author: BARNES, J.,

text:
    Michael Hugh ALEXANDER, Appellant v. AIG AGENCY AUTO, INC., 21st Century Insurance Company as Successor in Interest to AIG, and Granite State Insurance Company, Inc., Appellees.
    No. 2012-CA-01166-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Rehearing Denied April 29, 2014.

      Bobby T. Vance, John L. Bailey, Bates-ville, attorneys for appellant.
    Thomas Lynn Carpenter Jr., J. Wyatt Hazard, Jackson, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the court:

¶ 1. Michael Hugh Alexander purchased an automobile insurance policy through a local insurance agent, Fred Watson, for his 2003 Chevrolet Malibu on August 29, 2007. The insurance coverage was provided through Granite State Insurance Company (Granite State), but it was essentially a policy through AIG Agency Auto Inc. (AIG). The policy was a six-month policy that Alexander renewed in February 2008, making the policy’s renewal date August 28, 2008. However, the insurance company (specifically, AIG) mailed Alexander a notice dated July 17, 2008, informing him that as of August 28, 2008, his policy would not be renewed since the company no longer serviced full-coverage policies for single vehicles.

¶ 2. On September 23, 2008, Alexander was involved in a vehicular accident with a semi-trailer truck. Alexander submitted his claim, but AIG denied all coverage, as the policy was no longer in effect. Alexander, however, claims he never received any notice of non-renewal until after his accident. Alexander does admit he received notice of non-renewal after the accident— the first notice was postmarked September 24, 2008; the second notice was postmarked October 1, 2008.

¶ 3. On February 26, 2010, Alexander filed a complaint against AIG and other defendants, alleging negligence, breach of contract and fiduciary duty, and fraud in the inducement by the defendants. On May 7, 2010, AIG, 21st Century, and Granite State filed an answer, denying Alexander’s claims. Watson and Career General also filed separate answers to the complaint.

¶ 4. AIG, 21st Century, and Granite State filed a joint motion for summary judgment on March 24, 2011, and Watson and Career General filed a joint motion for summary judgment on April 11, 2011. The circuit court granted the defendants’ motions for summary judgment on June 25, 2012, finding that AIG had provided valid proof of a certificate of mailing of the notice and that Alexander failed to rebut this evidence by demonstrating he had not received timely notice of the non-renewal.

¶ 5. Alexander appeals the circuit court’s grant of summary judgment, claiming that a genuine issue of material fact existed as to whether he received proper notice of the non-renewal and as to whether the agent’s representations to Alexander were negligent. He also argues that AIG was required to issue an amendatory endorsement under the policy. Finding no genuine issue of material fact exists, we affirm the circuit court’s grant of summary judgment.

STANDARD OF REVIEW

¶ 6. A circuit court’s grant of summary judgment is reviewed de novo. Stribling v. Rushing’s Inc., 115 So.3d 103, 104 (¶ 5) (Miss.Ct.App.2013) (citing Byrne v. Wal-Mart Stores Inc., 877 So.2d 462, 464 (¶ 3) (Miss.Ct.App.2003)). Viewing the evidence in the light most favorable to the nonmov-ant, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (citation omitted) (quoting M.R.C.P. 56(c)).

When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

M.R.C.P. 56(e).

DISCUSSION

I. Whether the circuit court erred in finding that a bulk mail certificate was conclusive evidence of Alexander’s receipt of notice.

1(7. AIG supported its motion for summary judgment with a United States Postal Service certificate of mailing that showed a document (the notice of non-renewal) was mailed to the listed policy address for Alexander on June 17, 2008. In granting the motion for summary judgment, the circuit court relied on Mississippi Code Annotated section 83-11-9 (Rev. 2011), which states: “Proof of mailing of notice of cancellation, or of intention not to renew, or of reasons for cancellation to the named insured by a certificate of mailing, at the address shown in the policy, shall be sufficient proof of notice.”

¶8. However, the circuit court recognized that this statutory language was not conclusive of the issue. In Carter v. Allstate Indemnity Co., 592 So.2d 66, 67 (Miss.1991), the Mississippi Supreme Court submitted that the production of the certificate of mailing “is not conclusive proof of the insured’s receipt of a cancellation notice; rather, the certificate simply constitutes a presumption that the insured received notice.” This presumption may be rebutted by the insured, “creating] a triable issue of fact.” Id. Nonetheless, the supreme court in Carter concluded that “mere denial of receipt is insufficient to create a triable issue of fact.” Id. at 75. Citing Carter, the circuit court in the present case determined that Alexander’s mere assertion he did not receive the notice of non-renewal until after the accident was “not enough to rise to the level of factual disparity-[and does] not satisfy the burden of rebuttal required by the Mississippi Supreme Court[.]”

¶9. Alexander contends that he “produced sufficient evidence to rebut the presumption of receipt of mailing.” Alexander’s mother, Childa Stevens, whose home address was listed on the policy, testified in an affidavit that she did not receive a notice of non-renewal until October 1, 2008. We observe in the record that prior to the non-renewal in August 2008, Stevens had received notices that premium payments were due and that failure to pay would result in cancellation. These notices had the same address on them. The premium payments were paid by Stevens, and Alexander’s coverage was reinstated. The certificates of mailing for these notice of cancellations are also included in the record. Thus, it would appear Stevens received notices and mailings prior to the non-renewal of the policy mailed on June 17, 2008.

¶ 10. Stevens, however, contended that she did not learn of the policy’s non-renewal until after the accident. To support this claim, two notices of non-renewal with postmarked envelopes dated September 24, 2008, and October 1, 2008, respectively, were provided in the record. Moreover, when Stevens called AIG to inquire further about the matter, the insurance company’s automated telephone system stated that coverage was in effect and that no premium payments were owed. Stevens contacted Watson, and transcripts of their recorded conversations reflect that Watson received the same automated information when he contacted AIG — that the policy was still in effect. However, except for the automated recording, no one from AIG ever represented to Stevens or Watson that the policy was in effect after August 28, 2008; nor was there any reliance to Alexander’s detriment based on the automated recording’s erroneous information. The accident had already occurred by the time the recordings were heard. When Stevens spoke to a customer-service representative, she was told that Alexander had no coverage after August 28, 2008. Watson also testified that he never relied on his computer as to whether someone had coverage; he stated he always called the claims center because they have the “up-to-the-minute information on their screen.” Based on this information, we concur with the circuit court’s decision that Alexander failed to provide sufficient evidence to create a triable issue of fact to overcome the presumption of notice. Furthermore, we find no genuine issue of material fact exists regarding whether the policy was still in effect as of the date of the accident.

¶ 11. Accordingly, we find no error in the circuit court’s finding that the certificate of mailing was conclusive proof of receipt of notice.

II. Whether the circuit court committed error in finding AIG’s failure to issue an amendatory endorsement complied with policy provisions and Mississippi law.

¶ 12. Alexander alleges that AIG should have issued an amendatory endorsement to reflect the underwriting change to the policy (regarding the non-coverage of single-vehicle policies). However, since the underwriting change resulted in the non-renewal of the policy, there no longer existed any policy for AIG to amend. As AIG notes in its brief: “If [Alexander were] correct, an insurer would have to issue an endorsement on a policy which was no longer being written, in order to non-renew a policy. Since endorsements are only added to policies, and not issued by themselves, [Alexander’s] entire argument is contrary to established law.”

¶ 18. We agree with AIG’s position. The purpose of a rider or endorsement to an insurance policy “is to make additions to a policy which are actually for the purpose of modifying the general terms of the policy, and therefore, being specific, control the more general terms of the policy.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 400 (5th Cir.2008) (citation and quotation marks omitted). “An endorsement thereby ‘controls the policy insofar as it enlarges, modifies or restricts the terms’ of the policy.” Id. (quoting Camden Fire Ins. Ass’n v. New Buena Vista Hotel Co., 199 Miss. 585, 598, 24 So.2d 848, 850 (1946)). Here, there simply was no policy after the non-renewal.

¶ 14. Accordingly, we find Alexander’s argument to be without merit.

III. Whether the circuit court committed error in granting summary judgment.

¶ 15. In his response to the motion for summary judgment, Alexander contended there were several genuine issues of material fact. We have already addressed the issue of whether Alexander was provided timely notice of the non-renewal, finding that Alexander failed to raise a genuine issue of material fact to rebut the presumption that he received notice of the non-renewal.

¶ 16. Alexander also argues that the lienholder on the vehicle, Renasant Bank, failed to receive statutorily required notice. Mississippi Code Annotated section 83-11-7 (Rev.2011) states: “No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy and to the named creditor loss payee, at least thirty (30) days’ advance notice of its intention not to renew." (Emphasis added).

¶ 17. It is not disputed that the insurance policy did not list a named loss payee/lienholder, and AIG adamantly states that it had no notice that there was a lienholder. In its reply to Alexander’s response to the motion for summary judgment, AIG remarked: “Defendants will acknowledge that the lienholder did not get a notice of renewal, for the reason that no lienholder was provided them by either Alexander or Watson.” The insurance application sent to AIG did not have a lien-holder listed; consequently, there is no named lienholder/loss payee listed on the policy.

¶ 18. When questioned at his deposition, Alexander confessed he did not inform Watson of any lienholder.

Q. Well, do you know if — do you even know if [Renasant Bank] were — did you ever tell Mr. Watson, hey, I’ve got a bank and they may need to be a los[s] payee on this or they may need to be on my policy, too? Anything like that?
A. No.

Although Watson stated that he always inquired as to whether there is a lienholder, he did not recall if there was a lien-holder in this instance. At his deposition, Watson discussed the normal application process in regard to a lienholder:

A. I always ask them if there is a lien and if they say there is, we have to get the information because we have to — the insurance company sends the lienholder a copy of the declaration] page.
Q. If it’s not on there in that preformed application, you can’t send them that, can you?
A. I would ask — I would ask everybody — I have always asked everybody if there is a lien against the vehicle because the company wants to send them information off the declaration] page. And if they say yes, I get Renasant Bank or whoever.
Q. If you would, look at that application and tell me is there anything on that application that would say that you obtained that information?
A. I don’t see it on there.
Based on what’s on that application, there is not a place on that application that I see for the lienholder.
Q. AIG would not have that information if you did not place it on that application, would they?
A. Yes, they would, because I ask everybody that I write. And if they say there’s a lienholder on it, I take that information and I supply it to AIG or GuideOne or whoever.
Q. Separate from the application?
A. That’s right, because I would — usually, a fax set-up because the lienholder is going to be calling and asking for it anyway.
Q. Do you have knowledge in this particular case whether or not there was a lienholder?
A. I don’t recall whether there was or not.
Q. And it’s my understanding that[,] ... to your knowledge!,] no bank ever called your agency and you to verify insurance coverage on this vehicle?
A. I don’t recall.
Q. And to your knowledge[,] there was no lienholder on this vehicle?
A. I do not recall [Alexander] answering that question [“]yes[”].

(Emphasis added). The application in this instance did not have a question or place to list a lienholder; however, one question did ask whether the vehicle was “title or registered in any name other than the applicant!)]” This question was answered in the negative.

¶ 19. Although AIG denied that Watson was acting as its agent, Watson was responsible for compiling the insurance application and forwarding it to AIG/21st Century for approval and establishment of the policy. Watson also testified that he received a commission for selling the policy. With respect to insurance, Mississippi defines agency liberally, stating that any insurance producer licensed to sell or negotiate insurance in the state of Mississippi is considered an agent. See Miss.Code Ann. § 83-17-1(a) & (f) (Rev.2011). Furthermore, the supreme court has held: “Knowledge acquired by a soliciting agent in the course of his employment in soliciting insurance, preparing and transmitting applications, delivering policies, etc.[,] is ordinarily imputed to the company.” Steinwinder v. Aetna Cas. & Sur. Co., 742 So.2d 1150, 1154 (¶ 17) (Miss.1999) (citing Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180 (Miss.1990)). However, Watson never said that he was aware that there was a lienholder.

¶ 20. There is only one piece of evidence contained in the record that Watson, as an agent for AIG, may have known Renasant Bank was the lienholder — another copy of the application for the insurance policy that had the lienholder’s name and address handivritten on it. This appears to be the copy sent to the bank, verifying insurance. The bank’s verification of insurance, dated August 29, 2007, is signed by Brenda McCreight, a cashier for Rena-sant Bank. Regarding the application of insurance that listed the lienholder, McCreight testified in an affidavit: “The handwriting depicted on this document is not my handwriting the handwriting of the agency who verified the coverage.” From this somewhat ambiguous statement, we presume Brenda was asserting that the agent, Watson, wrote the name of the lien-holder ofi> the application that was sent to the bank for proof of insurance. Watson, however, has never verified that the handwriting on the application was his. Therefore, there is some evidence, albeit slight, that establishes a factual dispute as to knowledge of a lienholder by Watson and AIG.

¶ 21. Nevertheless, there was clearly no lienholder/loss payee named in the insurance policy, and Alexander has provided no evidence to the contrary. As the insured, Alexander had an obligation to read his policy, although he admits that he did not do so. He could have been alerted to the fact that Renasant Bank was not listed as the lienholder/loss payee in the policy. “[KJnowledge of an insurance policy is imputed to an insured regardless of whether the insured read the policy.” Mladineo v. Schmidt, 52 So.3d 1154, 1161 (¶ 26) (Miss.2010). While there are exceptions to the duty to read a policy, the failure to list the loss payee/lienholder in this policy could have been easily discovered had Alexander (or Stevens) simply given the insurance policy a cursory glance. But see id. at 1162-63 (¶¶ 29-32) (Since an insurance agent’s misrepresentations could not have been ascertained by an actual reading of the policy by the insured, summary judgment was improperly granted.). “[A] contracting party “will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.’ ” See id. at 1165 (¶ 42) (quoting Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 83 (¶ 14) (Miss.2003)).

¶ 22. Furthermore, Renasant Bank was never a party to the present cause of action. As AIG notes in its brief, the failure to give Renasant Bank notice merely provides the lienholder with a cause of action, not Alexander. We find this argument by AIG to be well-reasoned. While the facts in this case are somewhat unique and afford scant case authority to guide us, there is case law that supports AIG’s claim. The Arizona Court of Appeals has held that the failure to notify a mortgagee or lienholder of the cancellation of a policy does not “negate a proper cancellation as to the insured.” Bryce v. St. Paul Fire & Marine Ins. Co., 162 Ariz. 307, 783 P.2d 246, 247 (Ariz.Ct.App.1989). “Failure to give proper notice to a mortgagee is a defense to cancellation of a policy available to that mortgagee. However, that defense is not available to the insured.” Id. (citing Szymczak v. Midwest Premium Fin. Co., 19 Ohio App.3d 173, 483 N.E.2d 851, 855-56 (1984)). Accordingly, the Arizona appellate court held that there was no coverage at the time of the loss since the insured’s policy interest “was properly cancelled.” Id.; see also Western Exp. Inc. v. Interested Underwriters at Lloyd’s, London, 942 S.W.2d 542, 544 (Tenn.Ct.App.1996) (Although statutory authority “might provide a defense to cancellation for the lienholders[,] ... the failure to notify the lienholders d[oes] not provide a defense to the insured.”); Wisniewski v. State Farm Gen. Ins. Co., 25 Wash.App. 766, 609 P.2d 456, 458 (1980) (A statutory notice of cancellation of a fire-insurance policy mailed to the insureds was effective as to them, even though the insurer did not mail notice of cancellation to the lienholder.).

¶ 23. Consequently, we do not find that this factual issue warrants a reversal of the circuit court’s finding that AIG was entitled to a judgment as a matter of law. We have already determined that Alexander has not sufficiently rebutted the presumption that he received notice. Moreover, we find that the failure to provide Renasant Bank with notice of non-renewal under section 83-11-7 does not provide Alexander with any rights or cause of action regarding the policy coverage. Based on these facts and the applicable law, we cannot find that AIG’s failure to provide Renasant Bank a timely notice of non-renewal created a genuine issue of material fact, precluding summary judgment.

¶ 24. Alexander additionally claims that the agent, Watson, was negligent by failing to provide the requested coverage for the Malibu. Specifically, Alexander contends that Watson was informed to add the Malibu to existing policy coverage for Alexander’s Chevrolet pickup truck. We find no merit to this argument. Regardless of what Watson was told, the insurance-policy application clearly noted that only one vehicle, the Malibu, was being insured. Alexander admits that he never read the application when he signed it; he also confesses that he never read the actual policy. As we have already noted above, “a party has a duty to read an insurance contract[,] and knowledge of the contract’s terms will be imputed to the party even if [he] does not read it.” Frye v. S. Farm Bureau Cas. Ins. Co., 915 So.2d 486, 492 (¶ 22) (Miss.Ct.App.2005) (citing Hutton v. Am. Gen. Life & Acc. Ins. Co., 909 So.2d 87, 96 (¶ 25) (Miss.Ct.App.2005)). Consequently, we find no genuine issue of material fact exists regarding the agent’s representation of the policy’s coverage.

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

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

      . The details of Alexander's automobile policy are somewhat complicated. Alexander purchased his AIG policy through a local insurance agent — "Career General Agency Incorporated d/b/a Fred Watson Agency." Watson was a "captive agent” for GuideOne Insurance, through which he wrote standard policies. However, Watson also contracted with other "non-standard” insurance companies to obtain policies for clients who did not qualify for a standard policy (e.g., someone with a bad driving record or DUI). Alexander’s policy was provided through 21st Century Insurance (21st Century), formerly the automobile insurance branch of AIG. According to the record, coverage was underwritten by Granite State. However, for clarity purposes, we will refer to the appellees as a whole as "AIG,” unless otherwise indicated.

      . This notice complied with the policy requirements, which stated that if the insurance company decided not to renew the policy for any reason other than nonpayment of premiums, it would mail, within thirty days before the end of the policy period, "notice to the named insured shown on [the] Declarations Page at the last known address shown in [its] records.”

      . Alexander's complaint was filed against Career General; AIG, and its successor in interest, 21st Century; Granite State; and Fred Watson, in his capacity as an agent and individually.

      .United Postal Service Form 3877, dated June 17, 2008, showed that 5,331 items were mailed on that day. The form listed the policy number, name, address, and effective cancellation date for each item mailed. Listed as item number 02551 was Alexander’s policy number, name, and mailing address. The form also included the policy cancellation date, which was August 28, 2008, and the amount of postage used to mail the letter (forty cents). Another page, signed by a postal employee, certified receipt by the postal service of the bulk mailing that contained the 5,331 items. This official form is typically used to establish proof of mailing. See Hunt v. State Farm Mut. Auto. Ins. Co., 373 Ill.Dec. 792, 994 N.E.2d 561, 571 (Ill.App.Ct.2013) (The Postal Services' “Domestic Mail Manual permits a mailer to use any of three possible forms when requesting a certificate of mailing for three or more pieces presented at one time: the postal provided Form 3877, a privately printed facsimile, or a privately printed Form 3877 that contains the same information as the postal printed form.”); Echavarria v. Nat’l Grange Mut. Ins. Co., 275 Conn. 408, 880 A.2d 882, 888 (2005) (Since "[t]he defendant’s log sheet mirror[ed] the United States Postal Services’ Form 3877 and complie[d] with all of the requirements for certificates of mailing that are listed in the Domestic Mail Manual[,] ... the trial court properly concluded that it was a statutorily correct method.”). Section 83-11-9, however, does not set forth any specifications as to what types of certificates of mailing are sufficient or insufficient.

      . The supreme court's holding was that the section 83-11-9 proof of notice shall be sufficient “absent countervailing evidence of sufficient weight to rebut the presumption that it was received.” Carter, 592 So.2d at 75. However, the Carter court stopped short of requiring "a showing of conclusive proof that the insured actually received the notice,” noting that such a requirement “could lead to a plethora of unforeseen problems,” such as purposeful avoidance of receipt of cancellation by the insured. Id. at 75 n. 4.

      . In Employers Mutual Casualty Co. v. Nosser, 250 Miss. 542, 168 So.2d 119, 121 (1964), Chief Justice Lee, in a dissenting opinion, posed what this Court finds to be a pertinent and thought-provoking question: "[H]ow pray tell” is the insured "to deny the mailing other than by his sworn testimony that it was not delivered!?]” The Carter court did not answer this question.

      .The address on the insurance policy was Alexander’s mother’s home address in Okolo-na, Mississippi. Alexander testified in his deposition that he had not lived at that address since 1998; he lived in Houlka, Mississippi. He also said that his mother was responsible for paying the premiums. In fact, he claimed that Stevens had submitted all the information to Watson for the insurance application. Regarding the application, Alexander testified: "And I just signed it. You know, I didn’t really read it.” He also admitted that he had not read his insurance policy.

      . No insurance premium payment was made past July 27, 2008. Alexander testified that his mother had given him his insurance identification card in 2007 and admitted he never received a new card after the renewal date of August 28, 2008. He said it never occurred to him to ask his mother or Watson about receiving an updated insurance card after this date.

      . The notices are copies of the June 17, 2008 notice. Receipt of these copies in September and October are not proof that the original notice had never been sent; these latter notices may well have been sent in response to inquiries made by Stevens regarding coverage for the accident.

      . In his brief, under Issue I, Alexander also makes an argument regarding notice to the lienholder. However, for ease of discussion, we address this argument in Issue III, which concerns other arguments against the court's granting of summary judgment.

      . As of June 22, 2010, Alexander still owed a principal balance of $769.63 on the loan to Renasant Bank for the vehicle in question. The maturity date for the loan was September 5, 2010.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Brian David BRADSHAW a/k/a Brian Bradshaw a/k/a Brian D. Bradshaw, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00055-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Rehearing Denied May 6, 2014.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On April 5, 2012, a Harrison County jury convicted Brian David Bradshaw of the murder of Benny Johnston. The circuit court sentenced Bradshaw to life in the custody of the Mississippi Department of Corrections. Bradshaw filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, which the circuit court denied. Feeling aggrieved, Bradshaw appeals and argues that (1) the jury’s verdict is against the overwhelming weight of the evidence; (2) the circuit court improperly suppressed Johnston’s blood-toxicology results; and (3) the circuit court erred in giving jury instruction S-12 to the jury.

¶ 2. Finding no error, we affirm.

FACTS

¶3. On April 15, 2010, Bradshaw and Sean Merritt lived with Merritt’s sister, Cali Merritt, in Gulfport, Mississippi. Cali was also Bradshaw’s girlfriend at the time, and they have two children together. Earlier during the day, Merritt and Cali visited with Tiffany Jordan, a friend of Cali’s, at Jordan’s home, where they became reacquainted with Johnston. During the visit, Johnston agreed to assist Merritt with babysitting for Cali and Jordan when they went to work later that evening. Merritt, Johnston, Cali, and the children returned to Cali’s home. Merritt cooked dinner while Johnston cleaned the house.

¶ 4. After the women left for work, Bradshaw came home from work. He drank beer and used drugs with Merritt and Johnston. Later that evening, the men assisted one another in getting the children ready for bed. One of the children complained that she could not sleep. Merritt took the child for a walk, leaving Bradshaw and Johnston at the home to watch the other children. When Merritt returned to the home, Bradshaw and Johnston were arguing in the living room.

¶ 5. At trial, Merritt testified that he did not know what the argument between Bradshaw and Johnston was about and that neither seemed to want to talk to him about the argument. He initially tried to calm the men down but then left the room to put the child, who had been unable to sleep, back to bed. When he returned to the living room, Merritt noticed that Bradshaw and Johnston were still arguing. In an effort to diffuse the situation, Merritt invited Johnston to the garage to smoke, and Johnston agreed. Merritt stated that as he and Johnston were entering the garage, Johnston turned to him to ask for a “cigarette or for a lighter or something,” and he “heard [Johnston] get hit in the head.” He watched Johnston fall to the ground. When he approached Johnston to check for a pulse, Johnston started having convulsions. When the convulsions stopped, Merritt checked to see if Johnston was still breathing. He testified that it was difficult to determine whether Johnston had a pulse because his “own heart was beating so hard.”

¶ 6. Merritt left the garage to check on the children. When he returned to the garage, he noticed that Johnston “had bled a lot by that point” and was not breathing. At this point, Bradshaw entered the garage and stabbed Johnston in the back of his neck. Merritt and Bradshaw loaded Johnston’s body into the back of Bradshaw’s work van and drove to Mount Olive, Mississippi, where they dumped Johnston’s body. Merritt noted that Bradshaw is left-handed.

¶ 7. Cali testified that she called Merritt, Johnston, and Bradshaw on the phone from work throughout the night of the murder. She stated that Bradshaw told her that he and Johnston were arguing but that Johnston later told her that the argument was over. When she got home from work, Johnston’s body was not in her garage, Merritt and Bradshaw were gone, and there was a hole in a wall in the living room. Cali also stated that Bradshaw is left-handed.

¶8. Investigator Joe Sturm, with the Harrison County Sheriffs Office, testified that he was not officially involved with Bradshaw’s case until April 19, 2010, when he took Bradshaw’s statement. On April 19, 2010, Harrison County law enforcement officials questioned Bradshaw at the sheriffs office. During a break in questioning, Bradshaw knocked on Investigator Sturm’s office door and told him that “he wanted to talk.” Investigator Sturm took Bradshaw back to the interview room and took Bradshaw’s statement. According to Bradshaw, on the night of the incident, he and Johnston were “drinking some Canadian Mist whiskey and doing drugs.” One of Bradshaw’s children had awoken, come out of the bedroom, and complained about being unable to sleep. Johnston allegedly told the child to “shut up and go back into the bedroom.” Johnston’s comment to the child angered Bradshaw, which led him to confront Johnston. Bradshaw told Investigator Sturm that Johnston “forced him into the garage” during the confrontation. As they entered the garage, Bradshaw picked up a baseball bat and hit Johnston in the back of the head. Johnston fell to the floor and began convulsing. Bradshaw stated that he stabbed Johnston to “put him out of his misery.”

¶ 9. Dr. Paul McGarry, an expert in forensic pathology, performed the autopsy on Johnston’s body. At trial, he testified that Johnston had no defensive wounds on his body, which signified that he was not “aware that he [was] in danger of being attacked.” Based on the location of the injury to Johnston’s head, Dr. McGarry opined that Johnston was hit from behind by someone who is left-handed. Dr. McGarry also testified regarding the extent of Johnston’s injuries. According to Dr. McGarry, when Bradshaw hit Johnston with the baseball bat, Bradshaw fractured Johnston’s skull and part of “the bone had been driven into the brain cavity.” This injury would have caused unconsciousness and “convulsive seizures to make [Johnston] shake and jerk.” However, according to Dr. McGarry, Johnston “could have survived that [injury].” Dr. McGarry opined, to a reasonable degree of medical certainty, that the cause of death was “the stab wound to the back of the neck[,] severing the spinal cord.”

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. New Trial

¶ 11. Bradshaw contends that the circuit court erred in denying his motion for a new trial. He argues that, at most, the evidence supports a manslaughter conviction, as opposed to a murder conviction, because he killed Johnston in the “heat of passion.”

¶ 12. A motion for a new trial challenges the weight of the evidence. Woodard v. State, 765 So.2d 573, 576 (¶ 16) (Miss.Ct.App.2000). A “motion for a new trial is addressed to the discretion of the [circuit] court, and .... should be invoked [sic] only in exceptional cases in which the evidence preponderates heavily against the verdict.” Weatherspoon v. State, 56 So.3d 559, 564 (¶ 20) (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)). When reviewing a challenge to the weight of the evidence, appellate courts should weigh the evidence in the light most favorable to the jury’s verdict and should “only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 13. Here, the jury convicted Bradshaw of deliberate-design murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). According to Bradshaw, the jury’s verdict is against the overwhelming weight of the evidence because there was no evidence of deliberate design or premeditation, as “[he] and Johnston were engaged in mutual combat and [were] both under the extreme influence of drugs and alcohol.” Because Johnston sustained two injuries, it is important to remember Dr. McGarry’s testimony that, even though the brain injury was serious, the cause of Johnston’s death was the stab wound to the back of Johnston’s neck. Bradshaw’s argument that the verdict is against the overwhelming weight of the evidence fails for a number of reasons.

¶ 14. First, the law of this State has long been “that voluntary intoxication by a defendant should not be permitted as a defense if a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of reason by intoxication, and commits an offense while in that condition.” Sanders v. State, 63 So.3d 554, 570 (¶ 52) (Miss.Ct.App.2010) (quoting Stamper v. State, 803 So.2d 1194, 1197 (¶8) (Miss.Ct.App.2000)) (internal quotation marks omitted). There is no evidence that Bradshaw was forced to ingest any drugs or alcohol. Therefore, any intoxication on his behalf was voluntary and cannot be used to reduce this crime from murder to manslaughter.

¶ 15. Second, there is no evidence that Bradshaw and Johnston were engaged in “mutual combat” at the time that Bradshaw killed Johnston. Uncontradicted testimony revealed that the argument between Bradshaw and Johnston was over prior to Johnston’s death. Merritt testified that Johnston had walked away from the confrontation with Bradshaw, and Bradshaw hit Johnston in the back of the head after Johnston walked away. Additionally, as Johnston lay on the floor of the garage, Bradshaw left the garage, retrieved a knife, returned to the garage, and stabbed Johnston in the back of the neck, killing him. According to our review of the record, the evidence demonstrates that at the time of his death, Johnston was incapable of engaging in “mutual combat.”

¶ 16. Third, the Mississippi Supreme Court has stated that “deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent[.]” Windham v. State, 520 So.2d 123, 126 (Miss.1988). Also, our supreme court has held that “[d]eliberate design, as a matter of law, may be inferred through the intentional use of any instrument which[,] based on its manner of use, is calculated to produce death or serious bodily injury.” Jones v. State, 39 So.3d 860, 866 (¶ 32) (Miss.2010) (quoting Wilson v. State, 936 So.2d 357, 364 (¶ 17) (Miss.2006)).

¶ 17. After Bradshaw hit Johnston in the head with the baseball bat, he left Johnston lying on the floor of the garage while he went to get a knife, a deadly weapon. Bradshaw admitted in his confession to Investigator Sturm that he stabbed Johnston in the neck with the knife, which was the cause of death in this case, to “put him out of his misery.” Examining the evidence in the light most favorable to the jury’s verdict, we cannot say that the circuit court abused its discretion in denying Bradshaw’s motion requesting a new trial or that allowing the verdict to stand would sanction an unconscionable injustice. Accordingly, this-issue is without merit.

II. Toxicology Results

¶ 18. Prior to trial, the circuit court conditionally granted the State’s motion in limine seeking to prohibit Bradshaw from introducing the results of Johnston’s toxicology screening. Specifically, the court stated:

With regard to the [Sjtate’s motion in limine regarding toxicology results, intoxication of the victim in and of itself is irrelevant. It does appear, pursuant to argument this morning, that there will be testimony that the victim was using drugs and alcohol on or about the date of the alleged crime. Alcohol and amphetamines [ajffect people differently, and as of now there is no evidence that they increase the propensity of violence or aggression. Moreover, at this time there is no evidence presented that alcohol and/or amphetamines are linked to a propensity to violence either generally or specifically as to this victim. Therefore, absent any evidence to that effect pursuant to [Mississippi Rules of Evidence] 401, 402, and 403, the motion is granted unless a predicate is laid that alcohol and/or drugs, specifically amphetamines, increases the propensity for violence. Alternatively, and as far as [Mississippi Rule of Evidence] 404 applies that in regard to character evidence if an overt act is shown, then the toxicology results and levels are admissible.

Bradshaw contends that the circuit court’s ruling prevented him from presenting his theory of defense to the jury.

¶ 19. “[Appellate courts] review[] the [circuit] court’s admission or exclusion of evidence for abuse of discretion.” Pauley v. State, 113 So.3d 557, 560 (¶ 3) (Miss.2013) (citing Jenkins v. State, 102 So.3d 1063, 1065 (¶7) (Miss.2012)). “[UJnless this judicial discretion is so abused as to be prejudicial to the accused, then the ruling of the [circuit] court must be affirmed.” Rouster v. State, 981 So.2d 314, 318 (¶ 9) (Miss.Ct.App.2007) (quoting Francis v. State, 791 So.2d 904, 907 (¶ 7) (Miss.Ct.App.2001)). Based on the record, we cannot say that the circuit court abused its discretion in excluding Johnston’s toxicology results.

¶20. It is undisputed that Johnston used amphetamines and drank alcohol on the night of his death. However, our supreme court has held, and this Court has reenforced, that “evidence of the intoxication of the deceased is irrelevant where the testimony shows that the defendant was the aggressor, or there is no testimony evincing the necessity for the accused to kill the deceased.” Id. at 319 (¶ 14) (quoting Shinall v. State, 199 So.2d 251, 259 (Miss.1967) (overruled on other grounds)). Bradshaw never established the relevancy of Johnston’s toxicology results. Although Bradshaw’s trial attorney argued prior to trial that the toxicology results would support a theory of self-defense, Bradshaw never claimed that he killed Johnston in self-defense. Throughout trial, Bradshaw maintained that he killed Johnston in the heat of passion. Therefore, Johnston’s toxicology results remained irrelevant. Accordingly, this issue is without merit.

III. Instruction S-12

¶ 21. Bradshaw argues that the circuit court erred in giving jury instruction S-12 to the jury because it is an improper statement of the law. Instruction S-12 reads as follows:

The Court instructs you that words alone and disagreements among people are not enough to invoke the passion required for the defense of Heat[-]of[-]Passion Manslaughter. Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.

(Emphasis added). Our standard of review for jury instructions is well settled:

The Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole. A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Westbrook v. State, 29 So.3d 828, 835 (¶ 25) (Miss.Ct.App.2009) (quoting Wallace v. State, 10 So.3d 913, 916 (¶ 9) (Miss.2009)).

¶ 22. According to Bradshaw, instruction S-12 is improper because it contradicts the definition of heat-of-passion manslaughter, which is defined as:

[A] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts oí one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment[,] or terror.

Id. at 835 (¶ 26) (emphasis added) (quoting McCune v. State, 989 So.2d 310, 319 (¶ 15) (Miss.2008)). Despite the apparent conflict between the heat-of-passion manslaughter definition and instruction S-12, instruction S-12 is not an improper statement of the law.

¶ 23. Our supreme court has held that “words alone and disagreements among people are not enough to invoke the passion required for [heat-of-passion manslaughter]. ‘Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.’ ” Phillips v. State, 794 So.2d 1034, 1037 (¶ 10) (Miss.2001) (quoting Gates v. State, 484 So.2d 1002, 1005 (Miss.1986)). This Court has repeatedly reaffirmed the supreme court’s holding. See Cole v. State, 118 So.3d 633, 640 (¶ 29) (Miss.Ct.App.2012); Robinson v. State, 40 So.3d 570, 576 (¶24) (Miss.Ct.App.2009); Myers v. State, 832 So.2d 540, 542 (¶ 10) (Miss.Ct.App.2002). Therefore, instruction S-12 simply tracks the language found in cases regarding heat-of-passion manslaughter, and the circuit court did not err in giving instruction S-12 to the jury. This issue is without merit.

¶ 24. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Merritt testified that Johnston grew up in the same neighborhood as he and Cali but that he and Cali had not seen Johnston in several years.


author: GRIFFIS, P.J.,

text:
    In the Matter of the Last Will and Testament of Johnnie Lee JONES, Deceased. Bonnie Jones Dixon, Appellant v. Annie Ruth Jones, Appellee.
    No. 2012-CA-01992-COA.
    Court of Appeals of Mississippi.
    April 29, 2014.

      Julie Ann Epps, Canton, E. Michael Marks, Jackson, attorneys for appellant.

      W. Clayton McDonough, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case seeks to resolve whether the deceased Johnnie Lee Jones’s wife or daughter is entitled to possession of his former home. His will leaves a life estate in the home to his wife. But two other documents — an antenuptial (or prenuptial) agreement and a quitclaim deed — provide evidence of an intention that his daughter should have the house. The wife was awarded possession of the home under the will, as the chancellor found that neither document evincing an intent that the daughter should have the home was legally binding. The daughter now appeals. We find no error and affirm.

FACTS

¶ 2. On March 19, 1997, prior to Johnnie’s marriage to Annie Ruth Jones, the couple signed an antenuptial agreement. The agreement expressed an intention that Johnnie’s daughter from a prior relationship, Bonnie Jones Dixon, was to receive his home upon his death. The antenuptial agreement states “that the house owned by JOHNNIE LEE JONES, 171 Vine Street, is to go to his daughter, BONNIE JONES DIXON ... upon his death, even if he is married to ANNIE RUTH BROWN at that time.” It similarly provided that Annie’s property owned prior to the marriage was not joint property and could be left to the devisee of her choice. The couple married in June 1997.

¶ 3. On September 16, 1998, while married to Annie, Johnnie executed a will leaving Annie a life estate in the Vine Street home:

I own a house where I presently reside at 171 Vine Street, Jackson, Mississippi, which is in my name alone, and I leave this to my wife, ANNIE RUTH JONES, to live in until her death. The house then goes to my sister, ELIZA MAE WEBSTER, of Chicago, Illinois.

The will also revoked “any and all previous wills and/or testaments.” Johnnie and Annie lived together in the home following their marriage, and, beginning in 2001, claimed the home as their homestead.

¶ 4. Then, on December 14, 2005, Johnnie signed a quitclaim deed conveying the Vine Street home to himself and Bonnie, in fee simple and as joint tenants with rights of survivorship. The quitclaim deed was not signed by Annie, although the two were still married at the time. The quitclaim deed states:

For and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid and other good an valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the undersigned JOHNNIE LEE JONES, GRANTOR, does hereby sell, convey and quitclaim unto JOHNNIE LEE JONES and BONNIE MICHELLE DIXON, GRANTEES, as joint tenants with rights of survivorship and not as tenants in common, fee simple title in and to the ... real property located and situated in Hinds County, Mississippi,] ... together with all improvements situated thereon and all appurtenances thereunto belonging.

¶ 5. Johnnie died on January 22, 2011. On November 29, 2011, Annie moved to probate the will in the Hinds County Chancery Court. During this time, Annie continued to live in the Vine Street home. The following month, on December 28, 2011, Bonnie filed a motion for a declaratory judgment within the estate matter, seeking to establish herself as the rightful owner of the Vine Street home. Bonnie also sought damages “in excess of $7,000.00” against Annie, arguing that she had “committed intentional acts of destruction and defacement of the subject property” while living there. In support of her argument that she was the home’s rightful owner, Bonnie presented the antenuptial agreement and the quitclaim deed.

¶ 6. On January 17, 2012, before ruling on Bonnie’s motion, the chancellor admitted the will to probate. Eleven months later, on November 29, 2012, the chancellor denied the declaratory-judgment motion. The chancellor found that neither the antenuptial-agreement provision nor the quitclaim deed was legally enforceable, leaving Bonnie with no claim of ownership to the home. First, the chancellor found the 1997 antenuptial-agreement provision cited by Bonnie was a prior testament that was expressly revoked by Johnnie’s 1998 will. And second, the quitclaim deed was statutorily void because it did not bear both Johnnie’s and Annie’s signatures. Bonnie appeals.

STANDARD OF REVIEW

¶ 7. “This Court employs a de novo standard of review when reviewing questions of law, including motions for [a] declaratory judgment.” Tunica Cnty. v. Hampton Co. Nat’l Sur., 27 So.3d 1128, 1131 (¶ 8) (Miss.2009). A chancellor’s findings of fact will not be disturbed unless the chancellor applied the wrong legal standard, or the findings are manifestly wrong or clearly erroneous. Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993).

ANALYSIS

¶ 8. Bonnie argues that the provisions in the antenuptial agreement and quitclaim deed trumped her father’s will, giving her, not Annie, the superior right to possess the home left upon his death.

1. Antenuptial Agreement

¶ 9. Johnnie and Annie’s antenuptial agreement conflicts with Johnnie’s later-executed will, in that the former expresses his intent to leave the home to Bonnie, and the latter expresses his intent to leave a life estate in the home to Annie. The chancellor found the antenuptial provision leaving the home to Bonnie was a testamentary provision within the antenuptial contract. And, because the will revoked all previous testaments, the provision was accordingly revoked by will. Bonnie argues that the chancellor is incorrect for two reasons.

a. Whether the antenuptial-agreement provision was a testament revocable by the will.

¶ 10. First, Bonnie argues that the will’s revocation of all previous “testaments” only referred to personal property; thus, the antenuptial provision referencing real property was not revoked. The will does not state that the word “testament” only referred to personal property, and Bonnie cites no case law for this proposition. Rather, Bonnie cites a Wikipedia article and a dictionary definition outlining the historical use of the word “testament” to only include personal property. “Testament” has traditionally been defined as “a will disposing of personal property.” Black’s Law Dictionary 1612 (9th ed.2009).

¶ 11. Despite its historical use, however, we cannot find that in modern usage the word “testament” is limited to personal property. The testator’s intent should control, not semantics. The interchangeable nature of the words “devise” — traditionally referring to real property — and “bequeath” — traditionally referring to personal property — has been discussed as follows:

While recognition is given to the traditional meaning of the term “devise,” as denominating a testamentary gift of real estate, it has been held that the words “devise and bequeath,” in their ordinary legal meaning as well as in common usage, refer to real as well as personal property. Although the term “devise” is properly restricted to real property and is not applicable to testamentary dispositions of personal property, which are properly called “bequests” or “legacies,” this distinction will not be allowed in law to defeat the purpose of a testator, and all these terms may be construed interchangeably or applied indifferently to either real or personal property if the context shows that such was the intention of the testator.

80 Am.Jur.2d Wills § 1287 (2013) (citations omitted).

¶ 12. “The surest guide to testamentary intent is the wording employed by the maker of the will. Indeed, the intention of the testator is to be found, not in what he intended to say but what he did say.” In re Estate of Anderson, 541 So.2d 423, 428 (Miss.1989). The will unambiguously states that Annie is to inherit a life estate in the Vine Street home. The will further revokes all prior wills and testaments. By statute, a devise may be revoked by the testator’s subsequent will. Miss.Code Ann. § 91-5-3 (Rev.2013). We find the antenuptial-agreement provision leaving Bonnie the home was a devise, or testament, that Johnnie intended to revoke by the subsequent will.

¶ 13. Since the antenuptial-agreement provision was revoked by the will, the provision is void and gives Bonnie no claim of ownership to the home.

b. Whether Annie contractually renounced all rights to Johnnie’s home.

¶ 14. Bonnie next argues that Annie gave up any right to ownership of the Vine Street home by signing the antenup-tial-agreement provision that Bonnie would receive the home upon Johnnie’s death. Bonnie asserts that, regardless of Johnnie’s intent to will a life estate in the home to Annie, he was precluded from doing so because Annie had contractually renounced any right to future ownership of the home through this provision.

¶ 15. An antenuptial agreement is an enforceable contract. Mabus v. Mabus, 890 So.2d 806, 818 (¶ 53) (Miss.2003). As such, it is subject to modification in the same manner as any other contract. Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992). “Any contract, however made or evidenced, can be discharged or modified by subsequent agreement of the parties .... The existence and the terms of this modifying or discharging agreement can be proved by the same kinds of evidence that are admissible to prove any other kind of contract.” Id. (citation omitted).

¶ 16. Johnnie’s will modified the terms of the antenuptial agreement. The will left the home to Annie instead of Bonnie, directly contradicting the antenup-tial agreement. Because the two documents conflicted, the antenuptial-agreement provision was no longer enforceable once Johnnie’s will came into effect. Thus, even if Annie had contractually absolved herself of any right to the home at the time she signed the antenuptial agreement, this was no longer the case once the will became binding. The antenuptial-agreement provision was voided by the will, and the will’s gift of the home to Annie controlled.

2. Quitclaim, Deed

¶ 17. Bonnie argues that even absent the antenuptial-agreement provision, she is entitled to the home under the quitclaim deed. The quitclaim deed conveyed the property from Johnnie to Johnnie and Bonnie, in fee simple title with rights of survivorship. Bonnie asserts that this conveyance revoked the will’s provision leaving Annie the home. Bonnie asserts that Johnnie was free to revoke this provision of the will prior to his death, as he had conveyed no present interest in the home to Annie. Bonnie argues her father’s intent to convey the property to her after his death was clear, as the quitclaim deed gave her the right of survivorship.

¶ 18. While it may have been Johnnie’s intent to quitclaim the home to himself and Bonnie, and to Bonnie alone after his death, he did not legally do so. The quitclaim deed was signed solely by Johnnie. This was not sufficient under our law. Mississippi Code Annotated section 89-1-29 (Rev.2011) states: “A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.” (Emphasis added). In other words, “[n]o spouse may convey homestead property to third parties during the lifetime of the spouse without that spouse joining in the conveyance.” Ward v. Ward, 517 So.2d 571, 573 (Miss.1987). “[S]uch a conveyance is null and void ‘as to both the husband and wife.’ ” Id. (quoting Hughes v. Hahn, 209 Miss. 293, 298, 46 So.2d 587, 589 (1950)). See also Rush v. Rush, 360 So.2d 1240, 1244 (Miss.1978) (“[T]he owner of homestead property may, by will, dispose of it as he or she sees fit, but he or she could not thereby defeat his or her spouse’s right to occupy the same as a homestead under the statute.”).

¶ 19. Bonnie asserts, without citation to any authority, that since Johnnie alone signed the homestead-exemption applications, his wife, Annie, had no homestead rights. The applications, although signed by Johnnie alone, state that they are claiming homestead rights for Johnnie and Annie. We are unwilling to read the statute to require that both spouses sign a homestead application in order for it to be effective.

¶20. Bonnie also asserts that a binding contract, executed before homestead rights arise, runs with the land and trumps a subsequently acquired homestead right. Bonnie relies upon Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So.3 (1922), and Smith v. Smith, 193 Miss. 201, 8 So.2d 461 (1942). Neither applies to this case. Minor held that an option to purchase land, given before the grantor married, was superior to the subsequently created homestead rights of the spouse. Minor, 130 Miss. at 563-64, 94 So. at 4. Smith held that a contract (deed of trust) created before a marriage was superior to subsequently created homestead rights. Smith, 193 Miss. at 206, 8 So.2d at 462. Neither case controls this situation because both dealt with contracts creating unilaterally irrevocable rights in third parties at the time they were created. In the present case, the antenuptial agreement could be, and was, superseded by Johnnie’s actions in living in the home with Annie and filing for a homestead exemption on the property. This created rights in Annie that were superior to the previously executed antenuptial agreement. While Bonnie had a right to seek enforcement of the antenuptial agreement if Johnnie had died without revoking it, this right expired once Johnnie made his will leaving the home to Annie and lived there with her while claiming it as their homestead.

¶ 21. The record shows that Johnnie applied for a Mississippi homestead exemption on the Vine Street home in 2001, and again in 2005. The 2005 application was made six months prior to the attempt to quitclaim the property. Because the home was exempted as a homestead, and because Annie resided in the home with Johnnie, Annie’s signature was required to convey the property. Annie did not sign the quitclaim deed, nor did she know of its existence.

¶22. Bonnie argues Annie’s signature was not required because Annie had no right to claim the home as her homestead. Bonnie reasons that when Annie signed the antenuptial agreement stating that Bonnie would receive the home upon Johnnie’s death, Annie waived all rights in the home, including the right to claim it as a homestead. However, the statutory signature requirement cannot be waived. Ward, 517 So.2d at 573. The supreme court in Ward explained:

Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation.

Id. (emphasis added).

¶23. By statute, the quitclaim deed attempting to convey the home without Annie’s signature was invalid. The issues on appeal are without merit, and the chancellor’s judgment is affirmed.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

      . See http://www.yourdictionary.com/ testament# law (last visited March 5, 2014) (The legal definition of "testament” is: "A document disposing of a person’s personal property upon his or her death, distinct from a will, which is a devise of real estate.”). Even the Wikipedia discussion Bonnie cites notes that the terms are used interchangeably, however. See http://en.wikipedia.org/wiki/ Will_and_testament (last visited March 5, 2014) ("Though it has at times been thought that a ‘will’ was historically limited to real property while 'testament' applies only to dispositions of personal property (thus giving rise to the popular title of the document as 'Last Will and Testament’), the historical records show that the terms have been used interchangeably. ”).

      . While Bonnie was not a party to the contract, she was a third-party beneficiary. A third-party beneficiary may enforce a contractual provision made for his benefit, despite being a nonsignatory to the contract, as long as his right to maintain an action "springs” from the contract itself. Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1145 (¶ 37) (Miss.2004).


text:
    Lee Martinez WALKER a/k/a Lee Walker, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00311-COA.
    Court of Appeals of Mississippi.
    April 29, 2014.
    Lee Martinez Walker, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Lee Walker appeals the dismissal of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS

¶ 2. On November 14, 2007, Walker was indicted for statutory rape, in violation of Mississippi Code Annotated section 97-3-65 (Supp.2013). On January 22, 2008, he pled guilty to statutory rape and was sentenced to ten years, with one year to serve and nine years suspended. On February 6, 2012, Walker’s probation was revoked.

¶ 3. On November 13, 2012, Walker filed a PCCR motion that made three arguments. First, he argued that the charges against him did not constitute a crime under section 97-3-65 because the victim was over the age of sixteen. Next, he claimed that the statute was unconstitutionally vague. Third, Walker argued that, when he pled guilty, he was not aware of the age requirement for the victim of statutory rape. The circuit court found that the motion was time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2013) and dismissed it.

¶ 4. On February 13, 2013, Walker filed a notice of appeal from the final judgment that dismissed his PCCR motion. On April 30, 2013, the circuit court entered an order that limited the appeal to the dismissal of the PCCR motion and limited the record to the matters contained in the motion.

STANDARD OF REVIEW

¶ 5. We will not reverse a circuit court’s dismissal of a PCCR motion unless the trial court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011). When reviewing questions of law, this Court’s standard of review is de novo. Id.

ANALYSIS

I. Whether Walker’s PCCR motion was time-barred.

¶6. Walker first argues that the circuit court was incorrect to decide that his motion was time-barred. Since Walker pled guilty, his PCCR motion must have been filed within three years after the judgment of conviction. Miss.Code Ann. § 99-39-5(2). Walker’s judgment of conviction was entered on January 22, 2008. He filed the PCCR motion on November 13, 2012. The motion was not timely filed under section 99-39-5(2) and is therefore time-barred.

¶ 7. Section 99-39-5(2)(a)-(b) provides several exceptions to the time-bar:

[Tjhere has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the PCCR mov-ant’s] conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.... Likewise excepted are those cases in which the [movant] claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

¶ 8. Walker must prove that his ease falls within one of these exceptions. See Miss.Code Ann. § 99-39-5(2). In his motion, Walker alleged that the charge against him did not constitute a crime under section 97-3-65, because the victim was sixteen years of age. Section 97-3-65(1 )(a) makes it a crime for a person seventeen years of age or older to have sexual intercourse with a child who is between fourteen and sixteen years of age, is thirty-six or more months younger, and is not the person’s spouse. Walker also argued that section 97-3-65 is unconstitutionally vague because any reasonable person who reads the statute would conclude that sexual intercourse with a person over the age of sixteen is not prohibited.

¶ 9. These issues do not fall within an exception to the time-bar under section 99-39-5(2)(a)-(b). As a result, we affirm the circuit court’s finding that Walker’s PCCR motion was time-barred.

II. Whether Walker’s guilty plea was voluntary and due-process violations occurred in his probation-revocation hearing.

¶ 10. In this appeal, Walker makes two arguments that were not made in the PCCR motion.

¶ 11. First, he argues that his guilty plea was not voluntarily and knowingly entered. Walker contends that he was uneducated when he pled guilty and that his counsel advised him to plead guilty.

¶ 12. Second, he argues that he was denied his right to due process of law during his probation-revocation hearing. Walker claims that he was entitled to the right to notice of the allegations supporting the probation revocation, the right to counsel, and the opportunity to question adverse witnesses. In the order revoking Walker’s probation, the circuit court stated:

The Defendant being arraigned on the charge alleged in the Petition to Revoke Post[-]Release Supervision filed herein, confesses that he violated his Post[-]Release Supervision. The Court thereupon found that the Defendant is in violation of the terms of his Post[-]Release Supervision, and revokes the Defendant’s Post[-]Release Supervision on the charge of Statutory Rape.

¶ 13. “If a prisoner fails to raise all of his claims in his original petition for post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring them for the first time on appeal to this Court.” Willis v. State, 17 So.3d 1162, 1166 (¶ 15) (Miss.Ct.App.2009). Because Walker failed to raise these issues before the trial court in his PCCR motion, he cannot raise these issues on appeal.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Walker’s notice of appeal designated as part of the record on appeal all clerk's papers, court transcripts, and exhibits filed or taken in the case; the complaint; the discovery of all evidence; the transcript of the plea entered January 22, 2008; the transcript of the revocation hearing that took place on February 6, 2012; all medical reports or evidence; the document showing the alleged victim's date of birth; all police reports; and all statements made to police concerning the alleged victim.


author: ROBERTS, J., JAMES, J.,

text:
    Dana J. DAVIS, Appellant v. Jason HINDMAN, M.D. and Surgery Associates, P.A., Appellees.
    No. 2012-CA-01728-COA.
    Court of Appeals of Mississippi.
    April 29, 2014.

      Bobby Floyd Martin Jr., attorney for appellant.
    David W. Upchurch, Robert K. Up-church, Tupelo, John Mark McIntosh, attorneys for appellees.
   ROBERTS, J.,

for the Court:

¶ 1. Unsatisfied with Dana Davis’s failure to take the necessary steps to secure Dr. Jason Hindman’s deposition or secure her own expert witness to support her medical-malpractice claim, the Lee County Circuit Court granted summary judgment in favor of Dr. Hindman and Surgery Associates P.A. (collectively “Surgery Associates”). The circuit court simultaneously denied Davis’s motion for additional time pursuant to Mississippi Rule of Civil Procedure 56®. Davis appeals the circuit court’s decisions and asks this Court to find that the circuit court abused its discretion in denying her motion for additional time, and that the denial of her motion resulted in her inability to properly defend against Surgery Associates’ summary-judgment motion. We find no error; therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 2, 2009, Davis filed a complaint against Surgery Associates alleging that Dr. Hindman committed medical malpractice on September 10, 2007, when Dr. Hindman performed a total thy-roidectomy on Davis. Attached to the complaint was a certificate of expert consultation from Davis’s attorney stating that he “consulted with at least one ... expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who was qualified to give expert testimony as to the standard of care or negligence in this matter.”

¶ 8. Surgery Associates filed their separate answers and then separately propounded discovery on Davis. Davis filed her responses on November 25, 2009, and December 16, 2009. In one response, Davis stated that she had “not determined who will be called as an expert witness at the trial of this matter” even though she had consulted with an expert prior to filing her complaint. She also stated that she would supplement that information in accordance with the Mississippi Rules of Civil Procedure. Surgery Associates deposed Davis in June 2010, but a transcript of her deposition is not contained in the record.

¶ 4. On June 22, 2010, Davis requested dates that Dr. Hindman would be available to be deposed; Dr. Hindman provided several dates. However, there was no agreed date set based on this inquiry. Then, on October 18, 2010, Davis again requested dates for the deposition, which Dr. Hind-man again provided. His deposition was initially set for December 20, 2010; however, this deposition was rescheduled by mutual agreement. Dr. Hindman sent Davis a letter on December 14, 2010, confirming that he would provide future dates for his deposition. Dr. Hindman did not provide any dates nor did Davis request any dates until Surgery Associates filed a motion for summary judgment on October 28, 2011, some ten months later.

¶ 5. In the motion for summary judgment, Surgery Associates submitted that because Davis had not provided expert testimony to support her medical-malpractice claim, she failed to create a genuine issue of material fact. In response, Davis filed a motion for additional time pursuant to Rule 56(f). She argued that she needed additional time because she did not have “adequate time to take the deposition of ... Dr. Hindman.” And without his deposition as to how he performed her thyroidectomy, she could not provide expert testimony as to any deviations from the standard of care or treatment. The circuit court held a hearing on Surgery Associates’ motion for summary judgment on February 21, 2012.

¶ 6. Just a few days prior, on February 3, 2012, Davis again requested dates to depose Dr. Hindman; Dr. Hindman responded that he would provide dates if the motion for summary judgment was denied. Davis then unilaterally scheduled Dr. Hindman’s deposition for August 24, 2012. Dr. Hindman filed a motion to quash the notice of deposition, which the circuit court granted.

¶ 7. On September 18, 2012, the circuit court entered two orders: one order denying Davis’s motion for additional time, and the other granting Surgery Associates’ motion for summary judgment. The final judgment was entered on October 2, 2012, and Davis timely filed the present appeal.

¶ 8. She raises two issues on appeal:

I. Whether the [cjircuit [cjourt ... properly denied ... Davis[’s][m]otion for [additional [t]ime[.]
II. Whether the [c]ircuit [c]ourt ... properly granted [Surgery Associates’] Motion for [s]ummary [j]udgment[.]

ANALYSIS

I. RULE 56(f)

¶ 9. “A trial court has sound discretion to grant or deny a continuance under Rule 56(f).” Stallworth v. Sanford, 921 So.2d 340, 342-43 (¶ 9) (Miss.2006) (citing Owens v. Thomae, 759 So.2d 1117, 1120 (¶ 10) (Miss.1999)). “This Court will only reverse a trial court where its decision can be characterized as an abuse of discretion.” Id. at 343 (¶ 9) (citation omitted).

¶ 10. Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

A party making a Rule 56(f) motion “must present specific facts why he cannot oppose the motion and must specifically demonstrate ‘how postponement of a ruling on the motion will enable him, by discovery or other means, [to] rebut the movant’s showing of the absence of a genuine issue of fact.’ ” Scales v. Lackey Mem’l Hosp., 988 So.2d 426, 434 (¶19) (Miss.Ct.App.2008) (quoting Owens, 759 So.2d at 1120 (¶ 12)).

¶ 11. According to Davis, the circuit court abused its discretion in denying her motion because she presented sufficient evidence as to why additional discovery was necessary to oppose Surgery Associates’ summary-judgment motion. She submits that because she had yet to depose Dr. Hindman, she was unable to secure an expert witness to provide testimony as to how he negligently performed her thyroidectomy and deviated from the acceptable standard of care.

¶ 12. In denying her motion, the circuit court stated that Davis had filed her complaint more than two years before Surgery Associates filed the motion for summary judgment, and that during that “considerable length of time, it does not appear ... that any great effort [to take Dr. Hind-man’s deposition] was made by [Davis].... ” After Dr. Hindman’s December 20, 2010 deposition was canceled by agreement, Davis “took no further action toward that end until July 23, 2012, some nine months after the filing of [Surgery Associates’] motion for summary judgment .... ” It further stated that Davis had more than a fair opportunity to depose Dr. Hindman.

¶ 13. We cannot find that the circuit court abused its discretion in denying Davis’s Rule 56(f) motion. “Rule 56(f) is not designed to protect the litigants who are lazy or dilatory .... ” Gammel v. Tate Cnty. Sch. Dist., 995 So.2d 853, 859-60 (¶ 19) (Miss.Ct.App.2008) (quoting Owens, 759 So.2d at 1120 (¶¶ 11-12)). Dr. Hindman provided dates of several occasions on which he would be available for deposition, but Davis noticed his deposition only one time prior to Surgery Associates’ motion for summary judgment, which was over two years after she filed her initial complaint. Davis argues that Dr. Hind-man’s deposition was necessary in order for her to secure an expert witness; therefore, she needed his deposition to properly oppose the motion for summary judgment. Her argument does not support a finding that the circuit court abused its discretion in denying her Rule 56(f) motion, as the taking of Dr. Hindman’s deposition was not a condition precedent for finding an expert witness with which she could defend against the motion for summary judgment.

¶ 14. Therefore, we find this issue to be without merit.

II. MOTION FOR SUMMARY JUDGMENT

¶ 15. “The standard of review applied when reviewing a circuit court’s decision to grant or deny a motion for summary judgment is de novo, and a motion for summary judgment is appropriately granted only when no genuine issue of material fact exists.” Posey v. Burrow, 93 So.3d 905, 907 (¶ 6) (Miss.Ct.App.2012) (citing PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2003)).

¶ 16. Davis argues that because the circuit court erred in denying her Rule 56(f) motion, the motion for summary judgment was granted in error because Rule 56(f) would have provided her more time to conduct discovery and better defend against a motion for summary judgment. However, we have found that the circuit court did not err in denying Darn’s Rule 56(f) motion.

¶ 17. By filing a medical-malpractice claim, Davis knew “from the very moment the suit [was] filed that an expert witness [would] be needed to survive summary judgment.” Scales, 988 So.2d at 436 (¶ 23) (quoting Brooks v. Roberts, 882 So.2d 229, 232 (¶ 10) (Miss.2004)). “A plaintiff in a medical-malpractice case has the burden of proving ‘(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.’ ” Johnson v. Pace, 122 So.3d 66, 68 (¶ 8) (Miss.2013) (quoting Hubbard v. Wansley, 954 So.2d 951, 956-957 (¶ 12) (Miss.2007)). The plaintiff is generally required to establish these elements with expert testimony to survive summary judgment. Id. (citing Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177,180 (¶ 9) (Miss.2007)).

¶ 18. Davis failed to provide ah expert witness at any point, even after her attorney submitted a certificate of expert consultation providing that he had consulted an expert “qualified to give expert testimony as to the standard of care or negligence in this matter” prior to filing suit. The record is void of any evidence, expert or otherwise, that Davis submitted beyond her initial complaint and her answers to Surgery Associates’ discovery requests. Because Davis did not provide an expert witness as needed or any other evidence, we cannot find that there is a genuine issue of material fact; therefore, summary judgment in favor of Surgery Associates was appropriate.

¶ 19. This issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY IRVING, P.J. FAIR, J., NOT PARTICIPATING.

JAMES, J.,

dissenting:

¶ 21. The majority holds that granting summary judgment and denying Davis’s motion to continue was proper. However, I find that neither decision was proper, and I respectfully dissent. The Supreme Court of Mississippi has held: “A decision to grant or deny a motion to continue or a motion to stay the proceedings pending the outcome of a separate action is within the sound discretion of the trial judge and will not be disturbed absent evidence of abuse.” Prescott v. Leaf River Forest Prods., Inc., 740 So.2d 301, 307 (¶ 11) (Miss.1999). However, each litigant is entitled to his day in court. I find that the trial court abused its discretion in denying the continuance sought by Davis.

¶ 22. Further, the Mississippi Supreme Court has stated that “[a]n opportunity to flesh out discovery may especially be required where the information necessary to oppose the motion for summary judgment is within the possession of the party seeking summary judgment.” Owens v. Thomae, 759 So.2d 1117, 1120 (¶ 12) (Miss. 1999). Also, the nonmoving party must give specific facts as to why he cannot oppose the motion and how granting a postponement of the ruling or continuance would help him to oppose the motion. Id. Here, Davis required the doctor’s deposition in order to oppose the motion for summary judgment.

¶23. Dr. Hindman argues that Davis had access to the medical records and could have propounded discovery. Live testimony cannot be replaced by medical records. In a deposition, Dr. Hindman can go into further detail as to his reasoning behind conducting the procedure in a particular fashion. Also, in order to fully understand medical records, Dr. Hindman is needed to explain them. By not allowing Davis an opportunity to depose Dr. Hindman, she was essentially denied the opportunity to further investigate her case. Davis fully articulated her reasoning behind wanting to depose the doctor.

¶ 24. It should be noted that Davis filed her complaint in September 2009. Davis obtained new counsel in May 2010, almost a year after the complaint was originally filed. Substituted counsel was diligent in his duties because he scheduled a deposition in December 2010, even though it was postponed by mutual agreement of both parties. Further, it appears from the record that potential dates were requested, but it is unclear as to whether or not Davis actually received those dates.

¶ 25. It is a “well established principle that summary judgments should be granted with great caution.” Smith v. Braden, 765 So.2d 546, 556 (¶ 30) (Miss.2000). Further, this Court has stated that “[a]s part of that exercise of discretion, the trial judge must have proof of diligence by the party seeking delay.” Hobgood v. Koch Pipeline Se., Inc., 769 So.2d 838, 846 (¶ 38) (Miss.Ct.App.2000). Here, Davis scheduled a deposition of Dr. Hindman, and once it was postponed, requested dates from Dr. Hindman for a deposition. The supreme court has also has stated that “[wjhile it is true that the non-moving party must be diligent in opposing summary judgment he must be given a fair opportunity to be diligent.” Smith v. H.C. Bailey Cos., 477 So.2d 224, 233 (Miss.1985) (internal citation omitted). Davis lacked the opportunity to complete her discovery because the trial court granted summary judgment against her, and did not grant her a continuance to get the deposition of Dr. Hindman.

¶ 26. In Karpinsky v. American National Insurance Co., 109 So.3d 84, 88 (¶ 10) (Miss.2013), the Mississippi Supreme Court stated that “[sjummary judgment is appropriate and 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[.]”

¶ 27. The appellate court “review[s] the grant or denial of a motion for summai'y judgment de novo, viewing the evidence ‘in the light most favorable to the party against whom the motion has been made.’ ” Id. at (¶ 9). The Mississippi Supreme Court has stated that “[a]t the summary-judgment stage, [the][d]efendants carried the initial burden of persuading the circuit court that no issues of material fact existed in this case and that they were entitled to [a] judgment as a matter of law.” Id. at 89 (¶ 16).

¶ 28. I am of the opinion that genuine issues of material facts exist and Dr. Hind-man and Surgery Associates were not entitled to a judgment as a matter of law. I would therefore reverse and remand this case for further proceedings in the trial court.

IRVING, P.J., JOINS THIS OPINION IN PART.