author: BARNES, J.,

text:
    Jerry P. MIZE, Appellant v. WESTBROOK CONSTRUCTION COMPANY OF OXFORD, LLC, Jimmy Alvis Lewis, Jr., Kay W. Lewis and Jimmie Waller, Appellees.
    No. 2012-CA-00610-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Jan. 14, 2014.

      Elbert Earl Haley Jr., Madison, Erik Gregory Faries, Flowood, attorneys for appellant.
    William Troy Sloan, Bela J. Chain III, Oxford, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Jerry Mize filed suit to quiet and confirm the title to his property, which he argues extends slightly south of County Road 206 in Lafayette County, Mississippi. His neighbors to the south counterclaimed, asserting that according to them deeds, they own the property to the centerline of County Road 206, and, even if their deeds are incorrect, they own the land by adverse possession. The chancellor agreed with the neighbors and confirmed their titles. The chancellor also found that Mize acted maliciously in pursuing his claim and awarded attorney’s fees and damages. Mize now appeals, arguing the chancellor was biased and lacked support for his findings. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Mize owns fifty-six acres in Lafayette County north of County Road 206. Westbrook Construction Company of Oxford LLC owns fifty-two acres directly south of Mize’s property. Kay and Jimmy Lewis Jr. (the Lewises), Jimmie Waller (Kay’s mother), and Craig Merrell also own land to the south of Mize’s. The disputed property is a somewhat triangle-shaped piece of land that runs along the south side of County Road 206 for approximately a quarter of a mile and extends approximately four feet to the south on the west side and thirty-five feet to the south on the east side.

¶ 3. The crux of this matter began in the summer of 2007, when Westbrook requested site approval with the Lafayette County Planning Commission for development of a subdivision. Westbrook had purchased the land south of Mize’s property in 2005 with intentions of future development. Mize and several neighbors protested the subdivision.

¶ 4. According to Mize, when he purchased his property in August 2000, he was told by the previous property owner, Estelle Kiger, that his property line extended slightly south of County Road 206. Mize’s ownership of the property south of County Road 206 would cut off access for the proposed subdivision. In October 2007, Mize hired Melvin James Cannatella, a surveyor with W.L. Burle, Engineers P.A., to survey his property. Upon reviewing Mize’s 2000 deed, Cannatella discovered that the property description “did not close” on the south side, meaning there was a gap in the property’s border. Can-natella determined that the only way to close the description was to include County Road 206 and a portion of the land extending south of it. In October 2007, Canna-tella rewrote the property description, and Kiger executed a correction deed to Mize.

¶ 5. On September 18, 2008, Mize filed suit in the Lafayette County Chancery Court against Westbrook, the Lewises, Waller, and Merrell to quiet and confirm his title and to bar the defendants from using his property. Westbrook, the Lew-ises, and Waller answered the complaint and filed counter-complaints. The defendants/counter-claimants alleged that Mize had slandered their titles; they sought to quiet and confirm their own titles.

¶ 6. A hearing was held at which Mize introduced Cannatella’s survey as evidence, and the defendants introduced a survey that they had commissioned by Robert Sealy. Sealy’s survey stated that Mize’s property line stopped at County Road 206. The chancellor found that Sealy’s survey was correct, and, alternatively, that the defendants had proven all the elements of adverse possession. And because the chancellor found Mize acted with malice in pursuing his claim, Mize was ordered to pay $5,687.50 in attorney’s fees and $32,530.05 in damages.

¶ 7. On appeal, Mize asserts the following issues: (1) the chancellor should have recused himself because he had personal knowledge of disputed facts; (2) the chancellor erroneously excluded three deeds from evidence; (3) the defendants did not prove adverse possession; (4) the chancellor erred in awarding attorney’s fees for slander of title; (5) the chancellor erred in awarding Westbrook damages for the lost sale of property; and (6) the chancellor erred in finding Sealy’s testimony more credible than Cannatella’s.

ANALYSIS OF THE ISSUES

1. Chancellor’s Personal Knowledge of the Facts

¶ 8. Mize argues the chancellor should have recused himself because he was familiar with the properties in controversy and had prepared one of the deeds in evidence. Alternatively, Mize argues the chancellor should have disclosed his possible disqualifications on the record and given the parties an opportunity to waive the conflict.

¶ 9. Canon 3E(l)(a)-(b) of the Mississippi Code of Judicial Conduct states:

(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy....

¶ 10. Mize’s first issue arises from the following statement made by the chancellor when giving the opinion of the court: “And I believe Exhibit No. 24, it was a number of lots that were surveyed by Mr. Edward Overall, a surveyor over in Marshall County. And there was a survey made of a—two surveys made for property for a black church. This judge did one of the deeds.” (Emphasis added). The deed, dated May 1996, is signed by the chancellor and describes 2.2 acres in the Northwest Quarter of Section 6. The deed clearly bears the chancellor’s name and signature. No objection or motion for re-cusal was made when the deed was offered into evidence or when the chancellor stated he prepared the deed. The failure to object waived this issue for appeal. See Tubwell v. Grant, 760 So.2d 687, 689 (¶ 8) (Miss.2000) (“Where the party knew of the grounds for the motion [for recusal] or with the exercise of reasonable diligence may have discovered those grounds and where that party does not move timely prior to trial, the point will be deemed waived.”).

¶ 11. Regardless, the deed prepared by the chancellor does not involve the parties or properties in this action, and the contents of the deed are not in controversy. The deed references a stone in a church lot that was recognized as marking the northwest corner of Section 6. There is no dispute as to the location of the northwest corner of Section 6. In fact, Mize’s surveyor, Cannatella, stated in his testimony he used the stone to establish the northwest corner of his survey. Finally, we have carefully reviewed the deeds in evidence, and their descriptions relevant to this case have a point of beginning at the southwest comer of the Northwest Quarter of Section 6. Also, we note that a seventeen-acre tract, labeled tract 26 in Appendix A, lies between the church’s property and Mize’s property; thus, the borders of the church’s property as established in the deed drafted by the chancellor could not possibly encroach Mize’s property. Therefore, the deed prepared by the chancellor is not a matter in controversy. Also, no bias has been shown to have resulted from the chancellor’s work on the deed. Thus, we cannot find that the chancellor should have sua sponte re-cused himself.

¶ 12. Next, Mize argues the chancellor made two statements that revealed he had personal knowledge of hay being baled on the land in question. The first statement was made during closing arguments, when the following exchange occurred:

[MIZE’S COUNSEL]: I don’t think that the Court needs me to run through the elements of adverse possession. I believe the Court is well aware of those, but the Court should consider the fact that the use of the property that now belongs to Mr. Westbrook doesn’t go back but about 2005 — 2005. His claim must extend in a time frame in which the — Mr. Coleman’s own property— Mr. Coleman states he had individuals on the property mow there more than just — more than a month out of a year, and I don’t think that meets—
THE COURT: — No, sir, what Mr. Coleman testified to is that, and I think this Court and the appellate] court realizes when you are not keep[ing] a log book, he said he was on it monthly. He knew at least monthly, other times more than that. He convinced the Court that he used it quite often. You cannot — I’m an old cow man, and when you bale hay, and I noticed that it’s ironic that I’m hearing this case. I can remember when Mr. Coleman had it, and I can remember going out to Bay Springs [Road] and passing by there and noticing each time I would go, there would be less and less round bales of hay out in that open field. Of course, Mr. Coleman’s across the ditch in that big white house and had cows running in front. His testimony was he was there quite a bit. And I think that adverse possession would run back through him. He held it out as being his.

(Emphasis added). The second statement occurred during Coleman’s testimony. When Coleman was describing his property, the chancellor stopped him and said:

“I’m familiar with your property, I guess I passed it maybe a hundred times.”

¶ IB. Mize argues this personal knowledge required recusal under Canon 3E(l)(a). Again, no request for recusal was made, and no bias is alleged because of what the chancellor witnessed on Coleman’s land. It is undisputed that Coleman used the property as a hayfield. Mize confirmed this in his testimony. Thus, we cannot find that the chancellor should have sua sponte recused himself for having knowledge of the area where he lived.

2. Deraignment of Title

¶ 14. At trial, Mize sought to introduce into evidence the deeds of the three prior owners of his property. The defendants objected, arguing the deeds were inadmissible because Mize had not deraigned his title as required by Mississippi Code Annotated section 11-17-35 (Rev.2004). The chancellor agreed, stating: “I don’t know how you [ (Mize) ] are going to get around 11-17-35.” The objection was then sustained. Mize argues the exclusion of the deeds was error.

¶ 15. Section 11-17-35 states:
In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title. If title has passed out of the sovereign more than seventy-five (75) years prior to the filing of the bill, then the deraignment shall be sufficient if it show title out of the sovereign and a deraignment of title for not less than sixty (60) years prior to the filing of the bill. A mere statement therein that complainant is the real owner of the land shall be insufficient, unless good and valid reason be given why he does not deraign his title. In all such cases, final decrees in the complainant’s favor shall be recorded in the record of deeds, and shall be indexed as if a conveyance of the land from the defendant or each of them, if more than one, to the complainant or complainants, if more than one.

¶ 16. Mize argues the defendants’ objection was improperly granted because it did not go to whether the deeds were admissible as evidence, but, rather, whether Mize’s complaint should be dismissed for failure to state a claim upon which relief could be granted. Mize argues that the failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6) is an affirmative defense, which the defendants did not pursue and, consequently, waived.

¶ 17. Regardless of the basis of the objection, the prior deeds were not relevant. Mize’s claim did not arise until 2007, when he commissioned the survey by Can-natella and had the correction deed issued. Mize had owned his property since 2000. He did not make a proffer as to what he intended to show in the three deeds, and it does not appear he relied on the deeds to support his argument. When asked by the chancellor if the three deeds contained the same description as the 2000 deed, Mize’s attorney responded: “One of them does— the other two have descriptions that are more general of the western half itself, but it is indeed his chain of title and differing description.... ”

¶ 18. Even if one of the prior deeds gave Mize a claim to the property south of County Road 206, the chancellor ultimately relied on Sealy’s survey, which excluded the land south of this road. Thus, even if it were true that the chancellor erred in excluding the deeds, the error was harmless. This issue is without merit.

8. Adverse Possession

¶ 19. After finding Westbrook’s, the Lewises’, and Waller’s deeds included the land up to the centerline of County Road 206, the chancellor alternatively found the defendants had adversely possessed the property. This finding was important because it supported the chancellor’s award of damages for slander of title — that is, even though Mize had a survey to support his claim, he nonetheless frivolously pursued his claim because the defendants clearly owned the property by adverse possession. Mize argues the chancellor’s finding was in error because the defendants failed to prove adverse possession.

¶ 20. Mississippi Code Annotated section 15-1-13(1) (Rev.2012) states:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

For possession to be adverse under the statute, it must be “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So.2d 134, 136 (¶ 15) (Miss.2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). The claimant bears the burden of proof to show adverse possession by clear and convincing evidence. Id. The chancellor is the fact-finder, but his findings must be supported by substantial evidence, and are reviewed for manifest error. Walker v. Murphree, 722 So.2d 1277, 1280 (¶ 15) (Miss.Ct.App.1998) (citation omitted).

¶ 21. Waller and the Lewises have each owned their respective properties continuously for more than the statutorily required ten years — the Lewises since 1989 and Waller since 1974. West-brook purchased his land in January 2005 from Kenny Coleman, who had owned the property since December 1994. The tacking of years is allowed as long as there is privity of possession between the predecessor and the claimant. Walters v. Rogers, 222 Miss. 182, 186, 75 So.2d 461, 462 (1954). Privity of possession was created when Coleman conveyed title to West-brook; thus, Westbrook is allowed to combine his term of ownership with Coleman’s to meet the statutory time period.

¶ 22. Coleman, Westbrook, the Lewises, and Waller testified that they had used and maintained their properties up to County Road 206 during their ownership. The testimony showed that they mowed grass up to the road, trimmed thorn bushes near the road, treated the land for weeds up to the road, planted flowers along the road and ditch, and cut and baled hay up to the road. Two other witnesses confirmed this regarding the Lewises’ and Waller’s properties. When Kiger was shown a picture of the land south of County Road 206, she recognized it as the Lewises’ and Waller’s yards. Ki-ger denied that she or her family had ever claimed ownership of the land south of County Road 206, and her only recollection of using the south side of the road was when she picked blackberries there as a child “at the top of the hill.” However, the property she referenced at the top of the hill was not part of the disputed property. Further, a nearby property owner, Dray-ton Barnes, who drove past the properties daily, was shown photographs of the properties south of County Road 206 and asked if he recognized to whom the properties belonged. He identified the properties as the Lewises’ and Waller’s.

¶ 23. Waller’s, the Lewises’, and West-brook/Coleman’s possession of their respective properties was actual, exclusive, peaceful, open, notorious, visible, and continuous for ten years. The testimony showed that they came and went from their properties without contest from anyone. Mize argues that this is untrue and counters that he took steps after purchasing his property to show ownership of the land south of County Road 206. Specifically, he testified that he graded and graveled an abandoned access way and placed no-trespassing signs along it. In 2007, prior to commissioning the survey, he built a fence. Admittedly, the fence was outside the boundary of the survey, and was removed by Westbrook. We cannot find these actions were sufficient to defeat the neighbors’ claims of adverse possession.

¶ 24. “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see....’” Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992) (quoting Walter G. Robillard & Lane J. Bouman, A Treatise on the Law of Surveying and Boundaries, § 22.08 (5th ed.1987)). Mize’s neighbors have met this burden through the use and maintenance of their properties. We find the chancellor had substantial evidence to support a finding of adverse possession. Thus, this issue is without merit.

4. Slander of Title and Attorney’s Fees

¶ 25. Mize asserts he brought this claim only after contacting a surveyor and having a correction deed issued, and since he had support for his claim, there was no basis for the chancellor’s finding of slander of title or award of attorney’s fees.

¶ 26. “Slander of title ‘may consist of conduct which brings or tends to bring in question the right or title of another to particular property.’ ” Ellison v. Meek, 820 So.2d 730, 738 (¶ 32) (Miss.Ct. App.2002) (quoting Walley v. Hunt, 212 Miss. 294, 304, 54 So.2d 393, 396 (1951)). “One who falsely and maliciously publishes [a] matter which brings in question or disparages the title to property, thereby causing special damage to the owner, may be held liable in a civil action for damages.” Walley, 212 Miss, at 304, 54 So.2d at 396 (citation omitted). Malice may be inferred “by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.” Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss.1971).

¶ 27. It is undisputed that Mize called into question his neighbors’ titles. Therefore, the only issue to be resolved was whether he did so with malice. The chancellor found that malice could be inferred from Mize’s actions and the circumstances of this case. The chancellor “solely determines the credibility of witnesses and the weight to give to the evidence,” and we give great deference to the chancellor’s findings of fact. Webb v. Drewrey, 4 So.3d 1078, 1081 (¶ 11) (Miss.Ct.App.2009) (citation omitted); see also Bell v. Parker, 563 So.2d 594, 597 (Miss.1990).

¶ 28. First, the chancellor found that because an abundantly clear ease for adverse possession existed, Mize was on notice that he had no claim to the land south of County Road 206, regardless of what Cannatella’s survey or the correction deed said. Rather, as the chancellor stated, Mize “blindly” pursued the claim despite the evidence. Mize has continually argued that he pursued the claim because Kiger led him to believe that he owned the land. However, even if Kiger represented to Mize in 2000 that the land was his, her June 2010 deposition testimony was clearly to the contrary:

Q. Okay. And it’s your testimony that [Waller] always maintained ... the property up to the road?
A. Why, yes, she maintains it up to the road. Somebody does.
Q. But you don’t?
A. No. I don’t maintain her yard at all.
Q. Well, let me just cut to the chase. Are you saying you own part of [Waller’s] yard?
A. No, I don’t own any part of her yard, as far as I know.
Q. Did your father ever own part of her yard?
A. Not that we know of.
Q. You never intended to convey Ms. Waller’s property to anyone, then, did you?
A. To convey her property to anyone?
Q. Yeah, you didn’t mean to sell her property to somebody or give her property to somebody.
A. Didn’t mean to, no.
Q. I mean, if you never claimed it and you never meant to convey it, did you ever consider it yours or your father’s?
A. No. I never considered it mine.
Q. [H]ave you ever claimed [the Lew-ises’] property?
A. No. I never claimed their property.
Q. Did you tell anybody that you owned any of their property?
A. No.
Q. So that was never your intent to sell their property to anyone?
A. No.

¶ 29. Kiger gave consistent testimony as to Walker Downs, the owner of West-brook’s property prior to Coleman, stating that Downs crossed and accessed his property through County Road 206 “all the time.” Further, in relating the account of when she convinced Clark Littlejohn, a since-deceased county supervisor, that the road should be upgraded and taken over by the county, Kiger testified that she insisted to Littlejohn that she wanted any land that had to be taken to be from “my side” of the road — referring to the north side of County Road 206. Kiger later learned that Littlejohn had told the Lew-ises and Waller that Kiger wanted the land south of the road to be taken. Kiger became very upset over this, emphasizing that she had never claimed that land as hers.

¶ 30. Next, during the pendency of this litigation, Mize removed a culvert from the ditch alongside County Road 206, blocking Westbrook’s access to his property. When county personnel attempted to replace the culvert, Mize objected, arguing that he did not want anyone crossing the ditch. West-brook filed for an injunction, to which Mize responded that he was the owner of the property surrounding the culvert, and he removed the culvert out of necessity because it was “rusted and had collapsed and was blocking that ditch[,] forcing water onto the road and onto the remainder of Mize’s property.” Even if Mize removed the culvert out of necessity, this does not explain why, when the county was attempting to replace the culvert, Mize called Lafayette County Road Manager Jerry Hay-nie and told him to stop.

¶31. We find the chancellor correctly inferred malice, as there is no other explanation for Mize’s actions. Having found malice, the chancellor was correct in awarding the Lewises and Waller $5,687.50 in attorney’s fees. This issue is without merit.

5. Damages for Lost Sale of Property

¶ 32. Westbrook testified that he entered into a contract on April 14, 2009, for the sale of approximately thirty acres of his property to Michael Mitchell. West-brook contacted Mize and asked him to withdraw his suit so the sale could proceed without a cloud on the title; alternatively, Westbrook offered Mize the option of purchasing the property. Mize denies knowledge of this, but testified that even if he had known of a pending sale, he would not have withdrawn his claim or purchased the property. Mitchell testified that he was ready, willing, and able to purchase West-brook’s property, but after six months passed without a resolution of Mize’s claim, he chose to purchase property elsewhere. Westbrook testified that in addition to Mitchell, several others had been interested in purchasing the property, but had chosen not to because of the dispute with Mize.

¶ 33. An action for slander of title lies where a person claims ownership of another’s property, “thereby preventing its lease or sale to another.... ” Walley, 212 Miss, at 304, 54 So.2d at 396. “The malicious filing for record of an instrument which is known to be inoperative, and which disparages the title to land, is a false and malicious statement, for which the damages suffered may be recovered.” Id. at 305, 54 So.2d at 396 (citations omitted).

¶ 34. The chancellor found Mize maliciously slandered Westbrook’s title, and this prevented the sale to Mitchell, thus entitling Westbrook to damages. Mize argues that Westbrook’s assertion that he could not sell his land was disingenuous. In support of his argument, Mize cites to a sale that occurred on April 30, 2009, wherein Westbrook sold a portion of his property to Steven M. Shipman, who resold a portion to Merrell. Regardless of that sale, Mitchell’s testimony established that he was willing and able to purchase the property from Westbrook, attempted to do so for six months, and did not complete the purchase because of Mize’s suit. Westbrook testified that he would have netted $176,500 from the sale of the property to Mitchell, and he would have used the proceeds to pay down his loan. The interest he had paid on $176,500 since the date of the planned closing, May 15, 2009, was $32,530.05. The chancellor awarded this amount as damages.

¶ 35. We cannot find that the chancellor abused his discretion in awarding damages due to the lost sale. While the contract with Mitchell predated Kiger’s deposition, which was found to have put Mize on notice he had no claim to the land, we still find that the damages award was justified. The testimony showed a clear case of adverse possession, regardless of what Mize believed Kiger had told him. Damages are appropriate for slander of title where malice lies, and we have found the chancellor did not err in concluding that Mize acted with malice. This issue is without merit.

6. Conflicting Surveys

¶ 36. Finally, Mize argues the chancellor erred in finding Sealy’s survey more credible than Cannatella’s. The chancellor’s finding focused on the landmarks used by the surveyors, and Sealy’s testimony that if Cannatella’s survey was accepted, it would render all other property descriptions in the area incorrect.

¶ 37. The deeds of Waller, the Lewises, and Westbrook (and their predecessors in title) describe their property borders as running “to a point in” County Road 206. Sealy agreed that the border between their and Mize’s properties was County Road 206. However, Cannatella found Mize’s property line ran south of the road. According to Sealy, Cannatella’s finding resulted from the use of incorrect landmarks. Unlike other property descriptions in the area, Cannatella found that a wooden post marked the northeast corner of the Northwest Quarter of Section 6. Sealy and previous surveyors found the northeast-corner marker was a cotton-picker spindle. Sealy testified that the wooden post was not on the north section line, as Cannatella believed, but, rather, twenty-five feet below it. Sealy explained that if one drew a straight line from the northwest corner of the Northwest Quarter, which undisputedly is a stone near a church, to the wooden post on the east corner, it would slope down twenty-five feet, skewing all property descriptions in the area. Sealy testified Cannatella made “all of the ties going to the south,” which explains why Cannatella found Mize’s property line was below County Road 206, while other surveyors found it was in the right-of-way.

¶ 38. Adding to the discrepancy in the two surveys are the measurements of Section 6 from the Government Land Office (GLO). Exhibit 30, which is attached to this opinion as “Appendix B,” is a sketch drawn by Sealy, whereby Sealy converted the GLO’s chain measurements to feet. The sketch shows that Section 6 is an irregular section. A section is normally 5,280 feet wide by 5,280 feet long, making each half section 2,640 feet and each quarter section 1,320 feet. However, Sealy’s sketch shows varying measurements in which the Western Halves of the Northwest and Southwest Quarters are narrower than a time section half. Sealy testified that he reviewed Cannatella’s survey and compared it to the GLO’s survey, and the two did not match.

¶ 39. Cannatella testified that while he reviewed the GLO’s survey, he did not rely on it. Rather, Cannatella measured the section himself, which resulted in several discrepancies. For example, in establishing the southwest corner of the Northwest Quarter of Section 6, Cannatella took the distance from northwest corner of Section 6 to the southwest corner of Section 6 and divided it in half; the result was a distance of 2,662 feet. However, according to Sealy’s sketch, the distance between the northwest and southwest corners of the Northwest Quarter is 2,640 feet. When asked to explain the twenty-two-foot discrepancy, Cannatella stated that he used monuments rather than the survey to measure the distance because, “[i]n the principles of surveying[,] the monument supercedes distance.”

¶ 40. Not only was Cannatella’s survey inconsistent with the GLO’s survey and neighboring property descriptions, it was also inconsistent with a decree by the Lafayette County Chancery Court in Avent v. Coleman, Cause No. 2001-258-G (Sept. 13, 2002), in which the center point of Section 6, i.e., the southeast corner of the Northwest Quarter, was established. Sealy relied on the point in his survey, while Can-natella did not establish a center point. Cannatella testified that he had not seen the order. When asked about Cannatella’s findings, Sealy again testified that Canna-tella’s entire section line across the southern border of the Northwest Quarter was twenty-five feet too far south.

¶ 41. Since this was a bench trial, it was the chancellor’s duty to weigh the evidence and determine the credibility of the witnesses. See Webb, 4 So.3d at 1081 (¶ 11); Bell, 563 So.2d at 597. Giving deference to the chancellor’s conclusions, we can find no error in the acceptance of Seales testimony. It was consistent with prior land surveys, the surrounding deeds, and the GLO’s survey. This issue is without merit.

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

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

Appendix A

Appendix A

Appendix B

Appendix B

      . The land is located within the West Half of the Northwest Quarter of Section 6, Township 8 South, Range 2 West. County Road 206 runs generally east and west within this quarter. The tax assessor's plat depicting the properties in question is attached to this opinion as "Appendix A,” with Mize’s property being referred to as tract 22, Westbrook’s property as tract 38, the Lewises’ property as tract 23, and Waller’s property as tract 24.

      . Merrell did not answer the complaint. It appears from the record that Mize and Mer-rell had a side agreement whereby Mize would concede his claim against Merrell if the claims against the other defendants failed. Likewise, if Mize succeeded on his claim against the other defendants, he would succeed on his claim against Merrell. The property claimed by Merrell was approximately thirty feet by ten feet.

      . The church’s property is contained within tract 27. See Appendix A.

      . Waller and the Lewises were represented by the same attorney, who put on proof that his fees totaled $5,687.50. Westbrook was represented by another attorney, and no evidence was entered of his fees. Thus, no attorney’s fees were awarded to Westbrook.


source: Caselaw Access Project

license: Public Domain

text:
    Ethel L. BUCKLEY, Appellant v. SINGING RIVER HOSPITAL, Appellee.
    No. 2011-CA-01523-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.

      Samuel Preston McClurkin IV, Elizabeth Anne Citrin, attorneys for appellant.
    Thomas L. Musselman, Hanson Douglas Horn, Pascagoula, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J.,

for the Court:

¶ 1. This case is before us on a motion for rehearing; the motion is denied, and the original opinion is withdrawn and substituted with this opinion.

¶2. Ethel Buckley appeals the circuit court’s grant of summary judgment in favor of Singing River Hospital (Singing River). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. On December 3, 2003, Singing River maintenance employees were stripping and waxing a floor in front of a service elevator. The elevator had been locked while they performed the task. When two other employees asked to use the elevator, the maintenance workers removed the warning sign and barricade and unlocked the service elevator for their use. However, the workers failed to re-engage the lock on the elevator after its temporary use, and minutes later, Buckley exited the elevator and fell. On August 19, 2004, Buckley required fusion surgery to her back to repair a “L4-L5 herniation,” and she never returned to work.

¶ 4. On June 28, 2005, Buckley filed a complaint against Singing River, alleging that she sustained a “severe and permanent physical injury” as a the result of the hospital’s negligence. During discovery, Singing River sent Buckley interrogatories; the third question requested the identity of any potential expert witnesses. When Buckley responded to the interrogatories on April 9, 2007, she simply stated in response to that question that she anticipated calling her “treating physicians.” She also stated that she would supplement the response “if necessary.” However, she never submitted a supplemental answer to the interrogatory question.

¶ 5. Over two years later, on November 23, 2009, Buckley’s counsel sent a letter to opposing counsel, stating:

I am writing to follow up on our previous discussions regarding plaintiffs experts. In addition to calling Mrs. Buckley’s treating physicians, who will testify as to the diagnosis, prognosis, and causation of her injuries, we intend to call Dr. Robert Hebert, an economist, and Catherine Brock, a life care planner.

On January 28, 2010, Buckley sent Singing River a notice of deposition for Dr. Edward Schnitzer, a physician who had been treating Buckley for pain management since August 26, 2009. However, the deposition, which was scheduled for March 11, 2010, was later cancelled. The deposition was conducted one year later in March 2011.

¶ 6. Although the trial had been scheduled for October 4, 2010, both parties requested a continuance in order to complete discovery. On October 5, 2010, the circuit court entered a scheduling order, which had been drafted by Buckley’s counsel. The order required Buckley to designate any expert witnesses by November 1, 2010. Singing River had already filed a “Designation of Expert Witnesses” with the court on January 13, 2010, which contained its expert witness’s resume and qualifications. Singing River also submitted an updated designation of expert witnesses on December 15, 2010, to comply with the latest scheduling order. Buckley, however, never filed a designation of expert witnesses with the circuit court.

¶ 7. After Dr. Schnitzer’s deposition in March 2011, Singing River filed a motion for summary judgment and a motion to strike the opinion testimony of Dr. Schnit-zer on April 1, 2011, citing Buckley’s failure to designate Dr. Schnitzer as an expert witness. After an April 14, 2011 hearing on the pretrial motions, the circuit court granted summary judgment for Singing River, dismissing the action with prejudice.

¶ 8. Buckley filed a motion to alter the judgment, which the court denied. On appeal, we find no error and affirm the circuit court’s grant of Singing River’s motion for summary judgment.

ANALYSIS

¶ 9. The issue before this Court is whether the circuit court erred in granting Singing River’s motion for summary judgment. A circuit court’s grant of summary judgment is reviewed de novo. Smith v. Chhabra, 54 So.3d 877, 880 (¶ 11) (Miss.Ct. App.2011) (citing O.W.O. Invs., Inc. v. Stone Inv. Co., 82 So.Bd 439, 446 (¶ 18) (Miss.2010)). A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “[V]iew[ing] the facts in the light most favorable to the nonmovant, ... ‘Num-mary judgment is appropriate if the non-moving party has not made a sufficient showing to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Smith, 54 So.3d at 880 (¶ 11) (citations omitted).

I. Buckley’s failure to designate Dr. Schnitzer as an expert witness.

¶ 10. Singing River’s interrogatories to Buckley requested information on “each person” Buckley intended to call as a potential expert witness, including the subject matter of each witness’s anticipated testimony. Buckley responded: “It is anticipated that Plaintiff will call treating physicians to testify as to their diagnosis, prognosis, examination and treatment of her and [their] medical opinions thereof. Plaintiff will supplement, if necessary.” Buckley claims that her initial intent was to disclose the surgeon who performed her back surgery, Dr. Morton Longnecker, as her damages expert. However, Buckley was unable to locate Dr. Longnecker, and she never supplemented her response.

¶ 11. As already noted, Buckley’s counsel sent a letter to opposing counsel on November 23, 2009, stating:

I am writing to follow up on our previous discussions regarding plaintiff’s experts. In addition to calling Mrs. Buckley’s treating physicians, who will testify as to the diagnosis, prognosis, and causation of her injuries, we intend to call Dr. Robert Hebert, an economist, and Catherine Brock, a life care planner.

There was no mention in the letter of Dr. Schnitzer. It was not until January 28, 2010, that Buckley sent Singing River a notice of deposition for Dr. Schnitzer. The notice stated that the deposition would take place on March 11, 2010. The notice did not contain any information as to Dr. Schnitzer’s role as Buckley’s treating physician, nor did it contain any indication as to the basis of his testimony. This deposition was postponed until March 2011.

¶ 12. An agreed scheduling order was entered by the circuit court on October 5, 2010, which stated: “Plaintiff shall designate all her expert witnesses on or before November 1, 2010, providing such information as specified by the Mississippi Rules of Civil Procedure.” The order also stated that discovery was to be completed by March 15, 2011, and set the trial date as April 25, 2011. However, Buckley did not file any designation of expert witnesses with the circuit court.

¶ 13. Dr. Schnitzer was deposed on March 3, 2011, four months after the scheduling order’s deadline for Buckley to designate her expert witnesses had expired. At the deposition, Singing River objected to Dr. Schnitzer’s opinion testimony and to the fact that he had not been designated as an expert. Counsel for Buckley acknowledged Singing River’s continuing objection, stating: “And that’s fine and I completely understand and we will have that stipulation. I remember seeing where — I think we said all treating physicians under the expert category. But that’s okay. We can address that at another time.”

¶ 14. Singing River filed its motion for summary judgment one month later, arguing that Buckley “wholly failed to properly designate an expert witness[,] nor was any information about experts divulged pursuant to the dictates of Rule 26(b)(4).” The circuit court granted the summary judgment motion, agreeing that Buckley failed to designate expert witnesses according to the procedural rules. The court also found that Dr. Schnitzer’s testimony did not meet the requisite standards for expert testimony.

¶ 15. Mississippi Rule of Civil Procedure 26(b)(4) governs expert-witness discovery. Rule 26(b)(4)(A)© reads:

A party may through interrogatories require any other party to identify each person whom the other party expects to . call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(Emphasis added). Furthermore, Mississippi Rule of Civil Procedure 26(f)(1) states:

A party is under a duty seasonably to supplement that party’s response with respect to any question directly addressed to (A) the identity and location of persons (i) having knowledge of discoverable matters, or (ii) who may be called as witnesses at the trial, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony.

(Emphasis added). The purpose of this rule is “to avoid unfair surprise and allow the other side enough time to prepare for trial.” Young v. Meacham, 999 So.2d 368, 372 (¶ 16) (Miss.2008) (citation omitted).

¶ 16. Buckley admits she “failed to formally supplement interrogatory responses to specifically name Dr. Schnit-zer.” However, she contends that she “informally” disclosed Dr. Schnitzer as an expert in the interrogatory answers by using the term “treating physicians.” We reject this argument. When Buckley issued her response to the interrogatories in 2007, Dr. Schnitzer was not her “treating physician.” She did not seek treatment from Dr. Schnitzer until 2009. As Singing River observes: “Buckley could not have anticipated naming Dr. Schnitzer as a treating physician expert witness two and a half years prior to her being treated by him.” She also did not provide the substance of the “treating physicians[’]” testimony in her response.

¶ 17. Moreover, Buckley filed a pretrial motion requesting that the court exclude Singing River’s expert’s testimony due to its failure to supplement interrogatories with the expert’s opinion, even though Singing River had filed a designation of the expert witness with the court and had complied with the scheduling order. During the April 14, 2011 hearing on the pretrial motions, the circuit judge noted:

THE COURT: [T]hat Scheduling Order is an Order that’s to be followed by all the attorneys that appear before this Court, number one. As I remember that Scheduling Order, it said everything would be done pursuant to the Mississippi Rules of Civil Procedure. Am I correct?
MR. McCLURKIN [Buckley]: Yes, Your Honor.
MR. MUSSELMAN [Singing River]: And just to make the record clear, Judge, we did not designate them in correspondence. It was actually a
Designation of Experts that we filed with the clerk’s office.
THE COURT: But did you follow the rules with specificity as to an expert witness, 26(b)(4), whatever, as to what their opinions would be? Did you spell all that out with specificity pursuant to the rule?
MR. MUSSELMAN: Yes, Judge.

Thus, Buckley requested the exclusion of the testimony of Singing River’s expert based on its failure to supplement interrogatories. Yet Buckley now argues that Singing River “clearly already knew about Dr. Schnitzer through interrogatory answers, medical records, depositions notices, letters and telephone calls” and claims that her notice of an expert’s testimony through attorney correspondence was sufficient to put Singing River on notice and to allow Dr. Schnitzer to testify. The record does not support this claim.

¶ 18. Dr. Schnitzer was not a treating physician as the time Buckley responded to the interrogatories. He also was not mentioned in the November 2009 letter, although he was a treating physician at that time. The November 2009 correspondence merely reiterates the vague language from the interrogatory response, stating that “Buckley’s treating physicians” would testify to matters regarding “diagnosis, prognosis, and causation of her injuries[.]” There is nothing in the record to suggest Singing River was aware of Dr. Schnitzer’s involvement in the case until February 1, 2010, when his original deposition was noticed. In fact, Singing River claims: “No information contained in the notice revealed that Dr. Schnitzer was a potential expert witness[,] nor was he ever identified as a treating physician of Ms. Buckley until the deposition was in progress.” The deposition was not held until March 3, 2011, one month prior to the scheduled trial date, and it was not until this deposition that Singing River was aware of the content of Dr. Schnitzer’s testimony. Without the supplemental answers to the interrogatory, Singing River had no advance notice of Dr. Schnitzer’s opinion testimony so as to meaningfully cross-examine Dr. Schnitzer at his deposition. Further, as Singing River noted at the summary-judgment hearing, this failure by Buckley to disclose her expert in a timely fashion made it difficult to prepare Singing River’s expert for rebuttal testimony. Counsel for Singing River stated: We never received any opinions from the plaintiff, so we’re kind of in a limbo as to what our expert had to review. We said he would comment on the treatment provided to Ms. Buckley, and his opinions would be based on medical records, as well as any opinions of the plaintiffs experts.

¶ 19. Buckley admits that she never formally designated Dr. Schnitzer as an expert witness as required by the scheduling order. However, Buckley claims that she “reasonably believed they had adequately complied with the Court’s order” and contends that she was “not in violation, only mistaken as to the sufficiency of her answers.” Counsel for Buckley acknowledged at the hearing regarding the motion to alter the judgment: “We failed to formally comply with the Court’s order, the Scheduling Order. And we did informally comply, but we failed to formally comply.” During oral argument before this Court, Buckley’s counsel characterized this violation of the scheduling order as “hypertechnical.”

¶ 20. Buckley clearly committed a discovery violation by not designating Dr. Schnitzer as an expert witness. The question is whether the circuit court’s dismissal with prejudice was, as Buckley argues, “too excessive a sanction for a discovery violation.” In Conklin v. Boyd Gaming Corp-, 75 So.3d 589, 592 (¶8) (Miss.Ct.App.2011), this Court recently stated:

[T]he trial court should only dismiss a cause of action because of discovery violations under the most extreme circumstances. The appellate court looks to the following four factors adopted by the Mississippi Supreme Court to determine if the dismissal of a complaint is the appropriate remedy for discovery violations:
First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situations where the deterrent value of Rule 37 [of the Mississippi Rules of Civil Procedure] cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

(Internal citations omitted). “[A]n action may not be dismissed for a discovery violation if a party is simply unable to comply, but ... dismissal may be justified if the violation is the result of ‘willfulness, bad faith, or any fault of the party.’ ” Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (¶ 13) (Miss.2003) (citing Fluor Corp. v. Cook, 551 So.2d 897, 903 (Miss. 1989)). “[R]epeated failures to comply with discovery requests warrant dismissal with prejudice.” Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 198 (¶ 21) (Miss.2010) (citing Beck v. Sapet, 937 So.2d 945, 950 (¶ 13) (Miss.2006)).

¶ 21. To support her argument against dismissal, Buckley cites Thompson v. Pati-no, 784 So.2d 220 (Miss.2001), a case in which the Mississippi Supreme Court reversed a trial court’s dismissal of the plaintiffs action based on the striking of the plaintiffs discovery supplementation concerning her expert witnesses. The supreme court found that “Thompson pursued her case not perfectly but fairly diligently from filing until dismissal,” and it reversed and remanded, proposing “a less severe sanction.” Id. at 226 (¶¶ 33-34). It concluded:

There is no question Thompson could have done more. She should have made an interim supplementation of her experts’ proposed testimony and then supplemented] again after taking Dr. Go-recki’s deposition. On the other hand, Dr. Gorecki’s testimony was critical, and a lot of the delay can be attributed to problems in scheduling that deposition!.]

Id. at (¶ 32). However, the experts in Thompson had been disclosed in the interrogatories and supplemental responses; the plaintiff merely failed to supplement discovery with the experts’ opinions. Also, the trial date in Thompson had not been set. The supreme court has since cautioned: “That [Thompson ] decision is clearly limited to the facts of that case and does not stand for the proposition that a trial court may never strike an expert affidavit in response to a discovery violation.” BouAe, 861 So.2d at 1041 (¶ 12).

¶ 22. In Bowie, the supreme court upheld a dismissal of a complaint based on the plaintiffs failure to designate an expert witness until after the defendant had filed a motion for summary judgment. The supreme court stated:

The parties and the attorneys knew from the express language of the scheduling order that the therein stated deadlines could “not be extended by agreement of the parties, but only by permission of the Court upon showing of good cause.” Pursuant to the provisions of the scheduling order, the plaintiffs were to designate their expert by December 31, 2000, which came and passed uneventfully without any expert designation by the plaintiffs.

Bowie, 861 So.2d at 1042-43 (¶ 15). Quoting its prior holding in Guaranty National Insurance Co. v. Pittman, 501 So.2d 377, 388-89 (Miss.1987), the supreme court in Bowie noted:

It may be that people will miss fewer trains if they know the engineer will leave without them rather than delay even a few seconds. Although we are not about to inaugurate a policy of entering irrevocable defaults where no answer has been filed by the thirty-first day, we are equally resolved that people know that the duty to answer must be taken seriously. At some point the train must leave.

Bowie, 861 So.2d at 1042 (¶ 14).

¶ 23. Buckley could have supplemented her interrogatories and designated Dr. Schnitzer as an expert witness as early as August 2009, when she began seeking treatment from him. Admittedly, this Court has stated that “a delayed response to interrogatories will not be grounds for exclusion of testimony in cases where a party is not prejudiced by the delay and it does not result in an unfair advantage or surprise.” APAC Miss., Inc. v. Johnson, 15 So.3d 465, 473 (¶ 18) (Miss.Ct.App. 2009). However, this is not an instance where the supplemental responses to interrogatories and the designation of expert witnesses were merely delayed; they never occurred. Even during Dr. Schnitzer’s deposition, Singing River specifically objected to Dr. Schnitzer’s opinion testimony and to the fact that he had not been designated as an expert; yet Buckley still failed to designate him as an expert witness with the circuit court. We are not moved by Buckley’s argument that Singing River had notice. As already noted, hearing of an expert’s opinion for the first time at a deposition one month prior to the trial is not sufficient to provide Singing River with time to conduct a meaningful cross-examination or to assist its expert witness in preparing an adequate rebuttal to such testimony.

¶ 24. Buckley has not provided any reason why she was unable to formally designate Dr. Schnitzer as an expert witness and comply with the scheduling order. We reject Buckley’s contention that “the alleged failure to comply was a consequence of simple confusion or a misunderstanding of the Trial Court’s order.” Buckley’s counsel drafted the scheduling order; there should have been no confusion or misunderstanding as to the court’s requirements.

¶ 25. In Palmer v. Volkswagen of America, Inc., 904 So.2d 1077, 1090 (¶ 55) (Miss.2005), the supreme court held:

We cannot agree that parties who file appropriate interrogatories seeking expert information acquire the additional burden of filing a motion to compel, where they are provided an answer which promises supplementation. The trial court was well within its discretion in disallowing the testimony of Ms. Kruckenburg, based upon the failure of plaintiffs to provide expert information in response to either the interrogatory filed by defendants [or] the trial court’s scheduling order.

(Emphasis added). Also, Rule 4.04(A) of the Uniform Rules of Circuit and County Court states: “Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.” “While the end result ... may appear to be harsh, litigants must understand that there is an obligation to timely comply with the orders of our trial courts.” Bowie, 861 So.2d at 1043 (¶ 16). As the circuit judge in this case expressed: “The Mississippi Rules of Civil Procedure are not advisory, and this Court’s Orders are not advisory.”

II. Whether Dr. Schnitzer lacked the requisite knowledge to testify.

¶ 26. Notwithstanding the discovery violations, without Dr. Schnitzer’s expert testimony, Buckley has no basis to establish causation for her negligence claim. The circuit court concluded: “The plaintiff failing to properly designate expert witnesses under the Scheduling Order was just a mere portion of the Court’s finding. Dr. Schnitzer, in fact, lacked the requisite factual knowledge to testify as an expert witness.” A circuit court’s admission or exclusion of expert testimony is reviewed for abuse of discretion. Denham v. Holmes ex rel. Holmes, 60 So.3d 773, 783 (¶ 34) (Miss.2011) (citing Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 416 (¶ 2) (Miss.2009)). Mississippi Rule of Evidence 702 governs the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

(Emphasis added). It is the circuit judge’s role to be the gatekeeper and “determine[ ] the value of the expert testimony.” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 457 (¶ 9) (Miss.2010) (citation omitted). The objective of this gate-keeping responsibility is to ensure that the expert testimony is relevant and reliable under the Daubert standard. Hill v. Mills, 26 So.3d 322, 330 (¶ 27) (Miss.2010) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 27. During his deposition, Dr. Schnitzer testified that based on the information given to him by Buckley, it “appear[ed]” that the fall caused her back problems. However, Dr. Schnitzer acknowledged that he did not review Buckley’s medical records between December 2003 and August 2009 and that his conclusion was based directly on the history he obtained from Buckley. Dr. Schnitzer stated: “[A]s far as I recall, I cannot remember integrating other medical notes into my history of this patient at that time. So the only history I have was from her.” At the summary-judgment hearing on April 14, 2011, the circuit judge inquired:

THE COURT: But Dr. Schnitzer looked at nothing of Dr. Longnecker’s 2004 surgery, nothing between 2004 and 2009; is that correct?
[PLAINTIFF’S COUNSEL]: Yes, Your Honor, you’re correct.
THE COURT: How is he going to give you a causation, medical theory, if he doesn’t have all that information and hasn’t looked at it?
[PLAINTIFF’S COUNSEL]: Well, it was based on the — I don’t know if he had an x-ray or not, but I know that he knew she had fusion surgery. It was based on the history that she had given to him.

(Emphasis added). At the subsequent hearing on the motion to set aside the summary judgment, Singing River’s counsel observed:

And when Mr. Citrin [counsel for Buckley] says that [Dr. Schnitzer] tied the proximate causation of Ms. Buckley’s injury to a fall that occurred at the hospital in 2005, Dr. Schnitzer, in his deposition, admitted that the only evidence he had that she fell, was from her directly. He had no medical records. He had no prior medical personnel who could tell him that there was any causal link, and he could not link the causation of her injury to a fall. He admitted that there’s other causes besides trauma that could cause her back injury.

¶ 28. In Biloxi Regional Medical Center v. David, 555 So.2d 58, 57 (Miss.1989), the supreme court concluded that a medical expert’s opinion, based merely on the plaintiffs remark that she severely stubbed her toe and received treatment, was “sufficient proof of causation.” However, the expert in that case was a physician who had looked at the plaintiffs foot immediately after the injury occurred. Id. at 54. In this case, Dr. Schnitzer did not begin treating Buckley until five years after her back surgery, which in turn was eight months after her fall at Singing River.

¶ 29. In John Morrell & Co. v. Shultz, 208 So.2d 906, 907 (Miss.1968), the supreme court held that a doctor’s opinion testimony based solely upon a history given to him by the patient was not sufficient evidence to deny the defendant’s motion for a directed verdict. In that case, the doctor treated the plaintiff for gastroenteritis, which allegedly was the result of consuming a defective food product. However, the supreme court found that since “the entire case ... rest[ed] upon Mrs. Shultz’s testimony as to what she thought caused her illness and the doctor’s opinion formed from the history of the illness related to him[,]” the evidence was insufficient to support a verdict. Id.

¶ 30. “Summary judgment may not be defeated through expert opinions that are not based on facts but instead are based on a guess, speculation, or conjecture.” Rogers v. Barlow Eddy Jenkins P.A., 22 So.Bd 1219, 1225 (¶ 21) (Miss.Ct. App.2009). Dr. Schnitzer merely made a conelusory statement that Buckley’s back complaints appeared to be result of a fall that occurred six years prior to his treatment. He admitted that he had no basis for his conclusion, other than the history from the patient herself. An expert witness “must possess some experience or expertise beyond that of an average, randomly selected adult[.]” Cowan v. Miss. Bureau of Narcotics, 2 So.3d 759, 763 (¶ 13) (Miss.Ct.App.2009) (citation omitted). If the speculative conclusion of the expert is not superior to any conclusion that the jury could draw for itself, then such expert testimony is “not necessary.” Denham, 60 So.3d at 788-89 (¶ 56). Thus, we cannot find that the circuit court abused its discretion by finding that Dr. Schnitzer “lacked the requisite factual knowledge to testify as an expert witness.”

¶ 31. Without Dr. Schnitzer’s testimony to establish proximate causation, Buckley’s claim fails. See Huggins v. GuideOne Services, LLC, 100 So.3d 499, 503 (¶ 14) (Miss. Ct.App.2012) (finding summary judgment was appropriate as the exclusion of expert witness “eliminated Huggins’s ability to provide evidence that faulty wiring proximately caused the fire.”). Accordingly, we find that the circuit court did not err in granting Singing River’s motion for summary judgment and dismissing the case with prejudice.

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

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Buckley worked at Morrison's Cafeteria, a contracted restaurant business located inside the hospital.

      . We note that discovery on this case was delayed due to Hurricane Katrina and substitution of counsel for Buckley.

      . A previous scheduling order that was filed on April 15, 2010, had requested Buckley’s designation of expert witnesses before May 1, 2010.

      .Buckley also brought two pretrial motions: a motion for partial summary judgment and a motion to strike the testimony of the defense's purported expert witnesses. These motions were considered moot after the circuit court's grant of summary judgement.

      . Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


author: ISHEE, J.,

text:
    Sally Beebe SMITH a/k/a Sally B. Smith a/k/a Sally S. Smith a/k/a Sally Sheila Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01744-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.
    Rehearing Denied Aug. 26, 2014.
    Office of State Public Defender by Mollie McMillin, attorney for appellant.

      Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before ISHEE, P.J., FAIR and JAMES, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2012, Sally Beebe Smith was convicted in the Pike County Circuit Court of third offense of operation of a motor vehicle while under the influence of intoxicating liquor. She was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), with two and a half years to serve and two and a half years of post-release supervision (PRS). She was ordered to attend the DUI drug court program upon her release and to pay a fíne of $2,000, all court costs, and restitution. Aggrieved, Smith now appeals the circuit court’s order of restitution.

STATEMENT OF FACTS

¶ 2. On December 13, 2011, Smith was involved in a two-vehicle accident on Highway 98 in McComb, Mississippi. At the time of the accident, Smith had been the driver of one vehicle, with Kristina Clause as her passenger. The other vehicle had been driven by Eric Cowart, with Brodrick Smith as the passenger.

¶ 3. Mississippi Highway Patrol Officer John Purser arrived at the scene at approximately 6:22 p.m. By the time Officer Purser reached the scene, Clause had fled due to an outstanding bench warrant for her arrest and several unpaid fines. Nonetheless, Smith, Cowart, and Brodrick remained. Upon questioning Smith, Officer Purser observed that Smith was slurring her speech and could not remain balanced while standing. He also noticed the smell of alcohol on her breath.

¶ 4. Smith agreed to undergo a blood-alcohol evaluation. Approximately two hours after Officer Purser arrived on the scene, he transported Smith to the Pike County Sheriffs Department, where she registered a blood-alcohol content (BAC) of .10 percent — above the legal limit of .08 percent. Smith had been convicted of driving under the influence of alcohol (DUI) in January 2011 and in September 2011. Thereafter, Smith was charged with her third count of DUI.

¶ 5. At trial, Clause testified that Smith had been drinking on the day of the incident. She stated that as Smith pulled onto Highway 98, Clause looked to the side and saw a ear headed straight for them. Clause was injured in the collision and later sought medical treatment. Cowart testified that Smith pulled out onto Highway 98 and then stopped. He slowed down, thinking she would continue crossing over the highway. When he realized that she was not moving, he slammed on his brakes, but could not avoid impact. Brodrick testified to the same. Brodrick was also injured in the accident and sought medical treatment.

¶ 6. Smith was convicted in the circuit court of felony DUI since it was her third DUI in less than five years. The circuit judge sentenced her to five years, with two and a half years to serve in the custody of the MDOC and two and a half years of PRS. Upon her release, she was required to attend the DUI drug court program. The circuit judge also fined her $2,000, plus court costs. Finally, the circuit judge ordered her to pay restitution to the three other parties involved. Estimates were entered into evidence at the sentencing hearing for the damage to Cowart’s vehicle and for Smith’s medical bills. Clause was awarded “full restitution” to cover her medical bills; Cowart received $1,650 for his property damage; and Brodrick received $745.50 for his medical bills.

¶ 7. On appeal, Smith asserts that the jury’s determination of her guilt for felony DUI did not include any findings that her driving contributed to or caused the accident, subsequent injuries, and property damage. Hence, she claims that the circuit judge abused his discretion in sentencing her to pay restitution.

DISCUSSION

¶ 8. The standard of review in cases challenging the terms of a sentence is abuse of discretion. Cummings v. State, 58 So.3d 715, 719 (¶ 19) (Miss.Ct.App. 2011). Smith asserts that the circuit court abused its discretion by acting outside of the scope of Mississippi’s restitution laws.

¶ 9. Mississippi Code Annotated section 99-37-3(1) (Rev.2007) provides the following with respect to restitution:

When a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim; provided; however, that the justice court shall not order restitution in an amount exceeding Five Thousand Dollars ($5,000.00).

(Emphasis added). Mississippi Code Annotated section 99-37-1 (Rev.2007) defines “criminal activities,” “pecuniary damages,” “restitution,” and “victim” as follows:

(a) “Criminal activities” shall mean any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.
(b) “Pecuniary damages” shall mean all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities and shall include, but not be limited to, the money equivalent of property taken, destroyed, broken[,] or otherwise harmed, and losses such as medical expenses.
(c) “Restitution” shall mean full, partial,] or nominal payment of pecuniary damages.
(d) “Victim” shall mean any person whom the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities. “Victim” shall not include any coparticipant in the defendant’s criminal activities, or any person knowingly participating in a criminal act at the time he became a victim.

¶ 10. Smith argues that in order to invoke the restitution statute, the criminal activities must result in pecuniary damages. Here, Smith asserts that there was no evidence presented, nor any verdict rendered, that supports a finding that her driving under the influence of alcohol caused the pecuniary damages alleged. Likewise, Smith objected to the sentence when it was imposed, and argued that the restitution was improper on these grounds.

¶ 11. The State argues that the statute does not implicitly require that a jury make a specific finding that a defendant’s criminal activity caused or contributed to pecuniary damages in order for the restitution statute’s requirements to be met. Conversely, the State cites Cummings, 58 So.3d at 720 (¶ 24), as support for its claim that it is the trial judge’s decision whether or not to award restitution and in what amount. While the State concedes that neither medical bills nor vehicle-repair estimates were entered into evidence, it asserts that such evidence was unnecessary because Smith’s counsel failed to object to the amount of restitution awarded.

¶ 12. This is a case of first impression in Mississippi. Smith and the State cite to persuasive authority from Florida and Kansas for guidance on the issue. Smith cites to Henninger v. State, 667 So.2d 488 (Fla.Dist.Ct.App.1996), for her proposition that evidence of specific causation must be provided before restitution may be awarded. In Henninger, the defendant was driving a vehicle under the influence of alcohol when he hit and killed the driver of an oncoming vehicle. Id. at 489. Hen-ninger was tried on the offenses of DUI, DUI manslaughter, and DUI involving simple injury. Id. at 488. Henninger was acquitted of DUI manslaughter and DUI involving simple injury but was convicted of DUI. Id. The trial judge ordered Hen-ninger to pay restitution to the family of the victim for expenses related to his injury and death. Id. at 489. However, the Florida appellate court reversed on the ground that “[bjecause the restitution ordered ... relate[d] solely to damages arising out of an injury and death of which Henninger was charged and acquitted by the jury, this restitution is precluded by the specific[-]causation requirement [of Florida’s restitution statute.]” Id. The Florida statute in question states:

In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode....

Smith asserts that, since Mississippi’s restitution statute states that criminal activities “which have resulted in pecuniary damages” are subject to restitution, there is an implicit specific-causation requirement. Miss.Code Ann. § 99-37-3 (Rev. 2007).

¶ 13. The State cites to State v. Goeller, 276 Kan. 578, 77 P.3d 1272 (2003), which distinguishes Henninger on the basis that a defendant who has not been acquitted of a DUI-related charge must still pay restitution. In Goeller, the Kansas appellate court stated:

There can be no serious question that [the victim] suffered injuries because of the collision with Goeller’s car. Although Goeller’s DUI no[-]contest plea may not have been synonymous with an admission that Goeller was driving recklessly at the time of the accident, the evidence underlying the DUI plea provided circumstantial proof of the causal connection needed to satisfy the restitution statute. The blood sample provided by Goeller demonstrated the presence of multiple drugs in his system, and witnesses saw his car cross the center line several times before the accident. We hold that the district court’s factual finding of a causal link between Goeller’s unlawful conduct and [the victim’s] injuries was supported by substantial competent evidence that a reasonable person might accept as sufficient to support the ultimate conclusion.

Id. at 1275. Thus, the State argues that the circumstantial proof presented of the causal connection between Smith’s driving under the influence and the pecuniary damages was sufficient to satisfy the requirements of the restitution statute. We agree.

¶ 14. The evidence in the record is sufficient to support the jury’s verdict that Smith was driving under the influence of alcohol. Not only did witness testimony reveal that Smith had been drinking before the accident occurred and that she was visibly intoxicated at the scene of the crime, her BAC was above the legal limit over two hours after the accident occurred. Additionally, Smith does not contest the guilty verdict with regard to the DUI charge. She only contests the award of restitution, which included the costs of damage to Cowart’s vehicle and medical bills sustained by Clause and Brodrick.

¶ 15. Contrary to Florida’s restitution statute discussed in Henninger, Mississippi’s restitution statute does not contain a specific-causation requirement that a causal connection be shown between the defendant’s criminal conduct and the damages incurred. See Henninger, 667 So.2d at 489; Miss.Code Ann. § 99-37-3. Nonetheless, as in Goeller, it would appear that the evidence underlying Smith’s DUI guilty verdict and the evidence of injuries presented at the sentencing hearing provide sufficient proof of a causal connection between Smith’s criminal actions and the victims’ injuries. The restitution ordered was directly related to damages the victims sustained as a result of the accident— an accident clearly caused by Smith, who was illegally driving under the influence of alcohol. As such, we find that the circuit court’s order of restitution did not violate Mississippi’s restitution statute. This issue is without merit.

¶ 16. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF THIRD OFFENSE OF OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS AND SIX MONTHS TO SERVE AND TWO YEARS AND SIX MONTHS OF POST-RELEASE SUPERVISION, AND UPON RELEASE TO COMPLETE THE FOURTEENTH CIRCUIT COURT DISTRICT’S DUI DRUG COURT PROGRAM, AND TO PAY A $2,000 FINE AND RESTITUTION OF $1,650 TO ERIC COWART, $745.50 TO BRO-DRICK SMITH, AND FULL RESTITUTION TO KRISTINA ANN CLAUSE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: CARLTON, J„

text:
    Anthony LAWS, Appellant v. LOUISVILLE LADDER, INC., Appellee.
    No. 2013-CA-00427-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2014.

      Richard Paul Williams III, Courtney McReynolds Williams, Jackson, attorneys for appellant.
    David C. Dunbar, Eric Reynolds Price, Ridgeland, James R. Silverstein, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J„

for the Court:

¶ 1. This appeal stems from the Tallahatchie County Circuit Court’s order striking Anthony Laws’s expert witness and then later granting Louisville Ladder Inc.’s motion for summary judgment. Laws appeals, arguing that the trial court abused its discretion in awarding Mississippi Rule of Civil Procedure 37 sanctions by arbitrarily striking Laws’s expert witness, and that the trial court further erred in granting the motion to dismiss based on the exclusion of Laws’s expert witness.

¶ 2. Upon appellate review, we find that the trial court indeed abused its discretion by imposing discovery sanctions upon Laws arbitrarily, since the record reflects Laws and his expert witness complied with the subpoena duces tecum actually served by Louisville Ladder. Upon finding that the trial court abused its discretion and erred in the arbitrary imposition of sanctions by the exclusion of Laws’s expert witness, we reverse the trial court’s grant of summary judgment and remand for proceedings consistent with this opinion.

FACTS

¶ 3. On April 7, 2010, Laws filed suit against Louisville Ladder in the Tallahat-chie Circuit Court seeking damages pursuant to the Mississippi Products Liability Act, Mississippi Code Annotated section 11-1-63 (Supp.2013), for personal injuries that he sustained when he fell off of a six-foot stepladder manufactured by Louisville Ladder. Laws alleged that the design of the ladder exhibited defects, and the bottom step of the ladder split, causing both the ladder and Laws to fall.

¶ 4. On June 12, 2012, the trial court entered an amended scheduling order providing deadlines for completing discovery and filing motions and setting the case for trial. In August 2012, Laws’s attorney agreed to produce his liability expert and witness, Dr. Richard Forbes, for a deposition in Jackson, Mississippi. On August 20, 2012, Louisville Ladder mailed and faxed a subpoena duces tecum to Laws’s counsel, scheduling the deposition on September 27, 2012. The subpoena duces te-cum served to Dr. Forbes summoned Dr. Forbes to:

[Pjroduce within fourteen (14) days from the date of receipt of this subpoena duces tecum to David C. Dunbar ... either by hand-delivery or first class mail certified copies of the following documents or other tangible things held by you:
1.Your entire file on [Laws], including, but not limited to, any notes, expert reports, measurements, photographs, video films, testing, calculations^] or other documents prepared in connection with this litigation;
2. Any and all letters issued or received in connection with the Laws case;
3. Any and all bills issued in connection with the Laws case;
4. Any and all timesheets or time records maintained in the Laws case;
5. A copy of your Curriculum Vitae and [l]ist of Rule 26 cases; and
6. Any and all documents or materials reviewed in formulating your expert opinions.

The record shows that Louisville Ladder sent Dr. Forbes a subpoena duces tecum and a notice for that deposition, but failed to subpoena Dr. Forbes himself to appear and testify at the deposition.

¶ 5. Meanwhile, Laws’s counsel then requested to depose Louisville Ladder’s Mississippi Rule of Civil Procedure 30(b)(6) corporate representative, stating that Dr. Forbes would not appear for his scheduled deposition on September 27, 2012, because Laws’s counsel had not yet had the opportunity to depose Louisville Ladder’s corporate representative. Louisville Ladder objected, explaining that per the scheduling order, all discovery had to be completed by September 28, 2012, and the deadline for filing dispositive motions was October 30, 2012. Laws claims that Dr. Forbes needed to review the corporate-representative deposition, as well as other production documentation, prior to testifying in his deposition. Laws argues that Louisville Ladder failed to respond until September 13, 2012, to Laws’s assertions regarding production documents and scheduling the corporate representative deposition. The dates provided to Laws by Louisville Ladder for deposing its corporate-representative were dates after September 27, 2012, the date set for Dr. Forbes’s deposition.

¶ 6. Laws claims that on September 20, 2012, the parties agreed to extend the discovery deadline to November 15, 2012, and the record contains emails from both parties reflecting such an agreement. However, Louisville Ladder states that while the parties discussed a discovery continuance, no agreement was ever reached. The pretrial discovery schedule and order provided that the deadlines could be amended by the parties or by the court. A review of the record reflects the following text in an email from counsel for Louisville Ladder to counsel for Laws: “I suggest that we extend discovery to November] 15, 2012. However, the motion deadline is still [October 30, 2012], which only the court can extend. Thus, my motions need to be filed by that date.”

¶ 7. However, on October 1, 2012, Louisville Ladder filed a motion to dismiss, or alternatively, for sanctions, arguing the following: that Laws refused to produce his expert for a deposition on September 27, 2012, in a timely manner; that Laws and Dr. Forbes ignored the notice of deposition and subpoena duces tecum issued to Dr. Forbes in connection with the notice of deposition scheduled for September 27, 2012; that Laws failed to file a motion to quash the deposition and subpoena as required by Mississippi Rules of Civil Procedure 26(d) and 45(d); and that no rules or caselaw support Laws’s assertion that a defendant may cancel a scheduled expert’s deposition so that the plaintiff can depose a fact witness. Louisville Ladder asserted that Laws’s actions severely prejudiced its ability to prepare its defense.

¶ 8. On December 3, 2012, the trial court denied Louisville Ladder’s motion to dismiss, but as a sanction under Rule 37(a) for failing to produce Dr. Forbes at the September 27, 2012 deposition, the trial court entered an order striking Laws’s expert, Dr. Forbes. The original discovery deadline of September 28, 2012, expired, and upon the trial court’s exclusion of his expert, Dr. Forbes, Laws then possessed no expert liability witness for trial. Laws filed a petition for an interlocutory appeal and a motion to stay the proceedings in the Mississippi Supreme Court, requesting that the supreme court reverse the trial court’s order excluding Dr. Forbes and continue or stay the trial date. On January 16, 2013, the supreme court entered an order denying the petition and motion.

¶ 9. On January 18, 2013, Laws filed a motion to continue in the trial court, seeking additional time to retain a new expert. On February 7, 2013, the trial court entered an order denying Laws’s motion to continue the trial date. The trial court also granted Louisville Ladder’s motion for summary judgment, explaining that Laws “cannot prove that the subject ladder was defective without an expert liability witness.”

¶ 10. Laws now appeals.

STANDARD OF REVIEW

¶ 11. The trial court possesses considerable discretion in the imposition of sanctions. Cunningham, v. Mitchell, 549 So.2d 955, 958 (Miss.1989). A trial court also possesses considerable discretion when ruling on discovery matters. Douglas v. Burley, 134 So.3d 692, 697 (¶ 13) (Miss.2012). This Court reviews a trial judge’s decision to impose sanctions for discovery abuses under an abuse-of-discretion standard. Ladner v. Ladner, 436 So.2d 1366,1371 (Miss.1983). The decision will be affirmed “unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon [the] weighing of relevant factors.” Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990) (citation omitted). The decision to grant or deny a continuance is left to the sound discretion of the chancellor, “and will not be reversed unless there is shown a manifest abuse of discretion.” Rives v. Rives, 416 So.2d 653, 656 (Miss.1982).

¶ 12. When reviewing the grant of summary judgment, this Court utilizes a de novo standard of review. Webb v. Imperial Palace of Miss., LLC, 76 So.3d 759, 759-60 (¶ 3) (Miss.Ct.App.2011) (citing Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998)). Summary judgment must be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at 760 (¶ 3) (quoting M.R.C.P. 56(c)). “This Court will consider all of the evidence before the [trial] court in the light most favorable to the non-moving party.” Id. (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995)).

DISCUSSION

I. Rule 37 Sanctions

¶ 13. Laws argues that the trial court erred in awarding Rule 37 sanctions. Laws asserts that he violated no court order or any discovery rules. Laws claims that the trial court awarded the sanctions based on misrepresentations made by Louisville Ladder.

¶ 14. As stated, on appeal, we review a trial court’s imposition of sanctions for discovery violations under an abuse-of-diseretion standard. Ladner, 436 So.2d at 1371. In assessing the trial court’s exercise of discretion, we first inquire whether the trial court applied the correct legal standard.

¶ 15. In the present case, the trial court granted Louisville Ladder’s motion to dismiss in part, and denied it in part. The trial court granted Louisville Ladder’s motion requesting Rule 37 sanctions and struck Laws’s expert, Dr. Forbes. However, the trial court initially declined to grant the motion to dismiss the case, explaining that dismissal “is too extreme of a sanction in this matter.” The trial court later dismissed the case due to Laws’s lack of an expert witness to establish liability. However, Laws’s argument on appeal addresses not only the severity of the sanction, but also attacks the factual basis of the sanction.

¶ 16. We acknowledge precedent establishing the exclusion of evidence and dismissal as harsh sanctions not to be imposed lightly or without a sufficient factual basis showing a clear violation and willfulness. See Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1041^2 (¶¶ 12-13) (Miss.2003); see also Ross v. State, 954 So.2d 968, 1000 (¶65) (Miss.2007). As stated, Laws claims that he never violated a court order nor violated any discovery rule. With respect to Laws’s claim, the record reflects that Laws’s expert, Dr. Forbes, provided the documents and record requested by the subpoena duces te-cum issued by Louisville Ladder. In reviewing Laws’s claim of compliance with the subpoena duces tecum at issue, we acknowledge that Dr. Forbes constituted a nonparty expert witness, and as such, his attendance at the deposition to appear and testify must be obtained by proper subpoena. See M.R.C.P. 45; see generally III. Cent. R.R. Co. v. Winters, 815 So.2d 1168, 1177 (¶ 35) (Miss.2002) (overruled on other grounds) (stating that except for circumstances where an employee has been designated by the corporation under Rule 30(b)(6) or qualifies as an officer, director, or managing agent of a party corporation, the employee is treated as any other witness, and his presence must be obtained by subpoena).

¶ 17. Laws also asserts that he made Dr. Forbes personally available for a deposition within the extended discovery deadline, and Laws states that he was not to blame for the deposition-scheduling conflict. Laws argues that Louisville Ladder raised numerous false claims to the trial court, and the trial court erroneously based its findings on these misrepresentations, including the following: that Louisville Ladder issued a subpoena to depose Dr. Forbes, when it had not; that Laws failed to produce documents in compliance with Dr. Forbes’s subpoena duces tecum; that the parties never agreed to extend the discovery deadline; and that the Mississippi Supreme Court had affirmed the trial judge’s decision in awarding sanctions on interlocutory appeal.

¶ 18. At the core of his argument on appeal, Laws states that Louisville Ladder failed to properly subpoena Dr. Forbes to personally appear and to testify at the deposition at issue. Laws provides that Louisville Ladder filed a subpoena duces tecum, which only required Dr. Forbes to produce documents relating to Laws’s case. Laws asserts that since Louisville Ladder failed to subpoena Dr. Forbes to appear in person and testify at the deposition, then the trial court’s sanction lacked a factual basis. Laws argues that he complied with the subpoena duces tecum that Louisville Ladder served. Laws also asserts that Louisville Ladder failed to seek an order from the trial court compelling discovery, and as a result, the trial court’s award of Rule 37 sanctions was improper. See Caracci v. Int’l Paper Co., 699 So.2d 546, 557 (Miss.1997).

¶ 19. Without addressing the subpoena actually served, Louisville Ladder refutes Laws’s assertion that a court order compelling discovery was needed before seeking sanctions against Laws, citing Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765, 767 (Miss.1984), where the supreme court held that “[u]nder the inherent power of courts to protect the integrity of their process, courts may impose sanctions without a court order.” However, we acknowledge that the imposition of sanctions for a discovery violation requires some noncompliance or failure to cooperate in discovery. See generally Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997). The flaw in Louisville Ladder’s argument and the sanction by the trial court pertains to the lack of a subpoena requiring Dr. Forbes to personally appear and testify at the deposition in dispute. The trial court erred by imposing sanctions upon Laws for failing to produce a nonparty witness where no subpoena was issued for this witness to appear and testify. Stated otherwise, Louisville Ladder failed to actually subpoena this nonparty witness to personally appear and testify at the deposition. See M.R.C.P. 45.

¶ 20. A review of the record reflects that Louisville Ladder served a subpoena duces tecum upon Laws, and not a subpoena ad testificandum requiring Dr. Forbes’s personal presence at a deposition or hearing. The comments to Mississippi Rule of Civil Procedure 45 explain that “[sjubpoe-nas are of two types: a subpoena ad testi-ficandum compels the attendance of a witness; a subpoena duces tecum compels the production of documents and things.” See also Miss.Code Ann. § 11-1-51 (Rev. 2002); 9 Wright & Miller, Federal Practice and Procedure, Civil § 2451 (1971). Rule 45(a)(1) provides that a subpoena “shall command each person to whom it is directed to attend and give testimony, or to produce and permit inspection” of evidence, and further provides that the “command to produce or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately.” As previously acknowledged, precedent reflects that the attendance of a nonparty expert witness must be obtained by proper subpoena. Winters, 815 So.2d at 1177 (¶35). The trial court herein erred by imposing sanctions, since the record reflects that Laws complied, as required by Rule 45 and Mississippi Code Annotated section 11-1-51, with the subpoena duces tecum that Louisville Ladder actually served in this case. Compare SLM v. Clinton Pub. Sch. Dist., 677 So.2d 737, 740 (Miss.1996).

¶21. The imposition of sanctions for a discovery violation requires a determination of whether a failure to comply or lack of cooperation exists. See Hapgood v. Biloxi Reg’l Med. Ctr., 540 So.2d 630, 633 (Miss.1989) (reversed sanction since trial court ordered appellant to produce original diaries but appellant no longer possessed originals, just copies); Harvey v. Stone Cnty. Sch. Dist., 862 So.2d 545, 549 (¶ 10) (Miss.Ct.App.2003) (This Court reversed a dismissal based on discovery violations because the record failed to show that the pro se appellant repeatedly disregarded procedural directives of the court.). In so doing, we recognize precedent requires a showing that the failure to comply or cooperate was willful or intentional. City of Jackson v. Rhaly, 95 So.3d 602, 608-09 (¶ 13) (Miss.2012); Harvey, 862 So.2d at 549 (¶ 10). In this case, the emails in the record show that the parties displayed agreement to extend the discovery deadline to November 15, 2012, and that Louisville Ladder failed to avail itself of the opportunity to subpoena Dr. Forbes to appear and to testify during that time. We further acknowledge that the trial court’s “discretion is not boundless but is defined as a sound judgment which is not exercised arbitrarily, but with regard to what is right and equitable in circumstances and law, and which is directed by the reasoning conscience of the trial judge to just result.” Douglas v. Burley, 134 So.3d 692, 697 (¶ 13) (Miss.2012). Precedent reflects that there must be a clear showing of noncompliance or of lack of cooperation to support sanctions, and the record fails in this case to support such.

¶ 22. A close examination of the subpoena duces tecum in this case shows Louisville Ladder summoned Dr. Forbes to do the following:

[PJroduce within fourteen (14) days from the date of receipt of this subpoena duces tecum to David C. Dunbar ... either by hand-delivery or first class mail certified copies of the following documents or other tangible things held by you:
1. Your entire file on [Laws], including, but not limited to, any notes, expert reports, measurements, photographs, video films, testing, caleula-tions[,] or other documents prepared in connection with this litigation;
2. Any and all letters issued or received in connection with the Laws case;
3. Any and all bills issued in connection with the Laws case;
4. Any and all timesheets or time records maintained in the Laws case;
5. A copy of your Curriculum Vitae and [list of Rule 26 cases; and
6. Any and all documents or materials reviewed in formulating your expert opinions.

As explained, a subpoena duces tecum only requires the production of documents, and imposes no requirement for the witness to deliver the documents personally. The subpoena duces tecum served upon Dr. Forbes allowed for Dr. Forbes to either hand-deliver or mail the documents. The record reflects that Laws and Dr. Forbes complied with the subpoena duces tecum by providing the documents subject to that subpoena in accordance with the date and time required. Therefore, the trial court erred in finding that Laws failed to comply or cooperate in the deposition of Dr. Forbes, and thus the trial court arbitrarily imposed sanctions on Laws. See Miss. Code Ann. § 11-1-51; Philley v. Toler, 239 Miss. 347, 359, 123 So.2d 223, 227-28 (I960). As explained previously, to require the presence of Dr. Forbes at a deposition, Louisville Ladder must have obtained the presence of this nonparty witness by subpoena. See Winters, 815 So.2d at 1177 (¶ 35).

¶ 23. Additionally, the record reflects that the trial court entered an amended scheduling order on June 12, 2012, which provided that the discovery deadlines contained in the scheduling order “may be supplemented, amended, or extended by agreement of the parties or permission of the [c]ourt upon the showing of reasonable cause.” (Emphasis added). The record also contains email correspondence between the attorneys for both parties, which reflects on its face their agreement to extend the discovery deadline to November 15, 2012.

¶ 24. The record shows that Laws agreed to produce Dr. Forbes to appear and to testify at a deposition within this extended discovery deadline of November 15, 2012; however, Louisville Ladder failed to subpoena Dr. Forbes to appear and to testify at a deposition even during the extended discovery period. Louisville Ladder instead filed a motion to dismiss and for sanctions on October 1, 2012, upon expiration of the original September 28, 2012 discovery deadline. A review of the record fails to show a willful or intentional failure to cooperate with discovery by Laws.

¶ 25. With respect to the discovery scheduling order, we acknowledge that the Mississippi Supreme Court has established that upon review, prior discovery orders of the trial court remain in place. Douglas, 134 So.3d at 697 (¶ 14). To prevent confusion and potential conflict, upon remand, the trial court herein may wish to revisit its prior order allowing the parties to extend the discovery deadline upon their mutual agreement without a court order. See id.

II. Summary Judgment

¶ 26. Laws also asserts that the trial court erred in denying Laws’s motion to continue to the trial and that the trial court erred in granting Louisville Ladder’s motion for summary judgment based on the exclusion of his expert.

¶ 27. On October 29, 2012, Louisville Ladder filed a motion for summary judgment, arguing that Laws lacked the ability to prove the required elements of his products-liability claim because, among other things, Laws could not provide expert testimony to establish that the warnings on the ladder were inadequate. On February 28, 2013, the trial court granted the motion for summary judgment, stating: “The court finds that [Laws] cannot prove that the subject ladder was defective without an expert liability witness.”

¶ 28. As discussed previously, the record reflects that the trial court abused its discretion by arbitrarily imposing sanctions upon Laws for failing to produce Dr. Forbes at the September 27, 2012 deposition, since Louisville Ladder failed to require the personal presence of this non-party witness for testimony by proper subpoena. Since the trial court abused its discretion in striking Laws’s expert witness without a sufficient showing of noncooperation or noncompliance with discovery, then the trial court erred in granting summary judgment. Webb, 76 So.3d at 759-60 (¶ 3); see Hapgood, 540 So.2d at 633. Accordingly, we reverse the trial court’s order striking Laws’s expert witness and also its order granting summary judgment. We therefore remand to the trial court for further proceedings consistent with this opinion.

¶ 29. THE JUDGMENT OF THE TALLAHATCHIE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ„ CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Laws also filed suit against Davidson Ladders Inc., Discount Lumber & Hardware, and Hardware Distribution Warehouses Inc., but these parties were subsequently dismissed from this litigation.

      . This case was originally set for trial on November 4, 2011, but Louisville Ladder sought to remove the action to federal district court. The case was eventually remanded to the Tallahatchie County Circuit Court.

      . See Winters, 815 So.2d at 1177 (¶ 35); M.R.C.P. 45 & cmts.

      .The comments to Rule 45 state that "a subpoena for the attendance of a witness at the taking of a deposition is issued as of course by the clerk upon proof of service of notice to depose as provided in [Rules] 30(b) and 31(a).” The record shows that Louisville Laws sent Dr. Forbes a subpoena duces te-cum and a notice for deposition, but failed to subpoena Dr. Forbes himself to appear at the deposition.

      . See Chaplain v. Briscoe, 13 Miss. 198, 208 (1845) (witness under subpoena duces tecum is compelled to produce all documents requested in his possession); M.R.C.P. 45.

      . See also Caracci, 699 So.2d at 558-59 (exclusion of expert testimony was too harsh a discovery sanction under Rule 37(b) where the party failed to have the expert's report made under oath).

      . M.R.C.P. 45 (providing the procedures for issuance of a subpoena and duties in responding to the subpoena).

      . See Carraway v. State, 562 So.2d 1199, 1203-04 (Miss. 1990).

      . See Harvey, 862 So.2d at 549 (¶ 10).

        .See Douglas, 134 So.3d at 697 (¶ 14) (prior discovery orders of trial court remain in place upon remand absent a party's motion to extend deadlines and a subsequent order by the trial court).