ins. Co. v. Barton, 822 So.2d 1149 (Ala.2001); Ex parte State Farm Mut. Auto. Ins. Co., 893 So.2d 1111 (Ala.2004). Safeway has not cited, and we have not found, any controlling decisions that apply Pontius to cases involving phantom drivers.

      . As Justice Murdock stated in his special concurrence regarding ripeness and subject-matter jurisdiction as expressed in a similar case:
      "I am not persuaded ... that the concept of ‘ripeness’ is the appropriate concept by which to describe the problem with the plaintiff's claim. And I especially am not persuaded that the problem here is of a jurisdictional nature. For all that appears, this is a case in which the plaintiff simply is unable to demonstrate that the wrongful conduct she alleges to have occurred, actually has occurred. Addressing such circumstances is one of the purposes for which summary judgment is made available under Rule 56, Ala. R. Civ. P.”

        Ex parte Safeway Ins. Co. of Alabama, 990 So.2d 344, 353 (Ala.2008) (Murdock, J., concurring in the result).

      . We should not be understood as implying that Kimbrough’s action lacks merit.

      . In fact, Kimbrough’s brief fails to even mention Pontius, instead arguing only that, because his submitted medical expenses exceed the available uninsured-motorist coverage, his case is distinguishable from Safeway in that it is allegedly unnecessary to resolve the dispute regarding the amount of damages because, according to Kimbrough, he has already established his entitlement to an amount in excess of his uninsured-motorist limits, and Safeway's failure to remit that amount was tantamount to bad faith. That position, however, ignores the fact that Kimbrough’s mere submission of the claimed damages fails to demonstrate that he is “ ‘legally entitled to recover [them].’ ” Ex parte State Farm Mut. Auto. Ins. Co., 893 So.2d 1111, 1115 (Ala. 2004) (quoting Ala.Code 1975, § 32-7-23).

      . In fact, given the unresolved nature of those issues, Safeway maintains, contrary to the conclusion reached by the main opinion, that it was merely awaiting additional information from Kimbrough and that it has not actually denied Kimbrough's claim for uninsured-motorist benefits. Petition, at p. 6.

      . The main opinion attempts to distinguish Pontius as involving "a known driver” as opposed to the "phantom driver” in the instant case. I see no meaningful distinction because, as Kimbrough acknowledges, ”[u]nder Alabama law, a driver who flees the scene of a wreck is presumed uninsured.” Kimbrough’s brief, at p. 9 (citing State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So.2d 917 (1973)). Further, ”[u]nknown phantom drivers ... are included within the definition of an uninsured motorist.” Walker v. GuideOne Specialty Mut. Ins. Co., 834 So.2d 769, 772 (Ala.2002) (citing Criterion Ins. Co. v. Anderson, 347 So.2d 384 (Ala.1977)).

      . The insurance carriers in both Safeway and the underlying litigation filed dismissal motions pursuant to Rule 12(b)(1), Ala. R. Civ. P. I see nothing in the motion presently before us suggesting, as the main opinion concludes, that Safeway, in any way, relied on Rule 12(h)(3), Ala. R. Civ. P.