author: GRIFFIS, P.J.,

text:
    Glen CONLEY, Appellant v. Christopher EPPS, Appellee.
    No. 2012-CP-01914-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied April 1, 2014.

      Glen Conley, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., James M. Norris, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Glen Conley was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. Conley v. State, 790 So.2d 773, 779 (¶ 1) (Miss.2001). Here, he appeals the denial of a parole-eligibility date.

¶ 2. The murder for which Conley was convicted was committed on May 23, 1994. At that time, there were only two penalties for capital murder under Mississippi Code Annotated section 99-19-101 (Rev.2007): death and life with the possibility of parole. Before he was convicted, section 99-19-101 was amended to include life without parole.

¶ 3. Conley was charged with capital murder under Mississippi Code Annotated section 97-3-19(2) (Rev.2006). On July 3, 1998, Conley was convicted and sentenced to serve a term of life without parole, pursuant to section 99-19-101. Conley appealed his conviction and sentence. He asserted that his sentence of life without the possibility of parole was a violation of the prohibition against applying laws ex post facto. The Mississippi Supreme Court disagreed and found the claim lacked merit, and his conviction was affirmed. Conley, 790 So.2d at 804 (¶ 123).

¶4. Conley asked the Mississippi Department of Corrections (MDOC) for a parole-eligibility date. When this request was denied, Conley utilized the MDOC Administrative Remedies Program to ask for a parole-eligibility date. This request was also denied. Conley appealed this decision to the circuit court. On November 1, 2012, the circuit court dismissed his appeal. Conley now argues on appeal that his sentence is unconstitutional as a violation of the Ex Post Facto Clause.

¶ 5. Because the Mississippi Supreme Court already reviewed and affirmed the trial court’s decision in Conley, 790 So.2d at 804 (¶ 123), Conley is barred from relit-igating the issue under the doctrine of res judicata.

¶ 6. This Court, in Johnson v. State, 79 So.3d 516, 519 (¶ 13) (Miss.Ct.App.2011), stated: “The doctrine of res judicata prohibits one from raising the same issues on appeal that have already been decided at trial and on direct appeal, without demonstrating cause and actual prejudice.” (Citing Miss.Code Ann. § 99-39-21(3) (Rev. 2007)). The supreme court has stated:

Generally, four identities must be present before the doctrine of res judicata will be applicable: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made.

State v. Pittman, 744 So.2d 781, 785 (¶ 10) (Miss.1999) (quoting Norman v. Bucklew, 684 So.2d 1246,1253 (Miss.1996)).

¶ 7. Res judicata shall be applied “to all issues, both factual and legal, decided at trial and on direct appeal.” Miss.Code Ann. § 99-39-21(3). In Jordan v. State, 918 So.2d 636, 658 (¶ 65) (Miss.2005), Jordan argued that he was less culpable than his codefendant, and his sentence was disproportionate in comparison. The court stated:

First, we find that the proportionality question was decided in Jordan’s direct appeal. There, this Court reviewed the proportionality of Jordan’s death penalty and found that the sentence was not disproportionate when compared to other death penalty situations. Therefore, the issue of the proportionality of the sentence of death in this case is res judicata.

Id. at (¶ 66) (citations omitted).

¶ 8. Here, in his direct appeal, Conley asked the supreme court to consider this very issue. The court stated:

With regard to sentencing instructions, Conley assigns three points of error. First, he argues that Instructions SS-1 and SS-2, regarding the weighing of aggravating and mitigating circumstances, are in conflict with each other. Second, he asserts that the court’s denial of Instruction DS-13 and its modification of DS-12 wrongfully eliminated the jury’s consideration of a life sentence with the possibility of parole. Third, he contends that these errors in instruction resulted in an ex post facto sentence.

Conley, 790 So.2d at 802 (¶ 111). The court ruled on Conley’s ex post facto argument:

The alleged crime for which Conley was convicted occurred on May 22, 1994. At this time two sentencing options were available under [section] 97-3-21: death or life in prison. That provision was amended in July, 1994, to allow the option of life in prison without parole.
Instructions DS-12 and DS-13 provide that the jury should consider both life imprisonment with the possibility of parole and life in prison without the possibility of parole. The court denied DS-13 and amended DS-12 to exclude the “life with the possibility of parole” option. Conley asserts that, as a result, the jury was not properly instructed. The State rebuts that it would have been improper for the court to allow an instruction informing the jury of parole options.
The jury was unable to reach a verdict as to sentence in this case; so the trial court sentenced Conley to life without parole, a punishment that was not permitted under the statute in effect when the crime was committed. Thus, Conley alleges an ex post facto problem with his sentence.
An [E]x [P]ost [F]acto [C]lause violation may be avoided by charging and sentencing the defendant according to the statute applicable at the time of his offense.
In Tubwell v. Anderson, 776 So.2d 654, 660 [ (¶ 16) ] (Miss.2000), this Court examined the United States Supreme Court’s holdings regarding the [E]x [P]ost [F]acto [C]lause:
The U.S. Supreme Court has held that the Ex Post Facto [C]lause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. The United States Constitution forbids the application of any new punitive measure to a crime already consummated. A statute may violate the Ex [P]ost [FJacto Clause even if it alters punitive conditions outside the sentence or where it substantially alters the consequences attached to a crime already completed, and therefore changes the quantum of punishment.
Applying this analysis to the case at bar, one could, at first glance, conclude that Conley’s rights have been violated. Offering his jury the sentencing option of “life without the possibility of parole,” which was unavailable at the time his crime was consummated, works to change “the quantum of punishment” against Conley.
However, we have held that statutory amendments which are ameliorative or procedural do not violate the prohibition against ex post facto laws.’ West v. State, 725 So.2d 872, 879 (¶ 17) (Miss. 1998). Further, we have reasoned that a sentence of life without parole is ameliorative (and thus does not pose an ex post facto problem) in that it provides a punishment less harsh than death.
The State asserts that Conley waived his ex post facto claim. The State contends that this waiver is evidenced in three ways. First, the State asserts that Conley’s submission of Instructions DS-12 and DS-13, which contained the life-without-parole option, shows that Conley wanted the jury to consider this option. Second, the State points out that in closing arguments the trial defense counsel stated, “And I ask you to spare Glen Conley’s life. Do not sentence him to death-sentence him to life without parole or probation. Do not sentence him to death.” Third, during- sentencing deliberations, the jury submitted a note to the trial judge asking: “Does it mean when the jury can’t agree, will Glen Conley get life in prison, with the chance of parole, or without?” The question was read aloud. The trial judge then asked if there would be an objection to his answering: “life without parole.” The State accurately notes that no objection was made.
In [Barnett v. State, 725 So.2d 797, 801-02 (¶ 24) (Miss.1998) ], we found that a defendant had waived his ex post facto sentencing claim by failing to object at trial. Barnett, like Conley, was sentenced to life without parole even though that punishment was not permitted under the statute in effect at the time his crime was committed. We found that Barnett was aware that the sentencing option of life without parole would be given to the jury and that he relied upon the option to escape the harsher penalty of death. This Court stated, “We refuse to allow Barnett to now claim that a life without parole sentence violates ex post facto laws.” Id. Although Barnett, again like Conley, had raised the ex post facto violation in his motion for new trial, we held “that even then it was not timely — given that the verdict had already been returned.” Id.
Based on our holdings in West and Barnett, we find Conley’s ex post facto claims to be without merit.

Conley, 790 So.2d at 803-04 (¶¶ 115-23) (citations and internal quotation marks omitted).

¶ 9. Conley admits that his direct appeal considered this very issue. Now, however, he contends that this appeal is a civil claim of equal protection of the law rather than a criminal issue involving ex post facto claims. We disagree.

¶ 10. Finding no merit, we affirm the circuit court’s judgment.

lili. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


source: Caselaw Access Project

license: Public Domain

text:
    Clement B. SAUCIER, Jr., Appellant v. The PEOPLES BANK OF BILOXI, Mississippi, the Wallace Steve Sekul Family Trust, Elizabeth Sekul, Individually and Thomas J. Sliman, Individually, Appellees.
    No. 2011-CA-01922-COA.
    Court of Appeals of Mississippi.
    April 15, 2014.
    Rehearing Denied Sept. 2, 2014.

      James H. Colmer Jr., Pascagoula, William Alex Brady II, Ashley Eley Cannady, Jackson, Celena Dawn Rouse, Long Beach, attorneys for appellant.
    Robert C. Galloway, Gulfport, David A. Wheeler, Biloxi, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. After a portion of his property was taken by eminent domain, Clement B. Saucier Jr. filed suit against the sellers and mortgagor of the property. He argued that they breached the duty to disclose a known interest in an easement at the time of the sale. The trial court granted the defendants’ summary-judgment motions and found that no duty to disclose existed because the interest expressed in the easement was speculative. We reverse and remand for proceedings consistent with this opinion.

FACTS

¶ 2. This litigation arose as a result of the sale and purchase of approximately eighty acres of undeveloped land in Van-cleave, Mississippi. Saucier bought the property from Elizabeth Sekul, an eighty-year-old widow, and the Wallace Steve Se-kul Family Trust. Sekul and the Trust each owned one-half of the property. Se-kul was the sole beneficiary of the Trust.

¶ 3. In April 2006, approximately three months before the sale was completed, a representative of South Mississippi Electrical Power Association (“SMEPA”) sent two letters to Sekul that requested permission to survey the property. Sekul admitted that she received one of the two letters, but could not recall which one.

¶ 4. The first letter was dated April 11, 2006. It stated:

[SMEPA is] in the process of doing a preliminary survey to route a 69 KV transmission line in Jackson County to help improve the electric service in the area. In order to complete this survey we are asking your permission to do a preliminary survey across your property located in ... Jackson County, Mississippi. The survey will consist of the survey crew walking across the property establishing a centerline and outside boundaries. The right-of-way required will be 100 feet wide and will be acquired at market value in addition to market value for any timber which will need to be removed. The powerline will be constructed using single wooden poles or possibly concrete poles.

The second letter was dated April 27, 2006. It reads the same as the April 11 letter except the “69 KV transmission line” was changed to “a 115 KV transmission line.”

It also indicated that a map was attached, with the survey area highlighted.

¶ 5. After Sekul received the letter, she met with her long-time friend Thomas J. Sliman at her apartment. At the time, Sliman was employed as the Senior Vice President and Chief Information Officer of The Peoples Bank, Biloxi, Mississippi (“Peoples Bank”). Sekul and Sliman discussed the SMEPA letter. During the discussion, Sekul told Sliman to “keep her in mind” if he knew of anyone interested in purchasing the land.

¶ 6. Within a couple of weeks, Sekul met with a SMEPA representative. Sekul asked Sliman to attend the meeting because she feared SMEPA might take advantage of her due to her age. The meeting was held at Peoples Bank.

¶ 7. During the meeting, the SMEPA representative offered to purchase the property for the right-of-way. Sekul responded: “I don’t want to sell it to the power company[;] please stay off my land.” According to Sliman, the SMEPA representative then told Sekul, “well, we can take it by eminent domain[,] and we want to do a survey.” Sekul responded: “[D]o what you have to, but I’m not willing to give you an easement.” SMEPA did not contact Sekul or Sliman again.

¶ 8. Shortly after the meeting with Se-kul and the SMEPA representative, Sli-man told Saucier of the land’s availability. Sliman was also Sáucier’s long-time banker and knew of Saucier’s interest in purchasing land for development.

¶ 9. Neither Sekul nor Sliman ever said anything to Saucier about SMEPA’s interest in obtaining a portion of the property for an easement. While inspecting the property prior to the closing, Saucier noticed survey ribbons on the property and asked Sliman if he knew what they were for. Sliman said he did not know, again saying nothing about SMEPA’s interest in conducting a survey for an easement.

¶ 10. Sliman was involved in the negotiation for the purchase. Sliman told Saucier that Sekul wanted $10,000 an acre for the property. Saucier informed Sliman that he would make a counter-offer of $8,000 an acre. Sekul testified, in her deposition, that she was unaware of Saucier’s counter-offer. Sliman then informed Saucier that Sekul insisted on $10,000 per acre.

¶ 11. Saucier ultimately agreed to purchase the property for the asking price of $10,000 per acre. The sales contract was prepared by a law firm used by both Saucier and Peoples Bank. Sliman reviewed the contract before having Saucier sign it. The contract was mailed to Sekul, at her home in Georgia. Sekul signed the contract and returned it. Saucier never dealt directly with Sekul or the Trust. Sliman also handled Saucier’s $800,000 loan with Peoples Bank that was used to purchase the property, The closing occurred on or about July 10, 2006, and Saucier paid a purchase price of $805,500 for the property-

¶ 12. Two years later, SMEPA contacted Saucier and informed him that a four- and-a-half-acre easement was needed to install power lines along the road running adjacent to the property. The SMEPA representative told Saucier that Sekul had granted them permission to survey the property. In May 2008, SMEPA submitted a written offer of $12,865 per acre to purchase 4.5 acres of the property. Saucier rejected the offer.

¶ 13. On July 9, 2008, SMEPA then filed an eminent-domain action in the County Court of Jackson County, Special Court of Eminent Domain. SMEPA was granted possession of the property in September 2008. Saucier moved the court to stay the award of damages. The eminent-domain action is currently pending, awaiting the outcome of this litigation.

¶ 14. On October 31, 2008, Saucier commenced this action and filed his Complaint for Rescission and Damages in the Chancery Court of Jackson County, Mississippi. The complaint named Peoples Bank, the Trust, Sekul, and Sliman as defendants. The complaint identified the claims as breach of fiduciary relationship, breach of contract, failure to disclose a significant future title servitude, negligent misrepresentation, and fraud in the inducement. The complaint also asked that the court rescind the entire transaction and award damages to compensate Saucier for all expenses that arose from the purchase.

¶ 15. On February 17, 2009, Peoples Bank and Sliman filed a motion to strike the claims of rescission and to transfer the case to circuit court. By order dated June 3, 2009, the chancellor transferred this case to the Circuit Court of Jackson County, Mississippi.

¶ 16. On August 31, 2011, Peoples Bank and Sliman filed a motion for summary judgment. On the same day, Sekul and the Trust filed a motion for summary judgment. Saucier also filed a motion for summary judgment. Peoples Bank and Sli-man also filed a motion to exclude the expert testimony of appraiser David Craft. Responses were filed to all of the motions, and the court heard argument on October 5, 2011.'

¶ 17. On October 25, 2011, the circuit court granted summary judgment in favor of all defendants and issued two separate opinions. One opinion dealt with the claims brought against Peoples Bank and Sliman, and the other opinion dealt with the claims brought against Sekul and the

Trust. The court declined to rule on the motion to exclude the expert testimony of Craft, as the issue was moot. The court then denied Saucier’s motion for reconsideration. It is from these judgments that Saucier now appeals.

STANDARD OF REVIEW

¶ 18. “We review the grant or denial of a motion for summary judgment de novo, viewing the evidence ‘in the light most favorable to the party against whom the motion has been made.’ ” Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss.2013) (citation and internal quotation marks omitted).

¶ 19. Under our de novo review, the summary-judgment standard is as follows:

[I]n a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶ 11) (internal citations and quotation marks omitted). Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

ANALYSIS

¶ 20. For our review, we note that the complaint identified four separate claims. First, Saucier alleged that 'he was in a fiduciary relationship with Peoples Bank and Sliman, and they breached this fiduciary relationship. Second, Saucier alleged a breach of contract;, the contractual parties included Saucier, as the buyer, and Sekul and the Trust as the sellers. The breach-of-contract claim was against Sekul and the Trust. Next, Saucier alleged the claims of negligent misrepresentation and fraud against the “defendants,” which we interpret to be against all of the defendants. Sekul and the Trust were represented by counsel. Peoples Bank and Sliman were represented by separate counsel.

1. Claim Against Peoples Bank and Sliman for Breach of Fiduciary Duty

¶ 21. Saucier alleged a claim against Peoples Bank and Sliman for breach of fiduciary duty. Saucier claimed he was in a fiduciary relationship with Peoples Bank and Sliman. He argued that the failure to notify him of the SMEPA easement was a breach of this fiduciary relationship. Saucier asked the court to rescind the “entire transaction,” meaning the promissory note and deed of trust, and award damages for all expenses incurred as a result of the purchase.

¶22. Peoples Bank and Sliman asked for a summary judgment. They argued there was not a fiduciary relationship and there were no genuine issues of a material fact in dispute. They claimed they were entitled to a judgment as a matter of law. The circuit court agreed and held:

Specifically, Mr. Saucier claims the Bank and Mr. Sliman owed him a fiduciary duty to disclose the potential acquisition based on Mr. Saucier’s longstanding professional and personal relationship with both parties. Mr. Sliman was both Mrs. Sekul’s and Mr. Saucier’s banker and friend. Mrs. Sekul told Sli-man about the property in Jackson County she wanted to sell and asked him to keep her in mind if he became aware of any potential buyers. Coincidentally, Mr. Saucier asked Mr. Sliman if he knew of any Jackson County property for sale that he could purchase and resell for development. Mr. Sliman told Mr. Saucier of the acreage, purchase price, and the location and later conveyed Mr. Saucier’s interest to Mrs. Sekul. Both Mrs. Sekul and Mr. Saucier had attorneys draft the necessary documents, perform a title search, and conduct the closing. The Peoples Bank financed the $800,000 loan for Mr. Saucier’s purchase of the property.
The thrust of Mr. Saucier’s argument that Mr. Sliman and the Bank had a fiduciary duty centers entirely on his personal and professional relationship with them. The Bank, however, did not have any involvement further than financing the loan for the transaction. “As a matter of law,' a mortgagor-mortgagee relationship is usually not a fiduciary relationship.” Dominquez v. Palmer, 970 So.2d 737, 742 (Miss.Ct. App.2007) (citing Merchants & Planters Bank v. Williamson, 691 So.2d 398, 403 (Miss.1997)).
Mr. Saucier must prove by clear and convincing evidence that he and Mr. Sli-man had a fiduciary relationship which would impose a duty to disclose. Am-South Bank v. Gupta, 838 So.2d 205, 216 (Miss.2002). Mr. Sliman acted only as the initial liaison between Mr. Saucier and Mrs. Sekul. He had no involvement in the real estate transaction other than as the Bank’s agent in obtaining financing for Mr. Saucier. The Court finds there was no fiduciary relationship between Peoples Bank, Sliman, and Saucier. Though Mr. Sliman was aware of the potential easement acquisition by SMEPA, he was under no duty to disclose it to Mr. Saucier.

(Emphasis added).

¶ 23. Determining the existence of a fiduciary relationship is a question of fact. Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 150 (IT 28) (Miss.1998). Saucier bore the burden of proving the existence of a fiduciary duty by clear and convincing evidence. Gupta, 838 So.2d at 216 (¶ 32).

¶ 24. Saucier argues that Sliman and Peoples Bank owed him a fiduciary duty to disclose SMEPA’s interest in the easement. Saucier recognizes that “ordinarily a bank does not owe a fiduciary duty to its debtors and obligors .... ” Burgess v. BankPlus, 830 So.2d 1223, 1227 (¶8) (Miss.2002) (citation omitted). Although there is no presumption of a fiduciary relationship between a creditor and debtor, “it is possible for a debtor to prove the existence of a fiduciary relationship with its creditor.” Peoples Bank & Trust Co. v. Cermack, 658 So.2d 1352, 1358 (Miss.1995) (overruled on other grounds by Adams v. Homecrafters, Inc., 744 So.2d 736 (Miss.1999)). Saucier argues that his dealings with Peoples Bank over the past fifty years, and Sliman over the past twenty years, created such a duty.

¶ 25. In Lowery v. Guaranty Bank & Trust Co., 592 So.2d 79 (Miss.1991), the court summarized the law on fiduciary relationships as follows:

“Fiduciary relationship” is a very broad term embracing both technical fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another. A fiduciary relationship may arise in a legal, moral, domestic, or personal context, where there appears on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed. Additionally, a confidential relationship, which imposes a duty similar to a fiduciary relationship, may arise when one party justifiably imposes special trust and confidence in another, so that the first party relaxes the care • and vigilance that he would normally exercise in entering into a transaction with a stranger.

Id. at 83 (internal quotation marks and citations omitted).

¶26. To determine if a fiduciary relationship was created in a commercial transaction, we look to “whether (1) the parties have shared goals in each other’s commercial activities, (2) one of the parties places justifiable confidence or trust in the other party’s fidelity, and (3) the trusted party exercises effective control over the other party.” Gupta, 838 So.2d at 216 (¶ 32).

¶27. As to the first element— “shared goals in each other’s commercial activities” — Saucier argues that he presented sufficient evidence to establish this element, for the purpose of summary judgment. Saucier claims that Sliman, Peoples Bank, and he all sought to profit from the transaction. For instance, Saucier planned to resell the property for a profit, and Sliman and Peoples Bank wanted to profit from the interest paid on Saucier’s loan. Saucier claims to have paid a significant sum of interest on this loan to date. Peoples Bank and Sliman respond that this does not prove “shared goals,” as the goal of profit “is a feature common to every free-market transaction.” Id. at (¶ 33).

¶28. Here, this was not the “arms-length” transaction that Peoples Bank and Sliman claim. Contrary to the circuit judge’s factual finding that “Sliman acted only as the initial liaison between Mr. Saucier and Mrs. Sekul [and] had no involvement in the real estate transaction other than as the Bank’s agent in obtaining financing for Mr. Saucier,” there was a genuine issue of a material fact as to Sliman’s involvement. Saucier has presented a genuine issue of a material fact to dispute the court’s finding, which could establish that Sliman was actively involved in the transaction. There are facts presented here that would establish that Sliman acted as an intermediary between the sellers (Sekul and the Trust) and the buyer (Saucier).

¶ 29. There are facts that show Saucier never dealt with Sekul or the Trust; instead, Sliman acted as the middleman in the negotiations over the sale price. Although Sliman was not compensated as the real estate agent, there are facts that would establish that he brokered the deal even though it was without compensation. Further, there are facts that also establish that Sliman either knew or should have known that the threat of the SMEPA easement was a factor that motivated Sekul to sell the property. For the purpose of summary judgment, we find that Saucier presented sufficient evidence to establish the first element.

¶ 30. As to the second element — “one of the parties places justifiable confidence or trust in the other party’s fidelity” — Saucier testified that he trusted Sliman and Peoples Bank due to their extensive past dealings. To support this relationship, Saucier testified that Sliman had previously given him investment advice, which he followed. Sliman, as an officer of Peoples Bank, assisted Saucier in obtaining eight to ten business loans with Peoples Bank. Sliman was also involved when Peoples Bank hired Saucier’s business, Saucier Brothers’ Roofing, to perform roofing jobs on buildings owned by Peoples Bank. Saucier had a business and personal relationship with Peoples Bank as well, as he had banked there for over fifty years. For the purpose of summary judgment, we find that Saucier presented sufficient evidence to establish the second element.

¶ 31. As to the third element — “the trusted party exercises effective control over the other party” — Saucier contends that Sliman and Peoples Bank handled all details of the transaction, from having an appraisal prepared to drafting the real estate sales contract. Saucier testified that every fact he knew about the property came from Sliman, and Sliman handled all of the steps necessary to complete the transaction. Sliman and Peoples Bank point out that Saucier did very little individual investigation prior to the purchase. He obtained no survey, no appraisal, and no environmental report. He claims that he relied on Sliman’s statement that the property was eighty acres in size and cost $10,000 an acre.

¶ 32. In Pope v. Freedom Mortgage Corp., 2010 WL 1980399 (S.D.Miss.2010), the plaintiffs were persuaded to purchase residential properties for investment purposes by an employee (Gregg) of a mortgage lender, who then arranged for financing through that lender. Id. at *1. After closing, severe problems developed with nonpayment from the tenants, repair issues, and city code violations. The purchasers sued, alleging the breach of a fiduciary duty, among other claims. Id. The lender and its employee argued that this mortgage situation did not create a fiduciary relationship. In denying the defendants’ motion for summary judgment, the court cited Lowery and noted:

In the present case, the history of the relationship is not nearly as significant as that reflected in Lowery. However, like Lowery, the conduct purportedly giving rise to the fiduciary relationship occurred outside the note. Many of the Popes’ complaints have to do with Gregg’s conduct regarding the investment rather than the act of lending funds. According to the Popes, Gregg “offered them the properties, negotiated the contracts, arranged inspections, set up financing and did all the paperwork to close the loan.” ... The Popes sug- ' gest that this conduct created at least a quasi-fiduciary relationship.... Although a close question, the Court concludes that a jury question exists on this point based on the current record.
[T]he Popes base their claimed trust not on the contract to lend money, but on Gregg’s activities in finding the property and shepherding the entire deal through [to] fruition.
Gregg wore many hats for the Popes, several of which were related to securing the investment property rather than the loan. As stated above, there is a genuine factual dispute as to whether Freedom is vicariously liable for Gregg’s conduct. Likewise, questions of fact exist as to whether the Popes justifiably relied on Gregg and whether his acts created a fiduciary relationship. Finally, assuming a fiduciary relationship, there is a question of fact as to whether any fiduciary duties were [b]reached. Accordingly, the fiduciary duty claim survives summary judgment.

Id. at *5 (citations omitted).

¶ 33. Here, the loan between Saucier and Peoples Bank does not alone prove the existence of a fiduciary relationship, since “one normally does not enter into a contract with another unless he trusts and has confidence in him_” Gupta, 838 So.2d at 216 (¶ 33). However, 'Sliman’s actions and involvement as the intermediary in the transaction do contribute to create a question of fact as to the existence of a fiduciary relationship.

¶34. Saucier also points out that when he notified Sliman of the easement, Sliman said: “Oh my gosh, I guess I should have — I made a mistake. I should have told /all about this.” When he told Peoples Bank’s president, Chevis Swet-man, about the easement, Swetman purportedly said: “Oh my goodness. Don’t worry about a thing. We’re going to take care of this for you.” According to Saucier, Swetman even told Saucier not to deal with SMEPA: “You don’t deal with them at all. They come through me.”

¶ 35. Sliman and People’s Bank assert that these statements should not be considered. They argue that these statements — two years after the transaction— could not have influenced Saucier’s decision to purchase the property. See In re Will & Testament of Boyles, 990 So.2d 230, 235-37 (¶¶ 18, 22, 30) (Miss.Ct.App.2008) (acts subsequent to execution of will irrelevant to establish confidential relationship at time will was made). These statements obviously did not cause Saucier to purchase the land. But, for the purpose of summary judgment, they are relevant to show the relationship between Saucier and Peoples Bank that existed over a number of years, both before and after the purchase. See Arete Partners, L.P. v. Gunnerman, 594 F.3d 390, 394 (5th Cir.2010) (applying Texas law) (Under Texas’s law of fraud, which has the same elements as Mississippi’s law concerning fraud, “a party’s intent may be inferred [from] the party’s subsequent acts following the representation.”); Overturf v. Aero Ins. Agency, Inc., 686 F.2d 850, 355 n. 4 (5th Cir.1982) (applying Louisiana law) (In a suit to recover on an insurance policy, the court held that “subsequent acts” are “relevant to a determination as to whether [the insured’s] original misrepresentation ... was simply an oversight or a deliberate misstatement.”).

¶ 36. Saucier relies on Lowery, which recognized the existence of a genuine issue of material fact as to the plaintiffs fiduciary relationship vidth a bank based on their past dealings. Lowery, 592 So.2d at 85. In Lowery, the plaintiff and her husband established a relationship with a bank officer, who would “place[ ] notes on hold” when they were unable to come to the bank. Id. The plaintiff trusted that the extensions were made, although there was no formal documentation. Id. Because the plaintiff had relied on the bank in the past to extend the notes, she and her husband had become “less vigilant about the coverage of the credit life insurance.” Id. This created a genuine issue of material fact as to whether the bank was obligated to provide notice that the credit life insurance terminated when the notes matured. Id.

¶ 37. Sliman and Peoples Bank cite a number of cases to the effect that the normal bank-customer relationship does not create a fiduciary relationship. In each case, however, the relationship between bank and customer was less extensive than in this case. For example, in Cermack, 658 So.2d at 1359, the customer was unable to show that the bank exercised effective control over him because he renegotiated terms the bank wanted to offer, and he rejected several of the bank’s requests on how to run his business. In Hopewell Enterprises, Inc. v. Trustmark National Bank, 680 So.2d 812, 816-17 (Miss.1996), there was no proof of special trust beyond a borrower-lender agreement. Likewise, in Strong v. First Family Financial Services, Inc., 202 F.Supp.2d 536 (S.D.Miss.2002), the plaintiffs, who obtained loans from First Family, sued alleging that First Family fraudulently induced them to buy products such as credit and disability insurance, at inflated prices. Id. at 538. Although the plaintiffs claimed that they trusted their lender to obtain insurance for them at the best prices possible, the proof showed that the lender clearly informed them of the terms and that such insurance was not required as a condition of receiving their loans. Id. at 542-43. No fiduciary relationship was found to exist. Id.

¶ 38. As in Lowery, Saucier has presented evidence of a course of dealings going beyond the single-loan situation addressed in cases cited by Sliman and Peoples Bank. Saucier’s past dealings with Sliman and Peoples Bank, together with Sliman’s involvement in the transaction, are relevant to whether a fiduciary relationship existed. For purpose of summary judgment, we find that Saucier presented sufficient evidence to establish the third element.

¶ 39. On de novo review of the summary judgment, considering the evidence in the light most favorable to Saucier, we find that there is a genuine issue as to a material fact in dispute, and Sliman and Peoples Bank are not entitled to a judgment as a matter of law. We reverse the circuit court’s grant of summary judgment as to Saucier’s claim for breach of fiduciary duty against Sliman and Peoples Bank, and remand this case to the circuit court for further proceedings consistent with this opinion.

2. Claim Against Peoples Bank and Sliman for Breach of Duty of Fairness

¶ 40. Saucier also makes the argument that, even if there is no fiduciary relationship, Sliman and Peoples Bank owed him a duty of “fairness.” Because we have reversed the circuit court’s summary judgment on the claim for breach of fiduciary duty against Sliman and Peoples Bank, we see no reason to address this alternative argument made by Saucier.

¶41. We do note, however, that the duty of fairness is recognized even when a fiduciary duty does not exist. In First American National Bank of Iuka v. Mitchell, 359 So.2d 1376, 1377-78 (Miss.1978), overruled on other grounds by C & C Trucking Co. v. Smith, 612 So.2d 1092 (Miss.1992), a bank officer altered the due date of a note and “was using the threat of foreclosure to pressure mortgagors to sell their property for below market value to a purchaser whom he had chosen.” The court held that the bank “at least owed its mortgagors ... a duty of fairness which it violated.” Id. at 1380.

¶42. In Gupta, the court noted that even absent a fiduciary relationship, “in the mortgagor-mortgagee relationship, a degree of trust or a duty of fairness owed by one party to another carries with it a duty to disclose facts peculiarly within one party’s knowledge when failure to disclose may result in harm to the other party.” Gupta, 838 So.2d at 217-18 (¶ 41). There, while the plaintiffs loan application to purchase property was pending with the bank, the real-estate-acquisitions branch of the bank purchased a portion of the property. Id. at 210-11 (¶¶ 5-10). Because the acquisitions department was separate from the loan department and because the bank’s purchase was made only a couple of days after the plaintiff first approached the bank concerning his loan, the court found that there was no knowledge of the plaintiffs plan and no violation of a duty by the bank. Id. at 215-16 (¶¶ 29-30). Our supreme court thus declined to find a breach of the duty of fairness based on the rationale in Mitchell. Id. at 218 (¶¶ 41-42).

¶ 43. As a result, the claim for breach of the duty of fairness may be considered * on remand.

3. Claim Against Sekul and the Trust for Breach of Contract

¶ 44. Saucier also claimed that Se-kul and the Trust breached the real estate sales contract. He argues that Sekul failed to provide him with the letter from SMEPA, and this was a breach of the provision that required disclosure of all documents in their possession or control.

¶ 45. The circuit court held:

The remaining claim of breach of contract is also without merit. The contract required Mrs. Sekul to provide and make available to Mr. Saucier[] “any and all documents pertaining to the Property which are in Seller’s actual possession or control, including but not limited to surveys, appraisals, engineering drawings, plats and environmental reports.” Mrs. Sekul admitted to having received one of the two letters requesting permission to perform a preliminary survey but not actually possessing it at the time of the contract. Mr. Saucier has not presented evidence to refute this contention. [“]A party opposed to a motion for summary judg- ' ment[ ] must bring forward ‘significant ' probative evidence’ demonstrating the existence of a triable issue of fact.” Stuckey v. The Provident Bank, 912 So.2d 859, 865 (Miss.2005) (citing Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 119 (5th Cir. 1982)).

¶46. The parties agree that the real estate sales contract was a valid and binding contract. The circuit court accurately characterized paragraph 11, titled “Seller’s Documents,” from the contract. However, the circuit court determined that Saucier failed to present a genuine issue of material facts that would dispute whether Sekul had “actual possession” of the SMEPA “survey ... engineering drawing or plats

¶ 47. Saucier claims that a genuine issue of a material fact is in dispute as to this issue. Sliman testified that Sekul had one of the SMEPA letters in her possession when he met with her at her apartment prior to the meeting with SMEPA. This was several weeks before she signed the real estate sales contract. Also, the April 27, 2006 letter specifically referenced an attached map showing the intended placement of the transmission lines. SMEPA provided a letter to Saucier that stated:

I enjoyed meeting with you and your family last week, and I hope to see you again. As we discussed, the previous property owner of record verbally allowed my company survey permission for a preliminary routing of this new overhead, electric transmission line.
At your request, a copy of the correspondence that we mailed to the previous owner, including a preliminary route drawn on an aerial photo, is enclosed for you to have for your records. My supervisor Larry E. Griffin and I also met with Mrs. Sekul and her friend Mr. Sli-man to discuss the preliminary survey.

¶ 48. The question is whether Sekul had actual possession of the SMEPA letter on May 24, 2006, when she signed the real estate sales contract. In her deposition, Sekul was not asked if she had the letter when she signed the contract. However, she was asked if she remembered being contacted by SMEPA, and she replied:

No, I don’t. I know I got one letter. I didn’t get two. They said I got two. I got one letter, but I was moving back and — between Ocean Springs, and it was after the hurricane, and everything was upset. So it could have been lost, but I received one letter.

It is unclear whether Sekul’s statement— “it could have been lost” — refers to the letter she claimed not to have received or the letter she admitted that she did receive. Regardless, Sekul’s answer does not establish that she did not possess a letter from SMEPA, which would have béen required to be provided to Saucier under paragraph 11, when she signed the real estate sales contract.

¶ 49. We find that there was a genuine issue of a material fact in dispute as to this issue. The April 27, 2006 letter and the correspondence provided by SMEPA both indicate that a map, which would suffice as a “survey ... drawing or plat,” was sent to Sekul identifying the preliminary route. Sekul did not provide the letter or the map or any other documents she may have had in her possession, and her failure to do so would have been a breach of the real estate sales contract that may have allowed Saucier to rescind the contract or receive damages.

¶ 50. Accordingly, we find the circuit court was in error to grant summary judgment as to the breach-of-contract claim Saucier asserted against Sekul and the Trust. We reverse the summary judg- ■ ment that dismissed the breach-of-contract claim and remand this matter for further proceedings consistent with this opinion.

k- Claims Against All Defendants for Negligent Misrepresentation

¶ 51. .Saucier’s complaint asserted separate claims for negligent misrepresentation against the defendants. Saucier argues that the defendants’ knowledge of and failure to inform him of SMEPA’s interest in the easement was a negligent misrepresentation. He claims that it was error to dismiss this claim on summary judgment.

¶ 52. The elements of negligent misrepresentation are:

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

Hazlehurst Lumber Co. v. Miss. Forestry Comm’n, 983 So.2d 309, 313 (¶ 11) (Miss.2008) (quoting Horace Mann Life Ins. Co. v. Nunaley, 960 So.2d 455, 461 (¶ 20) (Miss.2007)). These elements must be proven by a preponderance of the evidence. Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 101 (¶15) (Miss.2008).

¶ 53. The circuit court determined that Saucier’s negligent-misrepresentation claims could not survive summary judgment. The court held that Saucier cannot establish the first element (a misrepresentation or omission of a fact) and the fifth element (suffered damages) of the claim. As a result, our analysis will consider these elements.

¶ 54. Although the circuit court entered two separate orders granting summary judgment, they were, in substance, identical. In both orders, the circuit court addressed the negligent-misrepresentation claim as follows:

Mr. Saucier has a difficult time in overcoming the first element. Because SMEPA’s acquisition was merely an abstract speculative interest at that point rather than an actual fact, Mrs. Sekul had nothing to disclose. Additionally, Mr. Saucier cannot prove damages. There has been no showing that SME-PA’s dormant interest in the property at the time Mr. Saucier acquired it caused any damages. Though Mr. Saucier claims the easement will affect his ability to re-sell it for development, these claims, like SMEPA’s interest at the time of his purchase, are speculative. “The requisite proof for determining damages is that, ‘they may be recovered only where and to the extent that the evidence removes their quantum from the realm of speculation and conjecture and transports it through the twilight zone and into the daylight of reasonable certainty.’ ” Boone v. Hercules, 872 So.2d 730, 732 (Miss.Ct.App.2004) (quoting Sentinel Industrial Contracting Corp. v. Kimmins, 743 So.2d 954, 966-67 (Miss.1999)).

¶ 55. The difference between the two orders was that in the order that granted summary judgment to Sliman and Peoples Bank, the court considered the brea.ch-of-fiduciary-duty claim and declared: “Though Mr. Sliman was aware of the potential easement acquisition by SMEPA, he was under no duty to disclose it to Mr. Saucier.” Since we have previously found the circuit court was in error to grant summary judgment on the breach-of-fiduciary-duty claim, it follows that for the purpose of summary judgment, Sliman and Peoples Bank may have had a duty to disclose the easement. This requires that we consider the negligent-misrepresentation claim and the fraud claims against Sliman-and Peoples Bank in a fashion similar to that of Sekul and the Trust.

¶ 56. First, we address the circuit court’s finding that “SMEPA’s acquisition was merely an abstract^] speculative interest” at the time the property was sold to Saucier. In Bank of Shaw v. Posey, 573 So.2d 1355, 1360 (Miss.1990), the court held that “the first element of the tort of negligent misrepresentation must involve a representation concerning a past or present fact.” (Emphasis in original).

¶ 57. Saucier argues that the “fact” in question here is not SMEPA’s ultimate acquisition of an easement; rather, it was the letters they sent to Sekul and meeting with her and Sliman that expressed not only their request to purchase the property but their intention to obtain the property through eminent domain. Saucier claims that the letters and meeting with SMEPA were past facts that would have been material to his decision to purchase the property.

¶ 58. There was evidence that Sekul had received the letters, and both Sekul and Sliman were aware of the letters and SMEPA’s intent to acquire a portion of the property. Sekul told SMEPA to “stay off [her] land,” and SMEPA did not contact her again. Sekul stated that she did not disclose the request for a survey to Saucier because she “just forgot about it. [She] thought it was over.” Sliman also claimed that “[a]fter the meeting, I forgot all about it.”

¶ 59. Sekul was upset and concerned enough about SMEPA’s letter to her to request a meeting with Sliman at her apartment to discuss it. Before Sliman left the meeting, Sekul told him that she wanted to sell the property and to keep her in mind if he learned of any potential buyers.

¶ 60. Thereafter, she asked Sliman to be present when she met with the SMEPA representative. Sliman even agreed to conduct the meeting at his bank. In fact, the meeting apparently ended with Sekul’s adamant rejection of SMEPA’s request and its representative declaring that SME-PA would either buy the easement or get it through eminent domain.

¶ 61. About two weeks later, Sliman told Saucier about the availability of the property. In all, no more than six weeks elapsed between the first letter SMEPA sent to Sekul (April 11, 2006) and the signed contract to purchase the land (May 24, 2006). In this short time span, Sekul and Sliman claim to have forgotten the very fact that appears to have been the impetus for the sale.

¶ 62. We disagree with the circuit court’s finding that “SMEPA’s acquisition was merely an abstract^] speculative interest at that point rather than an actual fact[;] Mrs. Sekul had nothing to disclose.” We find that there was a genuine issue of a material fact in dispute as to the first element of the claim for negligent misrepresentation against Sekul, that is, whether she made a misrepresentation or omission of a fact.

¶ 63. Next, we consider the circuit court’s finding that “Saucier cannot prove damages.” The fifth element for negligent misrepresentation requires “that the plaintiff suffered damages as a direct and proximate result of such reasonable reliance.” The question for us to decide is whether there is a genuine issue as to a material fact in dispute.

¶ 64. The circuit court’s ruling was cer-táinly tied to the SMEPA eminent-domain action against Saucier. Indeed, the eminent-domain action would require SMEPA to pay the landowner the fair market value for the property taken and the diminution in the value of the remainder. The circuit court found the damage award to be speculative because of the pending eminent-domain proceedings. The circuit court cited Mississippi State Highway Commission v. Franklin County Timber Co., 488 So.2d 782 (Miss.1986), which held that the landowner, in an eminent-domain proceeding, is entitled to fair and just compensation, including damages “which the residue of the property suffers, including a diminution in the value of the remainder.” Id. at 785 (citation omitted). The circuit court was correct in finding the award was speculative, but this is not the proper consideration for this claim.

¶ 65. Instead, to review the fifth element of negligent misrepresentation, we must consider the remedy requested in this litigation. Saucier’s complaint did not seek to recover from Sekul and the Trust the value of the property taken or the diminution in value to the remainder of the property. Instead, the complaint sought rescission of the real estate sales contract.

¶ 66. The complaint asked for the recovery of “all expenses and damages incurred as a result of the purchase and as a result of this litigation, including purchase money, interest, appraisals, surveys, attorney fees, court costs, expert witness fees, and any incidental damages, as well as punitive damages.” The complaint did not ask for damages that the circuit court found Saucier could not prove.

¶ 67. Saucier stated that he would not have purchased the land had he known of the potential easement, since it would likely affect his ability to resell the property for development. Saucier offered evidence from an appraiser, David Craft. Craft testified as an expert witness that SME-PA’s interest in an easement should have been disclosed, prior to the sale, for consideration in the appraisal. Craft also testified that he would have needed more information, such as a statement in writing from SMEPA, before he could decide whether the property’s value was affected.

¶ 68. Allen Purvis, who appraised the land at the time of the purchase, testified that only “actual” or “confirmed” interests affect a property’s appraised value, while “possible or speculative” interests are not considered. After reviewing the second letter sent by SMEPA, Purvis stated: “It’s not specific enough to say the subject property will be part of the take.”

¶ 69. Saucier’s complaint essentially sought to substitute Sekul and the Trust in the eminent-domain proceeds and allow them to receive the compensation from that proceeding. Unfortunately, the circuit court did not consider rescission of the real estate contract or the damages alleged in the complaint. We find that there was a genuine issue of a material fact in dispute as to the negligent-misrepresentation claim against the defendants, and a summary judgment was not appropriate. We reverse the summary judgment as to the negligent-misrepresentation claim, and we remand this case to the court for further proceedings consistent with this opinion.

5. Claims Against All Defendants for Fraud or Intentional Misrepresentation

¶ 70. Saucier’s complaint asserted separate claims for fraud or intentional misrepresentation against the defendants. Saucier argues that the defendants’ knowledge of and failure to inform him of SME-PA’s interest in the easement was an intentional misrepresentation. He claims that it was error to dismiss this claim on summary judgment.

¶ 71. The elements of fraud or intentional misrepresentation are:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Virginia Coll, LLC v. Blackmon, 109 So.3d 1050, 1054-55 (¶ 15) (Miss.2013). Fraud must be proven by clear and convincing evidence, which is a higher burden of proof than required for negligent misrepresentation. Bank of Shaw, 573 So.2d at 1362. The burden of proof is higher because “[t]he basis for damages resulting from negligent misrepresentation is lack of care; the basis for damages from fraud is the want of honesty.” Id. at 1360 (emphasis added and citations omitted).- ¶ 72. In the order granting summary judgment to Sekul and the Trust, the circuit court addressed the intentional-misrepresentation claim as follows:

No evidence has been presented to implicate the Trust in this action other than its ownership of the property. The Sauciers cannot show any misrepresentation or fraud perpetrated by the Trust nor can they argue the Trust owed any duty to them. There are no genuine issues of material fact pertaining to the Trust and [a] judgment as a matter of law is appropriate.
Mr. Saucier’s claim of fraud is based on Mrs. Sekul’s alleged omission of fact regarding the potential easement by SMEPA. For silence to constitute fraud, a fiduciary relationship must exist between the parties. Poe v. Summers, 11 So.3d 129, 134 (Miss.Ct.App.2009). The Mississippi Supreme Court uses a 3-prong test to determine the existence of a fiduciary relationship in a commercial transaction: “whether 1) the parties have shared goals in each other’s commercial activities, 2) one of the parties places justifiable confidence or trust in the other party’s fidelity, and 3) the trusted party exercises effective control over the other party.” AmSouth Bank v. Gupta, 838 So.2d 205, 216 (Miss.2002) (citing Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 151 (Miss. 1998)). Using this 3-step process with the clear and convincing standard in mind, there is no evidence before the Court to establish a fiduciary relationship between Mr. Saucier and Mrs. Se-kul. Since there was no such relationship between the parties, Mrs. Sekul’s alleged omission of fact does not constitute fraud.

¶ 73. Saucier argues that Sekul and Sliman deliberately withheld “relevant, significante,] and material” information pertaining “to the use and value of the [property.” Saucier argues that every party to a business transaction owes the duty to disclose material information.

¶74. In Holman v. Wilson Chrysler Jeep, Inc., 972 So.2d 564, 569 (¶ 9) (Miss. 2008), purchasers of a Jeep sued thé car dealership that sold it to them for fraud because the dealership did not disclose that the Jeep had been wrecked. On appeal following the grant of summary judgment for the dealership, our supreme court noted that “[t]he duty to disclose is based upon a theory of fraud that recognizes that the failure of a party to a business transaction to speak may amount to the suppression of a material fact which should have been disclosed and is, in effect, fraud.” Id. at 568 (¶ 9) (citation omitted). The court held:

One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is eonsummated[:]
... matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and ... the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and ... facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.

Id. at 568-69 (¶ 9) (citing Restatement (Second) of Torts § 551 (1977)). In reversing the grant of summary judgment, the court held that “[tjhere is enough evidence in the record to find a genuine issue of material fact exists whether Howard Wilson owed the Holmans a duty to disclose the damage prior to the consummation of the sale of the Jeep.” Id. at 569 (¶10).

¶ 75. In Green Realty Management Corp. v. Mississippi Transportation Commission, 4 So.3d 347 (Miss.2009), the supreme court reversed a summary judgment ruling that favored the Transportation Commission. The court held that the Commission had a duty to disclose its future plans on property it purchased where those future actions may have harmed the seller. Id. at 350 (¶¶ 6-7). Citing Holman and section 551 of the Restatement (Second) of Torts, the court held that whether the Commission’s silence fraudulently induced the sale was a jury question. Id.

¶ 76. Accordingly, we find that there is a genuine issue of a material fact in dispute as to whether Sekul or Sliman simply “forgot” that SMEPA had approached Se-kul seeking an easement or whether they intentionally withheld this information because they wanted the sale and financing to go through. We reverse the summary judgment as to the fraud or intentional-misrepresentation claim, and we remand this case to the circuit court for further proceedings consistent with this opinion.

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

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

      . The chancellor did not dismiss the rescission claim. Instead, the chancellor determined that the complaint asserted both equitable and legal claims, but would best be tried in circuit court. This order is not challenged in this appeal.


author: MAXWELL, J.,

text:
    In the Matter of the ESTATE OF Amanda CLEVELAND, Deceased: Becky Hodges, Administrator, Appellant v. HERITAGE PROPERTIES, INC. and U.S. Specialty Insurance Company, Appellees.
    No. 2013-WC-00451-COA.
    Court of Appeals of Mississippi.
    June 10, 2014.
    Rehearing Denied Sept. 23, 2014.

      David N. Gillis, Jackson, attorney for appellant.
    Robert P. Thompson, Lori Jordan Graham, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Amanda “Missy” Cleveland claimed she suffered physical and mental injuries from a filing cabinet falling on her at the apartment complex she managed. After-wards, she attempted suicide several times, was in and out of the emergency room, and eventually overdosed on drugs, dying at the age of forty-one. Cleveland’s mother, as administrator of Cleveland’s estate, sought workers’ compensation disability and death benefits, citing the supposed work accident as the cause. After sifting through evidence of Cleveland’s preexisting conditions, mental illness, drug and alcohol abuse, suicide attempts, and other unfortunate and tragic life circumstances, the administrative judge (AJ) and Mississippi Workers’ Compensation Commission (Commission) found Cleveland’s mental de-compensation and death were not linked to the claimed work injury. Because we find substantial evidence supports the Commission’s decision, we affirm the denial of disability and death benefits.

Procedural History

¶ 2. On April 15, 2000, a filing cabinet allegedly fell on Cleveland while she was managing apartments for Stonegate Apartments in Clinton, Mississippi. She filed for disability benefits with the Commission for a closed-head injury and mental injury. While her claim was pending, Cleveland died of a drug overdose. And her mother, Becky Hodges, pursued a workers’ compensation claim for Cleveland’s estate. Hodges later filed an amended petition to controvert, seeking death benefits for herself as Cleveland’s dependent.

¶ 3. On July 12, 2006, a hearing was held at the Commission. Both the employer and carrier admitted a physical injury occurred on April 15, 2000. But they contested any physical impairment after April 18, 2000 — the date neurosurgeon Dr. Robert Smith found Cleveland reached maximum medical improvement. The employer and carrier also disputed liability for mental injury and resulting death.

¶ 4. The documentary evidence offered at the hearing was quite voluminous. Scores of records of Cleveland’s extensive medical history, both before and after the alleged work injury, were admitted. Depositions and/or medical records from at least twenty-five doctors and hospitals were also admitted, as were records from seven different pharmacies. Three lay witnesses and one expert witness testified live. And deposition testimony from four lay witnesses was offered.

¶ 5. After review, on November 1, 2006, the AJ entered an order denying disability and death benefits. The AJ found no credible evidence that the effects from the physical injury sustained on April 15, 2000, persisted after April 18, 2000. Nor did the AJ find a work-connected mental injury. She likewise found Cleveland’s August 14, 2001 death was neither a direct and natural consequence of any work-connected injury, nor related to the reported filing-cabinet injury. The full Commission affirmed the AJ’s order denying benefits. And on appeal, the circuit court affirmed the Commission’s denial.

¶ 6. Hodges has now appealed to this court.

Facts

1. The Filing-Cabinet Incident

¶ 7. Caron Downey was Cleveland’s assistant at Stonegate Apartments. She remembered Cleveland’s boyfriend, Ron Allen, being with Cleveland at work when the cabinet allegedly fell on her. She also recalled Cleveland was not scheduled to work that day.

¶ 8. Shortly before the claimed accident, Cleveland and Allen were in Cleveland’s office with the door closed for about fifteen minutes. Downey remembered Allen leaving Cleveland’s office and closing the door. Then, a few minutes later, Dow-ney heard a loud crash and scream. When she opened Cleveland’s door, she saw her on the floor. The filing cabinet was resting partially on Cleveland and on a bench. Downey lifted the cabinet so Cleveland could roll from under it. Though Downey did not see any cuts or bruises, Cleveland immediately asked her to contact Allen. When he arrived, an ambulance was called. Downey and Allen both followed the ambulance to Central Mississippi Medical Center (CMMC). Cleveland was treated and released but never returned to work at Stonegate Apartments.

2. Preexisting Conditions and Circumstances

¶ 9. Cleveland’s history of preexisting psychological issues is significant. Her mother and sister testified that Cleveland’s natural father sexually abused her between the ages of ten and thirteen. And Cleveland quit school in the ninth or tenth grade. At age seventeen, she married Allen Cleveland, and the two moved to California. ,

¶ 10. In 1979, after turning eighteen, Cleveland posed for Playboy as a centerfold model. Soon after, she divorced her husband,' and for the next ten years did promotional work for Playboy. Cleveland also appeared in several films, including “Blowout” and “Cheeeh and Chong — The Next Movie.” During her time in Los Angeles, Cleveland took pills, used cocaine, and attempted suicide twice.

¶ 11. After her stint in California, Cleveland moved to Montreal, Canada, and became celebrity Nanette Workman’s personal assistant. Four years later, in 1990, Cleveland moved back to Jackson, Mississippi, where she worked as a bartender, receptionist, leasing agent, and apartment manager. She became romantically involved with Keith Puckett, who was murdered in 1993. Medical records document her lingering grief from Puckett’s death.

¶ 12. In 1995, Cleveland married David White. But the couple divorced two years later. White described Cleveland’s drinking problems and use of Xanax and Valium. He claimed her drug and alcohol abuse caused their divorce. Her drinking led her to rehab, and at some point in their marriage, Cleveland asked White for methamphetamine. White suspected Cleveland was also using crack cocaine in the mid-1990s.

¶ 13. Other witnesses also described Cleveland’s past alcohol and drug addiction. Downey, the assistant apartment manager, knew Cleveland took Oxycodone and Lorcet and would ask residents for drugs. There was also testimony that Cleveland had overdosed on drugs in the 1980s.

3. Ron Allen

¶ 14. When Cleveland began working at Stonegate Apartments in 1995, she met Ron Allen. The two eventually moved in together at Stonegate. Allen was unemployed, apparently disabled from a back injury — an injury also purportedly caused by a filing cabinet falling on him.

¶ 15. Allen was described as controlling, dangerous, and abusive to Cleveland. According to Downey and another apartment resident, Diane Ratliff, Allen practiced “voodoo” and was “strange.” Allen had a notorious fondness for swords and knives, which adorned the walls of his apartment. And he was into what one of the women described as “chanting.” As Downey put it, Allen was a “creepy person” who “did everything in black.” Both women testified that Allen kept Cleveland secluded and drugged. . And Downy remembered Allen commenting that he would sue Stonegate Apartments and “own the place” someday. He had made similar comments to Ratliff about suing Stone-gate. Soon after Cleveland’s alleged April 2000 filing-cabinet injury, Allen obtained a general power of attorney over her.

¶ 16. Allen’s threatening behavior ultimately led to his eviction from Stonegate in May 2000.■ He and Cleveland then moved to a house in Yazoo City, Mississippi. The decor of his Delta home accentuated his dark persona — the walls were black, and one room apparently had a pentagram painted on the floor.

¶ 17. Cleveland remained with Allen in the Yazoo City house until her death on August 14, 2001. . That day, Allen reported finding Cleveland dead in the home. While no drugs were discovered in the home, the coroner listed Cleveland’s cause of death as “poly-pharmacy overdose.” But the coroner did not note if Cleveland died from accident, suicide, or homicide.

¶ 18. Allen also later died of a drug overdose.

Medical Evidence

1. American Medical Response (AMR) and CMMC Records

¶ 19. AMR records from April 15, 2000, show Cleveland was transported by ambulance to CMMC after the filing-cabinet incident. She was awake with normal vital signs, no obvious head trauma, and no neurological defects. Hospital records show Cleveland had no bumps or bruises. And a CT scan, MRI, and x-rays taken that day were normal.

2. Dr. Robert Smith, Neurosurgeon

¶20. Three days later, Dr. Smith saw Cleveland and found she had reached maximum medical improvement (MMI) physically. She had no bumps, bruises, or cuts. And again, a CT scan and x-ray were normal, though she did complain of loss of feeling in her right arm and revealed her depression from childhood sexual abuse. Because Dr. Smith found Cleveland’s work injury aggravated her preexisting depression from sexual abuse, he referred Cleveland to a psychiatrist. But Dr. Smith was under the impression Cleveland was employed and stable before but not after the injury. Dr. Smith later admitted he did not have Cleveland’s complete medical records when diagnosing her. So his assessment was solely from the history she provided him.

3. Dr. Ahmed Raza, Psychiatrist

¶ 21. Dr. Raza saw Cleveland on April 19, 2000, and diagnosed her with a possible somatoform disorder. He later diagnosed her with factitious disorder and found no impairment from a work-connected injury.

4. Dr. Michael Osborne, Head and Neck Surgeon

¶ 22. Dr. Osborne saw Cleveland on May 10, 2000. Allen was with her during the visit, and he, not Cleveland, provided all of Cleveland’s history and answered all questions posed to her. According to Dr. Osborne, Cleveland never spoke a word, and it appeared to Dr. Osborne that she was intimidated by Allen. When asked if Allen controlled Cleveland, Dr. Osborne said: “Absolutely, without a doubt. Psychologically, he had complete control over her.” He also remembered Cleveland had an open, weeping, and likely infected second-degree burn from the inside of her wrist to her elbow. So he referred Cleveland to a plastic surgeon for her arm. Dr. Osborne saw no evidence of an injury to her head or neck and no impairment attributable to a work-connected injury.

5. Dr. Billy Fox, Psychologist

¶ 23. On May 23, 2000, Cleveland was admitted hr CMMC for depression and a self-inflicted burn. Drs. Fox and Raza treated her. Both doctors diagnosed Cleveland with factitious disorder. Dr. Fox’s psychological and neuropsychological testing corroborated the factitious disorder. He found Cleveland was under-reporting cognitive abilities and over-reporting psychological symptoms. Dr. Fox felt more investigation was needed to rule out malingering. Dr. Fox found no impairment attributable to a work-connected injury.

6.Dr. Mario Pineda, Psychiatrist

¶ 24. Dr. Pineda saw Cleveland on June 7, 2000. Allen was with her, and he did all of the talking. Allen maintained that Cleveland became depressed and suffered seizures after the filing-cabinet episode. Dr. Pineda initially diagnosed Cleveland with major depression secondary to post-concussion syndrome. When Dr. Pineda next saw Cleveland on June 21, 2000, she reported having hallucinations and being suicidal. He diagnosed her with severe depression and psychosis.

¶ 25. Seven days later, Cleveland was readmitted to St. Dominic for various complaints. Though she denied any drug or alcohol abuse, she tested positive for barbiturates, benzodiazepines, marijuana, and opiates. During a visit on July 6, 2000, Cleveland told Dr. Pineda about her childhood sexual abuse. And on July 25, 2000, she told him about her continuing grief from her boyfriend being murdered in 1993. Two weeks later, Cleveland reported to Dr. Pineda that she was depressed and thought about killing herself.

¶ 26. On September 28, 2000, Cleveland told Dr. Pineda she had tried to kill herself with a knife. The next day, she was readmitted to the hospital for attempted suicide and homicide, claiming she had cut herself and Allen with glass and was hearing voices. Dr. Pineda believed her depression resulted from a closed-head injury from the filing-cabinet incident. Dr. Pineda saw Cleveland several more times, but eventually refused to see her because Allen continuously interfered with her treatment. Allen had also threatened to hurt Dr. Pineda and his staff.

¶ 27. Dr. Pineda concluded Cleveland’s hospital admissions and suicide attempts were directly related to the work accident. He also believed she never reached MMI and was totally disabled. Despite the fact that Cleveland was medicated during QEEG testing, Dr. Pineda found the QEEG findings showed she had suffered a brain injury. But Dr. Pineda did admit not having any of Cleveland’s medical records from other doctors when treating and diagnosing her.

7.King’s Daughter’s Hospital Records

¶ 28. On October 11, 2000, Cleveland was admitted to the hospital with multiple bruises, lacerations, abrasions, and a split lip. She also had bite marks on her buttocks. Cleveland tested positive for benzodiazepines, opiates, and tricyclics. She was transferred to the University of Mississippi Medical Center (UMMC) by helicopter and diagnosed and treated for presumptive domestic violence. These records show Hodges reported Cleveland’s long history of drug and alcohol abuse. And they describe Hodges’s concerns that Allen was giving her drugs.

8. St. Dominic Records

¶29. On January 8, 2001, Cleveland was admitted to St. Dominic for a suicide attempt after trying to hang herself. Cleveland told a nurse that Allen physically abused her, tried to kill her in the past, and had overdosed her on drugs.

9. Dr. Phillip Scurria, Psychiatrist

¶ 30. Dr. Scurria saw Cleveland and Allen on March 7, 2001. He diagnosed her with mood and personality changes secondary to brain injury. His notes show Cleveland began to self-mutilate by cutting herself. Like Dr. Pineda, Dr. Scurria did not have any of Cleveland’s prior medical records for review.

10. Dr. Stanley Russell, Psychiatrist

¶ 31. Dr. Russell began treating Cleveland on April 17, 2001. He diagnosed her with organic mood disorder, with some psychotic features. He thought Cleveland’s depression directly related to the supposed work injury. And he opined she had not reached MMI and was totally disabled, and that her closed-head injury significantly contributed to her death from the drug overdose. Dr. Russell admitted not having many of Cleveland’s medical records when treating and diagnosing her. And he conceded there was no objective evidence of a closed-head injury or impairment. Instead, his finding of impairment was based on his presumption she was employed and functioning before but not after the injury.

11. Dr. Mark Webb, Psychiatrist

¶ 32. Dr. Webb performed a records review and concluded Cleveland had not been completely honest with any of her doctors. Dr. Webb did not believe she had ' any psychiatric illness from a work injury. And he found no impairment attributable to a work-connected injury.

12. Dr. David Cantor, Psychologist

¶ 33. Dr. Cantor discounted Dr. Pine-da’s opinion that Cleveland had a brain injury that caused her mental decomposition. According to Dr. Cantor, Dr. Pine-da’s findings were unsupported. He emphasized that Dr. Pineda had neither an accurate nor a comprehensive history from Cleveland. And as Dr. Cantor saw it, a diagnosis of a brain injury could not be made without a proper history.

¶ 34. Dr. Cantor also felt Dr. Pineda’s reliance on Cleveland’s QEEG results was unfounded. He flagged the test results as invalid since Cleveland was medicated during testing. Dr. Cantor concluded Cleveland’s depression and anxiety were more likely attributable to her preexisting issues combined with substance abuse and the psychological stress of a physically abusive and emotionally controlling boyfriend. He found no impairment attributable to a work-connected injury.

Discussion

A.Standard of Review

¶ 35. Appellate review of workers’ compensation claims is limited. Daniels v. Peco Foods of Miss., Inc., 980 So.2d 360, 363 (¶ 8) (Miss.Ct.App.2008). The Commission is the ultimate fact-finder and may accept or reject an AJ’s findings. Hardin’s Bakeries v. Harrell, 566 So.2d 1261, 1264 (Miss.1990). If the Commission’s factual findings are supported by substantial evidence, we may not disturb them. Id. (citing R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1021 (Miss.1990)). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Imperial Palace of Miss., LLC v. Ryan, 113 So.3d 630, 632 (¶ 10) (Miss.Ct.App.2013) (quoting Kukor v. Ne. Tree Serv., Inc., 77 So.3d 1134,1136 (¶ 7) (Miss.Ct.App.2011)).

B. The Evidentiary Review and Findings

¶ 36. Hodges argues the AJ’s and the Commission’s conclusions were not supported by substantial evidence. While she understands there was conflicting medical testimony and evidence, she insists the more favorable findings of her daughter’s treating physicians should have been given greater weight than the other physicians’ opinions. We disagree, and point out we have previously expressly rejected this same argument. See Daniels, 980 So.2d at 365 (¶ 15) (rejecting argument that testimony of treating physicians must be given credence over employer’s examining physicians). No matter the doctor’s relationship to the patient, when there is conflicting medical evidence, it is the Commission’s job as the ultimate fact-finder to sift through the competing evidence and place whatever weight it deems appropriate on the medical testimony and evidence. Imperial Palace, 113 So.3d at 632 (¶ 11) (citing Smith v. Tronox, LLC, 76 So.3d 774, 780 (¶ 23) (Miss.Ct.App.2011)). Once this is done, and a decision about compens-ability is made, if substantial evidence supports the Commission’s decision, we must affirm.

C. Mental-Injury Requirements

¶ 37. In a general physical-injury-based workers’ compensation benefits case, a claimant must prove “(1) an accidental injury; (2) arising out of and in the course of employment; and (3) a causal connection between the injury and the claimed disability.” Id.' at (¶ 13). But when the claim involves a mental injury, there is an additional requirement. To recover for “a mental injury after a physical injury, a claimant must prove that the disabling mental injury ‘was caused, contributed to, or aggravated by a work-related physical injury.’” Daniels, 980 So.2d at 368 (¶ 10) (quoting Kirk v. K-Mart Corp., 838 So.2d 1007,1010 (¶ 17) (Miss.Ct.App.2003)). This requires that the claimant prove, by clear evidence, a causal connection between the mental injury and the physical work injury. Id. at 365 (¶ 17).

D. The Decision

¶ 38. After considering the conflicting evidence, the AJ felt Drs. Russell, Pineda, and Scurria were not credible. The AJ was skeptical of their findings since each had relied on incomplete and inaccurate histories of Cleveland’s pre-morbid and co-morbid psychological conditions and diagnoses of her. None of these three physicians had Cleveland’s complete medical records, which the other reviewing doctors found were necessary to determine the true course of treatment and depth of pathology. And their opinions conflicted with diagnostic test results and objective medical findings in the record.

¶ 39. A prominent inconsistency was the fact that all CT scans, MRIs, and x-rays of Cleveland’s head and brain were negative. Also, there was medical testimony disputing the QEEG results as invalid since Cleveland was sedated by medication during testing. And these three doctors’ opinions conflicted with first-responder and medical-personnel records, showing Cleveland had no cuts, bruises, or abrasions after the claimed accident.

¶ 40. The AJ was instead swayed by the opinions of Drs. Raza, Fox, Osborne, Cantor, and Webb — all of whom found Cleveland had no impairment from a work-connected injury/ The AJ noted Drs. Raza, Fox, and Osborne had treated Cleveland closer in time to the injury than Drs. Pineda or Russell. And the AJ put credence in Dr. Fox’s testing, which corroborated his diagnosis of “factitious disorder or malingering.” Greater weight was given to Dr. Cantor’s and Dr. Webb’s views of Cleveland’s issues, since both doctors had more complete medical records than Drs. Pineda and Russell — something we cannot fault the AJ for doing.

¶ 41. Overall, the AJ found the opinions of Drs. Raza, Fox, and Cantor were more consistent with the competent medical evidence and more believable when considered against the backdrop of the entire sad sequence of events. As the AJ pointed out, the record painted a tragic picture of Cleveland, who was controlled, manipulated, and abused — both physically and psychologically — by Allen. Thus, in the end, the AJ found that, though Cleveland de-compensated after April 15, 2000, the de-compensation was caused by preexisting psychological issues, which led to her increasing dependence on a destructive personal relationship with Allen and substance abuse. Considering the conflicting testimony over whether Cleveland’s mental injury or death was caused, contributed to, or aggravated by a work-related physical-injury, the Commission adopted the AJ’s findings of fact.

¶ 42. As mentioned, we reject Cleveland’s urging that her treating physicians’ opinions must be given greater weight than the employer’s examining physicians. See Daniels, 980 So.2d at 365 (¶ 16). This is particularly true here, since her treating doctors, Russell, Pineda, and Scurria, admittedly lacked complete medical records and proper medical histories of her lengthy drug, alcohol, sexual, psychological, and physical abuse. Our supreme court has emphasized: “When an expert’s opinion is based upon an inadequate or incomplete examination, that opinion does not carry as much weight and has little or no probative value when compared with the opinion of an expert that has made a thorough and adequate examination.” Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss.1983). And here, the AJ and Commission found the more thorough and complete medical evaluations, objective evidence, and Cleveland’s life circumstances cut against her claim.

¶ 43. We also find no support for Hodges’s insistence that Dr. Webb’s opinion should count less than those of her treating physicians, since he examined Cleveland just once. That a doctor examines a patient one time does not itself render his or her examination inadequate or incomplete. DiGrazia v. Park Place Entm’t, 914 So.2d 1232, 1237 (¶ 12) (Miss.Ct.App.2005). Nor does the fact that a doctor or several doctors examined a claimant more frequently than another doctor, standing alone, render the less-visited doctor’s findings inadequate. Id. With this said, we are mindful that Dr. Webb was just one of four doctors who found no causal connection between the work incident and claimed injuries.

¶ 44. This is an unusual and incredibly tragic case, but it is one where there is overwhelming evidence supporting the Commission’s decision that Cleveland’s mental decompensation was from preexisting psychological issues. And it was those issues — not the alleged filing-cabinet injury — that led to Cleveland’s increased dependence on a destructive relationship with Allen and substance abuse. Because there is substantial evidence supporting the Commission’s denial of disability and death benefits, we must affirm.

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

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

      . See Miss.Code Ann. § 71-3-25 (Rev.2011).

      . Dr. Fox explained that factitious disorder is when a person over-reports or under-reports symptoms and plays a sick role.

      . Dr. Pineda explained that QEEG testing is neurofeedback dealing with brain waves: “[I]t is the use of electronic devices ... to detect a signal from our body that ... we would not be aware [of]. And by displaying the signals in a way that we can see or hear facilitates a learning process to control those bodily signals [that] are responsible for symptoms and problems and illnesses.”

      . Hodges argues that the AJ improperly equated a diagnosis of factitious disorder with malingering. We disagree. Dr. Fox's diagnosis was factitious disorder, and he clearly said . that further investigation was needed to rule ■ out malingering.


author: BARNES, J.,

text:
    Kevin THOMPSON, Appellant v. A & Z, INC. a/k/a A & Z Painting, Appellee.
    No. 2012-CA-01945-COA.
    Court of Appeals of Mississippi.
    June 17, 2014.
    Rehearing Denied Sept. 23, 2014.

      Ronald Earl Stutzman Jr., Eduardo Alberto Flechas, Jackson, attorneys for appellant.
    Cecil Maison Heidelberg, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Kevin Thompson was involved in an automobile accident with Vickie Cunningham, an employee of A & Z Inc. (A & Z). After concluding that the employee was not acting in the course and scope of her employment at the time of the accident, the Lincoln County Circuit Court granted summary judgment in favor of A & Z. On appeal, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of October 5, 2010, Thompson was driving his motorcycle on Highway 51 in Brookhaven, Mississippi, when he was struck by a car driven by Cunningham, who was on her way to work. Thompson suffered several bodily injuries and property damage as a result of the accident. Thompson filed a complaint against Cunningham, on October 20, 2010, alleging “negligent, careless, and/or wanton conduct,” and requested damages exceeding one million dollars.

¶ 3. After a $25,000 settlement was reached with Cunningham, Thompson filed an amended complaint on May 20, 2011, seeking to dismiss her from the action and to add her employer, A & Z, as a defendant. In the amended complaint, Thompson claimed that Cunningham was acting in the course and scope of her employment, and A & Z was liable “by virtue of vicarious liability.” He further contended that Cunningham “was engaged in an ultra-hazardous activity”; specifically, that she was transporting open containers of paint thinner in her trunk that were emitting “noxious fumes.” Another amended complaint filed on August 19, 2011, alleged that A & Z acted negligently in its hiring of Cunningham and that it “negligently entrusted the vehicle in question to Cunningham.” Thompson also moved that Cunningham be voluntarily dismissed from the action. The circuit court granted the amendments to the complaint and dismissed Cunningham as a defendant.

¶ 4. On September 21, 2011, A & Z filed an answer, denying any liability and claiming that Cunningham was not in the course and scope of her employment at the time of the accident. Then, on April 19, 2012, A & Z filed a motion for summary judgment, contending that Thompson had signed a release that barred all claims of liability against A & Z and that Cunningham was driving her personal vehicle when the accident occurred. Thompson responded, arguing he had not released A & Z from liability, and the motion for summary judgment was premature because A & Z had not yet answered his requests for discovery. Included was an affidavit by Thompson’s attorney submitted under Mississippi Rule of Civil Procedure 56(f). A hearing on the motion for summary judgment was held on June 11, 2012, and the circuit court delayed its ruling to allow Thompson time to conduct depositions. After failed attempts to set a time for depositions, counsel for Thompson advised A & Z that he could not conduct any depositions until September, and the depositions of A & Z and Cunningham were scheduled for September 28, 2012.

¶5. On September 14, 2012, Thompson’s counsel sent an email to A & Z, stating, that because A & Z had not provided the discovery he desired, he was going to file a motion to compel and postpone the depositions. Thompson subsequently filed the motion to compel discovery on September 19, 2012. In a letter sent to Thompson’s counsel, dated September 26, 2012, A & Z noted that Thompson had cancelled the depositions scheduled for September 28:

¶ 6. On October 16, 2012, A & Z renewed its motion for summary judgment, arguing that Thompson had four months to conduct discovery and take depositions, but had failed to do so. A hearing was held on the motions November 5, 2012. The circuit court granted A & Z’s motion for summary judgment on November 15, 2012, holding that Thompson had failed to provide any evidence “that Cunningham was in the scope of employment at the time of the accident.” The circuit court also noted that Thompson had signed a release form.

¶ 7. Thompson now appeals, and finding no error, we affirm the judgment.

STANDARD OF REVIEW

¶ 8. The sole issue presented on appeal is whether the circuit court erred in granting A & Z’s motion for summary judgment. A circuit court’s grant of a motion for summary judgment is reviewed de novo. Hawkins v. City of Motion, 119 So.3d 1104, 1106 (¶ 8) (Miss.Ct.App.2013). The movant bears “the burden of demonstrating that no genuine issue of material fact exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. “[I]f the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact,” then summary judgment should be entered in favor of the movant. M.R.C.P. 56(c).

DISCUSSION

¶ 9. Thompson argues the circuit court granted the motion for summary judgment “prematurely” and should have allowed him to conduct further discovery. He claims that had he been able to conduct further discovery, he could show Cunningham was acting in the course and scope of her employment; therefore, A & Z would be liable for her negligence.

¶ 10. At the time of the accident, Cunningham was driving her personal vehicle to work. “The general rule is that a servant using an automobile, whether belonging to his master or to himself, in going to and from, his place of work, is not at such times engaged in work for his master but acts for his own purposes only.” Evans v. Jackson Coca-Cola Bottling Co., 771 So.2d 1006, 1009 (¶8) (Miss.Ct.App.2000) (quoting Miss. Power & Light Co. v. Laney, 247 Miss. 71, 85, 154 So.2d 128, 134 (1963)). Thompson does not refute that when an employee is driving to work, she is outside the scope of her employment. Rather, he argues that because Cunningham was transporting paint thinner (“a tool of the trade related to [her] employment”) and was en route to pick up a work vehicle, she should be considered as acting within the scope of her employment. In her affidavit, Cunningham stated that she was on her way to work when the accident occurred and that she was not being reimbursed for her transportation. She also averred that there was only one can of paint thinner, which she had bought for personal use. However, the police officer who responded to the accident claimed that there were several open cans of paint thinner and paint brushes in her trunk.

¶ 11. While the issue of whether Cunningham was acting in the scope of her employment while driving to work could constitute a question of fact, we find it irrelevant under the circumstances of this case. This Court has plainly held: “A plaintiff may not release either an employee or employer from any claim, and then pursue the same claim against the unreleased employee or employer.” .Sykes v. Horns Health Care Affiliates, Inc., 125 So.3d 107, 109-10 (¶ 8) (Miss.Ct.App.2013) (citing J & J Timber Co. v. Broome, 932 So.2d 1, 6 (¶ 20) (Miss.2006)). In Broome, the Mississippi Supreme Court considered a similar case in which the plaintiffs in a wrongful-death suit settled with the driver of a truck, Brent Galatas, who collided with the deceased, and released the driver from further liability. The release expressly reserved any claims that the plaintiffs might have against Galatas’s contract employer, J & J Timber. The plaintiffs then brought a separate wrongful-death action against the employer. Broome, 932 So.2d at 2-3 (¶¶ 3-5). The supreme court reasoned:

An action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his. or her employment. Loss of consortium is similarly derivative, and Mississippi law dictates that if the underlying personal injury claim is disposed of, the loss of consortium claim cannot be maintained on its own. While Broome did not have his claims against Galatas thrown out, he voluntarily settled them and released Galatas from the threat of any further action. The principles precluding a loss of consortium claim when the underlying action is gone apply equally to this case with respect to an employer’s vicarious liability. Once Broome discharged Galatas, the purely derivative vicarious liability claim against J & J Timber became barred.

Id. at 6 (¶ 19) (internal citation omitted). Thus, the court concluded: “[T]he release of a tortfeasor operates to bar claims predicated on vicarious liability against the tortfeasor’s employer.” Id. at 9 (1130).

¶ 12. In the present case, Thompson reached a settlement with Cunningham and released all claims against her. Therefore, even if Cunningham were found to have been in the course and scope of her employment when the accident occurred, Thompson is barred from bringing a derivative claim against A & Z, her employer.

¶ 13. Additionally, on May 9, 2011, Thompson signed a “Full and Final Release of All Claims and Indemnifying • Agreement,” which provided that Thompson had released Cunningham, Progressive Insurance Company, “and all agents, affiliates, related entities, servants, employees, insurers, representatives, attorneys, adjusters, investigators and all other associated persons, firms, corporations and administrators (hereinafter ‘Releasees’) of and from any and all claims, demands or causes of action ... that arise out of or are in any way related to the automobile accident ... occurring on or about October 5, 2010[.]” (Emphasis added).

¶ 14. Accordingly, we affirm the circuit court’s decision to grant summary judgment for A & Z. All of Thompson’s remaining issues concerning negligence by A & Z are rendered moot by our holding.

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

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

      . An exception to the rule that an employee is not acting in the scope of his employment while traveling to and from work is when "the employer furnishes the transportation or remunerates the employee for transportation.” Tommy Brooks Oil Co. v. Leach, 722 So.2d 708, 712 (¶ 16) (Miss.Ct.App.1998) (citation omitted).

      . Thompson signed a second release that same day solely with Progressive Insurance Company, entitled "Policyholder's Release and Trust Agreement.” In that release, he did cross through the language "and all other persons or organizations who are or who might be liable, from all claims for all damages.” That release never referenced Cunningham or A & Z; it concerned Thompson's release of the insurance company from paying further damages for the claim.