author: JAMES, J., for the Court: ROBERTS, J.,

text:
    Kevin LOBO a/k/a Kevin Anthony Lobo a/k/a Kevin A. Lobo, Appellant v. CITY OF RIDGELAND, Mississippi, Appellee.
    No. 2012-KM-00525-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Boty McDonald, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J., for the Court:

¶ 1. Kevin Lobo appeals the judgment of the Circuit Court of Madison County, which affirmed his conviction of driving under the influence (DUI) first offense, careless driving, and running a red fight. Lobo raises the following issues on appeal: (1) the circuit court erroneously denied his motion for a judgment notwithstanding the verdict (JNOV), as the evidence was insufficient to find him guilty of the charges beyond a reasonable doubt, and (2) the circuit court erroneously denied his motion to strike the State’s brief, as the brief was untimely filed. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 9, 2009, at around 2:30 a.m., Lobo was traveling westbound on County Line Road in Ridgeland, Mississippi. Officer Alex Pierce of the Ridgeland Police Department observed Lobo’s vehicle run over a concrete median in the middle of the road. Officer Pierce activated her blue lights and proceeded to follow Lobo on County Line Road. While following Lobo, Officer Pierce saw Lobo run a red light. After Lobo pulled the vehicle to the side of the road, Officer Pierce approached the vehicle and asked Lobo for his driver’s license and proof of insurance. According to Officer Pierce, when she approached the driver’s side of the vehicle, she noticed an odor of alcohol emitting from the vehicle’s interior. Officer Pierce stated that she also noticed that Lobo’s eyes were bloodshot red. Suspecting that Lobo was driving under the influence of alcohol, Officer Pierce called DUI Officer Steven Webb to the scene.

¶ 3. According to Officer Webb, upon arrival, he approached the driver’s side of Lobo’s vehicle and noticed an overwhelming odor of alcohol coming from inside the vehicle. Officer Webb asked Lobo if he had been drinking, and Lobo stated that he “had a few mixed drinks.” Officer Webb ordered Lobo to exit the vehicle, and administered a series of field sobriety tests. Each of the sobriety tests indicated that Lobo was intoxicated and was too impaired to operate a vehicle. Officer Webb placed Lobo under arrest and took him to the Ridgeland Police Department. After monitoring Lobo for twenty minutes, Officer Webb offered to administer an In-toxilyzer 8000 test. Lobo refused to take the test, claiming that he thought the test results would be inaccurate. Lobo was charged with DUI, first offense, refusal to submit to an Intoxilyzer test, careless driving, and running a red light.

¶ 4. On December 29, 2009, Lobo pled not guilty to each charge in the Municipal Court of Madison County. On March 8, 2010, Lobo received a trial de novo in the County Court of Madison County before a judge sitting without a jury. Lobo was found guilty of DUI, first offense, careless driving, and running a red light. The court ordered Lobo to pay a fine of $50 for running a red light, a fine of $25 for careless driving, and a fine of $1,000 for DUI, first offense. Lobo was also sentenced to forty-eight hours in the custody of the Madison County Sheriffs Department, with the sentence suspended upon completion of the Mississippi Alcohol Safety Education Program. Lobo subsequently filed a motion for a JNOV, or, in the alternative, a new trial. The county court denied the motion, and Lobo appealed to the Madison County Circuit Court.

¶ 5. Lobo filed a brief with the circuit court on January 2, 2011. On November 10, 2011, the court issued an order regarding the State’s failure to timely file a brief. In the order, the court ordered the State to file a brief within fourteen days of the date of the order. On January 20, 2012, the court issued an order to show cause due to the State’s failure to comply with the court’s previous order. During the show-cause hearing, the State was granted additional time to file its brief. The State thereafter filed its brief with the circuit court on January 31, 2012.

¶ 6. On February 10, 2012, Lobo filed a motion to strike the State’s brief on the ground that it was untimely filed. The circuit court denied the motion, and affirmed the judgment of the county court. From this judgment, Lobo now appeals.

STANDARD OF REVIEW

¶ 7. The findings of a circuit judge sitting without a jury are accorded the same deference as those of a chancellor.” Knight v. State, 14 So.3d 76, 78 (¶ 4) (Miss. Ct.App.2009) (citing Doolie v. State, 856 So.2d 669, 671 (¶ 7) (Miss.Ct.App.2003)). Therefore, we will not reverse if the judge’s findings are supported by substantial, credible, and reasonable evidence. Id.

DISCUSSION

I. Sufficiency of the Evidence

¶ 8. Lobo argues that the circuit court erred in denying his motion for a JNOV, or, in the alternative, a new trial, because the evidence was insufficient to find him guilty beyond a reasonable doubt of DUI, first offense, careless driving, and running a red light. The critical inquiry in determining whether the evidence was sufficient to support a conviction is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 9. Considering the evidence in the light most favorable to the State, we find that evidence was sufficient to support Lobo’s conviction on all three counts. Mississippi Code Annotated section 63-11-30(l)(a) (Rev.2004) makes it “unlawful for any person to drive or otherwise operate a vehicle within this state who ... is under the influence of intoxicating liquor.” Officer Pierce and Officer Webb both testified that on the night of Lobo’s arrest, they smelled alcohol emitting from Lobo’s vehicle. Officer Webb testified that during the field sobriety tests, Lobo exhibited physical signs of impairment. Officer Webb stated that he observed that Lobo’s eyes were bloodshot and glassy, and that his pupils were dilated. He also testified that Lobo’s speech was slurred. According to Officer Webb, in one of the field sobriety tests, Lobo exhibited three out of four clues indicating that he was intoxicated. In another sobriety test that was administered by Officer Webb, Lobo exhibited seven out of eight clues, and six out of six clues in another test. In addition, Lobo refused to submit to an Intoxilyzer test. “If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter.” Miss.Code Ann. § 63-11-41 (Rev.2004). During trial, Lobo testified that he had consumed three alcoholic drinks prior to operating his vehicle on the night of the arrest. We find that, in light of these facts, any rational trier of fact could have found beyond a reasonable doubt that Lobo committed the offense of DUI, and he did so under such circumstances that every element of the offense existed. Thus, this issue is without merit.

¶ 10. As to the offenses of running a red light and careless driving, Lobo claims that he ran the red light simply to yield to Officer Pierce after she activated her blue lights; and, he accidently drove over the concrete median with one of his tires because he was unfamiliar with the area. Mississippi Code Annotated section 63-3-1213 (Rev.2004) provides that “[a]ny person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless driving.” Officer Pierce testified that she observed Lobo drive his entire vehicle over the concrete median. She also testified that after she saw Lobo run over the concrete median, she saw him run through a red light. Both Officer Pierce and Officer Webb stated that there was plenty of room for Lobo to pull over to the side of the road and not run the red light. We reject Lobo’s argument that he ran the red light so that he could yield to Officer Pierce’s oncoming vehicle. By intentionally running through a red light, Lobo displayed careless disregard for his safety, as well as the safety of other motorists. Yielding to an oncoming vehicle is no excuse for violating the rules of Mississippi roads and endangering the lives of others. Therefore, we find that the evidence was sufficient to support Lobo’s convictions of running a red light and careless driving.

II. Motion to Strike the State’s Brief

¶ 11. Lobo contends that the circuit court erred by denying his motion to strike and allowing the State to file a late brief. We disagree. Sitting as an appellate court, the circuit court held that striking the State’s brief and dismissing the appeal would not be appropriate. The circuit court relied on a case recently handed down by this Court, which states the following in regard to an appellee’s failure to timely file a brief:

Generally, an appellee’s failure to file a brief with the appellate court is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error. In order to merit reversal, the appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.

In re Estate of Dabney, 69 So.3d 71, 73 (¶4) (Miss.Ct.App.2011) (internal citations and quotation marks omitted) (quoting Taylor v. Kennedy, 914 So.2d 1260, 1261-62 (¶ 2) (Miss.Ct.App.2005)).

¶ 12. After reviewing the record, we cannot say that Lobo’s argument creates such doubt that this Court is unable to say with confidence that his convictions should be affirmed. Furthermore, the Mississippi Supreme Court has declined to accept a party’s failure to submit a brief as a confession of error where the case involves an issue affecting the interest of the public. Sanders v. Chamblee, 819 So.2d 1275, 1278 (¶ 6) (Miss.2002). Ensuring that motorists abide by traffic regulations and ensuring that they refrain from operating motor vehicles while under the influence of alcohol are issues that warrant our review, even in the absence of the State’s brief.

¶ 13. In its “Order Regarding Notice of Deficiency,” issued on November 10, 2011, the circuit court gave the State fourteen days to file its brief, and ordered that “this cause shall be dismissed” if the State failed to do so. The court thereafter issued its first “Order to Show Cause” on December 29, 2011. In its third and final order, issued on January 20, 2012, the court ordered the State to either “file the brief of the Appellee on or before 5:00 p.m. on January 31, 2012, or appear before this Court on February 2, 2012, at 2:00 p.m .... to show cause....” No separate order was ever entered by the circuit court dismissing this case. The State filed its brief on January 31, 2012. Though the State’s filing was far outside the fourteen-day deadline, Lobo’s convictions were never reversed as result. In fact, the court held the following regarding this matter:

While the Court drafted its Order Regarding Notice of Deficiency in relation to appellee’s failure to defend against the appeal and the appellee’s failure to file a brief within fourteen (14) days after notification [that] such deficiency would result in the case being dismissed and any conviction of appellant that is the subject of the appeal ... be[ing] reversed, a careful reading of [Mississippi Rule of Appellate Procedure] 2(a)(2) establishes dismissal of the appeal is the only remedy allowed for a party’s failure to correct a deficiency. Such dismissal could only result in the appellant’s conviction remaining of record.
More appropriately, [Mississippi Rule of Appellate Procedure] 31(d) only provides that if an appellee fails to file a brief as required, that the brief may be stricken, not that it shall be stricken, or that the case may be dismissed. Under the circumstances explained to the Court at the show cause hearing[,] the Court finds striking appellee’s brief is not appropriate.

(Emphasis added).

¶ 14. As discussed above, the record contains ample evidence to support Lobo’s conviction of DUI, first offense, running a red light, and careless driving. Further, we find no error in the circuit court’s denial of Lobo’s motion to strike the State’s brief. Accordingly, we affirm the judgment of the circuit court.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND FINE OF $1,000 AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, WITH THE SENTENCE SUSPENDED UPON COMPLETION OF THE MISSISSIPPI ALCOHOL SAFETY PROGRAM; CONVICTION OF CARELESS DRIVING AND FINE OF $25; AND CONVICTION OF RUNNING A RED LIGHT AND FINE OF $50 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

ROBERTS, J.,

dissenting:

¶ 16. I must respectfully dissent from the majority’s conclusion that the case before us is without error and can be safely affirmed with confidence. The majority finds that there is sufficient evidence to affirm each of Lobo’s convictions and that the Circuit Court of Madison County committed no error in allowing the City of Ridgeland to file an appellate brief in the circuit court, far outside the circuit-court ordered deadline and after the circuit court had entered an order reversing the convictions. However, I conclude that this case presents troublesome questions regarding the City’s failure to follow Rule 2 of the Mississippi Rules of Appellate Procedure before the circuit court. In addition, I have genuine concerns with each of Lobo’s convictions such that, I believe, we cannot safely affirm this matter with confidence. In my considered opinion, the circuit court should have reversed Lobo’s convictions after the City failed to comply with the circuit court’s order mandating the filing of an appellee’s brief within fourteen days of November 10, 2011, or suffer a reversal of the convictions. Accordingly, I would reverse and render Lobo’s convictions.

¶ 17. A brief review of the relevant facts is appropriate. On August 9, 2009, Officer Alex Pierce, of the Ridgeland Police Department, stopped Lobo for careless driving and running a red light. During this stop, Officer Pierce detected “the odor of an intoxicating beverage” coming from Lobo’s vehicle. Officer Pierce called for assistance from Officer Webb, a DUI trained officer, to address her suspicions that Lobo was under the influence of alcohol. Officer Webb arrived on the scene and administered a series of field-sobriety tests on Lobo and asked Lobo to take a portable breath test. Lobo declined his request. Based on these events, Officer Webb took Lobo into custody on suspicion of driving under the influence of alcohol. Upon arrival at the Ridgeland Police Department, Officer Webb asked Lobo if he would submit to the Intoxilyzer 8000 test, but Lobo again declined. Lobo was eventually charged with first-offense DUI, careless driving, and running a red light.

¶ 18. After a non-jury bench trial at the county court level, Lobo appealed his convictions on all three counts to the circuit court on July 28, 2010. After three agreed orders granting an extension of time in which to file an appellate brief, Lobo filed his brief with the circuit court on January 4, 2011. The City was likewise granted an extension of time in which to file an appellate brief; the deadline for submission being April 15, 2011. The record is then silent until October 6, 2011, when the circuit court sua sponte entered an order requiring the City to file an appellate brief by November 8, 2011. No brief was filed by this date. On November 10, 2011, the circuit court again sua sponte entered an order regarding notice of the City’s deficiency. The circuit court required the City to correct its deficiency within fourteen days. If the deficiency was not corrected within that time period, the circuit judge ordered that “this cause shall be dismissed and any conviction shall be reversed.” (Emphasis added). In addition, the November 10, 2011 order stated that the circuit court would not consider further extensions of time. No brief was filed within the fourteen-day period.

¶ 19. The circuit court entered another sua sponte order on December 29, 2011, for the City to show cause for its failure to comply with the its November 10, 2011 order or face potential sanctions, and found that the City had failed to file its appellee’s brief after the fourteen-day period. Because the City still ignored the circuit court’s order, the court entered another show-cause order on January 20, 2012, finding that Boty McDonald, attorney for the City, failed to comply with the rules of the circuit court and was required to file an appellee’s brief for the City by January 31, 2012, or demonstrate why he should not be sanctioned. On January 31, 2012, the deadline day, the City finally filed an appellee’s brief in circuit court. Lobo then filed a motion on Februaiy 10, 2012, to strike the appellee’s brief as untimely filed. Finally, the circuit court entered a judgment on February 24, 2012, denying Lobo’s motion to strike the City’s brief, affirming the convictions, and remanding the case back to the county court for execution of the judgment of that court.

¶ 20. Lobo filed his appeal to the Mississippi Supreme Court on March 29, 2012. McDonald filed with this Court his entry of appearance as counsel for the City on May 23, 2012. Lobo filed his appellant’s brief on August 9, 2012. The City’s brief was due thirty days later. No brief was filed. This Court’s clerk notified the City’s counsel of the deficiency and gave fourteen-days’ notice to correct it. The notice was ignored. No brief has been filed to date. Consequently, it is necessary to discuss the standard of review where no ap-pellee’s brief exists.

¶ 21. The majority cites In re Estate of Dabney, 69 So.3d 71 (Miss.Ct.App.2011), as the standard on how this Court should review the appellee’s failure to file an appellate brief. However, Dabney is a civil chancery court matter. I believe the more analogous and appropriate standard comes from Chatman v. State, 761 So.2d 851 (Miss.2000). In Chatman, the supreme court addressed circumstances in which the government failed to file a brief incident to a criminal appeal. According to the supreme court:

The State failed to file a timely brief in this appeal. An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.

Id. at 854 (¶ 9) (internal citations and quotation marks omitted). I believe that this standard of analysis is the more appropriate and applicable one to the case before us, as it addresses the rare and peculiar instance where the government fails to file an appellate brief in a criminal matter.

1122. The majority also cites Sanders v. Chamblee, 819 So.2d 1275, 1277 (¶ 6) (Miss. 2002), stating that because the case before us involves an issue of public interest, this Court should review it despite the appel-lee’s failure to file a brief. This characterization of Lobo’s misdemeanors as matters involving substantial public interest is misplaced. Sanders dealt with the statutory interpretation of an autopsy statute, which required the supreme court to determine whether a medical examiner had the authority to order an autopsy against the wishes of the family when the particular type of death affected the public interest. Id., at 1278 (¶¶ 10-11). While it may be correctly stated that all criminal prosecutions involve some degree of a public interest, the extent of the public interest does vary with the subject matter of the specific charges as well as the parties involved. When compared to homicides, forcible rapes, armed robberies, or other especially heinous or violent crimes, a misdemeanor first-offense DUI and two traffic offenses seem hardly in the category of a criminal matter that merits automatic review based on some perceived heightened public interest. Furthermore, the statutory interpretations for DUI offenses are well settled, unlike the issue of first impression present in Sanders.

¶ 28. Upon applying the Chatman standard to the case before us, this case merits automatic reversal due to the numerous errors present, and the fact that I cannot say with confidence that the matter can be safely affirmed.

¶ 24. The first issue is a procedural bar, which renders this matter improperly before this Court. Under Rule 12.03(D) of the Uniform Rules of Circuit and County Court Practice, the time in which to file an appellate brief in an appeal from county court to circuit court is governed by Rule 31 of the Mississippi Rules of Appellate Procedure. Since the City failed to comply with the circuit court’s orders regarding the submission of a brief under Rule 31, the circuit court issued the November 10, 2011 sua sponte order invoking Rules 2 and 31 of the Mississippi Rules of Appellate Procedure.

¶ 25. The November 10, 2011 order stated, in part:

[Tjhere has been an obvious failure to defend against the appeal and a failure to comply substantially with the Mississippi Rules of Appellate Procedure, either of which warrants this cause being dismissed and any conviction of the appellant that is the subject of this appeal being reversed.... [I]f [the City] fails to file a brief within fourteen (14) days after notification of such deficiency[,] this cause shall be dismissed and any conviction of the appellant that is the subject of the appeal shall be reversed.

(Emphasis added). The record shows the City’s counsel received the fourteen-day deficiency notice and did nothing. It was only after the threat of sanctions, two more sua sponte orders, and over two months having passed that the City filed its brief on January 31, 2012. That clearly fell outside the fourteen-day deadline required to correct a deficiency under Rule 2(a)(2), which the circuit court had issued to the City.

¶ 26. On November 24, 2011, fourteen days after the November 10, 2011 order, Lobo’s convictions stood reversed and the matter should have been rendered. It was not. After issuing the notice of deficiency to the City, the circuit court allowed the City to submit a brief without stating whether the circuit court intended to suspend the requirements of Rule 2(a)(2) under Mississippi Rule of Appellate Procedure 2(c). The circuit court never indicated that it intended to suspend Rule 2(a)(2). Rule 2(a)(2) states: “The attorney for the party in default has the burden to correct promptly any deficiency or see that the default is corrected by the appropriate official. Motions for additional time in which to file briefs will not be entertained after the notice of the deficiency has issued.” The circuit court merely appears to have changed its mind without finding any “interest of expediting decision, or for other good cause” required by Rule 2(c) to suspend the rules.

¶ 27. Given the absence of any justification for these two errors, I believe this case is not properly before this Court, as it was effectively reversed and rendered on November 24, 2011, by the circuit court’s own order.

¶ 28. Notwithstanding these significant procedural issues, I have several reservations concerning the evidence presented regarding Lobo’s convictions. As the majority states, Lobo was convicted of first-offense DUI, careless driving, and running a red light.

¶ 29. I shall first discuss the running-the-red-light conviction. Lobo argues that he proceeded through the red light in an effort to yield to an emergency vehicle, Officer Pierce’s patrol car. Lobo testified at trial that:

I was slowing down to a red light. If I — I don’t remember if I came to a complete stop, but I was coming to a stop. There — I noticed a cop — the blue lights flashing behind me. I — it was at a red light. I thought the blue lights had precedence over the red light, so I made sure the intersection was safe, and I pulled forward until I found the next safe spot to pull over with a wide enough shoulder.

Lobo continues on to testify that he first noticed the patrol car behind him in front of a fast-food restaurant located immediately before the red light. Officer Pierce corroborated Lobo’s testimony during the following exchange:

Q. You’ve just testified that the SUV ran the red light. Explain specifically how you observed the SUV running the red light. Where were you located at the time?
A. Right behind the SUV.
Q. About how many car lengths, you think, behind?
A. Maybe one car length.
Q. All right. At what point — where was the SUV located when the light turned red?
A. In the right lane of westbound County Line.
Q. And in relation to the traffic light itself, how close to the traffic light was the SUV when the light turned red?
A. He — the SUV was not over the line yet before the light turned red.

Officer Pierce further testified that Lobo pulled his SUV over to the nearest shoulder after he crossed through the intersection.

¶ 30. Lobo contends that pursuant to Mississippi Code Annotated section 63-3-809(1) (Rev.2004), he was yielding to an approaching emergency vehicle, which required him to proceed through a red light in order to yield the right-of-way. Section 63-3-809(1) states in part:

Upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed....

Lobo further contends that despite Officer Pierce not activating her siren, he was still required to yield the right-of-way pursuant to Mississippi Code Annotated section 63-7-19 (Rev.2004). Section 63-7-19 states, in part:

[A]s provided in Section 63-3-809[,][o]nly police vehicles used for emergency work may be marked with blinking, oscillating or rotating blue lights to warn other vehicles to yield the right-of-way.

Lobo correctly notes that, “[w]hile ... section [63-3-809(1) ] does not require a driver to yield to an emergency vehicle using only his blue lights, the Legislature filled this gap with the passage of [section] 63-7-19 of the Mississippi Code....” Andrews v. Jitney Jungle Stores of Am., Inc., 537 So.2d 447, 449 (Miss.1989).

¶ 31. I find this particular argument well taken. The City has filed no response to Lobo’s argument, and certainly not demonstrated any evidence sufficient to warrant affirming Lobo’s conviction for running a red light. In fact, to affirm the conviction under these circumstances would create a situation in which drivers must break one law (failing to yield to an emergency vehicle) to follow another one (stopping for a red light).

¶ 32. As for the careless driving and first-offense DUI convictions, I detect a situation where a “swearing match” exists between Lobo and the City. Obviously, at the bench trial, the City’s burden was to prove Lobo guilty beyond a reasonable doubt. Based on the evidence presented in the record, it appears that the City and Lobo occupy relatively equal positions. Each presents a plausible story. To that end, it is necessary to examine the specific testimony offered before the county court judge.

¶ 33. At trial Officer Pierce testified to the following concerning the careless-driving charge:

Q. All right. So, again, what specifically, if anything, did you observe that automobile do?
A. I observed it run over the concrete divider on County Line.
Q. And so what are you saying happened?
A. His whole vehicle, all four tires, ran over the concrete divider.
Q. And you don’t have a video of this at all, do you?
A. There should be video.
Q. Okay. Did you — have you ever looked at your video to see if a video exists in this case?
A. No, I haven’t.
Q. So you’re sort of testifying from memory, correct?
A. Yes.

The record contains no video of this incident. By comparison, Lobo testified:

Q. Okay. Tell us what happened that evening concerning the arrest.
A. Basically I was parked at the intersection of Ridgeland (sic) and County Line Road. I had a red light. It turned green. I hung a left. I went down to the intersection and hung a left. As — when I made the left, after I passed the first car, there were— there were cars parked obviously going eastbound on County Line Road. I made a left onto the — onto County Line Road, and then I clipped the median with a tire, not all — not all four tires. The median is recessed actually about 15 feet back from the stop bar where the first car was parked on County Line Road, so that’s why I didn’t see it when — when I proceeded to make the left. The median is very hard to see because it was 15 feet back behind the first car....

Officer Pierce’s testimony was that there exists a concrete lane divider in the middle of County Line Road near the intersection, which is about three inches high, one foot wide, and about thirty feet long. Lobo was stopped around 2:30 a.m., which is clearly nighttime. Lobo further testified that he was not a resident of the Ridge-land area; he was only here on work-related business, and had only traveled through this area once before. That was why he was not familiar with the roadways around the area of County Line Road and Ridgewood Road.

¶ 34. As the majority notes, Lobo was convicted of careless driving under Mississippi Code Annotated section 63-3-1213 (Rev.2004). Section 63-3-1213 states, in part, that “[a]ny person who drives a vehicle in a careless or imprudent manner ... is guilty of careless driving.” While Lobo does not attack the statute on vagueness grounds, he claims that no evidence exists that his bumping over a three-inch-high lane divider, with one tire, while making his turn in the intersection created any hazard to himself or other motorists.

¶ 35. As for the DUI conviction, Officer Webb, the DUI enforcement officer on the scene, testified that Lobo’s speech was slurred and his eyes were bloodshot. Furthermore, he administered the standard field-sobriety tests on Lobo, which gave indications that Lobo was under impairment. The majority notes all these facts along with the fact that Lobo twice declined to submit to a chemical test, such as the portable breath test or Intoxilyzer 8000. As a result, Lobo was charged with first-offense DUI pursuant to Mississippi Code Annotated section 63-ll-30(l)(a) (Rev.2004), which prohibits driving a vehicle while under the influence of intoxicating liquors. Such a charge has been referred to as “common-law DUI.” Lobo, by comparison, testified that his speech was not slurred, nor was he impaired to the point that he could not safely operate a motor vehicle. Lobo testified that he had eaten his dinner meal around 8:30 p.m. to 9:00 p.m. that night and then met a friend at the “Bulldog” restaurant on Ridgewood Road. He testified he had three drinks of vodka and water; one at 10:00 p.m., another around 11:00 p.m., and a final one around 12:00 a.m. As mentioned previously, the stop occurred at 2:30 a.m. In addition, Lobo points to the two videos entered into evidence by the City as demonstrating his lack of any impairment.

¶ 36. The first video is the dashboard camera from Officer Webb’s patrol car, taken at the arrest scene. Due to the position of Officer Webb’s patrol car relative to where the tests were administered, this video does not show Officer Webb administering the field-sobriety tests nor Lobo’s performance on these various tests. The only information from this video regarding the field-sobriety tests comes from the audio portion of the recording and is hardly dispositive of Lobo’s intoxication or lack thereof. This video does show Lobo being escorted to Officer Webb’s patrol car in handcuffs and being transported to the Ridgeland Police Department; however, this too is hardly dispositive that he was under the influence of alcohol. The second video depicts the waiting room for the Intoxilyzer 8000 at the Ridgeland Police Department while Lobo was under observation prior to Officer Webb’s request to administer the Intoxilyzer test. This second video depicts Lobo sitting upright in a backless, rotating stool without any outward or obvious signs of impairment. These videos, particularly the second, do lend a significant amount of credence to Lobo’s assertion that he was not too impaired to safely operate a motor vehicle. Simply stated, the videos do not show any obvious indication that Lobo was under the influence of intoxicating liquors.

¶ 37. Section 63-ll-30(l)(a) was enacted during a time when blood chemistry evidence was unavailable to law enforcement and allowed officers to charge an individual with driving under the influence based on their inability to safely operate an automobile. At trial, the City made a number of assertions that Lobo was too impaired to safely operate a motor vehicle, while Lobo, obviously, contested those assertions. What is problematic about Lobo’s DUI conviction is the fact that there is no clear indication of Lobo’s impairment, much less whether any such impairment materially affected his ability to safely operate a motor vehicle. In essence it was another swearing match. And we have no brief from the City responding to Lobo’s claims.

¶ 38. Another matter of concern warrants discussion. The present procedural posture of this case places this Court in a delicate position relative to the proper role of the judiciary. By affirming Lobo’s convictions as valid, when the City voluntarily chooses not to defend their validity, we, at least in my opinion, come perilously close to becoming an advocate for the prosecution. Lobo’s two-day suspended jail sentence and two-year probationary period have now expired, and it appears that the only remaining issue is his payment of the $1,075 fine, court costs, and assessments. By failing to file an appellee’s brief, the City may well have deliberately decided to abandon the prosecution of Lobo. Other states, when confronted with such a conundrum, have determined that the government has abandoned its prosecution of the defendant or treated the government’s actions as grounds for a pro forma reversal. See 5 Am.Jur.2d Appellate Review § 538 (1995); see also State v. Files, 183 Conn. 586, 441 A.2d 27, 29-30 (Conn.1981) (motion to remand for new trial granted based on prosecution’s lack of due diligence in defending a criminal appeal); People v. Keeney, 96 Ill.App.2d 323, 238 N.E.2d 614, 615 (1968) (government’s failure to file an appellee’s brief places the court in an abhorrent role of both advocate and judge such that reversal may be warranted); People v. Spinelli, 83 Ill.App.2d 391, 227 N.E.2d 779, 779 (1967) (government’s failure to file an appellee’s brief resulted in pro forma reversal); Com. v. Paasche, 391 Mass. 18, 459 N.E.2d 1223, 1224-25 (1984) (government’s failure to file an appellee’s brief in a criminal case could indicate a failure to prosecute). The City’s default in handling this appeal begs the question as to whether it desires to prosecute this case or has abandoned its prosecution. Such a serious and unanswered question places this Court in a judicial dilemma, where we may be affirming convictions that the City of Ridgeland no longer desires to prosecute.

¶ 39. Due to the numerous procedural and substantive issues within this case, I cannot say that Lobo’s convictions can safely be affirmed with confidence under the Chatman standard. Furthermore, I believe this case was effectively reversed and rendered by the circuit court on November 24, 2011. As such, I would reverse and render all three of Lobo’s convictions. Because the majority affirms, I must respectfully dissent.

LEE, C.J., ISHEE AND FAIR, JJ„ JOIN THIS OPINION.

      . I take judicial notice of this Court's own docket. It reflects there are three similar cases presently pending in this Court. In each one, the City’s attorney, McDonald, failed to timely file an appellee's brief with the circuit court. In addition, in each of these appeals, McDonald again failed to file an appellee’s brief with this Court. They are Lobo v. City of Ridgeland, 2012-KM-00525-COA; Drabicki v. City of Ridgeland, 2012-KM-00528-COA; and Carlson v. City of Ridgeland, 2012-KM-01091-COA.


source: Caselaw Access Project

author: BARNES, J., for the Court:

license: Public Domain

text:
    Johnnie BROWN, Appellant v. ILLINOIS TOOL WORKS, INC., ITW/Duo-Fast and Zurich American Insurance Company, Appellees.
    No. 2012-WC-00803-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.
    Rehearing Denied Jan. 14, 2014.
    Certiorari Denied April 3, 2014.

      Ellis Turnage, Cleveland, attorney for appellant.
    Ginger Moore Robey, Oxford, attorney for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J., for the Court:

¶ 1. Johnnie Brown appeals the order of the Circuit Court of Bolivar County, which affirmed the rulings of the Mississippi Workers’ Compensation Commission (Commission) and administrative judge (AJ) that her claim was time-barred under the two-year statute of limitations set out in Mississippi Code Annotated section 71-3-35 (Rev.2011). The AJ and Commission had disagreed, however, on the date the statute began to run. The AJ found the statute of limitations began to run no later than November 2001, when Brown was evaluated by a physician and diagnosed with carpal tunnel syndrome. The Commission disagreed, stating that date did not clearly establish work-related causation, and found the statute began running in January 2003, when the record more clearly established Brown’s injury as work related. On appeal, Brown argues that the statute began to run in May 2004, when test results found Brown to have carpal tunnel syndrome.

¶2. Finding no error with the circuit court’s decision, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Brown began working at the Duo-Fast plant in Cleveland, Mississippi, in August 1987 as a nail equipment operator. She was an employee at the plant for eighteen years, and her maximum salary was $9.50 an hour. Her job involved racking, stacking, and packing nails into cartons, as well as running the machines that collated the nails. It is undisputed that this was repetitive-motion-type work.

¶ 4. In 1998, Brown complained to her family physician about “arthritic pain” in both hands. On November 16, 2001, she saw Dr. James Warrington, her primary-care physician, for pain in her hands. He noted that she “uses her hands a lot at work,” and diagnosed her with carpal tunnel syndrome.

¶ 5. On January 8, 2003, on referral from Dr. Warrington, Brown was examined at the Greenwood Orthopedic Clinic by Dr. Fred Sandifer II, an orthopedic surgeon, for complaints of pain and numbness in both hands, which she associated with her work at Duo-Fast. She indicated her symptoms had been present for several months and had increased in severity recently. Dr. Sandifer diagnosed her with bilateral carpal tunnel syndrome and suggested EMG nerve-conduction studies if her condition did not improve in three weeks. At that time, Brown wanted to pursue conservative treatment. Brown did not see Dr. Sandifer again for ten months.

¶ 6. In September 2003, Brown complained of hand pain and numbness at work due to repeatedly packing nails, and her complaint was documented in her personnel file. It was suggested she pack smaller nails. In November 2003, Brown returned to Dr. Sandifer with symptoms of mild carpal tunnel syndrome. He prescribed prednisone for her hands for eight days and advised her to return to him in three weeks. In December 2003, Brown saw Dr. Sandifer for her follow-up visit, stating she was much better after the prednisone treatment. He advised her to return after the first of the year if she was still having problems with her hands, and carpal tunnel release surgery would be considered.

¶ 7. In January 2004, Brown again followed-up with Dr. Sandifer with complaints of hand weakness, but she claimed her hands were not bothering her enough for surgery. He continued with conservative treatment. Brown’s symptoms of carpal tunnel syndrome persisted, and in April 2004, Dr. Sandifer ordered EMG nerve-conduction studies since her hand condition was “chronic” and “may need release.” In May 2004, Dr. Ravi Pande conducted the study that showed severe bilateral carpal tunnel syndrome, and he recommended carpal tunnel release.

¶8. On October 8, 2004, Brown first notified Duo-Fast that she had sustained a carpal tunnel injury at work. A “Workers Compensation First Report of Injury” form was prepared by Tool Works documenting the injury. Brown’s last day to work was April 8, 2005. In May 2005, Dr. Gregg Gober performed bilateral carpel tunnel release surgery on Brown. While she was off work for surgery, Brown drew short-term disability from her employer. In July 2005, Dr. Gober released Brown to return to full-duty work. However, this same month, the Cleveland Duo-Fast plant closed.

¶ 9. On October 17, 2005, Brown filed a petition to controvert, alleging a work-related bilateral carpal tunnel injury had occurred on October 8, 2004, at Duo-Fast. Tool Works answered, raising the affirmative defense that her claim was barred by the two-year statute of limitations set forth in Mississippi Code Annotated section 71-3-35(1).

¶ 10. In September 2008, a hearing was held on the primary issue of whether Brown’s claim was barred by the statute of limitations. Brown argued that Tool Works waived the two-year statute of limitations because it failed to file a motion to dismiss or obtain a hearing from November 2005 until September 2008.

¶ 11. The AJ entered an order denying Brown’s claim for benefits. She found Brown’s injury occurred no later than November 16, 2001, thereby barring her claim under the statute of limitations. The Commission affirmed the AJ’s judgment, but found that the statute of limitations began to run on January 8, 2003. The circuit court affirmed the Commission’s order, and Brown timely appealed. Brown argues on appeal that Tool Works waived the statute of limitations or, alternatively, that the limitations period began to run on May 14, 2004, when the nerve-conduction study indicated Brown had carpel tunnel syndrome.

STANDARD OF REVIEW

¶ 12. The Commission’s decision is given great deference on appeal. Murray v. Ingalls Shipbuilding/NGSS, 35 So.3d 561, 562 (¶ 5) (Miss.Ct.App.2010). “[Fjacts determined by the Commission may not be disturbed on appeal when those facts are supported by substantial, credible evidence.” Id. (citing Raytheon Aerospace Support Servs. v. Miller; 861 So.2d 330, 335 (¶ 11) (Miss.2003)).

ANALYSIS OF THE ISSUES

1. Waiver

¶ 13. Brown argues that the employer/carrier (Appellees) waived the statute-of-limitations affirmative defense because of their failure immediately to pursue a hearing on this defense, and their substantial participation in discovery and “litigation” for three years. The Appellees counter that they did not waive the expiration of the statute of limitations because the common-law theory of waiver “is not a procedural rule adopted by the Mississippi Workers’ Compensation Act, and the Commission has not made such a procedural rule.”

¶ 14. Waiver of an affirmative defense is subject to an abuse of discretion standard of review. Kinsey v. Pangborn Corp., 78 So.3d 301, 306 (¶ 13) (Miss.2011) (citing Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 421 (¶ 17) (Miss.2010)).

¶ 15. We are not persuaded by Brown’s argument. The Commission has never adopted a procedural rule on waiver. The Mississippi Workers’ Compensation Act (Act) states that once the claimant files a petition to controvert, the employer and carrier are given the opportunity to answer and conduct discovery. Miss. Workers’ Comp. Comm’n Procedural Rules 2, 4, 7, http://www. mwcc.state.ms.us/LAW-CLMS/_rules.asp (last visited July 22, 2013). The employer/carrier must plead all affirmative defenses. John R. Bradley & Linda R. Thompson, Mississippi Workers’ Compensation § 6:13 (Thompson-West 2012). Further, there is no procedure in workers’ compensation matters equivalent to summary judgment. Id. § 6:29. Procedural Rule 5 of the Act requires a pre-hearing statement within fifteen days after the time limitation for discovery. Only after the prehearing statements are filed can an evidentiary hearing take place.

¶ 16. Brown submits that even though there may not be a specific procedural rule on waiver in workers’ compensation law, the Mississippi Supreme Court has applied the doctrine of equitable estoppel to bar an employer/carrier’s assertion of the statute of limitations, citing McCrary v. City of Biloxi, 757 So.2d 978 (Miss.2000), and Holbrook v. Albright Mobile Homes, Inc., 703 So.2d 842 (Miss. 1997). In McCrary, an employer was es-topped from asserting that the claimant failed to file a petition to controvert within the statute of limitations because of detrimental representations made to the claimant. McCrary, 757 So.2d at 978 (¶ 1). In Holbrook, the employer was estopped from claiming that statute of limitations was not tolled because the employer failed to file a timely notice of fatal termination of injury. Holbrook, 703 So.2d at 843 (¶ 1). Generally, courts apply the doctrine of estoppel to the statute of limitations only when an employer has misrepresented whether benefits are available. Bradley & Thompson, Mississippi Workers’ Compensation § 7:5. But, equitable estoppel should not “be applied so liberally as to allow a plaintiff to assert estoppel where no inequitable behavior is present.” McCrary, 757 So.2d at 981 (¶ 13). In both McCrary and Hol-brook, misrepresentations by the employer were shown, thus justifying the court to apply equitable estoppel. Here, however, Brown was never misled by her employer about workers’ compensation benefits; so the doctrine of estoppel is inapplicable.

¶ 17. Additionally, Brown cites Estate of Grimes ex rel. v. Warrington, 982 So.2d 365, 369-70 (¶¶ 21-27) (Miss.2008), East Mississippi State Hospital v. Adams, 947 So.2d 887, 890-91 (¶¶ 10-11) (Miss.2007), and MS Credit Center, Inc. v. Horton, 926 So.2d 167, 179-80 (¶¶ 39-42) (Miss.2006) for the proposition that the failure to pursue an affirmative defense in a timely manner while actively participating in the litigation constitutes waiver of that defense. However, these cases are inapplicable to the instant case as they are all tort cases filed in civil court, and not workers’ compensation cases.

¶ 18. Moreover, we do not find the record indicates any error or delay tactics on the part of the Appellees in pursuing this affirmative defense. As the Appellees note, after Brown filed her petition to controvert, the Commission set the initial 120-day discovery deadline for March 16, 2006. Brown’s prehearing statement was due on March 31, 2006. Brown requested discovery extensions in April and September 2006. In December 2006, her claim was dismissed for failure to file a complete prehearing statement. A hearing on the claim’s merits was scheduled for October 2007; however, Brown asked for several continuances and extensions. Finally, the evidentiary hearing occurred in September 2008. We cannot say from the record that the Appellees failed to pursue their case.

2. Statute of Limitations

¶ 19. Section 71-8-35(1) sets out the statute of limitations for workers’ compensation claims. It provides that “if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits [is] filed with the commission within two (2) years from the date of the injury or death, the right to compensation therefor shall be barred.” Carpel tunnel syndrome has been considered a “latent infirmity” and “is not immediately recognizable.” Smith v. Nissan N. Am., 102 So.3d 321, 323 (¶ 16) (Miss.Ct.App.2012) (quoting Shipp v. Thomas and Betts, 13 So.3d 332, 334 (¶ 8) (Miss.Ct.App.2009)). A latent injury is one “that a reasonably prudent man would not be aware of at the moment it was sustained.” J.H. Moon & Sons, Inc. v. Johnson, 753 So.2d 445, 448 (¶ 15) (Miss. 1999) (citing Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 827 (Miss.1991); Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 (Miss.1979)). With a latent injury, “[t]he claim period [for the statute of limitations] runs from the time [the] compensable injury becomes reasonably apparent.” Tabor Motor Co. v. Garrard, 233 So.2d 811, 817 (Miss.1970).

¶ 20. Generally, the application of a statute of limitations is a question of law which is reviewed de novo. Kinsey v. Pangborn Corp., 78 So.3d 301, 307 (¶ 16) (Miss.2011) (quoting Caves v. Yarbrough, 991 So.2d 142, 146 (¶ 15) (Miss.2008)). However, the time when the injury becomes reasonably apparent “is an issue of fact for the Commission to determine.” Tabor, 233 So.2d at 817. “We are bound by the Commission’s findings of fact when that decision is based upon substantial evidence.” Smith, 102 So.3d at 323 (¶ 16) (citing Jordan v. Pace Head Start, 852 So.2d 28, 30 (¶ 4) (Miss.Ct.App.2002)).

¶ 21. The AJ determined that the statute of limitations began to run on November 16, 2001, when Dr. Warrington, Brown’s primary-care physician, diagnosed her wrist pain as carpel tunnel syndrome, which was related to work activities. The full Commission disagreed, finding the medical records from that date did not clearly establish a work-connected injury. Instead, the Commission found the statute began to run on January 8, 2003, when Dr. Sandifer, on referral from Dr. Warrington, more clearly found Brown’s carpel tunnel syndrome to be work related. Regardless, using either date, more than two years had passed before Brown filed her petition to controvert on October 17, 2005.

¶ 22. Brown argues that the statute of limitations should start running on May 14, 2004, when she was diagnosed by Dr. Pande with carpel tunnel syndrome after he performed a nerve-conduction study. Using this date, her petition to controvert would be timely. Brown claims using the date of January 8, 2003, is improper because no nerve test had yet been performed, and only that test can definitively diagnose carpel tunnel syndrome.

¶ 23. We are not persuaded by Brown’s argument. There is substantial evidence in the record to support the Commission’s finding of fact that the statute of limitations began to run on January 8, 2003, when Brown’s injury became “reasonably apparent” and was more clearly found to be work related than the November 2001 date. It was not necessary for the carpel tunnel syndrome to be first diagnosed through the nerve-test procedure. Brown had been diagnosed as early as November 16, 2001, with carpel tunnel syndrome; however, the issue became how clearly the condition was related to work.

CONCLUSION

¶ 24. The Appellees did not waive the statute of limitations under section 71-3-35, nor does the doctrine of equitable es-toppel apply to this case. There is substantial evidence to support the Commission’s finding that the statute of limitations began to run on January 8, 2003, thereby barring Brown’s workers’ compensation claim. Accordingly, the circuit court did not err in affirming the Commission’s decision.

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

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

      . Illinois Tool Works, Inc. (Tool Works) acquired Duo-Fast in 1999 or 2000, but the plant in Cleveland retained the Duo-Fast name. In July 2005, the Duo-Fast plant in Cleveland closed.

      . Prior to this date, Brown testified she did not miss any work due to her hands, except for the occasional vacation day that she would take when her hand pain and/or swelling worsened.

      . The elements of equitable estoppel are: "(1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 492 (¶ 32) (Miss.2005) (citing Cothern v. Vickers, Inc., 759 So.2d 1241, 1249 (¶ 19) (Miss.2000)).

      . Grimes is a Mississippi Torts Claim Act case; Adams is an wrongful-death action, and Horton is a Federal Arbitration Act case.


author: JAMES, J., for the Court: LEE, C.J.,

text:
    Marion DYSE, Appellant v. BKS, INC. d/b/a Keith’s Superstores, Appellee.
    No. 2012-CA-01078-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.
    Rehearing Denied Jan. 7, 2014.
    Certiorari Denied April 3, 2014.

      George W. Byrne Jr., attorney for appellant.
    Jennifer Ingram Wilkinson, Hatties-burg, attorney for appellee.
   JAMES, J., for the Court:

¶ 1. Marion Dyse filed a personal-injury action against BKS Inc. after she was sprayed with gasoline from a leaking gas-pump hose at a BKS-owned gas station, Keith’s Superstore # 155. Finding that Dyse failed to present a genuine issue of material fact as to damages, the trial court granted BKS summary judgment. The trial court sua sponte found the suit was frivolous and ordered Dyse to pay $2,500 in sanctions. As we find genuine issues of material fact were in dispute as to Dyse’s claim, we reverse the trial court’s grant of summary judgment, and remand this case for reinstatement on the trial court’s docket. The award of sanctions is reversed and rendered.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 13, 2009, Dyse stopped at Keith’s Superstore # 155 in Oloh, Mississippi, to purchase gasoline for her car. After paying the store clerk in advance, Dyse returned to her car and picked up the pump handle. As Dyse pressed the handle, gasoline sprayed onto her face and clothes. Dyse immediately released the handle. Dyse reported the incident to the store clerk, who, after Dyse asked, told her where a sink was located so she could wash the gasoline off her skin. The store clerk assisted Dyse in completing an incident report. Dyse’s husband met her at the gas station and took her to the Wesley Medieal Center emergency room, where Dyse was treated and released. Dyse complained that after the gasoline exposure, she had a continued burning sensation in her eyes, nose, and throat, as well as anxiety and chest pain. She went to three follow-up appointments with her family doctor and one visit with an eye doctor.

¶ 3. On April 16, 2010, Dyse filed suit in the Lamar County Circuit Court against BKS. Dyse’s complaint alleged that BKS negligently failed to warn her of the leaks or defects in the hose, failed to repair the leaks in the hose, failed to inspect the hose, and/or failed to close the hose until it could be repaired. Dyse sought $250,000 in damages. On May 11, 2012, BKS filed a summary-judgment motion, which the trial court granted. Finding the action was frivolous, the trial court sua sponte assessed $2,500 in sanctions against Dyse. Dyse now appeals, asserting the trial court erred by (1) granting summary judgment in favor of BKS; (2) applying the incorrect legal standard in granting summary judgment; and (3) assessing sanctions against her. As we find genuine issues of material fact remain in dispute as to her claim, we reverse the trial court’s grant of summary judgment, and remand this case for reinstatement on the trial court’s docket. We reverse and render the award of sanctions.

DISCUSSION

I. SUMMARY JUDGMENT

¶4. When reviewing the trial court’s grant or denial of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters ... — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001). “The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat. Ins. Co., 109 So.3d 84, 88 (¶ 11) (Miss.2013). “[Sjummary judgment is appropriate when the non[ jmoving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Id. at 89 (¶ 11) (quotation marks omitted).

¶ 5. The basic elements that Dyse must prove to prevail on her negligence action are: “(1) a duty owed by [BKS] to [her]; (2) a breach of that duty; (3) damages; and (4) a causal connection between the breach and the damages, such that the breach is the proximate cause of the damages.” Double Quick, Inc. v. Lymas, 50 So.3d 292, 298 (¶30) (Miss.2010) (quoting Grisham v. John Q. Long V.F.W. Post, No. 4.057, Inc., 519 So.2d 413, 416 (Miss.1988)). As Dyse was a business invitee — that is, one who entered the premises “in answer to the express or implied invitation of the owner or occupant for their mutual advantage” — BKS owed Dyse a duty “to keep the premises reasonably safe” or, at least, to warn of any “hidden danger or peril that [was] not in plain and open view.” Rod v. Home Depot USA, Inc., 931 So.2d 692, 694 (¶ 10) (Miss.Ct.App.2006). “[I]n a premises liability case, merely proving that an accident occurred is not sufficient to establish liability.” Day v. Ocean Springs Hosp. Sys., 923 So.2d 246, 250 (¶ 13) (Miss.Ct.App.2006). Rather, to establish liability, Dyse must show “(1) a negligent act by [BKS] caused [her] injury; or, (2) that [BKS] had actual knowledge of a dangerous condition, but failed to warn [her] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [BKS].” Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465 (¶ 5) (Miss.Ct.App.2003) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995)).

¶ 6. The basis of BKS’s summary-judgment motion was that Dyse had failed to present evidence of injury or damages. BKS asserts that Dyse offered “no proof of anything other than inconvenience,” and that the medical treatment Dyse sought after the incident was “absolutely unnecessary” and “an overreaction.” BKS bases its arguments on Dyse’s deposition testimony and the deposition testimonies of two physicians: Dr. John David Bullock, Dyse’s treating physician; and Dr. Steven Stogner, BKS’s expert witness.

¶ 7. Dyse testified that after she was sprayed with gasoline,, she experienced a burning sensation in and around her eyes, nose, mouth, and throat, and could not stop coughing. Upon arrival at the emergency room, her eyes were flushed with a saline solution, a chest x-ray was taken, and a breathing treatment was administered. She was not given any specific instructions regarding her injuries when she was discharged, but, according to the emergency-room records, she was advised to “follow up with [her] family doctor.” Dyse went for three follow-up visits with her family doctor, Dr. Bullock, who treated her complaints of a burning sensation in her eyes, nose, mouth, and throat; anxiety; and chest pain. Dyse also saw an eye doctor because of the burning sensation in her eyes. The eye doctor found no damage to her eyes, but gave her an ointment and eye drops, which she used for “a couple of weeks” while her eyes continued to burn. Dyse admitted in her deposition that she suffered no permanent, serious, or disabling injuries as a result of the gasoline exposure. Regarding the effect of her continued anxiety from the incident, she stated that she becomes “nervous” when pumping gas.

¶ 8. Dr. Bullock testified that he saw Dyse on December 15, 2009; January 4, 2010; and January 28, 2010, for treatment related to her gasoline exposure. Dr. Bullock stated that when he initially examined Dyse on December 15, 2009, she had a low-grade temperature, which possibly could have been caused by “a little pulmonary pneumonitis from a little aspiration” of gasoline droplets or fumes. Dyse’s chest x-ray taken that day showed “[increased interstitial markings,” or inflammation, and Dr. Bullock “thought she had a little atelectasis,” or improper lung functioning, caused by the inhalation of gas. He prescribed Augmentin for any possible infection, Poly-Tussin for cough, and Prilosec for reflux. On January 4, 2010, Dyse returned to Dr. Bullock, complaining of chest pain, nerve issues, and anxiety. Dr. Bullock’s notes from that visit state: “[Dyse] appears anxious. She is rocking back and forth and has an anxious affect.” He prescribed the anti-anxiety medications Zoloft and Klonopin. Dr. Bullock testified that he could not say if the gasoline exposure was the sole cause of her anxiety, as he did not question her as to other stresses in her life. On January 28, 2010, Dyse again returned to Dr. Bullock with complaints of chest pain, nerve issues, and anxiety. His diagnoses were anxiety, hyperthyroidism, and cough. Dr. Bullock made clear that Dyse did not suffer any serious, disabling, or permanent injuries due to the incident. In Dr. Bullock’s opinion, the cough was caused by the gasoline exposure, but the symptoms were “a self-limited episode,” meaning the gasoline exposure had not “caused any long-term issues.” Also, Dr. Bullock found that Dyse’s anxiety and chest pain were a “temporary irritation” of ongoing issues, since Dyse had a history of anxiety and chest pain. Regarding the overall effects of the gasoline exposure, Dr. Bullock stated:

[W]ith this incident, her anxiety was exacerbated during that time frame of a few weeks — after the incident. And indeed when she saw me, I believe it was the 28th, I think that most of whatever physical issues she had had with that had probably resolved, and that most of what she was there seeing me for was anxiety related. So, yeah, I think the incident did exacerbate her anxiety over the short term, and by that I mean a few weeks or maybe even a couple of months. But that was kind of the extent of it in my opinion.

¶ 9. Dr. Stogner, BKS’s expert, reviewed Dyse’s deposition and the medical records submitted in discovery, and was prepared to testify that Dyse suffered “only a very temporary irritation” due to the gasoline exposure, and her other complaints — chest pain, nerve issues, and anxiety — “would not be the type of significantly traumatic event expected to precipitate such complaints .... ” He added that “the medical probability of these complaints being really related to the brief incident on December 13, 2009, [was] medically improbable, if not unfathomable.” Further, Dr. Stogner opined that the chest x-rays “demonstrated nothing of clinical significance; in fact, it would be extremely, medically doubtful that brief inhalation (if it occurred) of gasoline fumes would cause any form of permanent injury.” He noted that while the chest x-rays did show interstitial markings on Dyse’s lungs, these markings “absolutely pre-existed the events complained of, and possibly [were] associated with her prior exposure to asbestos in the work environment for which she ha[d] previously made claims.” In summary, Dr. Stog-ner found that although Dr. Bullock’s treatment was appropriate given Dyse’s complaints, “there was no ... justification for her complaints of chest pain on January 4, 2010, associated with the event three weeks earlier, or for that matter, the subsequent "visit on January 28, 2010, with complaints of anxiety associated with this event.”

¶ 10. After reviewing the evidence, the trial court granted BKS summary judgment, stating:

The Court finds that this lawsuit has no merit. And as long as I’m in this position, I’m going to do my best not to waste the Courtf’s] and the people’s time and money allowing these kinds of cases to go this far, for lack of a better term.

We disagree with the trial court’s finding that this is a meritless case. Our rules state that to survive summary judgment, Dyse must “produc[e] sufficient evidence of the essential elements of her claim at the summary-judgment stage, as she would carry the burden of production at trial.” Karpinsky, 109 So.3d at 89 (¶ 13). The medical testimony presented sufficient evidence that Dyse may have suffered some damage, even if it was short-term. The extent of the damages and the question of whether the medical treatment was necessary or even related to the gasoline exposure were in dispute. This dispute created a genuine issue of material fact as to Dyse’s damages. Notably, the dispute was addressed by the trial court prior to its ruling:

There seems to be a serious disagreement as to the facts. Somebody misrepresented to the Court, surely unintentionally, the following: On the one hand the defendant says that there w[ere] no damages, there was no medical reaction by the plaintiff. But the plaintiff says that there was gasoline exposure, irritation noticed at the emergency room, pulmonary pneumonitis, I believe he [ (Dr. Bullock) ] said, and skin irritation and throat [irritation].

¶ 11. Rather than basing its ruling on the existence or nonexistence of a genuine issue of material fact, it appears the trial court may have granted summary judgment partially because of Dyse’s overstatement of her injuries in her complaint. Dyse’s complaint alleged:

As a direct and proximate result of this incident, Plaintiff, Marion Dyse, sustained serious injuries to her eyes, lungs, mouth and other parts of her body, mind and psyche; medical expenses, past and future[;] loss of income and/or earning capacity, past and future[;] and related expenses, all to [her] detriment, in the amount of [$250,000].

While Dyse requested $250,000 in damages, she only presented $1,064 in medical bills. And although she claimed to have suffered a loss of income and/or wage-earning capacity, her deposition revealed she had not been employed in the past ten years. It is evident that Dyse has grossly overstated her claim for damages. In her appellate brief, Dyse admits that “her injuries subsequently were shown to be less severe than she ... had ‘unintentionally’ asserted in her initial [c]omplaint.” Regardless, this is not the standard for the grant or denial of summary judgment. Rather, we must examine the record to determine whether a genuine issue of material fact is in dispute such that a triable jury issue exists. In this case, we find that disputed issues of material fact exist regarding Dyse’s injuries such that summary judgment was not appropriate. While the injuries sustained may not have been as serious as alleged in the complaint, that does not negate the issue of whether Dyse suffered damages. Therefore, we reverse the grant of summary judgment and remand this case for reinstatement on the trial court’s docket.

II. SANCTIONS

¶ 12. “Under [Mississippi Rule of Civil Procedure] 11(b), the court may award reasonable expenses and attorney’s fees against a party or his attorney, or both, whose pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay.” Eatman v. City of Moss Point, 809 So.2d 591, 593 (¶ 6) (Miss.2000). A pleading is frivolous when the pleader “has no hope of success.” Id. “When a party espouses a viable legal theory, [Rule] 11 sanctions are inappropriate.” Brown v. Hartford Ins. Co., 606 So.2d 122, 127 (Miss.1992). The assessment of sanctions is reviewed for abuse of discretion. Eatman, 809 So.2d at 593 (¶ 6).

¶ 13. As we find that Dyse’s complaint presented a viable legal theory, we accordingly find the award of sanctions was inappropriate. We find the trial court abused its discretion in sua sponte assessing $2,500 in sanctions against Dyse; thus, we reverse and render the award of sanctions.

¶ 14. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT GRANTING SUMMARY JUDGMENT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; THE AWARD OF $2,500 IN SANCTIONS IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

IRVING AND GRIFFIS, P JJ., ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. LEE, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND ISHEE, JJ.; CARLTON, J. JOINS IN PART.

LEE, C.J.,

concurring in part and dissenting in part:

¶ 15. With respect to the majority, I concur in part and dissent in part. Although I agree with the majority’s decision to reverse the award of sanctions, as to Dyse’s negligence claim, I cannot find a genuine issue of material fact sufficient to withstand summary judgment. The evidence in the record before us mainly concerns the seriousness of Dyse’s injuries. In her complaint, Dyse alleged she suffered “serious injuries to her eyes, lungs, mouth[,] and other parts of her body, mind[,] and psyche; medical expenses, past and future[;] loss of income and/or earning capacity, past and future[;] and related expenses ... in the amount of ... $250,000.” In her deposition, Dyse admitted that her injuries, both mental and physical, were not serious and that she had not worked in over ten years. Her family physician, Dr. Bullock, testified he had treated Dyse for anxiety prior to this incident. Dr. Bullock opined that the incident did “exacerbate her anxiety over the short term.... But that was the extent of it in my opinion.” BKS’s expert, Dr. Stogner, was prepared to testify that Dyse’s physical injuries were simply a “temporary irritation.”

¶ 16. “Under Mississippi law proof of an injury is not the basis for premises liability[;] rather negligence of the business owner must be shown.” Almond v. Flying J Gas Co., 957 So.2d 437, 439 (¶ 7) (Miss.Ct.App.2007) (citation omitted). The Mississippi Supreme Court has recently clarified our summary-judgment standard, stating that “while [djefendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of her claim at the summary-judgment stage, as she would carry the burden of production at trial.” Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 89 (¶ 13) (Miss.2013). In this instance, the record does not contain any evidence by deposition, affidavit, or otherwise showing that BKS was negligent or had knowledge, actual or constructive, of a dangerous condition.

¶ 17. Notwithstanding that the trial court may have granted summary judgment in favor of BKS based on Dyse’s overstatement of her injuries, under our de novo standard of review, I cannot find a genuine issue of material fact sufficient to withstand summary judgment.

BARNES AND ISHEE, JJ., JOIN THIS OPINION. CARLTON, J., JOINS THIS OPINION IN PART.

      . Although BKS briefly stated in its summary-judgment motion that Dyse “has offered no proof that [BKS] has breached a duty to her,” this argument was not discussed further, and it is not mentioned on appeal. To demonstrate BKS breached its duty to her as a business invitee, Dyse must prove either that (1) BKS was negligent in keeping its premises reasonably safe, and this caused her injury; (2) BKS knew the pump hose was leaking and causing a dangerous condition, but failed to warn her; or (3) the leaking pump hose was a dangerous condition and had been leaking for long enough to impute constructive knowledge to BKS. No information regarding these elements appears in the record. Although Dyse’s deposition mentions the deposition of a gas-station clerk, this deposition is not in the record before this Court. It is unclear why this issue was not addressed below, unless BKS has conceded this issue or just chose to base its summary-judgment motion on the lack of evidence of damages. Regardless, the trial court’s order was based solely on the lack of evidence of damages. Since damages is the only issue presented on appeal, we will not discuss whether Dyse has presented a genuine issue of material fact regarding duty, breach, or causation.

      . In her deposition, Dyse stated that she was a plaintiff in an asbestos-related claim against a garment factory where she worked in the early 1970s.


author: CARLTON, J.,

text:
    Donald and Natalie ROBOHM, Appellants v. WHEELER ROOFING, INC., and Belfor USA Group, Inc., (Incorrectly Named in the Complaint as Balfour Beatty Construction, LLC), Appellees.
    No. 2012-CA-00419-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Rehearing Denied April 1, 2014.

      Stephen W. Mullins, Ocean Springs, attorney for appellants.

      L. Clark Hicks Jr., Hattiesburg, Bradley Clayton Moody, Nakimuli Oni Davis, Jackson, R. Lane Dossett, W. Davis Frye, Jackson, attorneys for appellees.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Donald and Natalie Robohm appeal Jackson County Circuit Court’s grant of summary judgment in favor of Gulf Oaks Condominium Association Inc., Wheeler Roofing Inc., and Belfor USA Group Inc. (collectively, Gulf Oaks). The Robohms argue that Gulf Oaks failed to provide them with proper notice of the hearing on the summary-judgment motion, and that the trial court erred in applying the prior-trespass doctrine. Finding no error, we affirm.

FACTS

¶ 2. Marjorie Hatton owned Unit 46 at Gulf Oaks Condominiums in Ocean Springs, Mississippi. Hatton acquired the unit on February 25, 1994. Hatton’s daughter, Natalie Robohm, possessed power of attorney over Hatton’s affairs. Natalie and her husband, Donald Robohm, stated that they also paid premiums for a condominium owners’ insurance policy through Gulf Oaks Condominium Association.

¶ 8. In 2005, Hurricane Katrina ravaged the Gulf Coast and destroyed the condominiums. Gulf Oaks hired Belfor USA Group and Wheeler Roofing to make repairs to Unit 46. The repairs were completed in August 2007. When Hatton passed away in September 2007, the unit was transferred to Natalie by deed. The Robohms decided to sell the unit, and listed it with realtor Chester Harvey. The Robohms stated that even after completion of the repairs to the condominiums in August 2007, the unit still leaked water and had multiple construction issues. As a result, the Robohms lost a contract for the sale of the unit.

¶ 4. Harvey tried to show the unit again in October 2007, but discovered holes knocked in the sheetrock, carpets and padding pulled up, and industrial floors fans left on the floor. The Robohms learned that the roof had leaked again, causing damage to the unit. In January 2008, a routine inspection of the unit revealed that the hardwood floors on the first floor were completely destroyed by water intrusion and needed to be replaced. In May 2008, the roof leaked again, causing further damage to the walls and floor. In June 2008, while again attempting to show the unit, Harvey discovered that a sewer backup caused black sludge to coat the first floor bathroom and foyer. The Robohms stated that in August 2008, another roof leak damaged the walls and floors.

¶ 5. In October 2008, the Robohms filed suit against Gulf Oaks, alleging breach of duty, negligent and wanton conduct, breach of warranty, breach of implied warranty of habitability, breach of implied warranty of merchantability, and vicarious liability. The complaint specifically alleged that in “August of 2007 the [Ro-bohms] discovered that there were several defects with regard to the constructive repairs causing water to leak into space between the first floor ceiling and the second floor.” After lengthy litigation and numerous inspections, Gulf Oaks filed its motion for summary judgment on June 30, 2011, arguing that the Robohms lacked standing to bring their actions. Wheeler argued that because the Robohms did not own the unit at the time of the alleged negligent construction, and since they did not acquire a cause of action with the transfer of ownership from Hatton to Natalie, then the trial court should dismiss the complaint pursuant to the prior-trespass doctrine.

¶ 6. The trial court scheduled a hearing on the motion to be held on August 18, 2011. The Robohms submit that they learned about Gulf Oaks’ motion on the day before the hearing, claiming that they failed to receive Gulf Oaks’ electronic-only service of the motion for summary judgment.

¶ 7. After a hearing on the motions, the trial court found that the prior-trespass doctrine indeed applied and entered an order on August 29, 2011, granting summary judgment in favor of Gulf Oaks. The Robohms filed a motion to reconsider, which the trial court denied. This appeal followed.

STANDARD OF REVIEW

¶ 8. This Court applies a de novo standard of review to a trial court’s grant of summary judgment. Busby v. Mazzeo, 929 So.2d 369, 372 (¶8) (Miss.Ct.App.2006). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment is proper where “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.” When considering a motion for summary judgment, the trial court must view all evidence in a light most favorable to the nonmoving party. Busby, 929 So.2d at 372 (¶ 8). Only when the moving party has met its burden of demonstrating that there are no genuine issues of material fact in existence should summary judgment be granted. Tucker v. Hinds Cnty., 558 So.2d 869, 872 (Miss.1990).

DISCUSSION

¶ 9. The Robohms argue that the trial court erred in granting summary judgment in favor of Gulf Oaks, asserting that the trial court’s reliance on the prior-trespass doctrine was misplaced. Gulf Oaks counters that since Hatton was alive when her unit was rebuilt, then Natalie, as an individual, lacks standing to pursue recovery on behalf of Hatton and/or Hatton’s estate. However, the Robohms argue that Natalie possesses standing to bring the action since Hatton granted Natalie power of attorney during the negligent construction of the condominium.

¶ 10. In its order granting summary judgment, the trial court found no genuine issue of material fact, stating:

It is undisputed that at the time of the alleged damage to the property and at the time the causes of action accrued, the [Robohms] did not own the property in question. At the time the damage accrual of the action [sic], the property was owned by [Hatton], and thereafter, [Hatton’s] estate. The [c]ourt find that [the Robohms] were fully aware of the condition of the condominium and the damages sued upon prior to the date [on] which Natalie Robohm acquired ownership. The [c]ourt notes all of the facts alleged in the complaint occurred prior to Natalie Robohm’s receipt of a deed to the property.
It is undisputed that there had been no written assignment or other purported assignment of a claim from [Hatton] or her estate to the Robohms. The court agrees with [Gulf Oaks’] position that the prior[-]trespass doctrine applies and that the [Robohms] do not own the causes of action and have no standing to pursue these claims.

¶ 11. “Under the doctrine of ‘prior trespass,’ the deed to land does not implicitly convey any right of action for trespasses or property damage that occurred prior to the transaction. However, a ‘trespass action can be explicitly assigned by the seller of land.’ ” Patterson v. Holleman, 917 So.2d 125, 137 (¶ 38) (Miss.Ct.App.2005) (internal citation omitted) (citing Flowers v. McCraw, 792 So.2d 339, 342 (¶¶ 8-9) (Miss.Ct.App.2001)). We find the Mississippi Supreme Court’s opinion in Thompson v. City of Philadelphia, 180 Miss. 190, 190, 177 So. 39, 40 (1937), especially instructive on this particular issue. In Thompson, the appellees sued the City of Philadelphia for the decrease in the value of their land based on improper sewage disposal by the City. The appellees inherited the land from their father, who died in 1924, and the supreme court found that the evidence showed the same conditions that existed before the father’s death and before the appellees’ inherited the land still remained, and “that either the whole or a part of the decrease in the value of the land took place” before the father’s death. Id. The supreme court held:

“The heir could not, nor could the executor or administrator, under the common law, sue at law for damages done by trespass committed during the lifetime of the ancestor on the lands of the ancestor.” In that respect the heirs are in the same category as a purchaser of land; the purchaser gets the land only and not any right of action for former trespasses.

Id. (internal citations omitted).

¶ 12. The Robohms state that Gulf Oaks failed to timely raise the prior trespass doctrine, citing to Mississippi Credit Center v. Horton, 926 So.2d 167, 180-81 (¶¶ 43-44) (Miss.2006), where the supreme court found that an eight-month delay in the assertion of an affirmative defense or right constitutes a waiver as a matter of law. However, in the present case, as the trial court explained in its order, standing is not an affirmative defense. See City of Madison v. Bryan, 763 So.2d 162, 166 (¶ 20) (Miss.2000) (citation omitted) (“ ‘Standing’ is a jurisdictional issue which may be raised by any party or the Court at any time.”). Additionally, the record reflects that the dispositive motions were filed within the time frame set forth by the scheduling order.

¶ 13. Upon reviewing the deed conveying the unit to Natalie, we find no language expressly transferring any right of action for trespasses or property damage that occurred prior to the conveyance. Further, as acknowledged, the trial court found “[the Robohms] were fully aware of the condition of the unit and the damages sued upon prior to the date [on] which Natalie ... acquired ownership. The court notes all of the facts alleged in the complaint occurred prior to Natalie[’s] receipt of a deed to the property.” Accordingly, we find the Robohms lacked standing to bring the present cause of action.

¶ 14. The Robohms also claim that the trial court violated their due-process rights by hearing and granting Gulf Oaks’ motion for summary judgment even though Gulf Oaks failed to properly notice the motion per the Mississippi Rules of Civil Procedure. The Robohms cite to Mississippi Rule of Civil Procedure 5, which explains how to perfect service of process by electronic means. The Ro-bohms argue that they never received the email containing notice of the hearing on the motion for summary judgment. The Robohms submit that since they never received the email, and therefore never sent an acknowledgment of receipt of the email pursuant to Rule 5, then Gulf Oaks could not prove it perfected service per Rule 5.

¶ 15. Gulf Oaks argues that the Ro-bohms appeared at the noticed hearing and presented arguments without objecting the alleged lack of notice. The supreme court has long held that issues raised for the first time on appeal are procedurally barred from appellate review. See Gulf Ins. Co. v. Neel-Schaffer, Inc., 904 So.2d 1036, 1047 (¶ 32) (Miss.2004).

¶ 16. The Robohms argue that they did object to lack of notice through their pleadings. Nevertheless, Gulf Oaks asserts that the Robohms can show no prejudice to the method of notice given and submits that the Robohms have failed to identify any evidence or argument that they were prevented from presenting. Our review of the record also reveals no evidence of prejudice, or even a claim of prejudice, suffered by the Robohms. Further, the trial court’s order states that Gulf Oaks’ motion for summary judgment “was properly noticed for hearing.” See Covington Cnty. v. G.W., 767 So.2d 187, 191 (¶ 8) (Miss.2000) (“[A] violation of due process may only be sustained where the aggrieved party shows ‘substantial prejudice.’ ”).

¶ 17. Finally, the Robohms allege that the trial court erred in approving Gulf Oaks’ submitted order sustaining its motion for summary judgment, which the Ro-bohms allege is “fraught with false statements of fact and improper conclusions of law.” In viewing all of the evidence in a light most favorable to the nonmoving party, we find no merit to the Robohms’ claim. See Busby, 929 So.2d at 372 (¶ 8).

¶ 18. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Gulf Oaks.

¶ 19. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Incorrectly named in the complaint as Bal-for-Beatty Construction.

      . Rule 5(b)(1) provides, in pertinent part:
      Service by electronic means is complete when the electronic equipment being used by the attorney or party being served acknowledges receipt of the material. If the equipment used by the attorney or party being served does not automatically acknowledge the transmission, service is not complete until the sending party obtains an acknowledgment from the recipient. Service by mail is complete upon mailing.


author: FAIR, J.,

text:
    Jonathan WHITEHEAD, Appellant v. The ESTATE OF John J. WHITEHEAD, Jr., Deceased: by Larry John WHITEHEAD and Michael E. Whitehead, Co-Administrators, C.T.A., Appellees.
    No. 2012-CA-00245-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.
    Rehearing Denied Jan. 28, 2014.
    Certiorari Denied April 3, 2014.

      William Harvey Barton, attorney for appellant.
    Nathan Lamar Prescott, Biloxi, Derek Royce Arrington, Hattiesburg, Henry N. Dick III, Biloxi, attorneys for appellees.
    Before IRVING, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. John "Whitehead Jr. died in 2008. His 1969 will and two subsequent codicils, one executed in 1969 and the other in 2007, were admitted to probate. His illegitimate son Jonathan, whom John acknowledged and for whom John had established an inter vivos trust, was specifically excluded as a beneficiary of the will by the second codicil.

112. In the probate proceeding, Jonathan sought a declaratory judgment that the testamentary trust failed and that he was entitled to one-sixth of his father’s residuary estate, an interpretation the chancellor rejected in granting summary judgment to Jonathan’s five half brothers. Aggrieved, Jonathan appeals. We affirm the judgment of the chancellor.

FACTS

¶ 3. John’s February 1969 will provided for his wife, Marie, and their four sons, John’s entire family at that time. The will established a family trust to support Marie during her life and thereafter to support their sons, specifically named in the will as beneficiaries, until each reached age thirty, at which time distribution of a proportionate share would be paid out until the last of the trust corpus was distributed to the youngest child when he reached age thirty.

¶ 4. In December 1969, John executed a codicil to the will that added as additional residuary trust beneficiaries “any child or children hereafter born of my marriage to Marie Whitehead.” He specifically adopted the earlier will in the codicil. Marie was pregnant at the time.

¶ 5. Mark, John and Marie’s fifth son, was born on May 12, 1970. John had a sixth son, Jonathan Whitehead, out of wedlock on October 15, 1988. On December 28, 2007, John executed his second codicil acknowledging Jonathan as his son, readopting his prior will and providing that “[i]t is my intent that Jonathan Whitehead shall not inherit anything under my Last Will and Testament as I have made separate provision for him in that certain trust set up for his benefit.”

¶ 6. John died on December 5, 2009. The will and both codicils were admitted to probate without contest. The court recognized that Marie had died in 1998 and that John had six surviving sons. Two of Marie’s sons were appointed co-executors of the estate, since both the named executrix, Marie, and the alternate, John’s brother, were deceased. An heirship determination proceeding adjudicated the six children as John’s only heirs-at-law.

¶ 7. Thereafter, Jonathan filed a declaratory judgment action in the probate estate proceeding on December 6, 2010, in which he sought an interpretation of the will and its codicils so that the trust would be recognized as having never been established because Marie had predeceased John and all of their children had reached age thirty well before he died. Under Jonathan’s theory the residuary estate was not provided for in the will because of failure of the trust and would pass by intestate succession. He sought, therefore, an adjudication that he and his five siblings be recognized equally as John’s heirs-at-law and the residuary estate be apportioned accordingly into six equal “child’s shares” with one to be distributed to each child.

¶ 8. The co-executors filed for summary judgment on Jonathan’s declaratory judgment complaint on September 19, 2011. Briefs were filed, documents submitted, and arguments presented at a hearing on January 13, 2012. On January 25, 2012, the chancellor entered summary judgment, finding that:

“[A] will and a Codicil must be considered together.” Hemphill v. Robinson, 355 So.2d 302, 307 (Miss.1978). Furthermore, it is a paramount concern for the court to respect the intent of the testator. In re McSwain, 946 So.2d 417, 420 (Miss.Ct.App.2006). In interpreting a last will and testament, the Mississippi courts recognize “a presumption against intestacy” and “will construe wills to avoid intestacy where that may be reasonably done.” Matter of Last Will and Testament of Lawson v. Lambert, 792 So.2d 977, 978-[]79 (Miss.2001); Tinnin v. First United Bank, 502 So.2d 659, 663 (Miss.1987). When reading ... John J. Whitehead’s will, first codicil, and second codicil together, his intent is apparent. The testator clearly intended that his children with Marie Whitehead should inherit from his estate. The second codicil to the will clearly and explicitly states the testator’s intent to disinherit Jonathan from receiving any inheritance upon the testator’s death. According to Rule 56(c) of the Mississippi Rules of Civil Procedure, a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show 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.” The Court, upon reviewing the motions and supporting documents, as well as listening to oral arguments, finds that there are no genuine issues of material fact in dispute. The Court finds that John J. Whitehead’s will, first codicil, and second codicil are valid and the estate shall descend accordingly.

¶ 9. The chancellor entered a Rule 54(b) certification of finality of the decision on February 2, 2012, finding “no just cause for delay.”

STANDARD OF REVIEW

¶ 10. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and examine all the evidentiary matters before it....” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment is proper 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.” M.R.C.P. 56(c).

¶ 11. “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10). “[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Furthermore:

[Wjhen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are. immaterial, and the moving party is entitled to judgment as a matter of law.

Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

DISCUSSION

¶ 12. Jonathan’s argument relies on the following clause in the will, construction of which he correctly asserts is dispositive of this appeal:

The John J. Whitehead, Jr., Family Trust shall terminate upon the death of my wife, Marie Whitehead, or upon my youngest living child’s attaining the age of thirty years, whichever is last to occur.

He contends this termination clause would have been triggered immediately upon John’s death, and consequently no trust can come into existence. Since the will has no other residuary clause, he contends the entire residuary estate should pass according to the law on intestate succession, entitling him to a child’s share notwithstanding that the second codicil prohibited him from inheriting anything “under the will.”

¶ 13. While this is a clever argument, Jonathan fails to establish its first premise. No authority has been presented to support his assertion that the trust is invalid simply because the conditions now-existing are such that it must immediately disburse its assets to those for whom it was established. In fact, no authority whatsoever concerning the creation or operation of trusts has been presented.

¶ 14. Jonathan’s proposition is not self-evident, and “there is a presumption that the judgment of the trial court is correct and the burden is on the Appellant to demonstrate some reversible error.” Acker v. State, 797 So.2d 966, 971 (¶ 18) (Miss.2001) (citation omitted). We are not obligated to scour the law to find support for Jonathan’s claims; “[i]t is the duty of an appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (¶ 40) (Miss.2002). Assertions of error not supported by citation to authority are deemed abandoned. Id.

¶ 15. Moreover, as the appellees point out, the termination clause is only effective “upon [John’s] youngest living child’s attaining the age of thirty years.” Jonathan himself is actually John’s youngest living child, and he has not yet reached thirty years of age. He was born on October 15, 1988. The termination clause trigger does not limit itself to John’s children of his marriage or to those children that are beneficiaries of the testamentary trust.

¶ 16. Since no error has been shown, we affirm the judgment of the trial court.

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

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