author: KING, Justice,

text:
    Frederick GRIFFIN v. MISSISSIPPI BOARD OF BAR ADMISSIONS.
    No. 2012-CP-00971-SCT.
    Supreme Court of Mississippi.
    May 30, 2013.

      Frederick Griffin, appellant, pro se.
    Office of the Attorney General by Samuel Martin Millette, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. Frederick Griffin has sought to pass the Mississippi Bar Exam since 1992. Griffin now appeals the failing result of his February 2011 bar exam, but this appeal also implicates some issues surrounding his July 2010 bar exam. The Mississippi Board of Bar Admissions (“the Board”) requires a prospective bar member to achieve a total score of 132 to pass the bar exam. Rule 9, § 9(D), Rules Governing Admission to the Mississippi Bar.

FACTS AND PROCEDURAL HISTORY

¶ 2. Griffin sat for, and failed, the July 2010 bar exam. He earned a score of 127.2 on the Essay Section and a score of 127.6 on the MBE, for a final score of 127.4. He appealed his score to the Board of Bar Admissions, which denied his petition. Griffin appealed the denial to the chancery court. The chancellor ultimately dismissed his appeal in March 2011, finding that it was moot in light of Griffin’s choice to sit for the February 2011 bar exam. Griffin did not appeal this adverse ruling to this Court.

¶ 3. Griffin applied to use his July 2010 MBE score for the February 2011 bar exam. In response, the Board sent Griffin a letter “sent to all applicants whose M.B.E. score falls below a 132.” The letter cautioned that Griffin’s “score is below the average level of performance required to pass the entire examination which requires an average aggregate score equivalent to a 132 M.B.E. scaled score on the whole examination. The M.B.E. counts 40% of the overall score.” It stated that Griffin “should be aware that the use of this ‘below-passing’ M.B.E. score could contribute to your failing the overall examination.” The letter twice emphasized that the ultimate decision to transfer the score rested solely with Griffin.

¶ 4. Griffin sat for and failed the February 2011 bar exam. He scored a 127.6 on the MBE and a 127.8 on the Essay Exam, for a total score of 127.7. He petitioned the Board for a review, and the Board affirmed his failing result. The Board also denied Griffin’s request to transfer two individual essay scores from the July 2010 bar exam. Griffin appealed the Board’s ruling to the chancery court. Griffin argued that the Board had raised the overall score required to pass the bar examination throughout the time he has attempted to pass it. He specifically stated that “[t]he overall threshold required to pass the exam has consistently increased throughout the applicants [sic] attempts to pass the exam from 120 to 126 and ultimately 132.” Griffin further alleged that this Court removed any minimum score requirement on the MBE in 1995, but that the Board’s requirement of a score of 132 to pass the bar “has the effect of requiring 132 on both” the MBE and the Essay portion of the exam, essentially arguing that a required overall score of 132 is tantamount to requiring a minimum MBE score of 132. He argued that these issues have a disparate impact on minorities, and the Board is thus in violation of the Equal Protection Clause. Griffin further argued that he should have been allowed to carry over individual essay scores from exam to exam, and that the Board’s failure to allow him to do so had a disparate impact on him in violation of the Equal Protection Clause.

¶ 5. On May 16, 2012, the chancery court issued an opinion affirming the Board. On May 21, 2012, Griffin filed a “Motion for Reconsideration” with the chancery court. Griffin made essentially the same arguments he made in his petition, to wit, that the court did not consider the discriminatory impact of the Board’s review process and that the decision deprived him of equal protection and due process. The chancery court denied Griffin’s motion for reconsideration. The court found that Griffin’s allegations of discriminatory impact fail as a matter of law, because discriminatory impact alone is “insufficient to state a claim for an Equal Protection Clause violation.” It re-emphasized that “the Board acted in a reasoned and rational manner in reliance on proper Rules within their authority.”

¶ 6. Griffin appealed to this Court. He essentially argues that the Board’s grading and scoring, Rules, policies, and the “self serving statutes from which” it derives its powers have a negative and discriminatory impact on Griffin’s ability to pass the bar exam. He states that the Board, “in amending its various rules and procedures over the period in which Griffin and others have sought admission to the Mississippi Bar, without first conducting the appropriate studies as to the effects of those amendments on the group identified has resulted in prejudice to Griffin and others'.” • He specifically argues that the Board’s failure to allow examinees to carry over their essay scores from exam to exam, while allowing examinees to carry over an MBE score, has a discriminatory effect. He also argues that the Board discriminates because applicants who score better than 132 on the MBE have less difficulty passing the exam. Griffin further argues that the trial court should have either adjudicated or severed his discrimination claims and heard them separately. He also argues that the Board requires a minimum of 132 on the MBE to pass the bar exam, contravening Supreme Court precedent. Last, he, to some extent, appeals the dismissal of his July 2010 appeal.

ANALYSIS

¶ 7. This Court reviews the chancery court’s actions in reviewing the Board’s decision de novo. Watkins v. Miss. Bd. of Bar Admissions, 659 So.2d 561, 567 (Miss.1995). A reviewing court affirms an agency determination so long as it is not arbitrary or capricious. Id. at 568. This Court has found that arbitrary acts are those not done according to reason or judgment, essentially tyrannical, despotic, and nonrational acts that evince “a lack of understanding of or a disregard for the fundamental nature of things.” Id. (internal quotations omitted). Capricious similarly means done without reason, or “implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id. (internal quotations omitted).

¶ 8. To the extent that Griffin appeals the chancery court’s March 2011 order in his previous appeal, this Court declines to address that appeal. This appeal was noticed approximately fourteen months after the final judgment in that case, clearly outside the thirty days allowed for filing an appeal, and any attempt to appeal the March 2011 order is subject to mandatory dismissal. M.R.A.P. 4(a); M.R.A.P. 2(a)(1).

¶ 9. Griffin must show a discriminatory purpose to succeed in an Equal Protection Clause claim. Standing alone, disproportionate impact does not trigger an Equal Protection claim. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976). “[Disparate impact alone cannot suffice to state an Equal Protection violation; otherwise, any law could be challenged on Equal Protection grounds by whomever it has negatively impacted.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir.1997). Therefore, a party wishing “to make out an Equal Protection claim must prove ‘the existence of purposeful discrimination’ motivating the state action which caused the complained of injury.” Id. (quoting McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987)). A discriminatory purpose implies “that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.” Johnson, 110 F.3d at 307 (internal quotations omitted). Griffin does not allege any purposeful discrimination. Clearly, Griffin’s Equal Protection claim, and the attendant due process claim he appears to make, fail as a matter of law.

¶ 10. Griffin’s argument that the Board requires a minimum of 132 on the MBE, contravening Supreme Court precedent, also fails. Rule 9, Section 9 of the Rules Governing Admission to the Mississippi Bar clearly provides that an exami-nee must receive “a combined score of 132 points” on the entire exam to receive a passing grade. The “applicant’s sealed score on the MBE” is 40% of the combined score. No minimum score is required on the MBE. Basic arithmetic makes obvious that a score too far below 132 on the MBE will be more likely to result in a failing grade on the overall exam, unless the essay scores are high enough to compensate. However, this clearly does not equate to a minimum score requirement. Thus, the Board’s actions, which fully comply with this Court’s precedent, were not arbitrary and capricious.

CONCLUSION

¶ 11. Griffin does not allege a discriminatory purpose behind the Board’s rules, policies, or actions. Thus, his Equal Protection Clause claims fail as a matter of law. Furthermore, the Board does not require a minimum MBE score to pass the bar, thus Griffin’s contention that it does is without merit. This Court affirms the trial court in all respects.

¶ 12. AFFIRMED.

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

      . While this appeal is from Griffin’s February 2011 bar failure, Griffin seems, to some extent, to appeal the chancery court's March 2011 dismissal of his appeal from his July 2010 failure. Furthermore, Griffin raises issues surrounding the carry-over of scores from his July 2010 bar exam to his February 2011 bar exam. Thus, this opinion will discuss relevant facts surrounding his July 2010 bar exam.

      . This score is comprised of the Multistate Bar Exam (MBE) and the Essay Average. The Essay Average is 60% of the score, and the MBE is 40% of the score. Rule 9, § 9(D), Rules Governing Admission to the Mississippi Bar.

      . Griffin’s assertion is incorrect. Mississippi's overall score requirement changed from 70 to 132 in 1995, and has since remained 132. The overall score requirement has never been either 120 or 126. Mississippi at one point required a minimum MBE score of 126 to pass the bar exam, which it then lowered to 120, and then later completely eliminated. Thus, since 1995, the score requirements for passing the Mississippi Bar have only lowered.

      . In its May 16, 2012, Opinion, the court ordered the appellees to prepare a final judgment within five days of the opinion. The final judgment was not entered prior to Griffin filing a post-trial motion on May 21, 2012. On April 2, 2013, this Court issued a show cause order to the parties, ordering them to show cause why the appeal should not be dismissed as premature. On April 3, 2013, the trial court entered a final judgment in this case and ruled on Griffin's post-trial motion. We thus treat Griffin’s notice of appeal as filed on April 3, 2013, and proceed with the appeal on the merits. M.R.A.P. 4(b) & (d).

      . He thus takes great umbrage with the Board's letter cautioning him in regard to his carrying over a low MBE score.

      . Not only does he fail to allege purposeful discrimination as is necessary to make an Equal Protection Clause claim, but Griffin also fails to offer any evidence, such as statistics, that the Board’s rules and policies actually have a disproportionate impact.

      . Additionally, the trial court was not required to sever these claims. Griffin's argument that severance was required seems to be based on a misreading of Watkins. In Watkins, this Court found that it was appropriate for the trial court to conduct a trial de novo on the parties’ discrimination claims, even though the trial went outside the Board’s records. Watkins, 659 So.2d at 567-68. The Court concluded that "in those limited cases where allegations go beyond the merits of an applicant’s examination, some aspects of a trial de novo may be warranted.” Id. at 567. Thus, the Court concluded "that the trial court did not err in hearing testimony de novo.” Id. at 568. This Court clearly permits a partial trial de novo in a bar appeal under certain limited circumstances, but that in no way means that this Court mandates such a trial de novo. Regardless, a severed trial was clearly not necessary in this case, given that the discrimination claims fail as a matter of law.

      .As noted supra, Griffin's contention that the Board has raised the minimum score required to pass the bar exam throughout his tenure taking it is incorrect. The minimum MBE score required has only decreased (and was ultimately completely eliminated) throughout the time period during which Griffin has attempted to pass the bar exam.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    PERFORMANCE TIRE & WHEEL, INC. and Association Casualty Insurance Company, Appellants v. Albert RHOADS, Appellee.
    No. 2012-WC-01189-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.

      Daniel M. Baker, Jackson, attorney for appellants. ■
    James Kenneth Wetzel, Garner James Wetzel, Gulfport, attorneys for appellee.
    Before LEE, C J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal addresses the sole issue of whether Albert Rhoads’s injury arose out of the course and scope of his employment. The administrative judge (AJ) found that the injury was within the course and scope of Rhoad’s employment, and the Mississippi Workers’ Compensation Commission (the Commission) affirmed the AJ’s order.

FACTS AND PROCEDURAL HISTORY

¶ 2. Rhoads began working for Performance Tire & Wheel (Performance) around March 2010 as a tire and lube technician. Rhodes testified that on April 26, 2010, he attempted to change the tire on a furniture/rental van. ■ When he removed the tire from the van and picked it up, he felt a snap in his back and immediately reported the incident to Rethany Donnell Harris, the shop supervisor. Rhoads testified that Harris took him to report the incident to Donald Barefoot, the store manager. Rhoads stated that he asked Barefoot if he could leave work to go to the hospital. Rhoads went to the emergency room at Memorial Hospital, where he was prescribed pain medication and released. Rhoads returned to the hospital later that night, because he was in severe pain. According to medical records, Rhoads was instructed to remain off work for two days. The next morning, Rhoads slept late due to the medication he was taking. When he brought his off-work slip to Barefoot, Barefoot informed him that he no longer had a job, because he had failed to call before 7:30 a.m. to inform anyone that he would be late.

¶ 3. Harris also testified that Rhoads emerged from beneath the van and stood up, and his back was bothering him. Harris then escorted Rhoads to Barefoot to report the incident. Harris testified that Barefoot later approached him and inquired about the incident, asking him if he had seen Rhoads pick up a tire and hurt his back. Harris testified that he never saw Rhoads change the tire. Harris also testified that he believed Chad Wilson had changed the tire, because his signature was on the form denoting the completion of the job. However, Harris never saw Wilson change the tire.

¶ 4. When Barefoot was called to testify, he stated that although Harris had brought Rhoads into his office, Rhoads never told him that he was injured while picking up a tire at work. Instead, Rhodes told Barefoot that his back was hurting and asked if he could go to the hospital. Barefoot was clear to testify that Rhoads “never once told me he hurt his back[;] he said his back was hurting.” However, Barefoot stated he did not specifically ask if Rhoads had injured his back while working on a vehicle. Barefoot claimed that the first time he learned of the alleged work-related injury was when he was contacted by Rhoads’s attorney. Barefoot denied that Rhoads ever presented him with an off-work slip from Memorial Hospital.

¶ 5. Derrick Wright, who was directly supervising Rhoads that morning, testified that he did not remember the tire being changed on the van. He was not present during any conversation between Rhoads and Harris. Wright also stated that Barefoot asked him to prepare an account of the incident on the following day. He claimed that Barefoot also asked him to include any other information about conversations he had with Rhoads while Rhoads was working there.

¶ 6. Medical records from Memorial Hospital were also presented showing that Rhoads did receive treatment for lower-back pain twice on April 26, 2010. Medical records from Dr. Horrell Townsend, Rhoads’s treating physician, were also presented, which diagnosed Rhoads with an acute lumbar strain. Dr. Jack Moriarity, who saw Rhoads at the request of Performance for an Employer’s Medical Exam (EME), stated he thought Rhoads had suffered a work-related injury.

¶ 7. The AJ found that Rhoads had sustained a compensable work-related injury. Additionally, the AJ found that “[t]he testimony of [Rhoads] was definitely more credible than that of Don Barefield [sic], the store manager.” Performance appealed to the Commission, which affirmed the AJ’s findings. This appeal followed.

STANDARD OF REVIEW

¶ 8. This Court limits its review of an appeal from the Commission to “determining whether the Commission erred as a matter of law or made findings of fact contrary to the overwhelming weight of the evidence.” Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss.Ct.App.2010). Reversal of the Commission’s order is only proper when it “is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.Ct.App. 2003). This Court must affirm “[i]f there is substantial evidence to support the Commission, absent an error of law[.]” Shelby v. Peavey Elees. Corp., 724 So.2d 504, 506 (118) (Miss.Ct.App.1998) (internal quotations omitted). The Mississippi Supreme Court has defined substantial evidence as

something more than a “mere scintilla” of evidence, [which] does not rise to the level of a preponderance of the evidence. It may be said that it means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.

Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991) (internal quotations omitted). “Our role is not to determine where the preponderance of the evidence lies when the evidence is conflicting, since it is presumed that the Commission, as trier of fact, has previously determined which evidence is credible and which is not.” Johnston Tombigbee Furniture, 43 So.3d at 1164 (¶ 16) (internal quotations omitted).

DISCUSSION

¶ 9. Performance asserts that the Commission erred by affirming the AJ’s findings, because those findings were not based on substantial evidence. “Where, as here, the Commission adopts the findings of the [AJ] without presenting its own findings of fact, this Court will examine the findings of fact made by the [AJ].” Mueller Copper Tube Co. v. Upton, 930 So.2d 428, 434 (¶ 25) (Miss.Ct.App.2005).

¶ 10. Under Mississippi Code Annotated section 71-3-1(3) (Supp.2012), a worker may seek temporary or permanent disability benefits if he has suffered a work-related injury. Mississippi Code Annotated section 71-3-3(b) (Rev. 2011) defines an injury as an “accidental injury ... arising out of and in the course of employment. ...” For the injury to arise out of and in the course of employment, there must be “a causal connection between the employment and the injury.” Total Transp., Inc. of Miss. v. Shores, 968 So.2d 456, 461 (¶ 7) (Miss.Ct.App.2006). “One is injured in the course of employment when an injury results from activity actuated partly by a duty to serve the employer or reasonably incident to the employment.” Id. (citations omitted).

¶ 11. Performance argues that Rhoads’s testimony regarding his injury was untrustworthy because no one saw him pick the tire up and injure his back. Performance cites to White v. Superior Products, Inc., 515 So.2d 924, 927 (Miss.1987), to support this contention. However in that case, White did not inform anyone of his injury at the time he claimed the injury occurred. Additionally, the supreme court affirmed the Commission’s finding of fact that White’s testimony was untrustworthy. Here, that is not the case. Rhoads informed his supervisor, Harris, immediately following the injury. In fact, Harris testified that Rhoads emerged from beneath the van, stood up, and stated that his back was bothering him. Also, both Rhoads and Harris testified that Harris took Rhoads to the store manager, Barefoot, to report the injury.

¶ 12. The only contradictory evidence presented that Rhoads failed to report the injury was by Barefoot, who claimed that Rhoads never said he hurt his back. However, Barefoot did admit that Rhoads complained of his back hurting. The AJ weighed the credibility of the witnesses, and specifically noted, “The testimony of [Rhoads] was definitely more credible than that of [Barefoot], the store manager.”

¶ 13. Performance also asserts that a surveillance video of Rhoads directly contradicts Rhoads’s contention that he suffered a work-related injury. A surveillance video depicting Rhoads assisting his neighbor with underpinning the skirting on the neighbor’s trailer was submitted before the AJ. Although Rhoads testified that he did not perform any work on the trailer, the video shows Rhoads squatting, bending and twisting at the waist, using a hammer, lifting some material, and walking without a cane. Performance obtained an EME opinion from Dr. Moriarity, who also watched the surveillance video of Rhoads. In his affidavit, Dr. Moriarity contended that the extent of Rhoads’s injury did not appear to be as severe as Rhoads reported; however, he also stated, “I do think [Rhoads] suffered a work-related injury....”

¶ 14. Performance attacks Rhoad’s veracity by highlighting the inconsistencies between Rhoads’s petition to controvert and his testimony. In his petition to controvert, Rhoads stated that he “could not stand up due to the severe pain in his back.” During his testimony, however, Rhoads did not contend that he was unable to stand. This discrepancy, along with the surveillance video, go to the extent of the injury and not to discredit that a work-related injury occurred.

When the testimony is undisputed and not so unreasonable as to be unbelievable, taking into account the factual setting of the claim, the claimant’s testimony generally ought to be accepted as true. Likewise, the Commission, sitting as judge of the credibility of the witnesses, has the authority to accept or reject testimony....

Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 449 (¶15) (Miss.Ct. App.1999) (internal citation omitted). The Commission affirmed the AJ’s order. The AJ stated specifically that she was “persuaded by the evidence as a whole” and that “[t]he testimony of [Rhoads] was definitely more credible than that of [Barefoot], the store manager.” The Commission’s decision was not contrary to the overwhelming weight of the evidence.

¶ 15. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR.


text:
    Jason BAKER, Jimmy Baker, Nancy Baker, Jimmy Barnett, Agnes Barnett, Angela Bolen, Aron Chapman, Dan Dougherty, Debbie Dougherty, Jeff Gordon, Berri Gordon, Michelle Griffin, Vernon Griffin, Belle Haire, Richard Hartley, Glenn Hentz, April Hentz, Peewee Johnson, Martha Lyn Johnson, Laura McCammon, Linda Merriman, Robert Merriman, Jason Robertson, Lacey Robertson, Norman Smith, Latonya Smith, Ann Still, Tony Wheatley, Audra Wheatley, Arley Whitsell, Wanda Whitsell, Lee Williams, Tracy Williams, Richard Wilson, Marily Wilson, Bobby Woodruff and Sharon Woodruff, Appellants v. BOARD OF SUPERVISORS OF PANOLA COUNTY, Mississippi, Martin Willingham, Rita Willingham, S & L Farms, LLC, Lamar Johnson, Clay Baker and Rockco Mining, LLC, Appellees.
    No. 2012-CA-00034-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.

      Leroy Davis Percy, Oxford, attorney for appellants.
    Darrin Jay Westfaul, Kirkland Caldwell Willingham, Batesville, Michael Kevin Graves, Hernando, attorneys for appellees.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On March 4, 2009, Memphis Stone & Gravel Company (MS & G) applied to the Panola County Land Development Commission (the Commission) for a special exception to mine and process gravel on two adjacent properties (the Johnson/Willing-ham property) south of Eureka Road in Panola County, Mississippi. One parcel was owned by Lamar Johnson (Johnson) through S & L Farms, and the other was owned by Martin and Rita Willingham (the Willinghams). The Commission denied MS & G’s application. MS & G appealed to the Panola County Board of Supervisors (the Board). Two supervisors voted to deny the request for a special exception, and two voted to grant it, while one supervisor recused. Since there was no majority of votes to overrule the decision of the Commission, the Board affirmed the denial of MS & G’s application for a special exception.

¶ 2. On September 24, 2010, Johnson and the Willinghams applied for a special exception to mine and process sand and gravel on the Johnson/Willingham property, which was the same property south of Eureka Road in Panola County, Mississippi, that had been the subject of the MS & G application. On October 14, 2010, Jimmy Baker also applied for a special exception on a parcel of property adjacent to the Johnson/Willingham property. The Commission held a public hearing on both of the applications. The Commission voted to table the matter and requested the applicants submit additional information. Baker provided additional information. On January 27, 2011, the Commission met and approved both applications subject to certain conditions, including a limit of ten commercial truckloads of gravel that could be hauled daily from each landowner’s parcel of property.

¶ 3. Johnson, the Willinghams, and Baker appealed to the Board. The Board conducted a public hearing on February 14, 2011. Besides hearing from Baker and Rita Willingham, the Board heard from Leroy Percy, who spoke on behalf of a number of area residents (the Appellants). Percy opposed Johnson, the Willinghams, and Baker’s request that the Board remove the daily truckload limit. Also, Percy argued that the Johnson/Willingham application was the same as the MS & G application, which had been denied. The Board unanimously agreed to table the motion to allow time for the members to fully consider the evidence before the Board. On February 22, 2011, the Board voted four to one to amend the special exceptions granted by the Commission by removing the daily commercial truckload limit.

¶ 4. The Appellants appealed the Board’s decision to the Panola County Circuit Court, arguing that the Johnson/Will-ingham application was barred by res judi-cata and that the Board’s decision was not based on substantial evidence or was arbitrary and capricious. The Board asserted that the Appellants had failed to perfect a cross-appeal from the Commission, and therefore, the Board had only been requested to hear the issues of the truckload limits. The circuit court found that the Johnson/Willingham application was not barred by res judicata, because the Board’s MS & G decision had no bearing on the appeal. Additionally, the circuit court found that the Board’s decision was supported by substantial evidence, and was not arbitrary or capricious, or beyond the scope of the Board’s powers. This appeal followed.

STANDARD OF REVIEW

¶5. “The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies.” A & F Props. LLC v. Madison Cnty. Bd. of Supervisors, 933 So.2d 296, 299-300 (¶ 6) (Miss.2006) (quotations omitted). The Board’s decision will only be overturned if the Board’s order “was unsupported by substantial evidence; was arbitrary or capricious; was beyond the [Board’s] scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Ladner v. Harrison Cnty. Bd. of Supervisors, 793 So.2d 637, 638 (¶ 6) (Miss.2001). However, questions of law will be reviewed de novo. A & F Props., 933 So.2d at 300 (¶ 6).

¶ 6. Zoning issues are legislative rather than judicial. Thomas v. Panola Cnty. Bd. of Supervisors, 45 So.3d 1173, 1180 (¶ 20) (Miss.2010). In reviewing zoning cases, “the circuit court acts as an appellate court ... and not as the trier of fact.” Perez v. Garden Isle Cmty. Ass’n., 882 So.2d 217, 219 (¶ 6) (Miss.2004).

DISCUSSION

¶ 7. The Appellants contend: (1) the Johnson/Willingham application is barred by res judicata; and (2) the Board’s decision was not based on substantial evidence or was arbitrary and capricious.

I. RES JUDICATA

¶ 8. The Appellants argue that the Johnson/Willingham application is barred because it is the same claim raised by MS & G in its application for a special exception. Baker’s property was not the subject of the MS & G application; therefore res judicata does not affect any decision on his application.

¶ 9. The circuit court found that the Board had never entered a final judgment regarding the MS & G application for a special exception, because two supervisors voted in favor of the motion and two supervisors voted against the motion. The Board neither granted nor denied the exception. Rather, it affirmed the decision of the Commission. The circuit court stated, “The prior decision has no bearing on the decision made by the Board in this appeal. Therefore, res judicata does not apply.”

¶ 10. In their bill of exception before the circuit court, the Appellants stated that Percy, who spoke on behalf of the Appellants, had argued before the Board that the Johnson/Willingham application was the same as the MS & G application. However, in the same bill of exception, the Appellants waived any contention that the Johnson/Willingham application should have been denied, noting:

His clients had not appealed the Commission’s decision, Mr. Percy explained, because they viewed it as a reasonable compromise of the opposing interests, but his clients were opposing the applicants’ request that the Board remove the daily truckload limit as a condition of their special exceptions to mine gravel.

(Emphasis added). According to the Appellants’ own assertion, the only issue before the Board was the removal of the daily truckload limit and not the Johnson/Willingham application for the special exception. The issue of res judicata was never before the Board. In turn, the issue could not be raised for the first time on appeal before the circuit court. Marcum v. Hancock Cnty. Sch. Disk, 741 So.2d 234, 288 (¶ 20) (Miss.1999) (“[Ejrrors raised for the first time on appeal will not be considered!.]”). This issue is procedurally barred.

II. DECISION OF THE BOARD

¶ 11. The Appellants argue that the Board’s removal of the daily haul limit was arbitrary and capricious because it was not based upon substantial evidence. An agency’s decision is not arbitrary or capricious if it “is supported by substantial evidence!.]” Miss. Bureau of Narcotics v. Stacy, 817 So.2d 523, 526 (II10) (Miss. 2002). The Mississippi Supreme Court has said that the term “arbitrary” means “fixed or done capriciously or at pleasure.” Miss. State Dep’t of Health v. Sw. Miss. Reg’l Med. Ctr., 580 So.2d' 1238, 1240 (Miss.1991). “An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id.

¶ 12. The Board first addressed the request to remove the daily haul limit at its February 14, 2011 meeting. At the meeting, the Board unanimously voted to table the decision “[a]fter hearing the presentations, reviewing the orders of [the Commission], [and] receiving and carefully analyzing the exhibits, letters, notes, documents and reports!.]” The Board noted that the matter would be tabled “until its members could carefully review the evidence, consider the factors required to be considered for a special exception to be granted, and then deliberately and intelligently discuss the merits of the appeal at a later date.” The Board addressed the matter again on February 22, 2011, and the motion to grant the special exception removing the daily haul limits carried by four votes to one.

¶ 13. As the Board stated, it reviewed the Commission’s orders before it. The Commission specifically stated that the exception:

[W]ill promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity!,] or general welfare of the county and will not substantially increase traffic hazards or congestion, will not substantially increase fire hazards, will not adversely affect the character of the neighborhood, will not adversely affect the general welfare of the county, will not overtax public' utilities or facilities, and is not in conflict with the goals of the Progress Panola General Development Plan.

Besides reviewing the Commission’s findings, the Board heard testimony from Baker and Rita Willingham. Baker argued that rules or regulations should not be placed on his property that were not in place on other gravel pits in Panola County. Rita Willingham noted that there were no daily haul limits for trucks hauling soybeans and rice in that part of the county, and, therefore, daily haul limits should not be placed on the trucks hauling gravel from her property. ' •

¶ 14. Additionally, the Board was not bound solely by the evidence before it. Board members can also consider “their own common knowledge and the familiarity with the ordinance area.” Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991) (citations omitted). We find the Board’s decision was based on substantial evidence and was not arbitrary or capricious.

¶ 15. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.


author: FAIR, J., ISHEE, J.,

text:
    Julia POWELL a/k/a Julia Ann Powell, Appellant v. Bennie Jake EVANS and Mary Margaret Gregory, Appellees.
    No. 2011-CA-00516-COA.
    Court of Appeals of Mississippi.
    May 14, 2013.

      Terry L. Caves, Jerry Dean Sharp, Laurel, attorneys for appellant.
    David M. Ratcliff, David Neil McCarty, Lillous Ann Shoemaker, Andrew Steven Cardwell, Laurel, attorneys for appellees.
   FAIR, J.,

for the Court:

¶ 1. Before this Court for review is the enforcement of an agreed judgment. It was clearly within the chancellor’s authority to consider the intent of the parties in entering into the agreed judgment and to fashion a way to carry out that intent. Reluctantly, however, we must reverse and remand for the chancery court to join Bel-issa Powell as a necessary party, after her mother, Julia Powell, gave her a warranty deed to some of the property about two months before the hearing.

¶ 2. This litigation originated as a suit for partition of “heir property,” and it retains the flavor of that statutory remedy. However, the agreed judgment we consider on appeal is one approving and carrying out the intent of a contract between adults for division of real property wholly owned by them when they entered into the agreement. The subject of this judgment could have just as easily have included personalty as well as realty and been between seller and purchaser rather than siblings.

FACTS

¶3. Julia, Mary Margaret, and Bennie owned all of what they thought was 37.98 acres of a “forty” that was once the property of their parents. Julia had record fee simple title to 2.02 acres located within the boundaries of the forty, acquired from grantees of her parents. The description of the property to be divided by partition was described as “less and except” those two acres. All three thought the excluded parcel fit into the northwest corner of the forty. When the three siblings could not agree on division, the two sisters sued Bennie, filing a complaint for partition “in kind” and for the surface acreage only, on January 4, 2008.

¶ 4. During early stages of the litigation, it was discovered that the “forty” they thought they owned was actually a “long forty” and that their joint property involved 47.64 acres instead of 37.98 acres.

¶ 5. On January 13, 2008, the parties represented to the chancellor that they had settled the matter, and on February 19, 2009, the chancellor signed an order setting out an agreed-upon method of division of the property. The typed order contains the handwritten words “This is a final judgment,” in the chancellor’s own handwriting and initialed by him. Bennie, Mary Margaret, and Julia all signed the order, as did their attorneys, under the words “AGREED TO:”

¶ 6. The chancellor found this unap-pealed judgment to be a binding contract, signed by all three of thé record owners of the heir property and by Julia as the owner of the 2.02 acres excepted from the description of the heir long forty. He found that disposition and apportionment of title to the entire long forty was within the exclusive power of the three parties to the suit. Their agreement, therefore, was capable of specific performance as a contract through the judgment in which it was embodied and approved.

¶ 7. The judgment on appeal before this Court was entered following Mary Margaret’s motion to hold Julia in contempt for refusing to honor the agreed settlement and to order her “to cooperate with the surveyor and adhere to this Court’s previous Order, and execute any and all necessary instruments to partite the property.” Also before the chancellor was Julia’s Rule 60(b)(6) motion, filed in response to the motion for contempt a year and three months after the final judgment, seeking to void the final judgment and her contractual obligations therein.

¶ 8. All three siblings had contracted in the February 2009 final judgment that division would be by acreage (rather than by value as contemplated in a statutory contested partition), with Julia and Mary Margaret receiving 5.94 acres each, and with Bennie receiving the remaining 35.64 acres. Provisions were set out by agreement for payment of surveys, taxes, expenses and costs and for a surveyor to plat, under general instructions, the “on the ground” boundaries of the acreage each is to receive under their agreement. Attached to the agreement was a marked-up county ownership map generally designating the parcels that each of the sisters owned or were to receive in division. Bennie would get what was left over. A surveyor was to set out the exact boundaries of the sisters’ parcels.

¶ 9. But when the surveyor went onto the land, he discovered that the house Julia was living in, which she and everyone else had represented to be located on the “excepted” 2.02 acres, was not, but actually sat on the “heir property” they were dividing by agreement. The house sat 20.47 feet west of the western boundary of Julia’s 2.02-acre description.

¶ 10. On January 31, 2011, the chancellor signed his second “final” judgment. He found that his prior final judgment, and the contract it embodied, could be accomplished. He directed that the description of Julia’s 2.02 acres, which was represented to be beneath her home, be amended by deed so it would be located where she had said it was, and that the remaining 47.54 acres in the long forty be divided as had been agreed by all the siblings almost two years earlier. Mary Margaret’s motion that Julia be held in contempt was denied in the same judgment, though her prayer for mandated performance of the contract was granted by implication in the second judgment. Ten days later Julia moved under Rules 59(a), 59(e), and 60 for a new trial and/or relief from the now fully two-year-old judgment, which the chancellor denied on March 30, 2011. Julia’s appeal followed six days later.

STANDARD OF REVIEW

¶ 11. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor’s factual findings, on the other hand, will not be disturbed unless he was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings and none are required under a “factor test” mandated by case law, we generally proceed on the assumption that he resolved fact issues in favor of the prevailing parties. Ferrara v. Walters, 919 So.2d 876, 881 (¶8) (Miss.2005).

DISCUSSION

¶ 12. Two long-honored equitable concepts were employed by the chancellor: specific performance and the fashioning of an equitable remedy to accomplish it.

¶ 13. It should be emphasized that this is no longer a partition case except to the extent recognized under Mississippi Code Annotated section 11-21-1 (Supp.2012), which allows and favors partition by agreement. The appeal before us addresses a real-estate contract embodied in a final judgment with an agreed partition as its subject.

¶ 14. This Court “has considered specific performance as a ‘particularly appropriate remedy” in matters pertaining to a breach of a real-estate contract, because of real estate’s unique nature.” Houston v. Willis, 24 So.3d 412, 418 (¶ 19) (Miss.Ct.App.2009) (citations omitted). We further added that “judicial discretion notwithstanding, where a contracting party can feasibly be given what he bargained for, specific performance is the preferred remedy.” Id.

¶ 15. The issues in Daughtrey v. Daughtrey, 474 So.2d 598 (Miss.1985), a partition action between husband and wife, are similar to those involved in this case, particularly those relating to estoppel of the wife in that case from challenging her sworn position in prior litigation as to property ownership. Julia’s position also resembles that of the appellant in Estate of Davis v. O’Neill, 42 So.3d 520, 524-25 (¶ 16) (Miss.2010), where it was held:

“A party is not entitled to relief merely because he/she is unhappy with the judgment.” Jenkins v. Jenkins, 757 So.2d 339, 343 (Miss.Ct.App.2000) (citing Stringfellow v. Stringfellow, 451 So.2d 219, 220 (Miss.1984)). Rule 60(b)(6) grants relief from a judgment for “extraordinary and compelling circumstances.” Porter v. Porter, 23 So.3d 438, 450 (Miss.2009) (quoting Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998)). When considering. Rule 60(b)(6) motions, appellate courts have a limited review to determine whether the sound discretion of the trial court has been abused. Stringfellow, 451 So.2d at 221. “When ruling on such motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation.” Id.

¶ 16. Julia seeks to set aside a solemn contract and start the litigation between herself and her siblings all over, adding adverse possession as a cause of action against her siblings while adding her daughter and anybody else who may have also become nominal necessary parties in the interim.

¶ 17. The pleading seeking that extraordinary relief is her Rule 60(b)(6) motion, the denial of which is on appeal. In that motion she asserted only that “the Judgment is unenforceable since it is ambiguous and unenforceable.”

1118. To the contrary, the chancellor found that the agreed judgment was not ambiguous nor unenforceable, a decision within his discretion. “[D]eerees will be construed as a whole, and in doing so ... effect must be given to all [the decree’s] recitals and with the prime object to ascertain the intention that selected the words used therein.” Rayl v. Thurman, 156 Miss. 8, 15, 125 So. 912, 914 (1930). When addressing an ambiguous judgment, we turn to the general rules of construction. See Wilson v. Freeland, 773 So.2d 305, 308 (¶ 9) (Miss.2000). “A judgment decree or opinion of court is a legal text, and, when questions of meaning arise, answers are sought by ‘the same rules of construction which appertain to other legal documents.’ ” Estate of Stamper, 607 So.2d 1141, 1145 (Miss.1992) (quoting Gil-lum v. Gillum, 230 Miss. 246, 255, 92 So.2d 665, 668 (1957)).

¶ 19. Moreover, the chancellor was eminently correct in his conclusion that a claim of adverse possession, by any party involved, was not properly before the chancery court on Julia’s Rule 60(b)(6) motion. It had not been plead and, under the rules of pleading, was waived and could not be raised by the contracting parties because it merged into the agreement they had submitted and signed, which was approved and memorialized by the chancellor in a judgment entitled to res judicata treatment.

¶ 20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.

¶ 21. Mississippi Rule of Civil Procedure 25(c) provides in relevant part:

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

This stands in contrast to Rule 19(a)(2), which states:

A person who is subject to the jurisdiction of the court shall be joined as a party in the action if ... he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.... If he has not been so joined, the court shall order that he be made a party.

¶ 22. If we had the authority to rewrite pronouncements of our highest court, we would find Rule 25(c) controlling. However, there is binding precedent that neither Rule 25 nor Rule 19 “trumps” the other, and they are to be viewed together. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1023 (¶ 120) (Miss.1997). The practical effect of this holding seems to be that Rule 19, broad and mandatory, consumes Rule 25 and removes the issue from the court’s discretion. See Johnson v. Weston Lumber & Bldg. Supply Co., 566 So.2d 466, 469 (Miss.1990) (error under Rule 19 not to join transferee who received title one month before judgment). Although Rule 25 requires a motion before the lower court, the joinder of necessary parties under Rule 19 can be raised for the first time on appeal, or even noticed by the reviewing court sua sponte. Shaw v. Shaw, 603 So.2d 287, 293-94 (Miss.1992).

¶ 23. In light of this authority, we are required to remand to the trial court. Since Belissa’s title to the property she was deeded is likely to prove to be only as good as Julia’s, she has an undeniable interest in the present litigation that is distinct from her mother’s. We are aware that, on remand, the same result might be reached. Davis v. Guar. Bank & Trust Co., 58 So.3d 1233, 1238 (¶ 26) (Miss.Ct. App.2011). But before rendering a judgment the trial court must, at the minimum, notify Belissa and allow her a “meaningful” opportunity to be heard on the specific issues before the court — i.e., the Rule 60(b) and contempt motions. See Aldridge v. Aldridge, 527 So.2d 96, 98 (Miss.1988).

CONCLUSION

¶ 24. The chancellor was within his power to interpret the intention of the parties from the agreed final judgment he had entered at the behest of all owners of the property. The remedy he fashioned to honor their intention and accomplish the result they agreed on was likewise within his discretion. But because Julia’s daughter Belissa is a “necessary party” under Rule 19, this matter must be remanded and Belissa joined under Rule 19(a)(2).

¶ 25. Although we reverse and remand, because of the special circumstances of this case, we exercise our discretion under Mississippi Rule of Appellate Procedure 36 to assign all costs of this appeal to the appellant.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF JASPER COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

ISHEE, J.,

concurring in part and dissenting in part:

¶ 27. I agree with the majority’s determination that the case should be remanded to include Belissa as a necessary party to the action. The majority and Julia properly cite Mississippi Rule of Civil Procedure 19(a) for the proposition that Belissa is a necessary party to the action. Rule 19(a) states:

(a) Persons to Be Joined [i]f Feasible. A person who is subject to the jurisdiction of the court shall be joined as a party in the action if:
. (1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant or, in a proper ease, an involuntary plaintiff.

However, Bennie and Mary Margaret assert that in the present case, Rule 25(c) must be read in conjunction with Rule 19(a). Rule 25(c) states:

Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

¶ 28. Here, Mary Margaret notified the chancery court that the legal description of the parcel was incorrect and requested relief because Julia’s home was actually located on Mary Margaret’s partitioned tract of land. On November 3, 2010, Julia transferred her interest in the 2.02-acre parcel of land to Belissa. It was not until January 13, 2011, that the chancery court conducted a hearing and ruled on the division of the land. Therefore, at the time of the chancery court’s ruling, Belissa was the legal owner of land involved in the partition.

¶ 29. This Court has previously stated that “joinder of parties is only necessary if complete relief cannot be accorded among those who are already parties to the suit.” Am. Pub. Fin., Inc. v. Smith, 45 So.3d 307, 311 (¶ 9) (Miss.Ct.App.2010) (citing Craft v. Craft, 825 So.2d 605, 610 (¶20) (Miss.2002)). However, in this case I agree with the majority and cannot find it proper to adjudicate the matter without the inclusion of Belissa.

¶ 30. Nonetheless, I disagree with the majority’s finding that this is no longer a partition action. This case is an appeal of the chancery court’s order partitioning the land. The parties submitted the issue of partition to the chancery court, and the chancery court executed the parties’ request to partition the land. The final order required the partitioned land be shifted so as to accommodate the house in question on Belissa’s 2.02-acre parcel of land. Therefore, I would find the chancery court’s final order to be part of the partition action, and the parties’ appeal to be an extension of the partition action, not a new real-estate action brought by Julia.

¶ 31. As such, I would reverse and remand this case to include Belissa as a necessary party to the partition action, as well as any other persons determined to be necessary parties. Furthermore, I would render the determination that the 2.02-acre parcel of land was Julia’s land outright, and, therefore, passed to her daughter, Belissa, as her 2.02-acre parcel of land outright. Finally, I would remand all other issues relevant to this action, including, but not limited to, final partition of the land and any matters of adverse possession.

IRVING, P.J., JOINS THIS OPINION.


author: BARNES, J„

text:
    Tia SAUCIER a/k/a Tia Pederson, Appellant v. Richard H. HAWKINS, D.D.S., Appellee.
    No. 2011-CA-01628-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.

      Genevieve G. McLeod, attorney for appellant.
    Brett K. Williams, Joshua W. Danos, Pascagoula, attorneys for appellee.
   BARNES, J„

for the Court:

¶ 1. Tia Saucier filed suit against Dr. Richard Hawkins in Harrison County Circuit Court for dental malpractice. At trial, Saucier offered as her sole expert Dr. Roger Vitter, a prosthodontist. Once Saucier’s case-in-chief was complete, Dr. Hawkins moved for a directed verdict based on Dr. Vitter’s inability to articulate a nationally recognized standard of care applicable to the treatment of Saucier by Dr. Hawkins. The trial court granted the motion, and Saucier now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Saucier first visited general dentist Dr. Hawkins in Gulfport, Mississippi, in March 2000. The initial consultation sheet indicated the following symptoms: sensitivity to heat, cold, sweets, and biting pressure; bleeding gums when brushing her teeth; bilateral clicking of the jaw and jaw pain; and general dissatisfaction with her teeth and their appearance. Generally, Dr. Hawkins’s initial examination records also noted “initial TMJ,” pain in the left and right ears and jaws, “crepitus,” and “popping.” Over the course of Dr. Hawkins’s treatment of Saucier for two years and eight months, he evaluated her and performed numerous diagnostic procedures, such as taking radiographs and preparing wax, rubber, and composite models of her teeth. Dr. Hawkins implemented a treatment regimen, which included root canals, restoration of Saucier’s upper teeth with crowns, and rehabilitation of some lower-back teeth with crowns and bridges. Dr. Hawkins’s treatment of Saucier ended in November 2002.

¶ 3. In July 2003, Saucier obtained treatment from Dr. Douglas Tillery, who found accelerated and recurrent decay of her teeth. He explained to her that some of the preexisting crowns would need to be removed and additional crowns installed. Dr. Tillery retreated Saucier’s upper arch. Saucier quit seeing Dr. Tillery in June 2004, when she picked up her dental records, claiming she was “getting conflicting diagnosis for treatment,” and was “unsure of how to proceed.”

¶ 4. In March 2005, Saucier was referred by a general dentist, Dr. James Crouch, to Dr. Vitter of Metairie, Louisiana, for an initial consultation. In a letter to Saucier’s attorney at the time, William Quin, dated June 2005, Dr. Vitter stated that Saucier complained to him of bilateral jaw pain, which worsened with chewing, headaches, earaches, neck pain, and gum soreness. He found that a “[b]rief examination revealed dysfunctional jaw movement and discomfort consistent with some degree of temporomandibular dysfunction.”

¶ 5. In May 2005, Dr. Vitter performed a comprehensive dental and TMJ evaluation. It was his opinion Saucier “had a preexisting temporomandibular dysfunction which was not addressed through accepted conservative treatment prior to undergoing irreversible restorative procedures. Her case is now complicated not only by her pre-existing TMD[] problem, but the clinically unacceptable dental/restorative treatment.” In the letter, he then listed several issues where he believed treatment was “below the standard of care.” Dr. Vitter proposed a treatment plan for Saucier that would cost approximately $40,000 to $50,000.

¶ 6. In January 2006, Saucier filed suit against Drs. Hawkins and Tillery for independent claims of dental malpractice. In her complaint, she claimed that Dr. Hawkins deviated from the standard of care as follows: (1) “[he] performed irreversible restorative treatment of Saucier, a symptomatic TMJ patient, without providing a diagnosis and conservative therapy prior to definitive restorations”; (2) “[he] fail[ed] to advise Saucier of her periodontal disease and significant bone loss of the maxillary posterior teeth”; (3) “[he] perform[ed] ill-fitting bridgework, including open margins, violation of biologic width, over contoured crowns and poor occlusal stability”; and (4) “[his treatment caused] multiple dental abscesses and [he performed] inadequate root canal therapy.”

¶ 7. In March 2006, Dr. Vitter supplemented his June 2005 findings with a letter to Quin after reviewing Saucier’s dental records from Drs. Hawkins and Tillery. Dr. Vitter reiterated that Dr. Hawkins’s treatment fell below the standard of care regarding “the failure to diagnose or inform the patient regarding her periodontal status,” the “management of her TMJ problem,” and “the quality of the dentistry itself.” However, Dr. Vitter noted that “[b]ecause the ‘evidence’ had been removed by subsequent treatment [by Dr. Tillery], my opinion is only based on the rapid deteriorization following the restorations as indicated in the records provided.” Thus, Dr. Vitter surmised that it was “difficult to determine the quality of treatment provided by Dr. Hawkins.”

¶ 8. Trial ensued in September 2011. During Saucier’s case-in-chief, Dr. Vitter was offered as her only expert witness, and was accepted by the trial court as an expert in the field of prosthodontics. Saucier’s counsel predominately focused his examination of Dr. Vitter on Dr. Hawkins’s failure to evaluate properly and treat Saucier’s preexisting TMJ symptoms. Dr. Vitter opined several times that Dr. Hawkins’s treatment of Saucier fell below the standard of care. But when asked directly by Saucier’s counsel if there is “a standard of care for patients with TMJ,” Dr. Vitter answered “no.” Later, Saucier’s counsel asked, “Are you also an expert in TMJ dysfunction?” Dr. Vitter answered:

TMJ is not a specialty, and there are ... a number of areas of dentistry that manage TMJ. The oral surgery specialty in dentistry manages the surgical aspect of TMJ. Oral surgeons will operate on the jaw joints. In our prosthodontic training program at LSU and across the country a significant portion of the training of our residents is in TMJ. Approximately 20 percent of the time is spent just in maintaining TMJ, learning about TMJ. It’s part of prosthodontics, but there is no specialty of TMJ. And some of the foremost specialists, if you will, in TMJ that are experts are general dentists, but there’s no specialty. So when you ask me if I’m a specialist in it, no one is.

(Emphasis added.) On cross-examination, the following exchange occurred between Dr. Hawkins’s counsel and Dr. Vitter related to his knowledge of the standard of care for TMJ:

Q. I want to ask you one more thing. I want to clarify something. I think you said it right at the beginning of lead examination. There’s no standard of care for treating patients with TMJ. Is that an accurate statement?
A. Not really. There are a lot of organizations who manage TMJ differently. There is a standard of care that’s taught in university settings and outlined in peer review organizations like the American Academy of Oral Facial Pain, the American Calibration Society, TMJ clinics and universities at UCLA, Florida, LSU, Ohio, Iowa, and so there’s a standard of protocol that is outlined. Is there a standard of care in the private community? Most people that manage TMJ patients will follow that, but I can’t tell you that there [are] not other people who do their own thing for this.
Q. In the United States, to your knowledge, is there a standard of care that’s applicable to general dentistry for treating patients with TMJ/ TMD in the United States?
A. I don’t believe the American Academy of General Dentistry has a substandard on TMJ. I’m not a general dentist so I can’t tell you what those standards are.

¶ 9. At the completion of Saucier’s casein-chief, Dr. Hawkins moved for a directed verdict based on Dr. Vitter’s inability to articulate a nationally recognized standard of care applicable to the field of general dentistry for TMJ. The trial court granted Dr. Hawkins’s motion. Dr. Hawkins also moved for a directed verdict based upon lack of expert testimony regarding causation.

¶ 10. The trial judge granted the directed verdict because of Saucier’s failure to provide an expert who could articulate a national standard of care in the field of general dentistry for the treatment of Saucier. In making her ruling, the trial judge stated from the bench:

Dr. Vitter testified twice that there is no standard of care for TMJ. He specifically testified that people manage it differently. He did say ... that there is a standard of care that is taught at various universities. He did list two entities that he said have outlined a standard of care and he called them peer review organizations. What he referred to them as was standard of protocols that are outlined. However, ... he voluntarily said in the private community most follow these but others do their oum thing.... [LJater in the cross-examination he was specifically asked whether or not he knew the standard in the United States applicable to general dentistry for treating patients with TMJ. He said he did not believe that the American Academy of General Dentistry had standards on TMJ. And ... specifically said I’m [ (Dr. Vitter) ] not a general dentist. I can’t tell you what those standards are. Well, folks, that is the issue in this case. All of the testimony is that Dr. Hawkins is a dentist, and that is the standard that he is held to. He’s not held to the standard of a prosthodontist [such as Dr. Vitter].
And in looking at the case law, ... Mississippi doctors are bound by a national standard of care.... [A]t this point the plaintiff has not met [her] burden of proof in this case in establishing what the national standard for general dentistry is as it would apply to Dr. Hawkins’s actions ... therefore, we cannot go any further to determine if those actions were above or below any standard of care because we simply don’t know what it is.... [W]e don’t even get to the issues of causation and damages.
I would note alternatively, however, as to the causation issue there is very little testimony from Dr. Vitter that states that any deviation from any standard of care that he testified to directly caused any of the problems. He generally refers to assuming that certain things were done, and he generally refers to the treatment as having caused the problems, not to any deviation [from] the standard of care.... [A] bad result or the treatment not working is simply not enough to establish either a breach or a causation.

(Emphasis added.)

¶ 11. Saucier appealed, raising one issue: whether the trial court erred in granting Dr. Hawkins’s motion for a directed verdict.

STANDARD OF REVIEW

¶ 12. The trial judge’s grant or denial of a motion for a directed verdict is reviewed de novo. McGee v. River Region Med. Ctr., 59 So.3d 575, 578 (¶ 8) (Miss.2011). “A motion for directed verdict tests the legal sufficiency of the plaintiffs evidence.” Id. “[The appellate court] considers ‘whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id. When deciding whether the grant or denial of the motion for a directed verdict was proper, all evidence must be viewed in the “light most favorable to the nonmoving party,” with “all reasonable inferences” viewed in that party’s favor. Braswell v. Stinnett, 99 So.3d 175, 178 (¶ 10) (Miss.2012).

ANALYSIS OF THE ISSUE

¶ 13. The trial court ruled that Saucier failed to establish, through the expert testimony of Dr. Vitter, a nationally recognized standard of care for the treatment of Saucier by Dr. Hawkins. On appeal, however, Saucier argues that at trial Dr. Vitter did articulate a nationally recognized standard of care for treatment of patients with symptoms like hers. She maintains Dr. Vitter’s testimony covered the standards of care and the breach of those standards in general dentistry, prosthodontics, and periodontics.

¶ 14. “To establish dental[] malpractice, a plaintiff must — as a matter of law — produce expert testimony to establish a prima facie case. The expert must establish the ‘requisite standard of care’ and that the defendant ‘failed to conform to that standard.’ ” Id. at (¶ 11) (citations omitted). “Liability turns on a failure to provide the required level of care.” Hall v. Hilbun, 466 So.2d 856, 869 (Miss.1985) (overruled on other grounds). Therefore, “[t]he success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert.” McGee, 59 So.3d at 578 (¶ 9) (quoting Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 10) (Miss.2009)). “Not only must an expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (quoting McDonald v. Mem’l Hosp., 8 So.3d 175, 180 (¶ 12) (Miss.2009)).

¶ 15. Additionally, “Mississippi physicians are bound by nationally recognized standards of care; they have a duty to employ ‘reasonable and ordinary care’ in their treatment of patients.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). The standard of care articulated must be objective, not subjective. Northrop, 9 So.3d at 384 (¶ 9).

¶ 16. During his direct examination, Dr. Vitter testified that when Saucier first came to visit him, her complaints “without question” were symptomatic of TMJ. When asked to define TMJ, Dr. Vit-ter stated: “TMJ is a group of symptoms that seem to be related to a problem with the jaw, and it can be a number of causa-tions. It’s not a specific diagnosis. It’s really a group of causations.... ” Dr. Vit-ter elaborated about the procedures a dentist should use when a patient like Saucier is diagnosed with TMJ:

A. After adequate diagnosis there are essentially four or five treatments. Initial treatment is non-evasive or non-invasive or reversible and then depending on how the patient responds to that you get into more aggressive, more invasive, less irreversible treatment such as joint surgery or reconstructive bites or orthognathic surgery, whatever is appropriate to resolve the patient’s problem.
Q. In your opinion what was the proper procedure that should have been followed for Ms. Saucier’s ease?
A. A patient that is symptomatic? ... TMJ symptoms, you resolve the symptoms prior to doing elective treatment.
Q. How would you resolve those symptoms?
A. You can use a number of things; physical therapy, pharmacological management, splint therapy, a mouth piece.
Q. Would these be more conservative procedures?
A. More conservative than surgery or orthodontics or restoring the bite through prosthetics, yes. Those are irreversible, and the standard as you asked based on the number of facilities, universities is that you don’t do irreversible procedures until you’ve obtained a stable level of comfort or a stable level of symptoms that the patient can tolerate either via splint or physical therapy, all of those things, and once you’ve stabilized the patient and then determined that what they need to stay that way is to have orthodontics or joint surgery or bite rehabilitation or an acculturation or selective wearing of a splint, but prior to doing irreversible procedures you render the patient asymptomatic first.... It’s diagnostic to determine that the bite is causing the problem as opposed to a habit of clinching or the disarrangement in the joint versus the bite. The initial treatment is also diagnostic as well as therapeutic.

(Emphasis added.) Saucier claims this testimony, paired with the following testimony by Dr. Vitter on the alleged breach of the standard of care for Saucier’s TMJ, articulates the specific, requisite standard of care necessary for Saucier’s claims:

Q. In your review of Dr. Hawkins’s medical records and also your own treatment, did Dr. Hawkins treat Ms. Saucier’s TMJ?
A. No.
Q. What did Dr. Hawkins do?
A. Just reviewing the records, he restored all of the upper teeth with crowns and some lower back teeth with crowns and bridges.
Q. Is this proper procedure for TMJ?
A. Not on a symptomatic patient, no.
Q. In your opinion ... if Dr. Hawkins performed irreversible definitive restorations prior to diagnostic or therapeutic procedures, did he breach the standard of care?
A. In my opinion, yes. It’s the opinion of a number of TMJ organizations, although there’s obviously some controversy across the country and the world about the specifics of that, but most of the universities in this country and a number of facilities believe that you must or at least attempt to render the patient asymptomatic to determine a comfortable [jaw] position before you would restore that occlusion. Restoring a patient while they’re symptomatic is like chasing your tail because inflammable process in the joints, muscle, hyperactive, the bit is changing and you simply cannot provide an accurate bite position on a patient who’s symptomatic. You’re rolling the dice.

(Emphasis added.)

¶ 17. We cannot agree with Saucier that the above testimony definitively establishes a nationally recognized standard of care for the treatment of patients like Saucier. As the trial judge pointed out during her ruling from the bench, Dr. Vit-ter specifically stated twice there is no national standard of care for TMJ, the disorder Saucier is claiming Dr. Hawkins mistreated by performing irreversible dental restorations when she was symptomatic with TMJ. Dr. Vitter also stated that TMJ is managed in different ways, and there is no uniform national standard of care. He also stated there is a standard of care taught at universities, but he never stated what that standard is.

¶ 18. Additionally, we note that while Dr. Hawkins is a general dentist, Dr. Vitter was accepted as an expert in the field of prosthodontics, as opposed to general dentistry. Generally, it is “not required that an expert testifying in a medical malpractice case be of the same specialty as the doctor about whom the expert is testifying.” Hubbard v. Wansley, 954 So.2d 951, 957 (¶ 13) (Miss.2007). However, ‘Satisfactory familiarity with the specialty of the defendant doctor is ... required in order for an expert to testify as to the standard of care owed to the plaintiff patient.” Id. (citing West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 718-19 (Miss.1995)). While arguably some prosthodontists could testify about the standard of care applicable to general dentistry, Dr. Vitter specifically stated that he could not testify as to the standard of care for TMJ for general dentists because he was not a general dentist.

¶ 19. Finally, in her reply brief, Saucier also changes the emphasis of her argument from her initial brief to include not just the TMJ symptoms, but the other indications of malpractice initially alleged in her complaint. Accordingly, she argues that Dr. Vitter was offering his opinion on the standard of care in other areas than TMJ, and Dr. Vitter’s testimony thus provided sufficient evidence for a jury to decide the verdict. Again, we disagree.

¶ 20. Saucier’s theory of her case appeared to be that Dr. Hawkins’s performing irreversible restorations, such as placing crowns, before treatment of Saucier’s TMJ (Saucier’s first claim in her complaint), is what caused periodontal disease, bone loss, abscesses, and the numerous dental problems Saucier experienced after Dr. Hawkins’s and Dr. Tillery’s treatment (Saucier’s second, third, and fourth claims in her complaint). Thus, the witnesses in Saucier’s case-in-chief focused on the TMJ and how Dr. Hawkins should have treated it. Therefore, it was absolutely necessary for Dr. Vitter to articulate the standard of care for .treating TMJ, which he failed to do. We find this argument without merit.

CONCLUSION ■

¶ 21. The trial court did not err in granting a directed verdict to Dr. Hawkins. Saucier failed to sustain her burden of establishing, through the expert testimony of Dr. Vitter, a nationally recognized standard of care for the treatment of patients similar in condition to her. Accordingly, we affirm the trial court’s judgment.

¶ 22. THE JUDGMENT OF THE HARRISON 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, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Saucier also sued Dr. Douglas Tillery, but they reached a settlement once discovery ended.

      . According to the American Dental Association, “prosthodontics is the dental specialty pertaining to the diagnosis, treatment planning, rehabilitation and maintenance of the oral function, comfort, appearance and health of patients with clinical conditions associated with missing or deficient teeth and/or oral and maxillofacial tissues using biocompatible substitutes. (Adopted April 2003).” American Dental Association, http://www.ada.org/ 2555.aspx# top (last visited Apr. 16, 2013).

      .' "TMJ” stands for temporomandibular joint disorder.

      . "TMD” stands for temporomandibular disorder and is used interchangeably with "TMJ.”

      . These claims were the itemized deviations of care in Dr. Vitter’s letter to Saucier's attorney in June 2005.

      . Dr. Vitter testified that he was still treating Saucier.

      . Shortly thereafter, Saucier’s counsel moved to have Dr. Vitter admitted as an expert in TMJ dysfunction, dental oncology, and maxil-lofacial prosthetics, in addition to prostho-dontics. However, the trial court sustained defense counsel’s objection to the motion.

      . A dentist is liable for the same “failure to exercise requisite skill and care” as a physician. Newport v. Hyde, 244 Miss. 870, 876, 147 So.2d 113, 115 (1962).