author: KEATY, Judge.

text:
    Troy PITRE v. BESSETTE DEVELOPMENT CORPORATION.
    No. 13-588.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendant/Appellee, Bessette Development Corporation.
    Scott J. Pias, Attorney at Law, Lake Charles, LA, for Appellant, Scott James Pias, Individually.
    Emily G. Andrews, Angelique Duhon Freel, Assistant Attorneys General, Baton Rouge, LA, for Other Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

[; Attorney appeals a judgment rendered by the workers’ compensation judge (WCJ) reducing the amount of attorney fees that he could collect for his legal representation of plaintiff, Troy Pitre, from $15,000.00 to $8,316.60. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Pitre was injured in a work-place accident on November 5, 2007, while employed by Bessette Development Corporation. Two days later, Pitre hired attorney Scott Pias, appellant herein, to represent him with respect to his injuries arising out of that accident. In conjunction with that representation, Pitre signed a contract providing that he would pay “the statutory allowed amount of attorney fees, not to exceed 20 % of all recovery,” including any negotiated settlement.

On November 12, 2012, mediation took place at Pias’ office, and Pitre agreed to settle his claim against Bessette for a lump sum of $35,000.00 plus $6,583.00 in seed money to start a medical set-aside (MSA) annuity that would provide Pitre with $2,160.00 per year until his death to fund his future medical bills. The present value of the MSA at that time was $70,524.35. On December 10, 2012, the parties presented a Joint Petition for Approval of Workers’ Compensation Settlement (Joint Petition) to the WCJ. Included therein was Pias’ request for “approval of attorney’s fees in the statutory amount.” A Disbursement Sheet was attached to the Joint Petition that listed Pias’ calculation of the attorney fees owed to him as $21,104.87 but noted that he and Pitre had agreed to a reduced fee of $15,000.00. The Disbursement Sheet, which had been signed by Pitre, included language stating that he agreed that $15,000.00 was a reasonable fee and in accordance with the contract for representation that he had entered into with Pias.

|2On December 10, 2012, the WCJ signed the Motion and Order for Approval of Attorney Fee but amended it to specify that attorney fees were awarded in the amount of $8,316.60 and to exclude language stating that attorney fees were awarded at the “statutory rate of twenty percent (20%)” “as agreed upon by the parties, and in accordance with plaintiffs Affidavit attached hereto.” Thereafter, Pias filed a Motion and Order for Hearing Regarding Reduction in Attorney Fees. After a contradictory hearing, the WCJ signed a judgment stating that Pias was awarded attorney fees in the amount of $8,316.60 for his representation of Pitre. The judgment provided that said amount “represents twenty percent (20%) of the lump sum indemnity ($35,000), plus twenty percent (20%) of the seed money to fund the medical set-aside (MSA) account ($6,583).” The judgment further provided that “the attorney fees awarded in this case shall not include twenty percent (20%) of the present value of the medical set-aside (MSA) annuity for future medicals.”

Pias timely appealed and now assigns the following errors:

1. The Court erred in ruling that it had subject matter jurisdiction to engage in what amounted to a disciplinary proceeding against an attorney, or otherwise determine whether an attorney is to receive a fee.
2. The Court committed legal error in reducing the fee approved by the client as being fair and reasonable without any determination of fairness. The fee was reasonable, especially without any objection of Mr. Pitre.
3. The Court committed legal error and violated Article 5, § 5(b) of the Louisiana Constitution, which provides that the Louisiana Supreme Court has exclusive original jurisdiction over disciplinary proceedings against a member of the bar.
4. The Court committed legal error in not allowing a fee to be taken on the present value of future medical expenses obtained in settlement or any indemnity collected prior to settlement.

| sIn addition to his appellant brief, Pias filed a Plea of Unconstitutionality of La. R.S. 23:1141 and 23:1143 in this court. Bessette’s attorney of record was notified of this appeal but has not filed a brief. This court notified the Attorney General of the State of Louisiana (the AG) of Pias’ claims of unconstitutionality, and his office also filed a brief in this matter.

DISCUSSION

At the January 30, 2013 hearing, the WCJ asked Pias how much money his client received in the settlement with Bes-sette. Pias responded that Pitre received the net amount of “$26,410.” Pias explained that the settlement was for $30,000.00 in cash and $6,583.00 for seed money to start an MSA. The WCJ then stated, “I think you are entitled to 20 percent of the amount of money the claimant recovered in the settlement or $8,316.60.” The WCJ then specified, “I am not at this time giving you a fee on the present day value of the annuity.”

Constitutionality

Pias asserts that La.R.S. 23:1141 is unconstitutional because it grants authority to an administrative law judge to review and determine attorney fee awards. He claims that La.R.S. 23:1143 is an unconstitutional legislative infringement of the authority of the Louisiana Supreme Court to govern attorney fees and to impose disciplinary action by creating a mechanism for an attorney to be divested of all or part of his fee.

|4The AG counters that the constitutionality of La.R.S. 23:1141 and 23:1143 is not properly before this court because the issue was not raised in the trial court and because Pias’ claims of unconstitutionality have not been specifically pled nor have the grounds for his claims been particularized. In addition, the AG submits that this court should decline to exercise its discretionary power of supervisory jurisdiction in this matter because Pias’ constitutionality argument could have been asserted in the trial court.

In Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65 (footnote omitted), the Louisiana Supreme Court wrote, “the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.” Pias correctly points out that the supreme court has recognized that the aforementioned general rule does admit some exceptions. See Unwired Telecom Corp. v. Parish of Calcasieu, 03-732 (La.1/19/05), 903 So.2d 392; Vallo, 646 So.2d 859.

After review of the record in this matter, we can find no justification for Pias’ having failed to assert his claims of unconstitutionality in the trial court. The WCJ amended the order for approval of attorney fee to delete the reference to the “statutory rate” on December 10, 2012. Pias was put on notice that La.R.S. 23:1141 and 23:1143, the statutes regulating attorney fees in workers’ compensation matters, were relevant to the determination of the amount of attorney fees that he could recover in this matter. Thus, any constitutional challenge to those statutes should have been made at that time so that the parties could “be afforded the opportunity to brief and argue the issue” and so “[t]he record of the proceeding could then be reviewed to determine whether the party attacking the statute[s] sustained his or her ^burden of proof, and whether the trial court attempted to construe the statute[s] so as to preserve [their] constitutionality.” Vallo, 646 So.2d at 865. The hearing on Pias’ motions seeking reasons for the WCJ’s reduction of his attorney fees from $15,000.00 to $8,316.60 took place on January 30, 2013, over a month after the WCJ’s December 10, 2012 ruling, giving him plenty of time to mount any constitutional challenges. Accordingly, we conclude that the issue of the constitutionality of La.R.S. 23:1141 and 23:1143 “is not in the proper posture for this court’s review.” Id.

Subject Matter Jurisdiction

Pias asserts that the WCJ erred in finding that it had subject matter jurisdiction to conduct a disciplinary proceeding against him or to otherwise determine whether he was entitled to receive a fee. Citing Prejean v. Barousse, 12-1177 (La.1/29/13), 107 So.3d 569, Pias contends that because the right to discipline an attorney is vested exclusively with the Louisiana Supreme Court by virtue of La. Const, art. 5, § 5(b), the OWC lacked subject matter jurisdiction in this matter. The AG counters that the WCJ did not discipline Pias but rather interpreted attorney fees under La.R.S. 23:1141 not to include the present value of the MSA that Pias’ client received in his settlement.

In Prejean, 107 So.3d at 574, the supreme court held that La.R.S. 13:4210, which provides that a judge shall forfeit one quarter’s salary for failing to issue a judgment within thirty days of the close of trial, was “unconstitutional and without effect.” We find no merit to Pias’ claim that the holding of Prejean should be extended to La.R.S. 23:1141, which simply requires that an attorney submit his claim for attorney fees to the WCJ for review and approval. Accordingly, we ^conclude that the WCJ was vested with subject matter jurisdiction in this matter. Pias’ first assignment of error lacks merit.

Reasonableness of Pias’ Fee

Pias next contends that the WCJ committed an error of law in reducing the amount of his attorney fee without first determining its fairness, especially since Pitre approved the reasonableness of the fee as evidenced by his signature on the Disbursement Sheet. As a result of that alleged error, Pias asks this court to perform a de novo review of the record to determine the fee he should receive in this matter.

Pias fails to cite any law in support of his claim that the WCJ’s failure to conduct a fairness review somehow amounts to legal error. On the other hand, the jurisprudence directs that “[t]he amount of an award of attorney’s fees is committed to the discretion of the hearing officer and will not be disturbed absent a showing of an abuse of discretion.” Sinegal v. Able Glass Co., Inc., 95-10, p. 5 (La.App. 3 Cir. 10/11/95), 663 So.2d 393, 396. Thus, we will determine whether the WCJ’s award of $8,316.60 in attorney fees amounted to an abuse of discretion.

[T]he amount of attorney’s fees due an attorney for representation in a worker’s compensation matter is based on the attorney’s time, skill, and effort. Moreover, it is well established that a determination of an attorney’s compensation under this analysis is necessarily predicated upon a thorough evaluation of the record facts and an application of the criteria amplified under Art. 16: Rule 1.5 of the Rules of Professional Conduct.

Miller v. Gaspard, 95-861, pp. 6-7 (La.App. 3 Cir. 12/6/95), 664 So.2d 810, 813 (citation omitted).

Louisiana Rules of Professional Conduct Rule 1.5(a) provides, in pertinent part, as follows:

|7The factors to be considered in determining the reasonableness of a fee include the following:
(1)the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

According to the Joint Petition for Settlement, Pitre received a total of $96,435.21 in workers’ compensation indemnity benefits from Bessette and Bes-sette paid $95,448.83 in medical expenses before they entered into a settlement. In addition, Pitre informed the WCJ at the January 30, 2013 hearing that he “didn’t take any fee on the indemnity received during the pendency of the matter.” Pias submits that he was entitled to collect a fee on those benefits as they were paid, but that he did not withhold attorney fees as they accrued so that Pitre would have money to support his family during the pendency of his workers’ compensation claim. The record substantiates that Pias expended approximately 110 hours in | «legal services during his five-year representation of Pitre in this matter and that he has practiced workers’ compensation law for over twenty years.

After a thorough review of the record, we conclude that the WCJ abused her discretion in failing to award Pias the attorney fees he requested. The record supports an award of attorney fees in the amount of $15,000.00, given the total amount of benefits received by Pitre during the pendency of his claim and effort expended by Pias to secure those benefits for him. The reasonableness of that figure is bolstered by the fact that Pitre acknowledged on the Disbursement Sheet that Pias had already agreed to reduce his fee from $21,104.87 to $15,000.00, a fee which he agreed was reasonable and in accordance with their fee agreement. Accordingly, the judgment of the WCJ is reversed, and judgment is rendered awarding Pias $15,000.00 in attorney fees.

Because we have found that Pias is entitled to the relief sought on appeal, we need not address his third and fourth assignments of error as those issues have become moot.

DECREE

For the foregoing reasons, the judgment of the WCJ reducing the attorney fees of Scott Pias from $15,000.00 to $8,316.60 is reversed, and judgment is rendered awarding Scott Pias attorney fees in the amount of $15,000.00. Given the unique procedural posture of this case, costs are assessed against the appellant, Scott Pias.

REVERSED AND RENDERED.

      .Louisiana Revised Statutes 23:1141 provides, in pertinent part, that ‘‘[cjlaims of attorneys for legal services arising under this Chapter shall not be enforceable unless reviewed and approved by a workers' compensation judge.” It further provides that those fees "shall not exceed twenty percent of the amount recovered.” Id.

      . Louisiana Revised Statutes 23:1143 mandates that an attorney representing a claimant get approval of his fee from an Office of Workers’ Compensation (OWC) hearing officer.

      . Thirty-five thousand dollars plus $6,583.00 equals $41,583.00. Twenty percent of $41,583.00 is $8,316.60.


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    Anthony Tyrone THOMAS a/k/a Anthony J. Thomas a/k/a Anthony B. Thomas a/k/a Big Hab a/k/a Anthony Thomas v. STATE of Mississippi.
    No. 2011-CT-00840-SCT.
    Supreme Court of Mississippi.
    Oct. 3, 2013.
    Rehearing Denied Dec. 12, 2013.

      Office of State Public Defender by George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, Scott Stuart, attorney for appel-lee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. Anthony Tyrone Thomas was convicted of aggravated assault (Count I) and of being a felon in possession of a weapon (Count II), then was sentenced to two consecutive terms of life without parole as an habitual offender. The Court of Appeals affirmed both convictions, and we granted Thomas’s petition for writ of cer-tiorari. Because we find that Count II of Thomas’s indictment did not charge him with a crime, we reverse his conviction for being a felon in possession of a weapon in violation of Mississippi Code Section 97-37-5 (Rev.2006), and dismiss the indictment in Count II. As we have limited our review to Count II, the conviction for Count I is affirmed by means of the judgment of the Court of Appeals.

I.

¶ 2. Thomas was indicted for one count of aggravated assault and one count of being a felon in possession of a weapon. The State alleged that Thomas had stabbed his girlfriend with a knife, and that Thomas’s status as a prior convicted felon prohibited his possessing that knife. Thomas claimed that his girlfriend had attacked him first and that she accidentally had stabbed herself twice in the ensuing struggle. A jury convicted Thomas on both counts, but the case was reversed by the Court of Appeals in 2009. Thomas v. State (“Thomas I”), Thomas v. State, 19 So.3d 130, 135 (Miss.Ct.App.2009) (reversing for erroneous admission of evidence related to Thomas’s prior felony conviction).

¶ 3. Thomas was tried a second time and again was convicted on both counts. Having been convicted and sentenced in the past for two other violent felonies, he was sentenced to two life sentences without parole, in accordance with Mississippi Code Section 99-19-83, to run consecutively. Thomas’s appeal was assigned to the Court of Appeals, which rejected his claims of error and affirmed the convictions. See Thomas v. State, — So.3d — (Miss.Ct.App.2012).

¶ 4. In his petition for writ of certiorari, Thomas argued that the evidence was insufficient to convict him of being a felon in possession of a prohibited weapon, and that, should this conviction be reversed, he would be entitled to a new trial on the aggravated assault charge based on the doctrine of “retroactive misjoinder.” We granted Thomas’s petition, and we limit our review to the weapons conviction. M.R.A.P. 17(h).

II.

¶ 5. Mississippi Code Section 97-37-5 (Rev.2006) makes it unlawful for any person who has been convicted of a felony to possess a list of certain weapons, including “any bowie knife, dirk knife, butcher knife, or switchblade knife.” In Count II of the indictment, the State charged that Thomas “did willfully, unlawfully, knowingly and feloniously have in his possession a certain weapon, to-wit: a knife, he, the said Anthony J. Thomas, having been previously convicted of a felony....” (Emphasis added.) However, the mere possession of “a knife” is not a crime under Mississippi Code Section 97-37-5; only possession of those knives enumerated in the statute is a crime.

¶ 6. During the jury instructions conference, counsel for Thomas noted that the indictment charged Thomas only with possessing “a knife,” and that the jury instructions should track the language of the statute. Although he does not make this argument on appeal, we are within our discretion to address plain errors despite procedural bars. M.R.A.P. 28(a)(3).

¶ 7. The familiar constitutional right to notice of criminal charges is guarded by both the state and federal bill of rights. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.”); Miss. Const, art. 3, § 26 (“In all criminal prosecutions the accused shall have a right ... to demand the nature and cause of the accusation.”). See also Miss. Const, art. 3, § 27 (“No person shall for any indictable offense be proceeded against criminally by information.... ”). An indictment which fails to allege all essential elements of a crime runs afoul of our constitutions and is void.

It has long been the law of this land that an accused person has a constitutional right to be informed of the nature and material elements of the accusation filed against him. All the authorities are to the effect that an indictment, to be sufficient upon which a conviction may stand, must set forth the constituent elements of a criminal offense. Each and every material fact and essential ingredient of the offense must be with precision and certainty set forth.

Burchfield v. State, 277 So.2d 623, 625 (Miss.1973). See also Spears v. State, 253 Miss. 108, 116, 175 So.2d 158, 161-62 (1965) (“Repeatedly this Court has held that an indictment based upon a statutory offense must charge all of the essential elements of the statutory crime and is void for failure to do so.”) (citing May v. State, 209 Miss. 579, 47 So.2d 887 (1950); Kelly v. State, 204 Miss. 79, 36 So.2d 925 (1948); Rogers v. State, 198 Miss. 495, 22 So.2d 550 (1945); Crosby v. State, 191 Miss. 173, 2 So.2d 813 (1941)).

¶ 8. This Court has emphasized the requirements of a sufficient indictment, stating that “if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient.” Peterson v. State, 671 So.2d 647, 653 (Miss.1996) (quoting Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 472 (1951)). Being a felon in possession of a prohibited weapon is a statutory crime. Therefore, an indictment charging a defendant with being a felon in possession of a prohibited weapon, without charging all the essential elements of that crime, is void. Spears, 175 So.2d at 161-62. Thomas’s indictment informed him only that he was accused of possessing a knife at a time when he was a convicted felon. Notwithstanding the vast varieties of knives he could have possessed with impunity, the indictment failed to specify which, if any, of the four types of prohibited knives he was alleged to have possessed. The type of weapon a felon is alleged to have possessed is unquestionably an essential and material element of the crime of being a felon in possession of a prohibited weapon. The facts alleged by the State — that Thomas was a convicted felon in possession of “a knife” — could all “be true and yet constitute no offense.” Peterson, 671 So.2d at 653. Inasmuch as Count II of the indictment did not charge Thomas with an essential element of the crime, it is void for its failure to have done so. This failure to charge Thomas with a crime cognizable under Mississippi law is a plain, constitutional error and requires dismissal of the indictment and reversal of the conviction in Count II.

III. Conclusion

¶ 9. The State failed to indict Anthony Thomas for the crime of being a felon in possession of a weapon, alleging only that he, as a convicted felon, possessed “a knife.” The failure to charge Thomas with a crime cognizable under Mississippi law renders that count of the indictment void, requiring reversal of the conviction in Count II and dismissal of the indictment. Accordingly, the judgment of the Court of Appeals is reversed in part and affirmed in part. The trial court’s judgment of conviction in Count II is reversed, and the indictment in Count II is dismissed. The judgment of conviction for aggravated assault, Count I, is affirmed.

¶10. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED IN PART, REVERSED IN PART AND THE COUNT II INDICTMENT IS DISMISSED. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER, WITHOUT THE ELIGIBILITY OF PAROLE OR PROBATION, AFFIRMED. COUNT II: CONVICTION OF FELON IN POSSESSION OF A WEAPON, REVERSED AND THE INDICTMENT IS DISMISSED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . See Williams v. State, 37 So.3d 717, 721 (Miss.Ct.App.2010) (applying the doctrine that “if the defendant can show that he suffered clear and compelling prejudice as a result of the evidence introduced to support the vacated count, he is entitled to a new trial on the remaining count(s).”)


author: DICKINSON, Presiding Justice, RANDOLPH, Presiding Justice,

text:
    Joe Earl COLE a/k/a Joe Cole v. STATE of Mississippi.
    No. 2012-KA-00566-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2013.
    Rehearing Denied Dec. 12, 2013.

      Bobby T. Vance, Batesville, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Following his convictions for one count of sexual battery and three counts of gratification of lust, Joe Earl Cole argues on appeal that the trial court erroneously admitted hearsay and evidence of alleged prior unindicted acts of sexual misconduct with two of his minor granddaughters. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Joe Earl Cole’s grandchildren regularly visited his home in Rankin County. Granddaughters H.M., M.M., K.H., M.H., and E.C. all alleged that their grandfather touched them inappropriately. The Rankin County grand jury indicted Cole for one count of sexual battery, involving the digital penetration of H.M., and three counts of gratification of lust for touching the vaginas of H.M., K.H., and E.C. The State did not seek an indictment for any conduct involving M.M. and M.H.

¶ 3. Prior to trial, Cole’s counsel filed a motion in limine to exclude taped forensic interviews of the alleged victims as inadmissible hearsay and — because they contained references to uncharged allegations involving a different victim — as improper character evidence.

¶ 4. On the day of trial, the judge held a hearing on Cole’s motion and determined that the tender-years exception to the rule against hearsay would overcome Cole’s hearsay objection to the taped interviews. Cole’s counsel also argued that admission of evidence of Cole’s prior, unindicted acts of alleged sexual misconduct would violate Rule 404(b) of the Mississippi Rules of Evidence, which prohibits the use of other crimes or wrongful conduct — often referred to as “prior bad acts” — to prove the defendant’s character, and to show that, when the defendant committed the acts for which he was indicted, he was acting in conformity with that character. Using the same argument, Cole also objected to any live testimony from alleged victim M.M., for whom no indictment was filed.

¶ 5. In response, the State argued that evidence of Cole’s prior bad acts was admissible through Mississippi Rules of Evidence 404(b) and 403, and under this Court’s opinion in Gore v. State.

¶ 6. At the conclusion of the hearing, the trial judge found that the taped forensic interviews fell within the tender-years hearsay exception, but withheld ruling on the Rule 404(b) objection. Then, before opening statements, the trial judge found that the live testimony of H.M., M.M., K.H., E.C, and Amanda Haller — mother of K.H. and M.H. — regarding unindicted acts was admissible for all of the purposes argued by the State, and that the evidence was not substantially more prejudicial than probative.

¶ 7. At trial, all of Cole’s granddaughters except M.H. testified, alleging that most of the touching occurred when playing games, such as “find Kay Kay’s head” and “horses” with their grandfather. When playing “find Kay Kay’s head,” the children would get under the covers on the bed, turn out the lights, and then try to find K.H.’s head. K.H., who was ten years old at the time of the trial, testified that Cole had touched her “cookie,” another name for her vagina, on more than one occasion. She stated that, while playing this game, Cole touched her under her pants but on top of her underwear.

¶ 8. To play “horses,” they would pretend that the closet was a stable and one of the grandchildren was the hay in the stable for grandpa Joe (the horse) to eat. H.M. testified that while they were in the closet playing this game, Cole had inserted his finger into her vagina. She testified Cole had touched her several times either on top of or under her clothes. She also testified that Cole touched her while she was lying in a bed with several other people, including her grandmother. She testified that Cole had touched K.H. at least five times that she could remember.

¶ 9. E.C. testified that Cole had touched her more than once, including instances while playing “find Kay Kay’s head” and again when sitting on the couch watching TV. E.C. was eleven years old at the time of the trial.

¶ 10. M.M., age nine at the time of trial, testified that Cole had touched her private parts while they were sitting on the couch watching television with her grandmother. Cole also would come into M.M.’s bedroom while she was sleeping and touch her, she said. When Cole touched her, it was always over her clothes, she testified. She also stated that, when they would play “find Kay Kay’s head,” Cole would touch K.H. the most.

¶ 11. M.H., who was three years old at the time, did not testify at trial. Her mother, Amanda, testified that she had informed M.H. about “bad” and “good” touches while changing her diaper, at which point M.H. told her that Grandpa Joe had touched her there. The State introduced into evidence taped forensic interviews of all five granddaughters. The interviewers testified as well.

¶ 12. The trial judge instructed the jury that any acts involving M.M. and M.H. were unindicted acts, and were admissible only to show “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” A jury found Cole guilty of all counts. Cole received sentences of twenty years for sexual battery and fifteen years for each count of gratification of lust, to run concurrently. Cole appealed, arguing that the trial judge committed reversible error by allowing evidence of the acts involving M.M. • and M.H., for which he was not indicted.

STANDARD OF REVIEW

¶ 13. We must employ two standards of review while reviewing this case. In determining whether a trial judge made an erroneous ruling on the admission or suppression of evidence, we employ an abuse-of-discretion standard. But even where we find error, we do not reverse unless “the error adversely affects a substantial right of the party.” Stated another way, trial judges enjoy “a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses his discretion so as to be prejudicial to the accused, the Court will not reverse [the] ruling.”

ANALYSIS

¶ 14. At trial, the State offered evidence, through live testimony and taped forensic interviews, of instances of Cole’s sexual misconduct involving different victims — M.M. and M.H. — than those alleged in the indictment. Cole’s attorney lodged two objections to the evidence, arguing first that the taped forensic interviews were hearsay, and also that the evidence of prior bad acts violated Rule 404(b), as inappropriate use of character evidence.

¶ 15. The trial judge conducted an extensive and thorough analysis of the children’s conduct, demeanor, and lack of motive to lie in the taped interviews, and he found the evidence admissible, holding that the tender-years hearsay exception applied, and that the prior bad acts were admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. He also found that the evidence was not substantially more prejudicial than probative as required under Mississippi Rule of Evidence 403.

¶ 16. On appeal, Cole argues that the trial court erred by admitting this evidence under Rules 404(b) and 403, because no Rule 404(b) purpose was relevant to an element of the offenses charged, and because the evidence was substantially more prejudicial than probative. He also argues that Rules 608 and 609 require all prior-bad-acts evidence to be prior convictions.

I. Whether Mississippi Rules of Evidence 608 and 609 require all prior-bad-acts evidence to be prior convictions.

¶ 17. As a preliminary matter, we reject Cole’s argument that Rules 608 and 609 of the Mississippi Rules of Evidence limit all prior-bad-acts evidence to prior convictions. Cole’s contentions on this issue are wholly without merit, because Rules 608 and 609, by them terms, apply only to evidence used to impeach a witness.

¶ 18. Rule 608 states in relevant part: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Rule 609 provides in its relevant part:

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

¶ 19. Rule 608 addresses the admissibility of impeachment evidence regarding the character and conduct of a witness, and Rule 609 pertains to the use of a witness’s prior convictions for impeachment purposes. The prosecution did not offer evidence of Cole’s prior bad acts to attack the credibility of a witness. Cole did not testify, so Rules 608 and 609 were inapplicable to any evidence of his prior bad acts. We find that Rules 608 and 609 do not apply to the evidence in question and that this assignment of error is without merit.

II. Whether the trial court properly admitted the prior-bad-acts evidence pursuant to Mississippi Rules of Evidence 101(b) and 103.

¶ 20. Rules 404(b) and 403 govern the admissibility of instances of a defendant’s prior bad conduct. With only three exceptions not applicable in this case, a person’s prior bad acts are not admissible “for the purpose of proving that he acted in conformity therewith on a particular occasion.” Stated another way, the prosecutor in this case was prohibited from using Cole’s prior bad acts to suggest to the jury that Cole had a bad character or bad character trait; and that he was acting in conformity with that bad character when he committed the acts for which he was on trial. Stated still another way, the prosecution may not introduce prior bad acts for the purpose of showing that the defendant has a propensity to engage in such conduct, that is, because he had done things like this before, he probably did it this time.

¶ 21. Cole argues that his alleged prior bad acts were inadmissible because “no Rule 404(b) purpose was relevant to an element of the offenses charged.” We disagree.

¶22. Prior to Derouen v. State, this Court considered evidence of prior acts of sexual misconduct involving different victims to be so prejudicial that we held it was per se inadmissible, even for other purposes such as those listed in Mississippi Rule of Evidence 404(b). Then, in Derouen, we rejected the notion that such evidence was per se inadmissable, finding instead that it could be admitted for alternative purposes, so long as the evidence was filtered through Rule 403, and was accompanied by an appropriate limiting instruction. We now must analyze whether the trial judge committed manifest error in finding that the State had a noncharacter purpose for the evidence of Cole’s prior bad acts.

¶ 23. The trial judge instructed the jury that it could consider Cole’s prior bad acts to show — among other things— the absence of mistake or accident. Where a defendant does not put mistake or accident at issue — or where a reasonable juror could not conclude from the evidence that the defendant’s conduct was an accident or mistake — prior-bad-acts evidence may not be admitted for that purpose.

¶ 24. During the hearing on the admissibility of the evidence, the State argued— based on Gore — that the evidence of Cole’s prior unindicted acts of sexual misconduct was admissible “for the purposes of proof of motive, as they say in Gore, to gratify his lust, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” The State also pointed out that,

from what we understand, the defendant is framing an accidental touch or, okay, or a mistake, he mistakenly touched.... It’s in the statement from [KH], She says she slapped the hand away, and he said, I didn’t know I touched you.

Cole’s counsel made no response to this assertion. We therefore cannot say that the trial judge abused his discretion in finding that the evidence of Cole’s prior bad acts was admissible for the purpose of showing absence of accident or mistake.

¶ 25. As for the other purposes argued by the State, we find nothing in the record to suggest that Cole’s motive, opportunity, intent, preparation, plan, or knowledge were at issue. These points never were raised or argued by either side. But where the State argues any alternative purpose for the evidence that does not violate Rule 404(b), the fact that other alternative purposes are argued is irrelevant, because Rule 404(b) requires only that the evidence not be offered for the purpose of showing that the defendant acted in conformity with his bad character.

¶ 26. Because the State articulated a legitimate, alternative evidentiary purpose for Cole’s prior bad acts, we find the trial judge complied with this Court’s requirements under Derouen. We also find that the trial judge gave proper instructions on the purpose for which the jury could not consider the evidence.

¶ 27. We take this opportunity to note that it would be a rare case in which every one of Rule 404’s examples of alternative purposes applied. We admonish prosecutors to refrain from offering prior-bad-acts evidence based on a rote recitation, such as: “the State is not offering the prior bad acts as character evidence to show the defendant acted in conformity with his character, but the State is attempting to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Instead, prosecutors should clearly present the alternative purpose for the evidence, and trial judges should state the purpose for which the evidence is being admitted, and then provide the jury an appropriate limiting instruction. Only then can we provide a fair review on appeal.

CONCLUSION

¶ 28. We cannot say that the trial judge erred by admitting evidence of Cole’s prior bad acts for the purpose of demonstrating the absence of accident or mistake. Because the issues Cole presents on appeal are without merit, we affirm his conviction and sentence.

¶ 29. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNTS II, III, AND IV: CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN (15) YEARS, EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS II, III, AND IV SHALL RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I. THE EXECUTION OF THE LAST TEN (10) YEARS OF THE CONCURRENT SENTENCES IN COUNTS II, III, AND IV IS STAYED AND THAT PORTION OF THE SENTENCES IS SUSPENDED, WITH THE APPELLANT TO BE RELEASED, WITH CONDITIONS.

KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., LAMAR AND PIERCE, JJ.

RANDOLPH, Presiding Justice,

Concurring in Part and in Result:

¶ 30. The State argued that Cole’s prior sexual misconduct against minors was admissible “for the purposes of proof of motive, as they say in Gore, to gratify his lust, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” The trial court then admitted the evidence “because of all the reasons argued by [the State].... ”

¶ 31. I concur in result, observing that the trial court properly admitted evidence of the prior bad acts, for the reasons argued by the State. This comports with Rule 404(b) and a series of cases in which various trial courts were affirmed on the same or nearly identical issue.

¶ 32. Four decisions (three in the last year alone) since Derouen support the ruling of the trial court in the case sub judice. In Derouen, recognizing that our traditional evidentiary rules were not workable in sex-crimes-against-minors-cases, Mississippi joined the majority of the nation and rectified a flawed precedent of prohibiting Rule 404(b) evidence, by holding that evidence of a prior sexual act may be admitted into evidence under Rule 404(b). Derouen, 994 So.2d at 756 (Miss.2008). Two years later in Gore, this Court reaffirmed Derouen and clarified Rule 404(b) application. Gore, 37 So.3d at 1187. This Court in Gore held that evidence of prior sexual misconduct against minors is admissible under the motive purpose of Rule 404(b) if the misconduct demonstrates a similar mo-dus operandi In Green, this Court further held that, where the prior sexual acts bear “overwhelming similarities” to the deviant conduct at issue, they are “undeniably” admissible under Rule 404(b) as both motive and as evidence of a “common plan, scheme, or system.” Green, 89 So.3d at 550 n. 19 (citation omitted). This Court recently reaffirmed each of these principles in both Young and O’Connor. Young, 106 So.3d at 780; O’Connor, 120 So.3d at 396-98.

¶ 33. In short, “overwhelming similarities” between the prior sexual acts and the licentious sexual misconduct charged “undeniably bring the testimony of [the] other victims within the purview of admissibility under Rule 404(b).” Green, 89 So.3d at 550. Prior sexual acts also are admissible when the conduct is probative of “motive.” “Motive” is “an impulse, as an emotion, desire, or psychological need, acting as incitement to action.” Green, 89 So.3d at 550 n. 19 (citation omitted). Any evidence that tends to show a “ ‘seemingly uncontrollable desire to partake in pedo-philic sexual activities with young and developing juveniles,’ is probative regarding motive.” Young, 106 So.3d at 779 (quoting Green, 89 So.3d at 550-51 n. 19) (emphasis original).

¶ 34. The jury is entitled to hear evidence of prior deviant sexual acts against minor children to corroborate whether motive exists if the “defendant’s means of accomplishing these activities on past occasions bear substantial resemblance to each other and with the present offense.” Young, 106 So.3d at 780 (quoting Gore, 37 So.3d at 1186). Finally, prior sexual acts which demonstrate “a common plan, scheme, or system ... utilized ... repeatedly to perpetrate separate but very similar crimes,” such that the defendant “had a system that involved taking advantage of the [familial] relationship” are admissible. Young, 106 So.3d at 780 (quoting Green, 89 So.3d at 550 n. 19) (emphasis added). Thus, I would find each of these were relevant to the case today, not just lack of mistake or accident.

¶ 35. In the case sub judice, the trial judge admitted the evidence of Cole’s prior sexual acts in response to the State’s argument that it was admissible for “proper 404(b) motives that tend to demonstrate the pedophilic sexual activities with young and developing female juveniles, defendant’s means of accomplishing ... the activities and substantial resemblance with each other,” as well as to show absence of mistake. The trial judge properly weighed the probative and prejudicial value of the evidence under Rule 403 before admitting the evidence.

¶ 36. The majority posits that a defendant, by not testifying, may preclude Rule 404(b) purposes (motive, opportunity, intent, preparation, plan, and knowledge) from consideration. Neither the facts before us, nor the law, offer support for such a finding. The defendant’s silence does not preclude the use of Rule 404(b) evidence. See Green, 89 So.3d 543; Young, 106 So.3d 775. Neither of the defendants in Green or Young testified. Green, 89 So.3d at 548; Young, 106 So.3d at 777. The defense in Green was the same as Cole’s defense-his attorney argued that he did not do it. In both cases, this Court affirmed the admission of evidence of the defendants’ prior sexual acts against minor children under Rule 404(b) for the jury’s consideration of motive and a common plan, scheme, or system. Green, 89 So.3d at 550; Young, 106 So.3d at 779-80.

¶ 37. A defendant’s silence does not control the presentation of evidence and does not dictate the State’s presentation of evidence (including otherwise-admissible prior bad acts that satisfy a Rule 404(b) purpose). See Green, 89 So.3d 543; Young, 106 So.3d 775. It is the defendant’s similar and relevant misconduct offered by witnesses with knowledge that places a Rule 404(b) purpose at issue, not the defendant’s silence. Id. First, the issues for jury consideration are controlled by the offense charged. Next, the State’s evidence offered to establish or prove the charge controls the Rule 404(b) consideration. Finally, the defendant’s defenses, if any, of the charge may place a Rule 404(b) purpose at issue. Stated differently, the conduct sets in motion whether the trial court will let the witness testify to prior bad conduct. If a Rule 404(b) purpose is met, along with relevance and similarity to the offense charged, the trial judge may allow the introduction of the prior sexual misconduct against a minor.

¶ 38. The majority also opines that no Rule 404(b) purpose (other than mistake or accident) was raised or argued by either side. The record reveals otherwise. Throughout the trial, the State, through its witnesses, fully developed motive, intent, and common plan, scheme, and system which creates the opportunity (games).

¶ 39. H.M., M.M., K.H., and E.C. all testified to multiple instances (some indicted, some not) of Cole inappropriately rubbing their breast or vaginal area while they were pre-pubescent. The unindict-ed acts testified to substantially resembled the indicted acts, as defined, and applied in our sexual-miseonduct-against-minor-chil-dren cases since Derouen. Each witness had fallen prey to Cole’s criminally lewd acts on more than one occasion, evincing Cole’s “uncontrollable desire” and a “psychological need” to “partake in pedophilic sexual activities.” Green, 89 So.3d at 550 n. 19. The young victims were mere babies when the deviant sexual assaults began, further evincing Cole’s motive, intent, and opportunity of satisfying his “uncontrollable pedophilic desires.”

¶ 40. The young children also testified to a “common plan, scheme, and system” utilized by their deviant grandfather to sexually abuse them. With the exception of a few isolated instances, each minor testified that Cole’s modus operandi was the same, during the same two games— “horses” and “find Kay Kay’s head.” He utilized the games to create an opportunity to rub upon and penetrate his own granddaughters’ genitalia, repeatedly perpetrating his uncontrollable, pedophilic desires. Cole planned and prepared his licentious assaults on the little girls through the use of those games. He isolated his victims before playing “find Kay Kay’s head,” as Cole would lock the boys out of the room. And then, when playing “horses,” he would select only one little girl at a time to take into the closet. In closing, the State remarked, “[w]hat a great plan for him ... the kids may have made it up, but, boy, did he take advantage of it.” (Emphasis added.) Cole’s attorney conceded in closing that it “would make sense for a sexual predator” to use “find Kay Kay’s head” as a scheme to molest children; but, since Cole did not invent the game, it could not be a scheme.

¶41. A “plan” is a “detailed scheme, program, or method worked out beforehand for the accomplishment of an object.” Webster’s II New College Dictionary 842 (2001). The testimony from the young girls demonstrated a “detailed scheme” and “method” to secretly and furtively accomplish his scheme of sexually assaulting his defenseless, minor grandchildren. A “scheme” is a “systematic plan of action.” Id. at 987. “Horses” and “find Kay Kay’s head” offered a systematic way to perpetrate and satisfy his pedophilic desires. A “system” is defined as a “method.” Id. at 1119. Cole used the two games as a “method” to accomplish his lascivious touching. Finally, the State argued in closing that Cole used the two games as his “tool” to effectuate his “plan” of molesting the victims.

¶ 42. I detect no error when the learned trial judge admitted the evidence under Rule 404(b), tracking this Court’s earlier opinions. The State presented uncontradicted proof of Cole’s mo-dus operandi, including motive — touching (“pedophilic sexual activities”) his granddaughters (“young and developing female juveniles”) multiple times each (“uncontrollable desire”). The prior acts certainly had a “substantial resemblance” to the acts at issue (all victims were touched during “horses” or “find Kay Kay’s head”). The evidence presented in this case qualifies as Rule 404(b) exceptions, as it has been defined in Gore, Green, Young, and O’Connor.

¶ 43. In short, this is the exact sort of evidence this Court has held admissible in Derouen, Gore, Green, Young, and O’Con-nor.

Conclusion

¶ 44. I join in the disposition of the majority, but also would affirm the trial court for the reasons stated herein.

WALLER, C.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

      . Gore v. State, 37 So.3d 1178 (Miss.2010).

      . Haggerty v. Foster, 838 So.2d 948, 958 (Miss.2002).

      . Id. (quoting In re Estate of Mask, 703 So.2d 852, 859 (Miss.1997)).

      . Green v. State, 89 So.3d 543, 549 (Miss.2012) (citations omitted).

      . Miss. R. Evid. 803(25).

      . Miss. R. Evid. 404(b).

      .Miss. R. Evid. 608(b).

      . Miss. R. Evid. 609(a).

      . Miss. R. Evid. 608(b).

      . Miss. R. Evid. 609(a).

      . Miss. R. Evid. 404(a).

      . Id.; see also Miss. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”).

      . Derouen v. State, 994 So.2d 748, 756 (Miss.2008) (citing Lambert v. State, 724 So.2d 392, 394 (Miss.1998) (citing Mitchell v. State, 539 So.2d 1366, 1372 (Miss.1989))).

      . Derouen, 994 So.2d at 756.

      . Mitchell v. State, 110 So.3d 732, 734 (Miss.2013).

      . Derouen, 994 So.2d at 756.

      . Derouen v. State, 994 So.2d 748 (Miss.2008); Gore v. State, 37 So.3d 1178 (Miss.2010); Green v. State, 89 So.3d 543 (Miss.2012); Young v. State, 106 So.3d 775 (Miss.2012); O’Connor v. State, 120 So.3d 390 (Miss.2013).

      . Gore, 37 So.3d 1178; Green, 89 So.3d 543; Young, 106 So.3d 775; O'Connor, 120 So.3d 390.

      . Derouen, 994 So.2d at 753 (detailing the overwhelming weight of authority allowing evidence of prior sexual acts against children to be admissible) (citing Mitchell v. State, 539 So.2d 1366, 1374-75 (Miss.1989) (Hawkins, P.J., dissenting), overruled by Derouen, 994 So.2d 748.).

      . Gore, 37 So.3d at 1191; Green, 89 So.3d at 550; Young, 106 So.3d at 779; O’Connor, 120 So.3d at 397-98.

      . Later in the trial, the State, once again, cited Gore in argument that the unindicted witness’s testimony was admissible "for the purpose of proof of motive, as they say in Gore, to gratify his lust....”

      . The ages of the children were all under nine. The record reveals that each girl was between the age of six and nine during Cole’s sexual assaults.

      . The trial judge is the same trial judge as in Gore.


text:
    In the Matter of the Last Will and Testament of John William NORTON: Jessica Norton Jordan v. Linda Booth, Executrix of the Estate of John William Norton.
    No. 2012-CA-01700-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2013.
    Joseph Preston Durr, W. Brady Kel-lems, Brookhaven, Cheli Kellems Durr, attorneys for appellant.
    Durwood Jewell Breeland, Brookhaven, attorney for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Jessica Norton Jordan appealed the chancellor’s declaratory ruling that she was not entitled to a share of her adoptive father’s estate under Mississippi’s preter-mitted heir statute. Miss.Code Ann. § 91-5-5 (Rev.2013). The order was entered in an ongoing probate action, and the certified copy of the trial court’s docket indicates that Jordan still is involved in the probate matter. Moreover, the declaratory judgment did not contain a Rule 54(b) certification or equivalent language. M.R.C.P. 54(b). Because the order denying pretermitted heir status to Jessica is not a final, appealable judgment, the appeal is dismissed.

I.

¶ 2. At the time of his death, John William Norton had three natural children: Dale, Linda, Gail, and one adopted daughter: Jessica. John’s wife, who predeceased him, was the natural mother of the first three children and the adoptive mother of Jessica. Jessica is Gail’s biological daughter, making her the natural granddaughter of John and his late wife. In January 1987, prior to Jessica’s adoption, John executed his Last Will and Testament, making specific devises and bequests to his three natural children and leaving any remaining property “unto [his] three children, William Dale Norton, Linda Rae Wilson, and Angela Gail Norton in equal shares, and share and share alike.” On May 1, 1990, John and his wife adopted Jessica, but John never changed his 1987 will.

¶ 3. John died on April 25, 2011, and his 1987 will was admitted to probate in the Lincoln County Chancery Court. John’s daughter Linda, as executrix, filed a petition for declaratory judgment within the pending probate proceeding asking the chancellor to declare that Jessica was not entitled to inherit any part of John’s estate. The docket reflects that, before the petition for declaratory relief was filed, a “Motion to Recover Assets” was filed, with a summons issued to Jonathan Sawyer Smith, a notice of deposition, and an agreed order. None of these documents is before the Court, and the record does not reveal Smith’s identity or his relation to the case.

¶ 4. After the chancellor had granted Linda’s petition by means of the order now on appeal, the docket reflects that there was additional activity involving Jessica. Two months after Jessica filed her notice of appeal, a Motion to Recover Assets was filed, immediately followed by a summons issued for Jessica, her natural mother, Jessica’s husband, and Jonathan Sawyer Smith. Also appearing on the docket are a Petition to Authorize Sale of Estate Property and a Motion for Contempt. The latest entry, dated September 19, 2013, is an order of continuance. The docket does not show against whom the contempt action was brought.

II.

¶ 5. As demonstrated above, the order from which Jessica appealed did not terminate the proceedings. The right to appeal does not arise until the trial court disposes of all the claims against all defendants. Calvert v. Griggs, 992 So.2d 627, 631 (Miss.2008) (citing M.R.C.P. 54(b); Briscoe’s Foodland, Inc. v. Capital Assocs., Inc., 502 So.2d 619, 622 (Miss.1986)). Nevertheless Rule 54(b) of the Mississippi Rules of Civil Procedure does permit trial courts to enter a final, appealable judgment, even if the order generating the appeal does not terminate the proceedings. However, the chancellor’s order regarding Jessica’s status as a pretermitted heir made no “expressed determination that there [was] no just reason for delay” and it did not contain “an expressed direction for the entry of the judgment.” M.R.C.P. 54(b).

¶ 6. Absent certification under Rule 54(b), an order disposing of fewer than all of the claims or parties is interlocutory and cannot be appealed without the permission of this Court. M.R.A.P. 5 (detailing requirements for petitions to appeal an interlocutory order). Here, Jessica did not request permission to appeal under Rule 5 of the Mississippi Rules of Appellate Procedure, and the probate proceedings continued after entry of the order at issue. Notably, Jessica’s involvement in the case did not end with the chancellor’s declaring that she was not a pretermitted heir. Lacking a final judgment or the Court’s permission, this appeal must be dismissed.

Conclusion

¶ 7. We find that Jessica attempted to appeal an interlocutory order. The record clearly demonstrates that the probate action continued after this order was entered and that Jessica remains involved in the proceedings. Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the appeal is hereby dismissed.

¶ 8. APPEAL DISMISSED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . During oral argument one of the attorneys identified this man as Jessica’s biological brother.


author: WALLER, Chief Justice,

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM v. Sherry WALKER.
    No. 2011-CT-00719-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2013.

      Jane L. Mapp, Jackson, attorney for appellant.
    George S. Luter, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. The Public Employees’ Retirement System (PERS) denied Sherry Walker’s requests for regular and duty-related disability benefits. The Hinds County Circuit Court reversed PERS’s decision. The Court of Appeals reversed the circuit court, reinstating PERS’ denial of benefits. We find that PERS’ decision to deny Walker’s request for regular disability benefits was unsupported by substantial evidence. Accordingly, we reverse in part the opinion of the Court of Appeals. We also reverse the judgment of the Hinds County Circuit Court, and we remand this case to the circuit court with instructions to enter judgment in Walker’s favor on her regular disability benefits claim.

STATEMENT OF THE CASE

¶ 2. Sherry Walker worked as a teacher in the South Pike School District for thirteen years. In 1998, Walker fell during a classroom demonstration, injuring her neck, back, and wrists. She then applied for regular and duty-related disability benefits from PERS, claiming that her workplace injury had exacerbated her preexisting degenerative disease and fibromyalgia. Other facts, including a summary of Walker’s treatment by various physicians, will be discussed as necessary later in this opinion.

¶ 3. After reviewing Walker’s medical records and other evidence, the PERS Medical Board denied Walker’s request for benefits. Walker appealed to the PERS Disability Appeals Committee (DAC), which also concluded that Walker’s medical condition was not severe enough to prevent her from performing her normal work duties. Thus, the DAC recommended that the PERS Board of Trustees deny Walker’s request for benefits. The Board of Trustees adopted the DAC’s recommendation, and Walker appealed to the Hinds County Circuit Court. The circuit court reversed the Board of Trustees’ decision, finding that PERS’ denial of duty-related benefits was not supported by substantial evidence.

¶ 4. PERS appealed the circuit court’s decision, and the case was assigned to the Court of Appeals. Walker cross-appealed on the issue of whether she was entitled to regular disability benefits. The Court of Appeals reversed the circuit court’s decision and rendered judgment in favor of PERS, finding that substantial evidence supported PERS’ denial of both regular and duty-related benefits. We granted Walker’s petition for writ of certiorari to determine whether PERS’ denial of disability benefits was supported by substantial evidence, when PERS had declined to conduct an independent medical examination of Walker.

STANDARD OF REVIEW

¶ 5. This Court’s standard of review of the decision of an administrative agency is well-settled. “[A]n agency’s conclusions must remain undisturbed unless the agency’s order: 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (Miss.2000) (citations omitted). This Court may neither substitute its own judgment for that of the agency which rendered the decision nor reweigh the facts of the case. Mississippi Pub. Serv. Comm’n v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992). “There is a rebutta-ble presumption in favor of a PERS ruling.” Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (Miss.2001) (citing Brinston v. Pub. Employees’ Ret. Sys., 706 So.2d 258, 259 (Miss.Ct.App.1998)).

DISCUSSION

I. Whether PERS’ denial of regular disability benefits was supported by substantial evidence.

¶ 6. PERS provides state employees with alternative disability and retirement income. Miss.Code Ann. § 25-11-3 (Rev.2010). Two types of disability benefits are available to state employees. Regular disability benefits cover employees with the requisite of amount of creditable service who become disabled for any reason. Dishmon, 797 So.2d at 892. Duty-related disability benefits cover state workers who suffer injury during the performance of work-related duties, regardless of the number of years of service. Id. However, before the claimant is entitled to receive benefits, the claimant must prove that he or she is “disabled,” which is defined by statute as:

[T]he inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in eom-pensation, or the incapacity to perform the duties of any employment covered by the PERS that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Id. at 893; Miss.Code Ann. § 25-11-113(l)(a) (Rev.2010). The PERS Medical Board also must certify that the claimant is “mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired[.]” Miss.Code Ann. § 25-ll-113(l)(a) (Rev. 2010).

¶ 7. After reviewing the voluminous medical evidence in this case, PERS found that Walker was not disabled. Thus, we must review the evidence before the agency to determine whether this finding was supported by substantial evidence. “Substantial evidence means something more than a ‘mere scintilla’ or suspicion.” Marquez, 774 So.2d at 425 (citing Miss. Real Estate Comm’n v. Anding, 732 So.2d 192, 196 (Miss.1999)). Substantial evidence has been defined further as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768 (Miss.1991).

¶ 8. Walker’s chiropractor Dr. Edward Long diagnosed Walker with a lumbro-sacral sprain, lumbar radiculitis, and cervi-co-brachial syndrome and assigned a fifty-one-percent impairment rating to her body as a whole. Dr. Long indicated that Walker was unable to climb stairs or walk short distances and considered Walker’s disability permanent, stating, “This injury aggravated, accelerated and agitated previous symptoms which continue to keep her disabled.” Dr. James Hughes, an orthopedic surgeon, evaluated Walker’s neck and back and observed that “[Walker] has serious preexisting conditions that certainly may prevent her from returning to work even to light duty. For this, her other physician should be consulted.” Dr. Robert Van Uden, another orthopedic surgeon, began treating Walker in January 1998 for fibromyalgia and chronic pain. Dr. Van Uden opined that Walker “is currently unable to work as a full-time elementary school teacher,” but that “she might be able to engage in some sort of limited teaching role, so long as she did not have prolonged standing, sitting or repetitive bending.” Walker’s job required frequent (two-thirds of the day) walking, sitting, squatting, standing, and bending. Dr. Van Uden also stated, “I would think that her fibromyalgia, lupus, and Chronic Fatigue Syndrome contribute extremely significantly to her overall disability at this point.” Dr. Henry Lewis, Walker’s primary physician, concluded that Walker was permanently disabled because there is “no known cure” for her conditions. Dr. James Hensarling, Walker’s rheumatologist, confirmed that Walker suffered from fibromyalgia and lupus, but provided no prognosis and did not give an opinion on Walker’s level of disability. Dr. Douglas Draper, a psychologist, and Dr. Donald Guild, a psychiatrist, both diagnosed Walker with chronic dysthymic disorder and chronic dependent personality disorder, with moderate severity and moderate-to-poor prognosis. PERS chose not to conduct an independent examination of Walker.

¶ 9. Although PERS is not required to perform an independent examination of a claimant, we previously have reversed PERS’ denial of regular disability benefits when the credible evidence supported a finding of disability and PERS chose not to conduct an independent medical examination. In Marquez, 774 So.2d at 423-24, the claimant, a fifth-grade special-education teacher, sought regular disability benefits from PERS after being forced to resign from her job due to her failing health. The PERS Medical Board had before it evidence of the claimant’s numerous medical ailments, including severe depression and fibromyalgia. Id. at 426. Two of the claimant’s treating physicians also opined that the claimant was “unemployable” due to her history of medical difficulties. Id. Yet, PERS denied her request for benefits, finding that there was “insufficient objective evidence” to support the claimant’s assertion that she could not perform her job. Id. at 424. The Hinds County Circuit Court reversed PERS’ decision, finding that the claimant had proven that PERS’ decision was not supported by substantial evidence. Id. In affirming the judgment of the circuit court, we held:

[W]e do not know what it was about the evidence that persuaded the board that Marquez was not disabled. PERS put forth no controverting evidence in the face of various medical diagnoses made by various credible doctors. When medical evidence and testimony by Marquez is contrasted with PERS’ rationale for denial of benefits, the evidence supporting PERS’ decision to deny benefits appears insubstantial.... PERS has stated only that Marquez lacks sufficient “objective” medical evidence.

Id. at 429. Because PERS failed to explain its reasons for denying benefits in light of the objective diagnoses made by Marquez’s treating physicians, we held that PERS’ decision was not supported by substantial evidence. Id.

¶ 10. In Public Employees’ Retirement System v. Dearman, 846 So.2d 1014, 1015 (Miss.2003), a teacher who suffered from fibromyalgia, chronic migraine headaches, chronic fatigue syndrome, and various other conditions was advised by her primary physician to seek medical retirement. The claimant quit her job and sought regular disability benefits from PERS. Id. at 1016. The superintendent of education and the principal of the claimant’s school certified that, in their official opinions, the claimant was unable to perform her job duties, and that no reasonable alternate accommodations would allow the claimant to continue her employment. Id. The only medical evidence in the record indicated that the claimant was permanently disabled due to her medical condition. Id. The PERS Medical Board did not conduct its own examination of the claimant, nor did it request that an independent physician examine the claimant. Id. Nevertheless, PERS determined that the claimant was not permanently disabled. Id. The circuit court reversed PERS’ decision, and this Court affirmed the circuit court’s judgment, finding PERS’ decision was unsupported by substantial evidence. Id. at 1019. After reviewing the substantial evidence supporting the claimant’s assertion of disability, this Court noted:

Conversely, the record is devoid of any evidence that Dearman is not disabled. PERS failed to offer any medical evidence which disputed the opinions of Drs. Millette, Witty, Nicholls, Smith, Redman and Orleans. PERS contends physicians on the Medical Board and the [DAC] reviewed the evidence and determined that Dearman was not disabled. However, this opinion is not conclusive. PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation under Miss. Code Ann. § 25-ll-113(l)(c) (Rev.1999).

Id. at 1018. Because the uncontroverted medical evidence before PERS indicated that the claimant was disabled, we held that PERS’ decision to deny benefits was arbitrary and capricious. Id. at 1019.

¶ 11. After a thorough review of the record, we cannot say that PERS’ decision to deny Walker regular disability benefits was supported by substantial evidence. PERS had before it the records of multiple doctors who indicated that Walker was unable “to perform the usual duties of employment!.]” Miss.Code Ann. § 25-11-113(l)(a) (Rev.2010). Dr. Van Uden opined that Walker may have been able to perform some limited part-time teaching duty, as long as it did not require repetitive sitting, standing, or bending. However, Walker’s employer indicated that sitting, standing, and bending were among the central requirements of Walker’s job as a second-grade teacher. All of this evidence indicates that Walker was unable to return to woi'k, and none of Walker’s doctors explicitly indicated that Walker was not disabled. See Knight v. Pub. Employees’ Ret. Sys., 108 So.3d 912, 921 (Miss.2012) (finding that PERS’ denial of disability benefits was unsupported by substantial evidence, where claimant’s physicians suggested, but did not explicitly state, that claimant was disabled, and no physician concluded that claimant was not disabled). PERS acknowledged that Walker suffered from various medical conditions, including “some sort of rheumato-logical thing,” but seemed to disregard Walker’s physicians’ opinions that Walker suffered from fibromyalgia and lupus. The DAC stated that “just because someone has a diagnosis does not mean they are disabled.” The DAC also concluded that, based on their observation of Walker at the hearing, that she was not disabled. PERS seemingly rejected Walker’s evidence of disability based solely on its own opinion that fibromyalgia cannot be disabling, and that Walker’s complaints of pain were likely psychological in nature. This opinion is not supported by the record, as PERS advanced no proof to support its theories that Walker’s complaints were psychologically based, or that her fibro-myalgia was not disabling.

¶ 12. The medical diagnoses provided by Walker’s licensed physicians are objective, not subjective, evidence of disability. Marquez, 774 So.2d at 427. “When PERS rejects individual assessments outright, it must not leave in doubt the cumulative effect that each ailment creates for the claimant as a whole, in making its determination.” Public Employees’ Retirement System v. Dishmon, 17 So.3d 87, 95 (Miss.2009). PERS chose not to conduct an independent examination of Walker to confirm its own suspicions or to refute Walker’s evidence of disability. “PERS should not stray from the purpose of [Section 25-11-113], to compensate disabled employees that have not met the 25 year retirement criteria, in denying benefits nor set the bar so high that this purpose is frustrated.” Pub. Employees’ Ret. Sys. v. Shurden, 822 So.2d 258, 265 (Miss.2002). Following this Court’s precedent in Marquez, Dearman, and other factually similar cases, we hold that PERS’ denial of regular benefits in this case was not supported by substantial evidence.

II. Whether PERS’ denial of duty-related disability benefits was supported by substantial evidence.

¶ 13. We agree with the Court of Appeals that substantial evidence supported PERS’ denial of Walker’s request for duty-related disability benefits. See Walker, 2011-SA-00719-COA, 2011 WL 6119191, n. 2 (Miss.Ct.App. May 14, 2013). A claimant seeking duty-related disability benefits must show that his or her disability was the direct result of some work-related accident or traumatic event. Miss. Code Ann. § 25-11-114(6) (Rev.2010) (emphasis added). Walker’s extensive medical records show that her complaints of neck and back pain predate her workplace injury by more than thirty years. Therefore, PERS correctly denied Walker’s request for duty-related disability benefits.

CONCLUSION

¶ 14. The decision of PERS to deny Sherry Walker’s request for regular disability benefits was arbitrary and capricious, as it was unsupported by substantial evidence. Accordingly, we reverse in part the opinion of the Court of Appeals, while affirming its findings with regard to Walker’s duty-related disability benefits. We also reverse the judgment of the Hinds County Circuit Court holding that Walker is entitled to duty-related disability benefits. We remand this case to the circuit court with instructions to enter judgment in Walker’s favor on her claim for regular disability benefits.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED.

DICKINSON, P.J., KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LAMAR AND COLEMAN, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Any member in state service who became a member of the system on or after July 1, 2007, must have at least eight years of membership credit service before becoming eligible for regular disability retirement benefits. Miss.Code Ann. § 25 — 11—113(l)(a) (Rev. 2010). Walker became a member of the system prior to that date, so she needed just four years of creditable service to become eligible. Id.

      . In his report to PERS, Dr. Hensarling wrote "N/A” in the space provided for describing the permanence of the patient's disability.


author: ISHEE, J.,

text:
    CAVALIER HOME BUILDERS, Appellant v. Paul BAUGHMAN and Tiffany Baughman, Appellees.
    No. 2011-CA-01452-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied June 4, 2013.
    Certiorari Dismissed Dec. 5, 2013.

      William L. McDonough Jr., Biloxi, Nicholas K. Thompson, Hattiesburg, attorneys for appellant.
    Stephen W. Mullins, Ocean Springs, attorney for appellees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2006, Paul and Tiffany Baughman contacted Albright Manufactured Homes (Albright) about purchasing a mobile home (the home) to place on their land in Hancock County, Mississippi. Albright’s principal agent, Randy Reed, assisted the Baughmans in ordering the home of their choice from Cavalier Home Builders (Cavalier). Several months later, the home was delivered to Albright from Cavalier, at which point Albright signed off on the home and delivered it to the Baughmans’ lot. Albright then assembled the home on-site. The Baughmans experienced numerous problems with the home and continually contacted Albright and Cavalier to repair the home’s deficiencies, to no avail. The Baughmans eventually filed suit against Reed, Albright, and Cavalier. However, Reed disappeared, and Albright closed its business; thus, neither party responded to the Baughmans’ complaint. A jury tidal took place in 2006 in the Hancock County Circuit Court. Despite Reed’s and Albright’s failure to appear, the jury assessed damages against Al-bright in the amount of $40,000 and against Cavalier in the amount of $140,000. Cavalier quickly filed a motion for a judgment notwithstanding the verdict (JNOV), a motion for a new trial, and a motion for a remittitur. The circuit court denied all of the motions, and Cavalier now appeals. Finding reversible error, we reverse and render the $140,000 judgment against Cavalier. Since Albright is not a party to the appeal, this opinion does not affect the $40,000 judgment against it.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In February 2006, the Baughmans visited Albright’s retail lot to shop for a home. While inside Albright’s office, Tiffany noticed a white banner with Cavalier’s logo on it that read “Authorized Dealer.” As such, Tiffany believed she was dealing directly with Cavalier in the purchase of their home.

¶ 3. On February 7, 2006, the Baugh-mans contracted with Albright to custom order a Cavalier model double-wide manufactured home. The Baughmans then made a $40,000 down payment on the home to Albright with a check made out to Albright. Although Albright issued a receipt for the payment to the Baughmans, it is noteworthy that Cavalier does not require a down payment of any kind for a custom-ordered home.

¶ 4. Albright then ordered the home from Cavalier. Cavalier manufactured the home in Alabama, during which time the home passed all of the quality-control checks in place by Cavalier. In March 2006, the home was delivered to Albright’s retail-lot location, where Reed signed on behalf of Albright to acknowledge the home was in good condition when it arrived on Albright’s lot.

¶ 5. In actuality, Albright was only a retailer for Cavalier and was not an authorized dealer. Cavalier’s representative, Jerry Dudley, testified that Albright was never Cavalier’s authorized dealer and that Cavalier had never provided any “authorized dealer” banner to its retailers. Under the retailership agreement between Cavalier and Albright, Albright acknowledged that it carried the responsibility of transporting, delivering, setting up, and installing Cavalier homes on purchasers’ properties. However, Cavalier had no control over Albright’s operations.

¶ 6. When Albright transported and delivered both halves of the home to the Baughmans’ property, the Baughmans noticed that the rear corner of the back half of the home had been significantly damaged. Nonetheless, Albright continued with the setup and installation of the home, which included setting the home on concrete runners; “marrying,” or joining, the two halves of the home together; selecting and installing the outdoor air-conditioning unit; and connecting the home to electricity, water, and sewer-utility services.

¶ 7. Soon after installation took place, the Baughmans noticed severe problems at the marriage line, or the roof line where the two halves of the home were joined. Although the Baughmans had not moved in yet, they also began experiencing electrical, appliance, and water problems in the home. They contacted both Albright and Cavalier.

¶ 8. Cavalier fixed all cosmetic issues and any potential manufacturing problems. Additionally, Cavalier attempted to fix some problems that had arisen in installation. Albright also attempted numerous repairs. Nonetheless, the issues continued. The Baughmans eventually filed a formal complaint with the Mississippi State Fire Marshal’s Manufactured Housing Division (Fire Marshal). Upon inspection, the Fire Marshal ordered Albright and Cavalier to fix several remaining problems. Cavalier continued its attempt at fixing numerous problems. Albright failed to do the same.

¶ 9. The Baughmans rescinded their purchase contract with Albright, requested that the home be removed from their property, and demanded a refund of them down payment. Unfortunately, Albright had already gone out of business, and Reed had disappeared along with the Baughmans’ down payment.

¶ 10. The Baughmans were never able to move into the home due to the problems. The home’s issues also caused the Baughmans’ financing to collapse since the home failed to pass the Federal Housing Administration’s inspection. Accordingly, Albright’s finance company picked up the home from the Baughmans’ lot in May 2007. As such, the Baughmans never actually purchased, owned, or moved into the home.

¶ 11. The Baughmans then filed suit against Cavalier, Albright, and Reed; individually, seeking the return of their down payment. At trial, the Baughmans submitted the case to the jury on theories of breach of contract, products liability, and agency. The jury returned a verdict in favor of the Baughmans against Cavalier in the amount of $140,000 and against Al-bright in the amount of $40,000. Shortly thereafter, Cavalier filed a motion for a JNOV, a motion for a new trial, and a motion for a remittitur. The circuit court conducted a hearing on Cavalier’s motions and denied them. Cavalier timely appeals, claiming the circuit court erred in its denial of the motions.

DISCUSSION

¶ 12. A JNOV motion “tests the legal sufficiency of the evidence supporting the verdict,” whereas a motion for a new trial “simply challenges the weight of the evidence.” Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 54-55 (¶ 107) (Miss.2004) (citations omitted). If, after considering all of the evidence in the case, “the facts and inferences so considered point so overwhelmingly in favor of the movant [ (requesting a JNOV) ] that reasonable [jurors] could not have arrived at a contrary verdict, granting the motion [ (for a JNOV) ] is required.” Id. (citation omitted). However, we will reverse the denial of a motion for a new trial only if “the verdict is so contrary to the overwhelming weight of the evidence that[ ] to allow it to stand[ ] would be to sanction an unconscionable injustice.” Id. (citation omitted).

¶ 13. We first consider the denial of Cavalier’s JNOV motion, which we review de novo. See Univ. of S. Miss. v. Williams, 891 So.2d 160, 167-68 (¶ 14) (Miss.2004) (citation omitted). We must determine if there is substantial evidence to support the jury’s verdict against Cavalier. The Mississippi Supreme Court has stated that substantial evidence constitutes “information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (¶ 19) (Miss.2008) (citation omitted).

¶ 14. Here, the jury returned a verdict against Cavalier in the amount of $140,000 and against Albright in the amount of $40,000. The judgment against Albright was properly granted pursuant to the Baughmans’ breach-of-contract claim against Albright. However, Cavalier’s liability must have been based on one of the following two theories presented by the Baughmans at trial: (1) products liability or (2) breach of contract. With regard to the products-liability claim, the Baugh-mans only submitted one jury instruction on the matter, claiming negligent manufacturing.

¶ 15. Mississippi Code Annotated section 11-1-63 (Supp.2011) governs products liability and states in pertinent part:

(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) The product was defective because it deviated in a material way ... from the manufacturer’s specifications or from otherwise identical units ...; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

Accordingly, the Baughmans must have proven by a preponderance of the evidence that at the time the home left Cavalier’s manufacturing plant, the home materially deviated from Cavalier’s specifications; the defective condition made the product unreasonably dangerous to the Baugh-mans; and the condition caused the Baughmans’ damages.

¶ 16. The record reflects that the Baughmans complained of numerous problems with the home. The Fire Marshal’s investigation revealed three issues with the home, including that the carpet was not seamed throughout the home, the air conditioner did not work properly, and the ceiling along the marriage line was not properly joined. Nonetheless, neither the air-conditioner issue nor the marriage-line issue was due to a manufacturing defect. Pursuant to the retailership agreement between Cavalier and Albright, Albright was responsible for selecting and installing an air conditioner for the home and for marrying the two sides of the home together during setup. Cavalier’s representative reiterated at trial that each of the problems addressed by the Fire Marshal was attributable to Albright, not Cavalier.

¶ 17. The record shows only one other complaint from the Baughmans that could have been the result of faulty manufacturing. The evidence supports that there was a defect in one electrical wire, which was installed on the outside of a stud, instead of through it. However, even if the misplacement of a single electrical wire could be considered a material defect, there was no evidence presented at trial that the misplaced wire rendered the entire home unreasonably dangerous to the Baugh-mans. While the evidence shows the misplaced wire may have prevented the hallway lights in the home from functioning, such a condition was not shown to be dangerous to the Baughmans in any way. Most notably, because the Baughmans never technically lived in or owned the home, any damage claimed by the Baugh-mans from the misplaced wire is irrelevant. The Baughmans could not have suffered damage from the lack of use of the hallway lights in the home. Since the Baughmans failed to satisfy the requirements for proving their products-liability claim, the verdict against Cavalier must have been predicated on the breach-of-contract claim.

¶ 18. Although the Baughmans assert that Cavalier breached the contract to purchase the home, the record reflects that Cavalier was not a party to the contract to purchase the home. The contract in question is labeled as “ALBRIGHT MANUFACTURED HOMES, INC.... Purchase Agreement” at the top of the page. The contract further states:

IN THIS CONTRACT THE WORDS ME AND MY REFER TO THE PURCHASER AND CO-PURCHASER SIGNING THIS CONTRACT. THE WORDS YOU AND YOUR REFER TO THE RETAILER. SUBJECT TO THE TERMS AND CONDITIONS ON BOTH SIDES OF THIS AGREEMENT!;,] YOU AGREE TO SELL AND I AGREE TO PURCHASE THE FOLLOWING DESCRIBED UNIT.

¶ 19. The Baughmans claim Al-bright had apparent authority to act for and bind Cavalier. According to them, they believed Albright was Cavalier’s agent, which was the basis for their alternative claim for breach of contract under a theory of agency. It is undisputed that the only binding documentation between Cavalier and Albright was a retailership agreement. Albright was not Cavalier’s agent and never had been Cavalier’s agent.

¶ 20. In order to support their claim of agency, the Baughmans must show that Albright exhibited apparent authority for Cavalier through proof of “(1) acts or conduct of the principal indicating the agent’s authority, (2) reasonable reliance upon those acts by a third person, and (3) a detrimental change in position by the third person as a result of that reliance.” Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc., 928 So.2d 856, 865 (¶ 34) (Miss.2006) (citations omitted). Furthermore, “[t]here can be no apparent authority to act where an agency relationship, either actual, expressed, or implied does not exist.” Id. (citation omitted).

¶ 21. Here, the only evidence the Baughmans can provide to support their belief that Albright was Cavalier’s agent is a white banner in Albright’s office with Cavalier’s logo on it, reading “Authorized Dealer.” However, Cavalier testified that the banner was not manufactured, distributed, approved, or known to exist by Cavalier.

¶ 22. Additionally, the Baughmans assert that because Cavalier visited the home after delivery and setup on numerous occasions to make repairs, they believed Albright and Cavalier were working together in an agency relationship to fix the home’s problems. However, even if Cavalier’s actions in helping to resolve the home’s problems indicated a working relationship with Albright, such actions arose after the Baughmans had already entered into the purchase agreement to buy the home. As such, they could not argue they relied on those actions when entering into the contract with Albright.

¶ 23. In sum, the Baughmans failed to provide sufficient evidence that reasonable jurors could not have found in favor of Cavalier. The Baughmans simply did not substantiate a basis for either a products-liability claim or a breach-of-contract claim against Cavalier. Finding this to be dis-positive of all other claims for relief, we reverse and render the circuit court’s judgment of $140,000 against Cavalier. However, because Albright was not a party to this action, this opinion does not affect the $40,000 judgment against Albright.

¶ 24. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IN THE AMOUNT OF $140,000 AGAINST CAVALIER HOME BUILDERS IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J, GRIFFIS, P.J., BARNES, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND ROBERTS, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.