author: WILLIAMS, J.

text:
    Robert F. MEREDITH, III, et ux, Plaintiffs-Appellees v. TRAM INVESTMENTS, INC., Defendant-Appellant.
    No. 48,570-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 30, 2013.
    Rehearing Denied Feb. 19, 2014.

      Martin S. Bohman, Baton Rouge, LA, for Appellant, Tram Investments, Inc.
    George Wear, Jr., Monroe, LA, for Ap-pellees, Robert F. Meredith and Belinda Meredith.
    James E. Mixon, Columbia, LA, for Ap-pellees, Rammble, LLC and Amy Hale.
    Before BROWN, WILLIAMS and DREW, JJ.
   WILLIAMS, J.

|TThe defendant, Tram Investments, Inc., appeals a judgment issuing a preliminary injunction prohibiting any distribution of the assets held by the defendant. The district court found that there would be irreparable harm if the assets were not available to the plaintiff in reconvention, RAMMBLE, LLC. For the following reasons, we reverse the judgment, vacate the preliminary injunction and remand for further proceedings.

FACTS

In November 2001, Robert Meredith, III (“Meredith”), wrote a letter to Michael Eymard (“Eymard”) and Raimy Eymard stating that they were entering into “a number of transactions which encompass several undocumented understandings” between the parties. The purpose of these transactions was to provide financing of Meredith’s outstanding debt, which included a home loan to BankOne and the amount of $917,000 owed to Eymard.

In the letter, Meredith wrote that he agreed to execute a note to Tram Investments, Inc. (“Tram”), and to “settle that note with my assignment to TRAM of my oil royalty interest in Mississippi, the proceeds of any distribution to my 50% membership interest in Louisiana Oil Ventures, my ownership in 57 acres of land next to my home and any sums received” from litigation involving his son. Tram agreed to purchase the home owned by Meredith and his wife, Belinda Meredith, for the BankOne loan payoff amount of $481,000, to be financed by Caldwell Bank. Tram agreed to lease the home to Belinda for the amount of the monthly mortgage payment to Caldwell Bank.

|2The parties further agreed that Meredith’s children would pay Tram a sum sufficient to pay off the Caldwell Bank note and once that note was paid, Tram would reconvey the home to Meredith or his designee. The letter also provided that Meredith’s children would execute a note to Tram in the amount of $917,569.12 and that they would pay Tram with funds from their brother’s estate. Once that note was paid in full, Tram would assign 100% of its stock to Meredith or his desig-nee. Apparently, Eymard created Tram to hold the assets of Meredith as stated in the letter. Later, Meredith’s children formed RAMMBLE, LLC, to hold certain assets.

In February 2009, the plaintiffs, Robert and Belinda Meredith, filed a petition for specific performance against the defendant, Tram, seeking to have their home reconveyed to them as provided in the November 2001 “counterletter” agreement. Tram filed exceptions of vagueness and no cause of action. The district court denied the exception of no cause of action and granted the exception of vagueness, ordering the plaintiffs to file the counterletter or plead its express provisions. Plaintiffs then filed an amended petition adding Community Bank as a party defendant and attaching a copy of the counterletter.

In response, Tram filed an answer, a reconventional demand against the plaintiffs and a third party demand against RAMBLE, LLC and Amy Hale, a member of the company and Meredith’s daughter. RAMMBLE and Hale then filed an answer to the third party demand and a re-conventional demand against Tram, its shareholders, Michael Eymard, Louis Ey-mard, Raimy Eymard, Beverly Eymard, and Community Bank. RAMMBLE alleged that all of the obligations of Meredith under the counterletter had | ¡¡been satisfied and that Tram was required to reconvey Meredith’s home and the Tram stock to RAMMBLE as Meredith’s desig-nee. RAMMBLE also sought an injunction prohibiting the distribution of assets and the transfer of stock by Tram during the pendency of these proceedings. In response to RAMMBLE’s demand, Tram filed an exception of no right of action, which was denied by the district court. Community Bank was later dismissed from the lawsuit.

After a hearing on the preliminary injunction, the district court issued written reasons for judgment finding that RAMM-BLE had presented prima facie evidence that Meredith had complied with the obligations of the letter agreement and that RAMMBLE would suffer irreparable harm if the assets and stock of Tram could not be delivered. The court rendered judgment issuing a preliminary injunction prohibiting Tram from distributing any of its assets and transferring its stock. Tram appeals the judgment.

DISCUSSION

Tram contends the trial court erred in granting a preliminary injunction prohibiting the distribution of assets and the transfer of stock by Tram while this litigation is pending. Tram argues that the injunction is improper because RAMM-BLE failed to show that irreparable harm would occur without such relief.

An injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law. LSA-C.C.P. art. 3601. The writ of injunction is an extraordinary remedy which should only issue in those instances where the moving party is threatened with irreparable loss or injury and is without an 14adequate remedy at law. Brannan v. Talbot, 29,692 (La.App.2d Cir.4/2/97), 691 So.2d 848. Irreparable harm is defined as injury or loss for which damages cannot be measured by a pecuniary standard or which cannot be adequately compensated in money damages. Brannan, supra.

Another requirement for obtaining a preliminary injunction is a prima facie showing that the moving party will prevail on the merits. Holmes v. Peoples State Bank of Many, 32,749 (La.App.2d Cir.3/3/00), 753 So.2d 1006. The trial court has discretion in determining whether or not to issue a preliminary injunction and its ruling will not be disturbed absent an abuse of discretion. Holmes, supra.

In the present case, RAMMBLE argues that it is not required to show irreparable harm as an element of proof for injunctive relief when seeking to protect rights in real property. Injunctive relief to protect or restore possession of immovable property or of a real right therein is available to a person who is disturbed in the possession, which he has had for more than a year, of immovable property or of a real right therein. LSA-C.C.P. art. 3663(2). A person is in possession of immovable property or of a real right therein, within the meaning of Article 3663, when he has the corporeal possession thereof and possesses for himself. LSA-C.C.P. art. 3660.

RAMMBLE never possessed the property at issue, but asserts that it is protecting Meredith’s possession of the property. However, the record shows that Meredith was in possession of the property in question by virtue of his wife’s lease agreement with Tram. As a lessee, Meredith is a precarious possessor who exercises possession over a thing with the permission of the owner and is presumed to possess for another, even though | Bhe may intend to possess for himself. LSA-C.C. arts. 3437, 3438; Sorrento Companies, Inc. v. Honeywell International, Inc., 04-1884 (La.App. 1st Cir.9/23/05), 916 So.2d 1156. Although Meredith was in corporeal possession of the property, he possessed for Tram. Thus, RAMMBLE cannot establish that Meredith was disturbed in his possession of the immovable. Additionally, RAMMBLE has not shown that Meredith possesses a real right in the immovable property, as the contract of lease creates personal rights only and does not convey any real right or title to the property leased. See Richard, v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131; Sorrento Companies, supra. Consequently, Article 3663 is inapplicable.

Although the trial court found that Meredith would suffer irreparable harm if the house could not be returned to him, the evidence presented does not support this finding. During his testimony, Meredith expressed his concern that without an injunction, the house would not be available for return to him as provided in the counterletter. However, Meredith’s testimony did not demonstrate that irreparable injury or loss would result even if the property is sold and Meredith ultimately prevails in his claim. The counterletter was admitted into evidence and states the purchase price of the house. RAMMBLE did not produce other evidence to show that the value of the house or the stock could not be measured by a pecuniary standard. Nor did any personal attachment to the house deter Meredith from conveying the property to Tram in order to obtain financing for the payment of his BankOne loan. Thus, the trial court erred in determining that RAMMBLE showed irreparable injury.

Consequently, based upon this record, we conclude that the trial court |fiabused its discretion in granting a preliminary injunction. Accordingly, we shall reverse the judgment enjoining the distribution of assets and the transfer of stock held by Tram.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting a preliminary injunction is reversed and the preliminary injunction is vacated. This matter is remanded for further proceedings. Costs of this appeal are assessed to the appellees, RAMMBLE, L.L.C. and Amy Hale.

REVERSED; PRELIMINARY INJUNCTION VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    SIEMENS WATER TECHNOLOGIES CORP. v. REVO WATER SYSTEMS, LLC, et al.
    No. 13-631.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 8, 2014.

      Alan K. Breaud, Breaud & Meyers, Lafayette, LA, for Plaintiff/Appellee: Siemens Water Technologies Corp.
    Russell Joseph States Jr., States & Lav-ergne, LLC, Lake Charles, LA, for Defendants/Appellants: Revo Water Systems, LLC, Jacob J. David.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

| Appellants, Revo Water Systems, LLC and Jacob J. David, appeal the trial court’s judgment granting Appellee, Siemens Water Technologies’, motion to execute judgment, in which Siemens requested the trial court to “execute a Judgment memorializing the Court’s award of a Permanent Injunction and awarding attorney fees and expenses.” Revo asserts that res judicata bars the granting of this motion and that, in the alternative, the motion was untimely. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 24, 2010, a jury reached a verdict in favor of Appellee Siemens Water Technologies (hereinafter “Siemens”) and against Appellants Jacob J. David (hereinafter “David”) and Revo Water Systems, LLC (hereinafter “Revo”), finding David/ Revo willfully and maliciously misappropriated Siemens’ trade secrets and engaged in unfair trade practices by copying Siemens’ trade dress. The jury awarded damages to Siemens in the amount of $1,482,000.

Siemens then filed a motion seeking a permanent injunction to prevent Revo and David from continuing to infringe upon Siemens’ trade secrets and trade dress, as well as an award of attorney fees and expenses. At a hearing on August 12, 2010, the parties presented arguments regarding the specifics of the injunction. The trial court granted Siemens’ motion, specifying in the transcript the nature of the injunction as well as awarding attorney fees and costs in the amount requested by Siemens, which totaled $122,187.11.

Both parties submitted proposed judgments to the trial court. Siemens presented a judgment including attorney fees with the judgment on the jury verdict and presented a separate judgment on the permanent injunction. Revo and David presented a judgment including attorney fees and the permanent injunction in the |2same judgment. Both parties presented judgments which included the award of attorney fees in the amount of $122,187.11. However, the parties were unable to agree on the form of the judgment due to a dispute about wording. Following a telephone conference with the trial court on the matter, the court executed a judgment on the jury verdict on August 20, 2010. This judgment did not include the attorney fees or the permanent injunction. However, the judgment includes a statement specifying: “Injunctive relief and other collateral issues will [be] submitted to the Court for judgment at a later date.”

Revo and David filed an appeal with this court from the August 20, 2010 judgment on the jury verdict. The trial court had not yet executed a judgment on the collateral issues; those matters were absent from the judgment before this court and were not addressed on appeal. This court amended the judgment by reducing the jury’s award of damages, and affirmed. See Siemens Water Technologies Corp. v. Revo Water Sys., LLC, 11-248 (La.App. 3 Cir. 10/5/11), 74 So.3d 824.

Siemens filed a motion for execution of judgment on December 13, 2012, seeking execution of a judgment on the collateral issues reserved in the judgment on the jury verdict — attorney fees and the permanent injunction. The trial court issued a Judgment on Permanent Injunction and Attorney Fees on February 26, 2013, in which it awarded Siemens attorney fees in the amount of $122,187.11 and a permanent injunction against further use of Siemens’ trade dress, which the judgment notes are “established in the Verdict of the jury at the Trial on the Merits on June 21-24, 2010.”

Revo and David now appeal the February 26, 2013 judgment. Siemens requests an award of additional attorney fees for the instant appeal. We find that res judi-cata does not bar the trial court’s judgment on the collateral issues of attorney fees and the injunction, nor was Siemens’ request for a judgment untimely. |-/Therefore, we affirm the trial court’s judgment and award Siemens additional attorney fees for this appeal.

ASSIGNMENTS OF ERROR

1. The February 26, 2013, judgment awarding attorney fees is barred by res judicata.

2. The February 26, 2013, judgment is untimely under La.Code Civ. P. art. 1911.

LAW AND ANALYSIS

Res Judicata

This court reviews the res judicata effect of a prior judgment de novo as it is a question of law. Fogleman v. Meaux Surface Prot., Inc., 10-1210 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, writ denied, 11-712 (La.5/27/11), 63 So.3d 995. Louisiana’s res judicata statute is La.R.S. 13:4231, which states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on- those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The statute “is interpreted stricti juris, and any doubt regarding compliance with its requirements is to be resolved in favor of the plaintiff. A plea of res judica-ta should not be sustained unless its application is clearly justified.” 4Brouillard v. Aetna Cas. & Sur. Co., 94-1559, p. 2 (La. App. 3 Cir. 5/10/95), 657 So.2d 231, 233 (internal citations omitted).

“The burden of proof is upon the pleader to establish the essential facts to sustain the plea of res judicata.” Mundell v. Mundell, 03-631, p. 2 (La.App. 3 Cir. 11/5/03), 858 So.2d 768, 770 (quoting Ins. Assoc., Inc. v. Francis Camel Const., Inc., 95-1955, p. 3 (La.App. 1 Cir. 5/10/96), 673 So.2d 687, 689). However, “the doctrine of res judicata is not discretionary and mandates the effect to be given final judgments.” Owens v. Book, 02-90, p. 3 (La. App. 3 Cir. 6/5/02), 819 So.2d 484, 487 (quoting Leon v. Moore, 98-1792, p. 5 (La. App. 1 Cir. 4/1/99), 731 So.2d 502, 505, unit denied 99-1294 (La.7/2/99), 747 So.2d 20).

The doctrine of res judicata is subject to several exceptions, one of which is “exceptional circumstances”:

A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment.

La.R.S. 13:4232. This court has recognized that the exceptional circumstances exception “gives a court the authority to exercise its equitable discretion to balance the principle of res judicata with the interests of justice under exceptional circumstances.” Brouillard, 657 So.2d at 233. Furthermore, “convoluted factual or legal scenarios could qualify as exceptional circumstances which justify the application of this exception.” Id. As the first circuit has explained, this exception is “likely to be applied most often in complex procedural situations, in which litigants are deprived of any opportunity to present their claims because of some quirk in the system which could not have been anticipated.” Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 01-993, p. 22 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, 144, writ denied, 04-2426 (La.1/28/05), 893 So.2d 72 (quoting Chaisson v. 5Oceanside Seafood, 97-2756 (La. App. 1 Cir. 6/29/98), 713 So.2d 1286). The exception is also applicable to “factual scenarios that could not possibly be anticipated by the parties or decisions that are totally beyond the control of the parties.” Id.

Revo and David argue that the issue of attorney fees was merged in the August 20, 2010 judgment on the jury verdict and this court’s judgment on appeal, barring subsequent action. Thus, Revo and David argue that the doctrine of res judicata requires us to- reverse the trial court’s February 26, 2013 judgment. Siemens argues that res judicata does not apply to the instant facts.

We agree that, although attorney fees constitute a separate cause of action, they arise out of the same transaction or occurrence as the claims addressed in the August 20, 2010 judgment, as contemplated by La.R.S. 13:4231. See Diamond B Constr. Co., Inc. v. Dep’t of Transp. & Dev., 02-573 (La.App. 1 Cir. 2/14/03), 845 So.2d 429. Had Siemens not already raised a claim for attorney fees, and had the trial court not explicitly reserved collateral issues in its August 20, 2010 judgment, res judicata might apply to bar the trial court’s follow-up judgment. However, the fact that the trial court addressed and granted Siemens’ claim for attorney fees at a hearing and reserved this issue in its judgment creates an exceptional circumstance such that res judicata, if applicable, would still not bar the trial court’s February 26, 2013 judgment.

Revo and David point to Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir. 3/5/03), 840 So.2d 672, in which the second circuit found that res judicata barred a motion for attorney fees where the trial court’s judgment did not contain attorney fees. Revo and David argue that Ken Lawler Builders “shows that (1) if a judgment doesn’t award attorney fees as prayed for, then a party must take action before an appeal; and (2) when the judgment does not reserve an issue for | plater adjudication, the trial court has no jurisdiction to enter a judgment after the judgment has become final.” (Emphasis added.) Revo and David fail to acknowledge that in the instant case the trial court explicitly reserved collateral issues — which include attorney fees — in its judgment on the jury verdict. Ken Lawler Builders does not apply to the facts of the instant case.

Furthermore, the supreme court has recognized that, “inherent in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so.” Jackson v. Iberia Parish Gov’t, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524. Conspicuously absent from the facts of this case is a failure on Siemens part to raise claims for attorney fees. Siemens did not fail to raise a claim for attorney fees at any stage of the litigation. Rather, this claim had been properly raised and a verbal judgment had been entered by the trial court on the record after a hearing on collateral issues.

Siemens’ motion to execute judgment is not an attempt to relitigate issues or to raise a new cause of action that it previously failed to raise. Rather, it is an attempt to memorialize an issue that had clearly already been litigated, as the trial court reached a judgment on this issue. The trial court’s judgment on the jury verdict explicitly reserved collateral issues for a later judgment, and the record supports that these matters had been fully litigated. Furthermore, both parties recognized the award of attorney fees in the same amount in the judgments they presented to the trial court after the August 12, 2010 hearing. The attorney fees were never a subject of disagreement, and the parties could not have anticipated that they would be omitted from the trial court’s judgment on the jury verdict. The interests of justice would not be served by employing a technical and expansive application of res judicata to bar an attorney fees award which Revo and David themselves acknowledged that they owed in the judgment they presented to1 the ptrial court. Accordingly, we find exceptional circumstances exist such that an exception to res judicata is met regardless of whether res judicata would otherwise bar the granting of Siemens’ motion to execute judgment.

Untimeliness

Revo argues in the alternative that Siemens’ motion to execute judgment was untimely under La.Code Civ.P. art.1911, which states:

Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled. No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.

Revo and David offer comment (a) to Article 1911, which provides in part, “No time limit for the signing is imposed in any of these articles, but it is contemplated that all judgments will be signed within a reasonable time after rendition, which in turn depends upon the circumstances.” Revo and David argue that “it is unreasonable to present a judgment for signature more than a year after an appellate court renders a judgment on the principal demand in a case and more than thirty months after the attorney’s fee issue was heard by the trial court.” However, they provide no authority in support of this contention. Moreover, they acknowledge in their statement of facts that Siemens did present such a judgment timely, which is alsq included in the record, and that it was the trial court that failed to include attorney fees in the final judgment on the jury verdict. Revo and David argue that because “Siemens neglected to take action” regarding the absence of attorney fees in the trial court’s judgment until after Revo and David appealed the judgment on the jury verdict, this court must reverse the trial court’s eventual award of attorney fees. We find no merit in this argument.

|sAttorney Fees

Siemens requests an additional attorney fee award in the amount of $5,000 for this appeal. “Generally, when an award for attorney’s fees is granted at the trial level, additional attorney’s fees are proper for work done on appeal.” Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La.4/13/09), 5 So.3d 170. Because Siemens has successfully defended its award given by the trial court, and based upon our review of the appellate record, we award $5,000 for work done on this appeal.

CONCLUSION

Revo and David alleged that the trial court erred in signing the judgment memorializing the collateral issues because it was barred by res judicata and because it was untimely. We find both assignments of error lack merit. Accordingly, we affirm the trial court’s judgment. Further, we award Siemens $5,000 in attorney fees for work done on this appeal. All costs of this appeal are assessed to Revo and David.

AFFIRMED.


author: STEWART, J.

text:
    Dorcus WILLIAMSON and James Williamson, Plaintiffs-Appellants v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 48,576-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 8, 2014.

      W. Brett Cain, Shreveport, LA, for Appellants.
    Paul M. Adkins, Scott R. Wolf, Shreveport, LA, for Appellee.
    Before STEWART, PITMAN and GARRETT, JJ.
   STEWART, J.

[2In this slip and fall case, Dorcus Williamson and James Williamson (hereinafter referred to as “the Williamsons” or “Mrs. Williamson” or “Mr. Williamson”) are appealing the trial court’s decision to grant Wal-Mart Louisiana, LLC’s (hereinafter referred to as “Wal-Mart”) motion for summary judgment. The trial court found that the Williamsons were unable to produce any factual evidence that would establish Wal-Mart had actual or constructive knowledge of the substance on the floor prior to Mrs. Williamson’s fall and that they could not establish the amount of time the substance had been on the floor. Finding issues of material fact exist as to the Williamsons’ claim, we reverse and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 28, 2010, at approximately 7:05 p.m., Mrs. Williamson slipped and fell while entering a bathroom stall in the ladies’ restroom at a Wal-Mart store. According to her deposition, Mrs. Williamson did not see anything “liquid” on the floor before she fell. After she fell, she observed that the wet substance looked and smelled like pine oil cleaning solution. Further, she noticed what appeared to be a bottle of pine oil cleaning solution in the stall on the rail. Mr. Williamson, heard his wife fall and entered the bathroom to offer her some assistance. He too noticed the strong odor of pine oil, and a liquid substance on the floor in the bathroom stall.

Wal-Mart employee Tamika Taylor walked into the restroom shortly after the incident occurred. Mrs. Williamson explained that she had fallen in the last stall in the restroom. Ms. Taylor noticed liquid on Mrs. | sWilliamsoris pants that smelled like pine oil, and that she was wearing tennis shoes. Ms. Taylor immediately reported the incident to the assistant store manager, Paul Browne. Mr. Browne noted that Mrs. Williamson was too “shook up” to write her statement, so he recorded her information and had her sign the statement he drafted.

The Williamsons filed suit for damages on May 4, 2011. Wal-Mart filed its answer on June 6, 2011. Wal-Mart then filed a motion for summary judgment on November -7, 2012, alleging that the Wil-liamsons failed to produce any factual support sufficient to establish that Wal-Mart created the condition, had actual notice of it, or that the condition existed long enough to give rise to the constructive notice.

After determining that the Williamsons were unable to produce any factual evidence that would establish Wal-Mart had actual or constructive knowledge of the substance on the floor prior to Mrs. Williamson’s fall and that they could not establish the amount of time the substance had been on the floor, the trial court issued an opinion granting Wal-Mart’s motion for summary judgment on January 14, 2013. The Williamsons now appeal, urging one assignment of error.

LAW AND DISCUSSION

The Williamsons assign error to the trial court’s failure to apply the doctrine of res ipsa loquitur. The trial court found that the Williamsons failed to meet the burden of providing evidence that Wal-Mart either caused the condition or had constructive knowledge of the condition pursuant to La. R.S. 9:2800.6. The Williamsons argue that this missing element pursuant to this statute, proving that Wal-Mart, or its agent, actually caused the |4condition, can and should be filled by properly applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of circumstantial evidence that applies when the facts suggest that the negligence of the defendant is the most plausible explanation of the injury. Harper v. Advantage Gaming Co., 38,837 (La.App.2d Cir.8/18/04), 880 So.2d 948; Martinez v. Schumpert Medical Center, 27,000 (La.App.2d Cir.5/10/95), 655 So.2d 649. This evidentiary doctrine is applicable when three requirements are met: 1) the circumstances of the accident are so unusual that, in the absence of other evidence, there is an inference of negligence by the defendant; 2) defendant had exclusive control over the thing causing injury; and 3) the only reasonable conclusion is that defendant’s breach of duty caused the accident. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992); Harper, supra. The doctrine allows an inference of negligence to arise from the common experience of the factfinder that such accidents normally do not occur in the absence of negligence. Additionally, the doctrine does not dispense with the rule that negligence must be proved. It simply gives the plaintiff the right to place on the scales, “along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence” sufficient to shift the burden of proof. Montgomery v. Opelousas General Hosp., 540 So.2d 312 (La.1989).

We disagree with the Williamsons’ argument that the doctrine of res ipsa loquitor is applicable to instant case. The legislature has instructed the courts to apply La. R.S. 9:2800.6 to slip and fall cases, since its inception. Therefore, in order for the Wil-liamsons to prevail, they must satisfy the |fiburden of proof discussed in La. R.S. 9:2800.6. This statute governs merchant liability for slip or trip and fall cases, and places a heavy burden of proof on plaintiffs in claims against a merchant for damages arising out of a fall on the premises. This statute provides in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of this cause of action, all of the following:
1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
3. The merchant failed to exercise reasonable care. In determining care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone to prove failure to exercise reasonable care.
C. Definitions:
1. “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 will prove fatal to the plaintiffs case. Harrison v. Horseshoe Entertainment, 36, 294 (La.App.2d Cir.8/14/02), 823 So.2d 1124; 6Richardson v. Louisiana-1 Gaming, 10-262 (La.App. 5th Cir.12/14/10), 55 So.3d 893. Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risk of harm, and warn persons of known dangers. Jones v. Brookshire Grocery Co., 37,117 (La. App 2d Cir. 5/14/03), 847 So.2d 43. The mere presence of a defect does not alone elevate that defect to the level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091. Whether the protective measures employed by a merchant are reasonable is determined in light of the circumstances in each case, the risk involved, the merchant’s type and volume of merchandise, the type of display, the floor space used for customer service, the volume of business, the time of day, the section of the premises, and other such considerations. Billiot v. Cline, 27,396 (La.App.2d Cir.9/27/95), 661 So.2d 537, writ denied, 95-2595 (La.1/5/96), 666 So.2d 293; Johnson v. Wal-Mart Stores, Inc., 616 So.2d 817 (La.App. 2d Cir.1993). In addition to proving the above three elements, a plaintiff must come forward with positive evidence showing that the damage causing condition existed for some period of time and that such time was sufficient to place a merchant defendant on notice of its existence. White v. Wal-Mart Stores, 97-0393 (La.9/9/97), 699 So.2d 1081.

Defendants generally have no duty to protect against an open and obvious hazard. Dowdy, supra. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Caserta v. Wal-Mart Stores, Inc., 2012-0853 (La.6/22/12), 90 So.3d 1042.

|7In the instant case, Arthur Palmer, who was the only custodian on duty at Wal-Mart the day the incident occurred, testified that he was responsible for cleaning all six bathrooms in the store. The last time Mr. Palmer checked the bathroom that day was between 4:00 and 5:00 p.m. He did not recall seeing the bottle of cleaner in the bathroom, or seeing a mess on the floor. He stated that he does not keep pine oil on his work cart, nor does he clean with it. In fact, he commented that the bottle found in the bathroom stall was not the type of bottle that he uses, and that the bottle found was against company policy. Ironically, Mr. Palmer testified that he had picked up a bottle of pine oil earlier in the day and had placed it on his cart. After the incident occurred, he noticed that the bottle was missing. He stated that “people,” namely employees, often take things from his cart. Mr. Palmer was on his lunch break at the time the incident occurred.

Mrs. Williamson testified that she did not notice any water or anything liquid on the floor prior to her fall. She also stated that she did not know how long the substance had been on the floor, or if a Wal-Mart representative was aware that it was on the floor. After the incident occurred, she testified that she overheard Mr. Palmer say, “That’s where I left my cleaning bottle,” when he came in the bathroom.

Paul Browne, one of the assistant managers at this Wal-Mart location, testified that one of his duties placed him in charge of custodial personnel. As assistant manager, Mr. Browne checks the bathrooms randomly throughout the day. He normally had a female clerk cheek the women’s restroom. However, he stated that on May 28, 2010, he didn’t recall having anyone check the women’s restroom. In fact, he was not aware of the | ^condition of the women’s restroom within an hour prior to the incident. He later admitted that he was not aware of anybody inspecting the condition of the restroom from 5:00 p.m. to the time the incident occurred, approximately two hours later.

When Mr. Brown inspected the bathroom after the incident occurred, he stated that he did not smell pine oil in the bathroom. Further, he did not notice anything on Ms. Williamson’s pants that indicated that she’d fallen into a liquid substance. He testified that she was wearing sandals, which “can be quite slippery.”

As we stated in the facts section of this opinion, Wal-Mart employee Tamika Taylor walked into the restroom shortly after the incident occurred. Ms. Taylor noticed some type of liquid on Mrs. Williamson’s pants that smelled like pine oil, and that she was wearing tennis shoes.

Although the Williamsons cannot prove who put the substance that smelled like pine oil on the floor, we find it unlikely that a customer would spill a cleaning product on the floor in Wal-Mart’s restroom. Due to the nature of the substance and its location, we find that the inference that a Wal-Mart employee spilled the substance on the floor can be drawn in this matter.

Wal-Mart argues that the trial court properly determined that granting it’s motion for summary judgment was appropriate in this case because the Williamsons would be unable to carry their burden of proof in this case. More specifically, Wal-Mart argues that the Williamsons’ failure to prove one of the factors enumerated in La. R.S. 9:2800.6(A), specifically that it either created, or had notice of, the condition of the floor giving rise to Mrs. | gWilliamson’s fall, is fatal to their claim. Wal-Mart asserts that its employees who inspected the restroom prior to the incident did not see any substance on the floor.

Motions for summary judgment are governed by La. C.C.P. art. 966, et seq. The sole purpose of a motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. A summary judgment is not a substitute for a trial on the merits. Miramon v. Woods, 25,850 (La.App.2d Cir.6/22/94), 689 So.2d 353.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ricks v. City of Monroe, 44, 811 (La.App.2d Cir.12/9/09), 26 So.3d 858, writ denied, 2010-0391 (La.5/28/10), 36 So.3d 247. Summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969.” The procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s |10claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

The record as a whole should be considered for purposes of a motion for summary judgment to determine that all material facts are not at issue. Mayes v. Wausau Underwriters Ins. Co., 2012-465 (La. App.3d Cir.12/12/12), 104 So.3d 785; Taylor v. Moseley, 97-42 (La.App.3d Cir.6/11/97), 698 So.2d 3. A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Dowdy v. City of Monroe, 46,693 (La. App.2d Cir.11/2/11), 78 So.3d 791.

Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Ricks, supra; Freeman v. Teague, 37,932 (La.App.2d Cir.12/10/03), 862 So.2d 371.

Inin the trial court’s very brief and vague opinion / order regarding this matter, it stated:

All can agree that the substance was apparently a pine scented cleaning product. However, plaintiff has been unable to produce any factual evidence that would establish that defendant had actual or constructive knowledge of the substance on the floor prior to the plaintiffs fall. Furthermore, plaintiff cannot establish the amount of time the substance had been on the floor.
i|c i|S ifc v 4*
After reviewing the law and evidence, the Court is of the opinion that plaintiff will be unable to carry their burden of proof in order to prevail at a trial on the matter.

Upon examining the record in this case according to the principles governing motions for summary judgment, we find that the trial court erred in granting Wal-Mart’s motion. This case is distinguishable from other general slip and fall cases involving a beverage or other substance that a patron likely spilled. Genuine issues of fact remain regarding the reasonable inference that Wal-Mart was responsible for the slick cleaning substance. Genuine issues of fact also remain as to whether Wal-Mart exercised reasonable care in conducting its bathroom inspections. The conflicting testimony of the Wal-Mart employees did not establish that they conducted regular inspections. In fact, Mr. Browne admitted that he had not had a female employee check the bathroom at all that day, even though his duties required him to conduct random inspections throughout the day. Accordingly, we reverse the trial court’s granting of Wal-Mart’s motion for summary judgment.

CONCLUSION

|12We reverse the trial court’s judgment granting Wal-Mart’s motion for summary judgment, and remand the case to the trial court for further proceedings. Costs of this appeal are assessed to Defendant, Wal-Mart.

REVERSED and REMANDED.


author: JAMES F. McKAY III, Chief Judge. LEDET, J.,

text:
    STEWART INTERIOR CONTRACTORS, L.L.C. v. METALPRO INDUSTRIES, L.L.C.
    No. 2013-CA-0922.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2014.
    Rehearing Denied Feb. 4, 2014.

      Thomas Edward Loehn, Charles K. Chauvin, Boggs, Loehn & Rodrigue, Me-tairie, LA, for Plaintiff/Appellant.
    Wade Antoine Langlois, III, Michael Don Peytavin, Elizabeth Liuzza, Gaudry Ranson Higgins & Gremillion, LLC, Gret-na, LA, for Defendant/Appellee, Nautilus Insurance Company.
    Bryan C. Reuter, Michelle W. Scelson, Stanley, Reuter, Ross, Thornton & Alford, L.L.C., New Orleans, LA, for Defendant/Appellee, MetalPro Industries, LLC.

      Court composed of Chief Judge JAMES F. MeKAY III, Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET.
   JAMES F. McKAY III, Chief Judge.

hln this redhibition/product liability case, the plaintiff, Stewart Interior Contractors, Inc., L.L.C., appeals the trial court’s maintaining of exceptions of no right of action and prescription in favor of the defendants, MetalPro Industries, L.L.C. and Nautilus Insurance Company. We affirm.

FACTS AND PROCEDURAL HISTORY

The facts giving rise to this case involve the construction of the new administration building at the University of New Orleans. Gootee Construction, Inc. was the general contractor for the project. In 2004, Stewart Interior Contractors, L.L.C., a drywall subcontractor, entered into a contract with Gootee which obligated Stewart to furnish and install metal studs upon which drywall would be attached. Thereafter, Stewart contracted with MetalPro Industries, L.L.C. to manufacture the metal studs used on the project. The metal studs were installed in the building during the summer and fall of 2004. Following the installation of the metal studs, Stewart began to install, finish and paint the sheetrock. However, the building’s exterior sheathing had not yet been installed and the building was open to the elements. In November of 2004, small 12indentation marks or dimples began to appear on the walls on the third and fourth floor of the building. Stewart contends that the indentation marks were caused by a defect in the metal studs. This caused increased costs for labor, materials, expert investigations and delays. As a result, Gootee withheld $420,237.87 in payments from Stewart.

On March 30, 2005, Stewart filed suit against MetalPro and its insurer, Nautilus Insurance Company, asserting causes of action under the Louisiana Products Liability Act (LPLA), for breaches of contract, and redhibition. , As discovery in the litigation progressed, Stewart began alleging that it was also seeking to recover damages incurred by Gootee. However, Stewart never amended or supplemented its petition to allege any action on the part of Gootee. Gootee also never intervened in the lawsuit.

In August of 2012, MetalPro filed exceptions of no right of action and no cause of action. Stewart opposed these exceptions, alleging that it was seeking to recover as Gootee’s agent and that it was a solidary obligee with Gootee. On October 26, 2012, the trial court granted MetalPro’s exception of no cause of action, but pursuant to La. C.C.P. art. 934, granted Stewart leave to amend its petition to remove the grounds for the exception and to state a cause of action for Gootee’s damages.

On December 3, 2012, Stewart filed an amended and supplemental petition alleging that it was and always had been acting as the agent of Gootee. Stewart |salso attempted to add Gootee as a party in the instant case. In January of 2013, both MetalPro and Nautilus filed motions to strike and exceptions of lack of procedural capacity, prescription, no right of action and no cause of action. On March 1, 2013, the trial court granted the defendants’ exceptions of no right of action and prescription, dismissing any and all claims brought by Stewart as an agent for Gootee and dismissing any and all claims brought by Gootee as a direct party plaintiff. It is from this judgment that Stewart now appeals.

DISCUSSION

On appeal, Stewart raises the following assignments of error: ' 1) the district court committed 'reversible error in sustaining defendants’ partial exception of no right of action against Stewart with respect to recovery of costs and expenses associated with property damage repairs incurred by Gootee, which damages were assessed by Gootee against Stewart under the subcontract, at the time suit was originally filed, and which damages Stewart agreed to pursue on behalf of Gootee as it agent/mandatory; and 2) the trial court committed reversible legal error in sustaining defendants’ exception of prescription dismissing all claims for .property damages asserted by or on behalf of Gootee, given the interruption of prescription by Stewart’s timely filed original petition seeking the same property damages and the relation back of the amended petition wherein Stewart formally pled its status as Gootee’s agent and Gootee was named as a direct party defendant.

No Right of Action

The peremptory exception of no right of action questions whether plaintiff has an interest in judicially enforcing the right alleged against the defendant. In considering the exception, the court must decide whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or ^whether the plaintiff has an interest in judicially enforcing the right asserted. It raises neither the question of plaintiffs ability to prevail on the merits nor whether defendant may have a valid defense. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 98-2423 (La. App. 4 Cir. 9/22/99), 753 So.2d 861; see also In Re Washington, 2004-0465 (La. App. 4 Cir. 7/20/05), 913 So.2d 165.

Stewart contends that it has a right to pursue Gootee’s portion of damages based on its status ás a co-solidary obligor with Gootee and the agreement it made with Gootee after the lawsuit was filed to act as Gootee’s agent/mandatory. However, thé alleged damages claimed by Stewart and Gootee are different. In fact, Gootee’s alleged damages were much greater than Stewart’s purported damages.

“An obligation is solidary for the obligees when it gives each obligee the right to demand the whole performance from the common obligor.” La. C.C. art. 1790. Additionally, “solidarity of [an] obligation cannot be presumed, but must arise from a clear expression of the parties’ intent or from the law.” Conway v. Hibernia National Bank, 553 So.2d 1041, 1043 (La.App. 4th Cir.1989). The fact that Goo-tee withheld funds from Stewart and that MetalPro may have been liable to Stewart in indemnity while at the same time being potentially liable to Gootee under the LPLA does not make Stewart and Gootee co-obligees. Furthermore, it is well established that an action in indemnity does not arise until after a party is cast in judgment. See Ebinger v. Venus Constr. Corp., 2010-2516 (La.7/1/11), 65 So.3d 1279. If anything, Gootee’s withholding of funds from Stewart pursuant to the subcontract between Stewart and Gootee gave Stewart a cause of action against Gootee-— not MetalPro.

| ¡/There is also no evidence that Stewart was authorized to act as an agent or mandatory on behalf of Gootee. Louisiana Code of Civil Procedure Article 694 establishes two requisites for an agent to have a right of action to sue to enforce the right of its principal. First, and most obviously, the agent must have an existing agency relationship with the principal. Id. Second, the agent can bring suit on behalf of its existing principal only “when specially authorized to do so.” Id.

In the instant case, Stewart does not have an interest in a judicially enforceable right on behalf of Gootee against Metal-Pro. This is because Stewart does not belong to the particular class of plaintiffs to whom the law would provide a remedy against MetalPro for damages allegedly incurred by Gootee. Accordingly, the trial court did not err in maintaining the defendants’ exception of no right of action.

Prescription

In the instant case, the claims under the LPLA, for redhibition or breach of contract that Stewart attempts to bring on behalf of Gootee are prescribed. These claims were not raised until December 3, 2012. The plaintiffs were aware of any defect in the metal studs as early as November of 2004 and definitely by March 30, 2005, the date Stewart initially filed suit against MetalPro.

According to Louisiana Civil Code Article 3492, delictual actions are subject to a liberative prescriptive period of one-year. This prescriptive period applies to claims under the LPLA. La. R.S. 9:2800.51 et seq.; See also LaPlace Concrete, Inc. v. Stallings Const. Co., Inc., 01-131 (La.App. 4 Cir. 12/5/01), 803 So.2d 1015. Similarly, the action for redhibition prescribes in one year from the date the defect is discovered by the buyer. La. C.C. art. 2534. Additionally, any breach of contract claim based upon the sale of an allegedly defective product | ¿would be founded in redhibition and subject to the one year prescriptive period. See Easterling v. Royal Manufactured Housing, LLC, 07-192 (La. App. 3 Cir. 6/6/07), 963 So.2d 399; Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311, (La.App. 3 Cir.1972). The plaintiffs argument that the claims made on December 3, 2012 should relate back to Stewart’s original filing also fail; Stewart and Gootee are not solidary obligees for the reasons discussed earlier in this opinion. Accordingly, any claims that Stewart attempts to bring on behalf of Gootee are prescribed.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court maintaining the defendants’ exceptions of no right of action and prescription are affirmed.

AFFIRMED.

LEDET, J., Dissents with Reasons.

LEDET, J.,

Dissents with Reasons.

The exception of no right of action assumes Gootee’s amended petition states a valid cause of action and questions whether they have a legal interest in the subject matter of the litigation. La. C.C.P. art. 927(6), Louisiana Paddlewheels v. Louisiana Riverboat Gaming, 94-2015, pp. 4-5 (La.11/30/94), 646 So.2d 885, 888.

As the majority opinion indicates, Goo-tee Construction Inc. (“Gootee”) and Stewart Interior Contractors, L.L.C. (“Stewart”) claim different damages for construction losses as a result of the alleged defective metal studs manufactured by MetalPro Industries, L.L.C. (“Metal-Pro”).

Therefore, I would find Gootee has a right of action to bring its claim in redhibition against MetalPro.

Further, the amendment of the original petition adding Gootee as a plaintiff did not prejudice MetalPro as they were already on notice of the facts out of which Gootee’s claim arose. Additionally, Metal-Pro knew or should have known that Goo-tee was the general contractor for the construction project and claimed damages in addition to those incurred by Stewart.

Therefore, I would find the December 3, 2002 amendment to add Gootee as a plaintiff relates back to the date of the filing of the original petition pursuant to La. C.C.P. art. 1153.

      . Stewart alleges that after the litigation in this case commenced, Gootee paid it the amount that had previously been withheld.

      . MetalPro’s insurer, Nautilus Insurance Company, filed a motion for summary judgment contending that no property damage had been alleged to trigger coverage under the policy. The trial court granted the motion and dismissed Nautilus from the suit. This Court reversed that judgment. Stewart Interior Contrs. v. MetalPro Indus., L.L.C., 2007-0251 (La.App. 4 Cir. 10/10/07), 969 So.2d 653.


author: RANDOLPH, Presiding Justice, KITCHENS, Justice,

text:
    JACKSON HMA, LLC d/b/a Central Mississippi Medical Center v. Adolfo P. MORALES.
    No. 2011-CA-01785-SCT.
    Supreme Court of Mississippi.
    Nov. 21, 2013.
    Rehearing Denied Feb. 6, 2014.

      Thomas L. Kirkland, Jr., Andy Lowry, Ridgeland, Mark P. Caraway, Cory Louis Radicioni, Tammye Campbell Brown, Jackson, attorneys for appellant.
    Lance L. Stevens, attorney for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Dr. Adolfo P. Morales sued Jackson HMA, LLC., d/b/a Central Mississippi Medical Center (“Jackson HMA”), in the Circuit Court of Hinds County for breach of contract. A jury awarded Morales substantial damages. Jackson HMA filed a “Motion for Judgment Notwithstanding the Verdict, and, in the alternative, For a New Trial” and a “Motion for Amendment of Judgment.” Judge Winston Kidd denied the post-trial motions and Jackson HMA filed this appeal.

FACTS

¶ 2. In early 2004, based on a survey conducted by a third party, Jackson HMA recognized a shortage of ophthalmologists within its medical community. To address this perceived need, Jackson HMA undertook to recruit an ophthalmologist. Tess Shaw, physician recruiter for Jackson HMA, communicated with CompHealth Associates, Inc., a company which assists in matching physicians with hospitals. CompHealth had a contract with HMA, which is the parent corporation of Jackson HMA. CompHealth recommended Morales to Jackson HMA as a potential fit to meet the hospital’s need. After conducting a background examination of Morales, Jackson HMA began negotiating terms to bring him to Jackson.

¶ 3. On September 24, 2004, Shaw sent Morales a “letter of intent” outlining Jackson HMA’s proposed offer. The letter twice stated that the proposed offer required “preapproval” by “Corporate” (HMA). Although not requested or provided for, Morales signed and returned the letter. On it he wrote “I agree to all and accept the terms of your offer.” At trial, Morales acknowledged that this letter was not a contract, as it “no doubt” required preapproval from the corporate office.

¶ 4. Subsequently, Jackson HMA sought approval from corporate HMA, but corporate did not approve the terms. Jackson HMA’s CEO, Jay Finnegan, impressed upon corporate the need for an ophthalmologist and suggested new terms to corporate which reduced the guaranteed amount and period by half. Finnegan received approval of these reduced terms from Pete Lawson, HMA vice-president for the eastern part of the United States.

¶ 5. Thereafter, on November 11, 2004, Shaw sent Morales a second letter detailing the new “terms of our offer[,]” which reflected the reduced guarantees approved by corporate HMA. The letter lacked the phrase “letter of intent” and also made no reference to a requirement of corporate approval of the terms. The letter included the language, “[b]y signing and returning this letter, you will confirm your commitment to entering into a contractual agreement.... Accordingly we will begin the process of assimilating contract documents for your review.”

¶ 6. Six days later, on November 17, 2004, Shaw sent Morales a “Memorandum” which restated the terms of the November 11 letter. Attached to this memorandum were contract documents (entitled “Physician Recruitment Agreement”) and several addenda to that agreement. Provision 7.01 of the Physician Recruitment Agreement provided, in pertinent part, “[t]his agreement, and any addenda or amendments thereto, shall not be effective or legally binding on Physician or Hospital until they have been reviewed and approved in writing by Hospital’s legal counsel.” Morales signed the document, but approval never arrived. According to Shaw, HMA experienced an organizational restructure in the interim, and Jackson HMA no longer reported to Pete Lawson, but now reported to a new vice-president, John Vollmer. Shaw testified that Vollmer “did not feel that the recruitment of an ophthalmologist was a good return on ... investment. So when the contract got to him, he did not approve it.” In early March 2005, Shaw informed Morales that the contract had not been approved.

¶ 7. On November 30, 2005, Morales filed suit in the Circuit Court of Hinds County, alleging that Jackson HMA had breached its contract with him. He further alleged that he had relied to his detriment on misrepresentations made by Jackson HMA.

¶ 8. On September 12, 2011, the trial began. Morales and Shaw were the only two witnesses called at trial. Morales testified that the November 11 letter was issued after corporate approval and that it formed a contract. Shaw denied that the November 11 letter formed a contract. Shaw also denied that she had any authority to confer a final contract on Morales-without receiving approval from corporate HMA.

¶ 9. On September 14, 2011, the jury returned a verdict in favor of Morales and assessed his damages at $2,275,000. Final judgment was entered on September 27, 2011. Jackson HMA filed this appeal.

ISSUES

¶ 10. Jackson HMA appeals the denial of its motions for directed verdict, judgment notwithstanding the verdict (JNOV), new trial, and/or remittitur. We address the following issues:

I. Whether there was sufficient evidence for the jury to find that the November 11, 2004, letter formed a contract between Jackson HMA and Morales.
II. Whether there was sufficient evidence to prove Morales’s claim for damages to a reasonable certainty.
III. Whether the trial court erred in granting jury instruction 9.
IV. Whether the trial court erred by denying remittitur.

STANDARDS OF REVIEW

¶ 11. “This Court’s standard of review on motions for directed verdict and judgment notwithstanding the verdict are the same.” Estate of Jones v. Phillips ex rel. Phillips, 992 So.2d 1131, 1146 (Miss.2008) (citing Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368 (Miss.2008)). Motions for directed verdict and judgment notwithstanding the verdict consider whether the “evidence is sufficient to support a verdict for the non-moving party.” Estate of Jones, 992 So.2d at 1146 (citing Spotlite Skating Rink, Inc., 988 So.2d at 368). ‘When determining whether the evidence was sufficient, the critical inquiry is whether. the evidence is of such quality that , reasonable and fairminded jurors in the exercise of fair and impartial judgment might reach different conclusions.” Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716, 726 (Miss.2005) (citing Jesco, Inc. v. Whitehead, 451 So.2d 706, 713-714 (Miss.1984)) (emphasis in original). “Thus, this 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.” Estate of Jones, 992 So.2d at 1146 (citing Spotlite Skating Rink, Inc., 988 So.2d at 368). “For purposes of our review, we consider all evidence in the light most favorable to the nonmoving party, and we view all reasonable inferences in the party’s favor.” Braswell v. Stinnett, 99 So.3d 175,, 178 (Miss.2012) (citing Thompson v. Nguyen, 86 So.3d 232, 236 (Miss.2012)).

¶ 12. “When considering a trial court’s denial of a motion for a new trial, this Court’s standard of review is abuse of discretion.” Bailey Lumber & Supply Co. v. Robinson, 98 So.3d 986, 991 (Miss.2012) (citing Poole, 908 So.2d at 726).

¶ 13. “The standard of review for the denial of a remittitur is also abuse of discretion....” Id. (citing Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1058 (Miss.2003)).

ANALYSIS

I. Whether there was sufficient evidence for the jury to find that the November 11, 2004, letter formed a contract between Jackson HMA and Morales.

¶ 14. “Whether a contract exists involves both questions of fact and questions of law.” Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 458 (5th Cir.1995). However, where the existence of a contract turns on consideration of conflicting evidence, that presents a “question of fact properly presented to, and determined by, the jury.” Id. at 461. “Consequently, unless there was no credible evidence presented which might authorize the verdict, the jury’s findings must stand.” Id.

¶ 15. At trial, Morales proceeded on the theory that the November 11 letter formed a binding contract. “[Ujnder Mississippi law ... the test for determining whether a writing constitutes an enforceable contract is whether the parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be legally enforced.” Knight v. Sharif, 875 F.2d 516, 523 (5th Cir.1989) (citing Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880 (Miss.1917)). Shaw testified, and Jackson HMA argued that the November 11 letter, corresponding electronic mail communications, and/or the November 16 Physician Recruitment Agreement (with addenda) signed by Morales did not form a contract, because corporate never approved the terms, as was required by the Physician Recruitment Agreement. However, an electronic mail communication was presented which indicated that corporate had approved the terms of the November 11 letter. See infra ¶ 17. Thus, not only was competing testimony offered by Morales and Shaw, Shaw’s testimony presented a conflict with other evidence regarding corporate approval. “Under such circumstances intention must be determined from a consideration of the document and the acts and outward expressions of the parties.” Mid-Continent Tel. Corp. v. Home Tel. Co., 319 F.Supp. 1176, 1189 (ND.Miss. 1970) (citing Miss. Rice Growers Ass’n (AAL) v. Pigott, 191 So.2d 399 (Miss.1966)).

¶ 16. The September 24 letter employed the phrase “letter of intent” and specifically stated that the terms of the letter required corporate preapproval. Morales admitted at trial that this letter did not form a contract because it “no doubt” required corporate preapproval, which was not forthcoming.

¶ 17. But, on November 9, Jackson HMA informed Morales, through an email exchange with Comphealth, that “[Jackson HMA] did get preapproval” for the new terms that Finnegan had presented to corporate. Shaw followed up by sending Morales a second letter on November 11 which embodied the corporate-approved terms. In contrast to the September 24 letter, the November 11 letter did not include the phrase “letter of intent” and made no mention of the terms requiring further corporate approval.

¶ 18. Jackson HMA argues that the November 11 letter was not intended to be a contract, as it included the language, “[b]y signing and returning this letter, you will confirm your commitment to entering into a contractual agreement.... Accordingly, we will begin the process of assimilating contract documents for your review.” Jackson HMA finished the “process of assimilating contract documentsf,]” and sent Morales the Physician Recruitment Agreement, dated November 16, which contained terms approved by corporate and agreed to by Morales.

¶ 19. Jackson HMA also argues that the communications presented as evidence at trial show that the letter did not form a contract and that all parties understood that any final contract would have to obtain corporate approval. Along with the aforementioned letters and Physician Recruitment Agreement, the jury was presented numerous written and electronic mail communications. The evidence presented at trial was conflicting. But, it is the jury, and not this Court, “which resolves all conflicts of evidence.” Venton v. Beckham, 845 So.2d 676, 687 (Miss.2003). The jury resolved that conflict in favor of Morales. When “consider[ing] all evidence in the light most favorable to [Morales], and ... viewing] all reasonable inferences in [Morales’s] favor,” sufficient evidence was presented to support the jury’s determination that a binding contract was formed between Morales and Jackson HMA. Braswell, 99 So.3d at 178. Therefore, the trial court did not err in denying Jackson HMA’s motions for directed verdict and for judgment notwithstanding the verdict on this issue.

II. Whether there was sufficient evidence to prove Morales’s claim for damages to a reasonable certainty.

¶ 20. This Court has stated, “[i]t is well-understood that in an action seeking damages, the plaintiff bears the burden of proof as to the amount of damages.” J.K. v. R.K., 30 So.3d 290, 299 (Miss.2009) (citing Puckett Mach. Co. v. Edwards, 641 So.2d 29, 36 (Miss.1994)). “[D]amages ... must be proven to a reasonable certainty and must not place the injured party in a better position than they otherwise would have been in.” Polk v. Sexton, 613 So.2d 841, 845 (Miss.1993). “One injured by a breach of contract is entitled to a just and adequate compensation and no more.” Id. at 844 (quoting McDaniel Bros. Constr. Co. v. Jordy, 195 So.2d 922 (Miss.1967)). In order to ensure that the nonbreaching party is not put in a better position than if the contract had been performed, damages for lost future profits must be “proved with reasonable certainty” and should reflect “net profits as opposed to gross profits.” Lovett v. Garner, 511 So.2d 1346, 1353 (Miss.1987). Thus, gross profits must be reduced by the reasonable overhead expenses common to the Jackson HMA service area for the contract period at issue.

¶ 21. At trial, Morales was the only witness who offered testimony on damages. Morales testified that, during the recruitment process, Shaw provided him with a document prepared by MGMA, “a company that :.. surveys incomes and advises hospitals on what to expect.” That document was a physician-compensation survey, including ophthalmology. Utilizing the survey, Morales testifíéd, without objection, that the median income for an ophthalmologist was $645,558, the mean $708,128, and the top ten percent $1,097,381.

¶ 22. Morales argues on appeal that “it would come as no surprise ... if the majority opinion herein affirming the damage verdict includes a disclaimer, limiting the precedential value of the holding to those instances where a defendant provides actual, authoritative/reliable future net income estimates-” (Emphasis added.) Basically, Morales argues that he should be allowed to rely solely on the document provided to him by Jackson HMA as credible evidence of his lost net income. As Morales’s reliance on this particular document as evidence of lost net income is misplaced, we reject this argument.

¶ 23. Morales recognizes that lost income should reflect net income. See supra ¶ 22. Morales did not testify, nor does the document reveal, whether the MGMA survey represented gross or net income. When asked by his own attorney about MGMA, Morales conceded, “I don’t know if I’m the right person to ask this because this is used more by the hospitals than doctors.... ” Morales failed to provide sufficient evidence upon which the jury or a court could conclude that the income figures represented net income.

¶ 24. Contrastingly, Shaw unequivocally testified that the numbers represented gross income. She testified that Jackson HMA applied the median income for ophthalmologists in the survey to arrive at the September 24 offer of $650,000 gross for one year. The November 11 offer also was based on the median income in the survey, as Jackson HMA cut both the guarantee period and amount by exactly half ($325,000 for six months). However, out of those guarantees, “[Morales] would pay his overhead and his salary[,] ... his staff salary, his malpractice, his supplies, his lease, his utilities, everything that he needed to run his practice.... ” By their plain language, the September 24 and November 11 letters specifically provided for “gross income collections guarantee^].” (Emphasis added.) Therefore, the evidence submitted was insufficient to support the amount of damages awarded.

¶25. Although this Court has allowed proof of lost profits to be accomplished through “a party’s proof of its past profits[,]” the evidence of Morales’s past income is likewise inadequate to support the damages awarded. Lovett, 511 So.2d at 1353. Morales testified at trial that he had been unemployed since July 2003— more than thirteen months before he began negotiating with Jackson HMA. Prior to being unemployed, Morales had practiced in Arizona and Illinois. He testified that, while in Arizona, his net income was in the $140,000 range. Following his move from Arizona to Illinois, Morales testified that he earned about $160,000 a year.

¶ 26. Other evidence adduced at trial was inadequate to support the amount of damages. The November 11 letter provided Morales a “gross collections income guarantee of $325,000 for six months.” (Emphasis added.) However, standing alone, the $325,000 gross guarantee, without consideration of the reasonable expenses to be incurred, is likewise inadequate to support the award.

¶ 27. The trial court did not err in denying Jackson HMA’s motions for directed verdict and judgment notwithstanding the verdict, for Morales offered sufficient evidence that he had suffered damage. But, insufficient evidence was adduced to undergird the jury’s award. As such, we reverse and remand for a new trial solely on the issue of damages.

III. Whether the trial court erred in granting jury instruction 9.

¶ 28. Jackson HMA claims that the trial court should have granted its motion for a new trial because it erred in granting jury instruction 9. “Jury instructions are within the discretion of the trial court and the settled standard of review is abuse of discretion.” Watkins v. State, 101 So.3d 628, 635 (Miss.2012) (quoting Bailey v. State, 78 So.3d 308, 315 (Miss.2012)).

¶ 29. Instruction 9 read as follows:

The Court instructs you that CMMC [Jackson HMA] is responsible for the acts of its employees done within the course and scope of their employment and within the line of her duties even though such acts may be contrary to the principal’s express intentions.
In the present case, CMMC is bound by the actions or statements of Tess Shaw and Jay Finnegan performed or omitted in the scope of their employment with CMMC during their contract negotiations with Dr. Morales.

¶ 30. We agree that instruction 9, in its entirety, should not have been granted. There was no evidentiary support that Finnegan or Shaw acted contrary to Jackson HMA’s express intentions. The instruction also improperly implies that any and all acts done within the scope of a person’s employment automatically binds the principal, without establishing that the employee possessed authority — either actual or apparent — to bind the principal.

¶ 31. However, the error is harmless, for no reasonable juror could have concluded that Finnegan or Shaw lacked, at a minimum, apparent authority when negotiating with Morales. Finnegan was the CEO of Jackson HMA. Shaw was the physician recruiter for Jackson HMA. She was involved with virtually all communications between Morales and Jackson HMA. She did all the leg work to bring Morales to Jackson, and she was responsible for sending Morales the September 24 letter, the November 11 letter, and the November 16 Physician Recruitment Agreement. Acting on behalf of Jackson HMA, she kept Morales informed throughout the negotiations and ultimate rejection.

¶ 32. Jackson HMA argues that “no representation was made” to Morales by Finnegan. However, the record, specifically the November 11 letter, suggests otherwise. The November 11 letter states, in pertinent part, “[t]his is to follow up on your conversation with Jay Finnegan regarding the terms of our offer....”

IV. Whether the trial court erred by denying remittitur.

¶ 33. Based on the preceding discussion of damages, the trial court had insufficient evidence to order a remittitur without engaging in speculation and conjecture. As such, the trial court did not err in denying remittitur.

CONCLUSION

¶34. Based on this analysis, Morales presented sufficient evidence for the jury to find that a contract existed. However, Morales presented insufficient evidence to support the jury’s damages award. We affirm the judgment for Dr. Morales, but reverse on the issue of damages and remand this case to the Circuit Court of Hinds County for a new trial solely on damages.

¶ 35. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

DICKINSON, P.J., LAMAR, PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

WALLER, C.J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 36. I agree that the existence of a contract was a question of fact and that the jury was presented with sufficient evidence to find that the parties were bound by the communications made prior to the execution of the contemplated formal writing. WRH Properties, Inc. v. Estate of Johnson, 759 So.2d 394, 397 (Miss.2000). Thus, the jury’s finding of liability must be affirmed. However, I also would affirm the jury’s award of damages. Dr. Morales’s testimony, together with an assortment of documentary evidence, provided a sufficient evidentiary basis from which the jury reasonably and fairly could determine the extent and limits of his losses. Because I would affirm in toto, I respectfully concur in part and dissent in part.

¶ 37. Our law regarding proof of damages is well settled. In many cases, an exact amount of damages is impossible to calculate due to the nature of the alleged harm. Cain v. Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss.1984). Thus, the plaintiff must “place into evidence such proof of damages as the nature of [the] case permits, with as much accuracy as is reasonably possible.” J.K., 30 So.3d at 299 (citing Thomas v. Global Boat Builders & Repairmen Inc., 482 So.2d 1112, 1116 (Miss.1986)). In other words, “[t]he plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss.” Cain, 458 So.2d at 1050 (emphasis added).

¶ 38. In the present case, the general verdict in favor of Dr. Morales did not specify what portion of the total award represented lost earnings. Dr. Morales testified about the recruitment process and provided documentary evidence of HMA’s representations of the favorable market for his services. According to these communications, the area was underserved, and there was a great need for medical services in his field of expertise. Dr. Morales was told that his practice would be quite profitable given the volume of patients he was likely to treat.

¶ 39. On appeal, the defendant focuses on the physician compensation survey, which was received as evidence without objection from the defense. At trial, Dr. Morales testified that he was shown this survey of incomes compiled by the “MGMA Commission,” and that he was led by the defendant to believe that the numbers were “what they make,” not gross revenue. In response to his attorney’s request to “[t]ell us what the MGMA is,” Dr. Morales responded, “They’re a company that surveys, I don’t know if I’m the right person to ask this because this is used more by the hospitals than doctors, but they are a company that sort of surveys incomes and advises hospitals on what to expect. They do work for the hospitals as well as for some doctors.” The document showed a wide range of incomes; and, according to Dr. Morales, HMA’s representations led him to believe that, once his practice was established, his income would be in the higher range.

¶ 40. Shaw confirmed Morales’s description of the MGMA and testified that the document was a “physician compensation survey.” According to Shaw, the survey was “a national guideline that is used to establish fair market value for positions of compensation packages either based on collection or income.” Athough Shaw said that the median numbers represented gross revenue, on cross-examination, she testified that the survey’s numbers are “what they generate in their practice as gross income to cover their overhead or this is what they make as a salary.” (Emphasis added.) Shaw explained that the offer to Morales guaranteed a certain level of revenue but that he would not be paid a salary; instead, Morales’s “salary” (her word) would come out of his gross revenue, as would his operating expenses. Yet, regardless of Shaw’s understanding of the survey or the distinctions between salary and gross revenue as used by the MGMA, her testimony was evidence to be considered by the jury. As the finders of fact, the jurors were charged with resolving any conflicts between her testimony and Morales’s testimony.

¶ 41. This Court has held that “a basic rule in proof of damages” is that the party bearing the burden of proof must offer “the best evidence available.” Puckett Mach. Co. v. Edwards, 641 So.2d 29, 36 (Miss.1994). Unlike other cases in which this Court has reversed damages awards, the evidence before this jury was not some arbitrary guess by Dr. Morales, but was evidence he had been provided by the defendant. In City of New Albany v. Barkley, 510 So.2d 805 (Miss.1987), the Court found that the plaintiffs claim of lost profits and damage to his business property was entirely speculative. As for lost profits, the Court remarked that the plaintiffs “records of profits in prior years was available but he chose not to use them because he felt they would not provide an adequate basis on which to compute his future loss of profits. He apparently chose to ‘guess’ a number and the [trial] court allowed him to do so.” Id. at 807. Regarding certain items lost as a result of the defendant’s alleged negligence, the plaintiff admitted that the value assigned to many of the items was “arbitrarily chosen.” Id. at 808. The Court reversed the case for a new trial on another issue, but “presume[d] that the deficiencies in the proof of damages [would] not recur.”

¶ 42. Similarly, in Puckett Machinery, 641 So.2d 29, 36 (Miss.1994), the Court found that the plaintiffs trial testimony provided insufficient proof of net profits when he admitted that records showing out-of-pocket expenditures, as well as his personal tax and banking records, were available. The opinion remarked that the plaintiff “failed to comply with a basic rule in proof of damages,” for it is “absolutely incumbent upon the party seeking to prove damages to offer into evidence the best evidence available [for] each and' every item of damage. If he has records available, they must be produced.” Id. (quoting Eastland v. Gregory, 530 So.2d 172, 174 (Miss.1988)).

¶ 43. Unlike the plaintiffs in Puckett Machinery and Barkley, Dr. Morales presented the best evidence of his damages available to him, which included, among other things, past tax returns and the income survey provided by HMA. The record supports Dr. Morales’s understanding of the survey numbers and that the defendants had not represented the numbers to him as gross revenue. The defendants do not. dispute that, until Shaw testified at trial, there had been no representations by HMA that the survey reflected gross revenue only. Even then, Shaw’s testimony was equivocal, for she said that the physician compensation survey constituted either gross revenue or salary. Notably, the defendants’ designated expert witness testified in his deposition that the survey numbers represented net income. Even though the defendants did not call this witness at trial, his • deposition testimony was before the trial judge during post-trial motions, and -it supports Dr. Morales’s belief that HMA had presented him numbers representing anticipated net income.

¶44. Just as the plaintiff bears the burden of proving his damages, a defendant bears the burden of proving matters in mitigation or reduction of damages. J.K., 30 So.3d at 299-300 (quoting Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112 (1949)). In this case, the two sides adduced evidence demonstrating lost earnings as well as competing data that could have reduced or mitigated the extent of Dr. Morales’s damages. The amount of damages was for the jury to decide, and its resolution of the evidence was not unreasonable and should not be disturbed on appeal. I would affirm the judgment of the Hinds County Circuit Court; but, because the majority reverses in part, I respectfully concur in part and dissent in part.

CHANDLER, J., JOINS THIS OPINION.

      . Morales was not to become an employee of Jackson HMA, but, rather, was to set up his own practice with the financial assistance of Jackson HMA.

      . The terms of the letter included a gross collections income guarantee of $650,000 for one year, a two-year forgiveness period, a $10,000 signing bonus, up to $15,000 in residential relocation expenses, up to $7,500 in office relocation expenses, $8,000 in marketing assistance, and $1,500 in practice set-up assistance.

      .The signing bonus increased from $15,000 to $20,000.

      . See Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 25:40, 30 (2001) ("[N]o judgment may place the non-breaching party in a better position than would have been the case had the contract been performed.”)

      . The document reveals that the survey conducted for ophthalmologists consisted of 120 providers and 47 practices.

      .I cannot agree with the dissent’s characterization of the testimony regarding the MGMA survey. Morales's cross-examination of Shaw reveals Morales’s knowledge of how to derive net income. However, no testimony was elicited to support net income. Shaw testified on cross-examination:
      Q: MGMA, and this is the amount of money that they suggested you use as an income guarantee for someone that you recruit; is that correct?
      A: They survey physicians that want to participate, it’s a volunteer survey, and they come up with the numbers that averages that this is what physicians make in the country of that specialty. There are several of those surveys.
      Q: Okay. You’re saying that they come up with this. This is what they make?
      A: This is what they generate in their practice as gross income to cover their overhead or this is what they make as a salary. There’s two different — in that book there’s a lot of information. That just happens to be one page out of that book.
      Q: Okay. And do you recall from looking through that book how much income an ophthalmologist in this area would expect to earn on average?
      A: In this Jackson area?
      Q: Yes.
      A: No. It will not be that specific.
      Q: Okay.
      A: It is a national. It will have national numbers, it will have different parts of the country like south, east, west or north. It's not going to be Jackson specific. But, no, no.
      Q; I got you. I got you. You mentioned the word region. Do you recall what an ophthalmologist in this region would have expected.
      A: No. I do not recall.
      Q: Okay. But if Dr. Morales was able to pay all of his overhead, his people he’s working for, his insurance and all of these other things that CMMC was not paying for, and he was paid $50,000 a month, okay, and all of those overhead expenditures were $20,000 a month, then I think we can do some simple math and he would make $30,000 a month, right?
      A: That would be his.

      . Shaw’s testimony on direct examination does not support the dissent's conclusion of equivocation. She testified, regarding the MGMA survey:
      Q: And what is the median income?
      A: 645,558, but that’s gross.
      Q: That’s gross, not net?
      A: Correct.

      . After modification, jury instruction 20 read, in pertinent part, "[ijncome is that net profit after operating expenses, including taxes, are deducted from revenues through July 2007.’’ Jackson HMA argues that this instruction was given in error as no evidence was presented as to “what the operating expenses, etc. would have been....” Jackson HMA's argument that the instruction was given in error is correct because it lacked any evidentiary basis.

      . In support of his testimony, Morales entered into evidence his IRS tax returns from 2001-2005.

      . Jackson HMA also argues that Morales presented insufficient proof of reliance damages. Because we reverse and remand for a new trial on damages, this argument will not be addressed.


author: WALLER, Chief Justice,

text:
    Jason Wesley ALLRED v. STATE of Mississippi.
    No. 2012-KA-01034-SCT.
    Supreme Court of Mississippi.
    Jan. 23, 2014.

      Office of State Public Defender by Erin E. Pridgen, attorney for appellant.
    Office of the Attorney General by Elliott Flaggs, attorney for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. After a jury trial, Jason Allred was convicted of two counts of sexual battery of a child under fourteen years of age in violation of Mississippi Code Section 97-3-95(1)(d) (Rev.2006). He was sentenced to twenty-five years on each count, to be served concurrently, and he must register as a sex offender upon release. Allred’s counsel filed a brief pursuant to this Court’s holding in Lindsey v. State, 939 So.2d 743 (Miss.2005). Allred was given additional time to file a pro se brief; however, he did not do so. For the reasons stated below, we affirm the judgment of the Webster County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jason Allred and Jennifer Allred (Halsdorf) were married and had three children together — two sons, and a daughter. The couple separated in March 2009 but were not officially divorced until November 2009. Jason moved to his family’s home in Texas and Jennifer began dating Chris Halsdorf. Chris eventually moved in with Jennifer and her children.

¶ 3. After hearing a report of the daughter showing a pornographic movie to a cousin, Chris and Jennifer confronted the daughter, and she told them of inappropriate sexual contact with Jason. This was reported to authorities, and a grand jury indicted Jason on two counts of sexual battery of a child under fourteen years of age, in violation of Mississippi Code Section 97-3-95(1)(d). Prior to trial and outside the presence of the jury, the trial court conducted a hearing on the State’s motion to allow hearsay testimony pursuant to the “tender years exception” under Rule 803(25) of the Mississippi Rules of Evidence. After hearing the statements and the arguments of both parties, and being notified that the daughter would testify, the trial court made on-the-record findings of all twelve factors listed in the rule to determine whether there were sufficient indicia of reliability and found the factors to be satisfied. The trial court also considered whether the statements should be disallowed under Rule 403 and found that any prejudice would not substantially outweigh the probative value of the statements.

¶ 4. At trial, the daughter testified that she was about seven years old when her father began molesting her. She testified that Jason forced her to “put my mouth on his private [sic]” and that he sodomized her “over and over and over like every few weeks or so when mama wasn’t around....” The daughter also testified that she had experienced this abuse after Jason moved out in 2009 when she went to visit him in Texas. Jennifer testified that she reached a point where the daughter did not want to stay at their home if Jennifer was not there and, would instead, stay with Jennifer’s parents, who lived across the road. Jennifer further testified that, when her daughter returned from her last trip to Texas, she said she never wanted to go back to Texas to see her dad. Chris and Jennifer both testified at trial to the daughter’s reports of abuse by Jason.

¶ 5. Jason’s aunt, Linda Mitchell, testified in his favor. She testified that she lived in the same community with Jason and, when the family was around her, the daughter was always “hugging on him, you know, just loving her daddy.” She testified about a specific instance when Jason would not let his daughter get ice cream and Mitchell stated Jason was being mean. Mitchell testified that after she said Jason was being “a mean old daddy,” his daughter replied, “no he is not. My daddy is good. He is a good daddy. He loves me. He takes care of me.”

DISCUSSION

¶ 6. In Lindsey, this Court outlined a procedure that appellate counsel must follow when they determine that there are no appealable issues in the record. Lindsey, 939 So.2d at 748. This Court stated as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4),(7); see also Smith v. Robbins, 528 U.S. 259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (stating that “[c]ounsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. See Robbins, 528 U.S. at 280-81, 120 S.Ct. 746; Turner v. State, 818 So.2d 1186, 1189 (Miss.2001).
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief. Turner, 818 So.2d at 1189; cf. People v. Wende, 25 Cal.3d 436, 158 CaL.Rptr. 839, 600 P.2d 1071, 1074 (Cal.1979).
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal. Robbins, 528 U.S. at 280, 120 S.Ct. 746 (citing Wende, 158 Cal.Rptr. 839, 600 P.2d at 1074).
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748.

¶ 7. This Court finds that Allred’s attorney complied with all the requirements of Lindsey. Counsel filed a brief stating she “diligently searched the procedural and factual history of this criminal action and scoured the record,” finding no arguable issues for appeal. Counsel specifically asserts she considered and reviewed: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violation of Allred’s right to counsel; (c) the entire trial transcript; (d) the rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible misrepresentation of the law in sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective-assistance-of-counsel issues; and any other possible reviewable issues. Counsel also stated, and this Court confirmed, that she mailed a copy of her brief to Jason, notifying him that she found no arguable issues and that he had a right to file a pro se brief. Jason did not file a pro se brief.

¶ 8. After a complete review of the record, we find sufficient evidence to support the conviction. The State was required to prove that Jason engaged in sexual penetration with a child under the age of fourteen and that he was twenty-four or more months older than that child. See Miss.Code Ann. § 97—8—95(1)(d) (Rev. 2006). Jason.was born on March 18, 1976, and his daughter was born June 11, 1999. Count I of Jason’s indictment was for penetration of the anus, and Count II was for penetration of the mouth. See Miss.Code Ann. § 97-3-95(a) (Rev.2006). This Court finds the record contains sufficient proof to establish the daughter was under the age of fourteen at the time of the incidents and Jason was twenty-four months older. Further, we find the testimony from the daughter, Chris, and Jennifer was sufficient for the jury to find that Jason engaged in sexual penetration within the meaning of the statute.

CONCLUSION

¶ 9. After a review of the record, this Court finds the conviction should be affirmed. We find that Allred’s counsel complied with this Court’s holding in Lindsey in submitting her brief. We also find that the State proved the requisite elements of séxual battery as defined in Mississippi Code Section 97-3-95(1)(d). Therefore, we affirm the judgment and sentence of the Webster County Circuit Court.

¶10. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCES IN BOTH COUNTS ARE TO BE SERVED CONCURRENTLY, WITH THE APPELLANT TO REGISTER AS A SEX-OFFENDER WITH THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY WITHIN THREE DAYS OF RELEASE FROM CUSTODY. APPELLANT SHALL ALSO PAY ALL COURT COSTS AND ASSESSMENTS. SENTENCE IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.