author: ISHEE, J., BARNES, J.,

text:
    CITIBANK, N.A. a/k/a Citicorp Trust Bank, FSB, Appellant v. Judy STOVALL, Appellee.
    No. 2014-CA-01410-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2016.
    Reid Stephens Manley, Christopher Daniel Meyer, Jackson, attorneys for appellant.
    William Joseph Kerley, Tom P. Calhoun, III, Greenwood, Elizabeth Ann Roche, attorneys for appellee.
   ISHEE, J.,

for the Court:

¶ 1. This case arises from a complaint filed by Judy Stovall against Citibank N.A. asserting various claims regarding her residential mortgage loan and subsequent foreclosure. Citibank filed a motion to compel arbitration in the Winston County Circuit Court, and it was denied. Aggrieved, Citibank appeals. Finding no error, we affirm.

FACTS

¶ 2. On or about April 4, 2003, Stovall entered into a disclosure statement, note, and security agreement (the “note”) with Citibank’s predecessor, Citicorp Trust Bank FSB, by which she and her late husband obtained a loan for $248,494. Stovall executed the documents on behalf of herself and on behalf of her late husband through a power of attorney, because he was very ill at the time. Stovall executed a deed of trust that secured the loan on land and real property located in Louisville, Mississippi. The note contained an arbitration provision, under which Stovall agreed to arbitrate claims related to the note.

¶ 3. On April 18, 2013, Stovall filed her complaint in the circuit court against Citibank, which was the substituted trustee to the deed of trust. In her complaint, Sto-vall stated that her husband passed away in November 2006. She claimed that “thereafter, in 2010 and 2011, [she] became chronically ill and ... was unable to make complete monthly [loan] payments during [that] time.” She made numerous allegations against Citibank that are not relevant to this appeal.

¶ 4. On August 16, 2013, Stovall served Citibank with her complaint, first set of interrogatories, and first set of requests for production of documents. Citibank served its answer and affirmative defenses, which included arbitration, on September 16,2013. On September 12, 2013, Stovall’s attorney wrote an email to Citibank’s attorney in which he asked to take the depositions of two witnesses as soon as possible. In his email, he stated that both witnesses were eyewitnesses, and one was eighty-five years old and suffering from lung problems, and the other was sixty or sixty-one years old and had recently undergone heart surgery. Stovall’s attorney stated that “having had a stroke [himself] ... [he was] very cognizant of how medical conditions can quickly worsen. Given their health conditions, [he] [felt] bound in representing [his] client properly to request” the depositions be taken. Citibank agreed, and the depositions were taken on October 16,2013.

¶ 5. Citibank served its responses to Sto-vall’s written discovery and served its first set of interrogatories and first set of requests for production of documents on November 22, 2013. Stovall responded to Citibank’s discovery requests on January 24, 2014. Then, on March 12, 2014, Citibank filed a notice of Stovall’s deposition to be taken the following month; however, Citibank canceled it the day before it was scheduled. On May 1, 2014, Citibank filed its motion to compel arbitration and to dismiss. The circuit court denied Citibank’s motion, stating that Citibank had waived its right to arbitration by waiting seven and a half months before seeking to compel arbitration while actively participating in depositions and written discovery.

STANDARD OF REVIEW

¶ 6. “The right to compel arbitration is a legal question. Thus, we review the grant or denial of a motion to compel arbitration de novo.” Briovarx, LLC v. Transcript Pharmacy, Inc., 163 So.3d 311, 315 (¶ 14) (Miss.Ct.App.2015) (citing Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026, 1034 (¶20) (Miss.2010)). Mississippi follows the federal policy favoring arbitration, so this Court resolves “any doubts concerning the scope of arbitrable issues in favor of arbitration.” Id. (quoting E. Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶ 11) (Miss.2002)).

DISCUSSION

Whether the circuit court erred in denying Citibank’s motion to compel arbitration.

¶ 7. Citibank claims that the circuit court erred in denying its motion to compel arbitration. Citibank argues that its participation in this case was limited to: (1) filing its answer; (2) agreeing to Sto-vall’s request to take the testimony of the two "witnesses in poor health in order to preserve their testimony; (3) responding to Stovall’s interrogatories and requests for production of documents; and (4) serving Stovall with interrogatories and requests for production of documents.

¶ 8. The Mississippi Supreme Court has held that “arbitration can be waived where a party actively participates in a lawsuit or takes other action inconsistent with the right to arbitration.” Century 21 Maselle & Assocs. v. Smith, 965 So.2d 1031, 1036 (¶ 8) (Miss.2007) (quotation omitted). The supreme court has further stated that “[wjaiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Univ. Nursing Assocs. v. Phillips, 842 So.2d 1270, 1278 (¶ 28) (Miss.2003) (citations omitted). Specifically, “[tjaking advantage of pre-trial litigation such as answers, counterclaims, motions, requests, and discovery obviates the right to arbitration.” Cox v. Howard, Weil, Labouisse, Friedrichs Inc., 619 So.2d 908, 914 (Miss. 1993).

¶ 9. Citibank contends that the circuit court erroneously relied on the case of MS Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss.2006), in making its ruling. In Horton, the supreme court found waiver where the defendant filed an amended answer, consented to a scheduling order, engaged in written discovery, conducted the defendant’s deposition, and waited eight months after being served with the plaintiffs complaint to file a motion seeking the trial court to compel arbitration. Id. at 180 (¶¶ 41-43). The supreme court held the following:

We decline ... to set a minimum number of days which will constitute unreasonable delay in every case, but rather we defer such findings for the trial court on a case[-]by[-]case basis: We do hold however that—absent extreme and unusual circumstances—an eight[-]month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitute waiver as a matter of law.

Id. at 181 (¶ 45).

¶ 10. Citibank maintains that it merely participated in minimal pretrial activities similar to those in the case of Phillips. In that case, the supreme court found that the defendants: (1) did not propound any discovery requests to the plaintiff, (2) objected to plaintiffs discovery requests, and (3) raised arbitration in their answer and asserted the right to arbitration at a hearing for a motion to compel. Phillips, 842 So.2d at 1277 (¶ 22). We find that there was a distinct difference between the pretrial activities in which Citibank participated and those of the defendants in Phillips. Contrary to the defendants in Phillips, Citibank filed its answer, participated in the depositions of two witnesses, responded to Stovall’s written discovery requests, served Stovall with written discovery requests, and scheduled Stovall’s deposition, which was canceled the day before it was scheduled to take place.. We agree with the circuit court’s use of Horton as a factually similar case in its analysis, as opposed to Phillips.

¶ 11. We next evaluate whether Stovall suffered any prejudice. In this context, the supreme court has defined prejudice as “the inherent unfairness-in terms of delay, expense, or damage to a party’s legal position-that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.” Id. at 1278 (¶ 30). Stovall claims that she “suffered prejudice as a result of px’oviding information to ... Citibank in discovery, incurring legal expenses, and experiencing procedural delays.” We find that Stovall’s legal position falls squarely within the meaning of prejudice as defined by the supreme court in this situation.

¶ 12. Based on the foregoing, we affirm the circuit court’s order denying Citibank’s motion to compel arbitration and to dismiss.

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

LEE, C.J., IRVING, P.J., FAIR, JAMES AND WILSON, JJ., CONCUR. BARNES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND CARLTON, J.

BARNES, J.,

dissenting:

¶ 14. I respectfully dissent. In my opinion, Stovall did not carry her burden of showing she suffered any prejudice, and the trial court improperly denied Citibank’s motion to compel arbitration. The Mississippi Supreme Court has stated that “waiver of arbitration is not a favorable finding, and there is a presumption against it.” MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 179 (¶ 39) (Miss.2006) (quoting Russell v. Performance Toyota, Inc., 826 So.2d 719, 724 (¶ 16) (Miss.2002)). Arbitration can be waived where a party “substantially invokes the judicial process to the detriment or prejudice of the other party.” Id. (emphasis added) (quoting Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1278 (¶ 28) (Miss.2003)). “Prejudice refers to the inherent unfairness-in terms of delay, expense, or damage to a party’s legal position-that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate the same issue.” Phillips, 842 So.2d at 1278 (¶ 30) (citing Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 327 (6th Cir.1999)). To demonstrate prejudice, a party opposing arbitration must come forward with “more than generalized protestations.” Walker v. J.C. Bradford & Co., 938 F.2d 575, 578 (5th Cir.1991). The Mississippi Supreme Court “has found waiver of the right to compel arbitration in only a limited number of cases.” Horton, 926 So.2d at 179 (¶ 40).

¶ 15. Here, the trial court’s order makes no finding of prejudice to Stovall. And, while the majority discusses how Citibank participated in the litigation, it does not offer any explanation or analysis of how Stovall suffered prejudice by these minimal pretrial activities.

¶ 16. Citibank participated in the litigation by filing an answer (where it raised arbitration as an affirmative defense), accommodating Stovall’s request to depose two infirm witnesses in order to perpetuate their testimony, and exchanging some limited discovery. In my view, these actions do not constitute substantial participation in the litigation, nor could they possibly prejudice Stovall. The only proceedings Citibank invoked were propounding written discovery to Stovall on November 22, 2013, after Stovall served hers, and noticing Stovall’s deposition on March 12, 2014. Citibank did not actually conduct any depositions.

¶ 17. Further, Stovall offers no evidence of prejudice regarding the timing of Citibank’s motion to compel arbitration. Citibank filed its answer on September 17, 2013, and filed its motion to compel arbitration on May 1, 2014, seven and one-half months later. A delay of thirteen months in seeking arbitration has been held insufficient to constitute a waiver, but a delay of seventeen months has been found sufficient. Phillips, 842 So.2d at 1278 (¶ 27) (citing Walker, 938 F.2d at 578; Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1160-62 (5th Cir.1986)). Here, the period between initiation of litigation and the motion to compel arbitration would not be sufficient to constitute prejudicial delay for waiver analysis. The record also shows no indication of incurred legal expenses, or damage to Stovall’s legal position. If anything, Citibank’s participation in the two depositions for Stovall’s two infirm witnesses aided her legal position. Stovall offers no evidence of prejudice, and I can find none in the record.

¶18. Because Stovall provided insufficient evidence of delay, additional expense, or damage to her legal position, which would indicate prejudice, I respectfully dissent. I would reverse the trial court’s denial of Citibank’s motion to compel arbitration.

GRIFFIS, P. J., AND CARLTON, J., JOIN THIS OPINION.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Michael KIRBY and William T. Heimer, Appellants v. BANCORPSOUTH BANK, Appellee.
    No. 2014-CA-01268-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2016.
    Rehearing Denied June 21, 2016.

      Jeffrey Dale Rawlings, Jon Jerdone Mims, Madison, attorneys for appellants.
    Kevin B. Smith, attorney for appellee.
    Before IRVING, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Michael Kirby and William T. Heimer appeal from a final judgment issued by the Madison County Circuit Court that awarded BancorpSouth Bank $518,643.01 plus interest at the contract rate of five percent per annum. The circuit court found that Kirby and Heimer were liable for this amount following a foreclosure action pursuant to the terms of a guaranty Kirby and Heimer each executed. In addition, Kirby and Heimer are appealing two circuit court orders: (1) the order that was entered on August 7, 2014, denying Kirby and Heimer’s motion to strike the affidavit of a nondesignated expert; and (2) the order that was entered on December 13, 2013, denying Kirby and Heimer’s motion to dismiss for lack of prosecution. Finding no error, we affirm the orders entered by the circuit court.

FACTS

¶ 2. Kirby and Heimer were members of Mont St. Michel LLC, along with Chad Knight, who was the manager. Mont St. Michel engaged in the business of residential real-estate development in Madison County, Mississippi. Kirby and Heimer each invested $100,000 cash in the Mont St. Michel subdivision development project, in which Mont St. Michel acquired seventy acres in 2004 to be developed in two phases. BancorpSouth provided the financing necessary for the $738,187 loan, and Kirby and Heimer each executed separate unconditional and continuing guaranties ensuring the repayment of the debt. Knight began developing the subdivision and contracted with Hemphill Construction to provide the construction work.

¶ 3. The note executed by Mont St. Michel matured on February 17, 2008, and on March 10, 2008, counsel for BancorpSouth wrote a letter to Mont St. Michel informing the members that the note was fully due in the amount of $768,343.96. Mont St. Michel was unable to make its payments and deeded the Phase I portion of the property to Hemphill as payment for services rendered. A foreclosure proceeding was held on September 12, 2008, for Phase II of the development, and Bancorp-South was the high bidder. Thus, Ban-corpSouth purchased the property for $400,000. At the time of the foreclosure, the payoff balance on the note was $789,829.94. Following the foreclosure sale, there was a deficiency due in the amount of $390,931.94 plus interest.

f 4. When the note was not paid, Ban-corpSouth filed its lawsuit against Kirby and Heimer on September 19, 2008, seeking repayment. On August 24, 2012, Ban-corpSouth filed its motion for summary judgment, which was granted by the circuit court. The circuit court entered a judgment finding that Kirby and Heimer were jointly and severally liable for the amount of $464,445.74 plus attorney’s fees in the amount of $54,197.27. Aggrieved, Kirby and Heimer filed this appeal.

STANDARD OF REVIEW

¶ 5. This Court reviews the circuit court’s grant or denial of summary judgment de novo. Chase Home Fin., LLC v. Hobson, 81 So.3d 1097, 1100 (¶ 10) (Miss. 2012) (citing Waggoner v. Williamson, 8 So.3d 147, 152 (¶ 11) (Miss.2009)). The Mississippi Supreme Court has held:

Summary judgment is appropriate and shall be rendered 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. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.

Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88 (¶ 10) (Miss.2013) (internal citations omitted).

DISCUSSION

I. Fair Market Valuation

¶ 6. First, Kirby and Heimer argue that the circuit court erred in finding that they, as guarantors, waived any and all defenses as to fair market valuation, including any objection based on the fact that BancorpSouth did not obtain the value of the land it purchased in the foreclosure proceeding. Kirby and Heimer executed a guaranty, which contained the following relevant provisions:

The liability of Guarantor is primary, absolute, unconditional, continuing, complete and irrevocable, and will not be discharged except by complete and final performance of the Obligations and no act need occur to establish

Guarantor’s liability hereunder, irrespective of, but not limited to ... the absence of, delay in, or timing of any action by Bank to enforce or exhaust its remedies under or against the Obligations and/or the Collateral Security[;] ... any action to seek or enforce a judgment against Borrower or any Other Obligor(s)[;] ... any other circumstance which might, absent the unconditional and continuing nature of this Guaranty, constitute a defense of a Guarantor.

The liability of Guarantor hereunder shall not be extinguished ... until complete and final performance of all Obligations of Borrower to Bank, including the expiration of any and all applicable preference periods under United States Bankruptcy laws, during which period(s) payments on the Obligations may be required to be returned to the payor thereof, or any trustee or other representative.
Regardless of any demand from Guarantor, if any, Bank shall not be bound to seek payment from or exhaust its recourse, in whole or in part, against the Borrower, other Guarantors, if any, or any Other Obhgor(s), or upon the Collateral Security, before being entitled to payment from Guarantor hereunder.
Bank may at any time, in Bank’s sole discretion, and without the consent of, or notice to Guarantor, and without affecting Guarantor’s liability hereunder ,.. sell, exchange, release, impair, substitute, modify, adjust, or surrender any of the Collateral Security; ... take or not take any action as to any or all of the Collateral Security, apply the proceeds of any Collateral Security sale against any of the Obligations in any order or sequence, or as it deems best[.]
Guarantor expressly waives TRIAL BY JURY[.]
Guarantor ... waives any and all defenses, claims, and discharges of Borrower, or of any Other Obligor, pertaining to the Obligations or Collateral Security, except the defense of discharge by payment in full, and Guarantor will not assert, plead or enforce against Bank any defense of waiver, failure of consideration, breach of warranty, lender liability, accord and satisfaction, novation, release, res judicata, statute of frauds, statute of limitations, fraud, incapacity, minority, usury, defense based upon Collateral Security disposition, homestead exemption, valuation, stay or. moratorium law, or unen-forceability, which may be available to Borrower or any Other Obligor.
You are being asked to guarantee this debt, which are called “Obligations” in this Guaranty. This includes all future debts of the Borrower, as well. Think carefully before you sign this Guaranty. If the Borrower does not pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt if the Borrower does not pay. You may have to pay late fees or collection costs. The creditor (Bank) can collect this debt from you without first trying to collect from the Borrower. This creditor can use the same collection methods against you that can be used against the Borrower, such as suing you, garnishing your wages, etc.

¶ 7. When the note matured on February 17, 2008, and had not been paid, Kirby and Heimer became liable for the unpaid balance. BancorpSouth sent a letter to the members of Mont St. Michel dated March 10, 2008, which informed them that the balance of $768,343.96 was fully due and payable immediately.

¶8. On September 12, 2008, a foreclosure proceeding was conducted on Phase II of the Mont St. Michel development. BancorpSouth was the highest bidder and purchased the property for $400,000. That amount was applied to the debt owed by Mont St. Michel on the note, which had a balance of $789,829.94. As a result, there was a deficiency on the note in the amount of $390,931.94 plus interest. Ban-corpSouth filed this lawsuit against Kirby and Heimer, as guarantors, in an effort to recover the deficiency.

¶ 9. Kirby and Heimer argue that the circuit court erred in allowing the deficiency to be computed using BancorpSouth’s bid price. Kirby and Heimer maintain that allowing a deficiency value to be solely determined by a bid price would lead to unfair practices by lenders. In addition, they cite to caselaw in an effort to support their contentions.

¶ 10. Kirby and Heimer are correct that “[s]omething more than a difference between the price paid at the foreclosure and the amount of the indebtedness must be demonstrated before the mortgagee is entitled to a deficiency judgment.” Hartman v. McInnis, 996 So.2d 704, 710-11 (¶ 21) (Miss.2007) (citation omitted). However, this case is not between a lender and a borrower. The Mississippi Supreme Court recently pointed out that “[ujnlike suits where the lender sues the primary borrower, an individual guaranty ... does not require foreclosure or fairness of price. The guarantor is immediately liable upon the borrower’s ... default.... Thus, [the guarantor] is incorrect when she claims [the lender] was required to show the foreclosure sale price was fair.” Bosarge v. LWC MS Props., LLC, 158 So.3d 1137, 1143 n. 5 (Miss.2015).

¶ 11. In addition, we look to the language of the guaranty, which explicitly states that Kirby and Heimer, as guarantors, “will not assert, plead, or enforce against Bank any defense of ... valuation ... or unenforceability,” Based on the foregoing, we find that the circuit court was correct in granting BancorpSouth’s motion for summary judgment. Kirby and Heimer have failed to prove that there is any genuine issue of material fact regarding the valuation of the property. This issue is without merit.

II. Motion to Strike

¶ 12. Next, Kirby and Heimer argue that the circuit court erroneously denied their motion to strike the affidavit of Joe W. Parker as well as their motion to strike Parker’s appraisal. Kirby and Heimer take issue with a draft appraisal of the foreclosed property that was prepared by Parker with an effective date of May 20, 2009. Parker was not ever designated by BancorpSouth as an expert witness. Bancoi’pSouth, on the other hand, claims that the circuit court did not rely upon the affidavit or the appraisal in granting summary judgment and that this argument is without merit. We agree.

¶ 13. Having reviewed the record, we see no indication that the circuit court relied on the affidavit or the appraisal in granting summary judgment. Likewise, in completing a de novo review of the circuit court’s grant of summary judgment, we looked only to the applicable caselaw and the language contained in the guaranty. We need not utilize the affidavit or the appraisal. Accordingly, this issue is without merit.

III. Failure to Timely Prosecute the Complaint

¶ 14. Finally, Heimer and Kirby argue that BancorpSouth failed to timely prosecute its complaint. They argue that nearly six years passed between the time BancorpSouth foreclosed on the property and the time it filed its amended motion for summary judgment on June 4, 2014. BancorpSouth, on the other hand, states that it did not take part in any dilatory or contumacious conduct. Instead, Bancorp-South claims that it spent a majority of the litigation defending itself against the counterclaim filed by Heimer, Knight, and Mont St. Michel, “which required extensive discovery to defeat.”

¶ 15. Mississippi Rule of CM Procedure 41(b) allows a defendant to file a motion to dismiss any claim against him when the plaintiff fails to prosecute. “The purpose of this rule is to provide trial judges the inherent authority to dismiss cases as a means of controlling the court’s docket and ensuring expeditious justice.” Cornelius v. Benefield, 168 So.3d 1028, 1032 (¶ 7) (Miss.Ct.App.2013) (quoting Hanson v. Disotell, 106 So.3d 345, 347 (¶ 8) (Miss.2013)). When analyzing whether a Rule 41(b) dismissal is appropriate, this Court looks for the following factors: “(1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding that lesser sanctions would not serve the interests of justice.” Id. at 1032-33 (¶ 7) (quoting Holder v. Orange Grave Med. Specialties P.A., 54 So.3d 192, 197 (¶ 18) (Miss. 2010)). “However, past Mississippi practice has tempered this harsh result by allowing dismissed cases to be reinstituted, except in extreme situations.” Hensarling v. Holly, 972 So.2d 716, 719-20 (¶ 7) (Miss. Ct.App.2007) (quoting Taylor v. GMC, 717 So.2d 747, 748 (¶ 5) (Miss.1998)). The law favors a trial of issues on the merits; therefore, a dismissal for want of prosecution is reluctantly applied. Id. at 720 (¶ 8) (citing AT & T v. Days Inn, 720 So.2d 178, 180 (¶ 12) (Miss.1998)).

¶ 16. We find that there was no record of dilatory or contumacious conduct by BancorpSouth and agree with the circuit court’s ruling. Indeed, this has been a lengthy litigation process; however, it appears all parties participated at all times. We find that this issue is without merit.

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

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


author: JAMES, J.,

text:
    Paul BROWN a/k/a Paul S. Brown, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-CP-01235-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2016.

      Paul S. Brown, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   JAMES, J.,

for the Court:

¶ 1. Paul S. Brown (pro se) appeals an order of the Circuit Court of Washington County denying his second petition for postconviction relief (PCR). The circuit court dismissed the present petition as successive. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brown was arrested on a charge of fondling. Brown subsequently made bond and was to have no contact with the victim. On April 14, 2011, officers arrested Brown at his fiancee’s home, which is where the victim resided. Brown subsequently picked up an additional charge for sexual battery on the same minor. Brown was indicted in one indictment for two counts of fondling and two counts of sexual battery. In another indictment, Brown was indicted on one count of sexual battery and one count of attempted sexual battery.

¶ 3. On May 20, 2013, in Cause No. 2011-0173-CR, Brown pled guilty to two counts of sexual battery and was sentenced to twenty-five years in the custody of the Mississippi Department of Correction (MDOC) for each count, with the sentences to run concurrently. He also pled guilty to two counts of fondling and was sentenced to five years of postrelease supervision for both counts, with the sentences to run concurrently with each other but consecutively to the first two counts of sexual battery. In Cause No. 2011-0174-CR, Brown pled guilty to one count of sexual battery and was sentenced to twenty-five years in the custody of the MDOC, with the sentence to run concurrently with the sentence in Cause No. 2011-0173-CR.

¶ 4. Brown, soon after, filed a PCR petition. The record is unclear as to when this petition was filed. The circuit court’s second order indicates that Brown, in his first petition, stated that his plea was not voluntarily given and he received ineffective assistance of counsel. The circuit court then found that Brown’s plea was freely and voluntarily given and that he received effective assistance of counsel. On May 8, 2014, Brown filed a second petition for PCR. On August 11, 2014, the circuit court dismissed Brown’s second petition because Brown had filed the previous petition that alleged the same facts. The court found that the petition was procedurally barred. Brown appeals.

STANDARD OF REVIEW

¶ 5. “When reviewing a trial court’s denial or dismissal of a PCR petition, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Purnell v. State, 126 So.3d 949, 951 (¶ 4) (Miss.Ct.App.2013).

DISCUSSION

¶ 6. Brown raises five issues on appeal. According to Brown, the circuit court erred when it dismissed his PCR petition because (1) he was denied effective assistance of counsel, (2) his plea of guilty was entered involuntarily, (3) there is newly discovered evidence sufficient to vacate his convictions, (4) the trial court lacked jurisdiction to impose the sentence, and (5) the sentence exceeds the maximum authorized by law.

I. Procedural Bar

¶7. The circuit court concluded that Brown’s petition was barred by the statutory prohibition against successive writs. We agree.

¶ 8. According to section 99-39-23(6) of the Mississippi Code Annotated (Rev.2015), the denial of a PCR petition is “a bar to second or successive [petition].” There are, however, exceptions to this bar. Dobbs v. State, 18 So.3d 295, 298 (¶ 10) (Miss.Ct.App.2009). Under Mississippi’s Uniform Post-Conviction Collateral Relief Act (UPCCRA), Brown is excepted from this bar if he can demonstrate:

[H]e has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.

Miss.Code. Ann. § 99-39-23(6). “Errors affecting fundamental constitutional rights are [also] excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). Brown bears the burden of proving that he satisfied at least one exception, and he also must show that, even if the exception applied, “the circuit court had not previously entered a decision on the merits of those claims.” Dobbs, 18 So.3d at 298 (¶10). Brown also has a “duty to make more than mere assertions and should set forth reasons for his arguments and cite authorities in their support.” White v. State, 818 So.2d 369, 371 (¶ 7) (Miss.Ct.App.2002).

¶ 9. While Brown did point to an exception listed in section 99-39-23(6), he provides no support for the exception and he, in fact, did not identify the newly discovered evidence. Merely claiming to have newly discovered evidence is not sufficient and does not satisfy this statutory exception.

¶ 10. Likewise, Brown provides no support for his various claims that his fundamental constitutional rights were violated. Brown has failed to make any meaningful arguments or cite relevant authority in addressing these claims. Brown has presented no evidence, beyond his mere assertions, to support his ineffective-assistance-of-counsel and involuntary-plea claims. Brown does point to two letters from his attorney as evidence. Both letters, however, in essence explain the attorney’s reasons for advising that Brown accept the plea deal. The letters do not in any way support Brown’s assertions that counsel was ineffective. Furthermore, Brown does not explain how the submitted evidence supports his assertions. Therefore, there is no reason why the successive-writ bar should not apply. It follows that we find no merit to Brown’s claims that the circuit court erred when it found that his PCR petition was procedurally barred.

II. Additional Bar

¶ 11. Additionally, this Court deems it important to note that another bar exists to Brown’s request for postcon-viction relief. Section 99-39-9(2) of the Mississippi Code Annotated (Rev.2015) clearly limits a PCR petition “to the assertion of a claim for relief against one (1) judgment only.” This section requires the petitioner to file a separate PCR petition for each cause number or conviction, even when multiple convictions were imposed in the same plea hearing and sentencing order. Mosley v. State, 150 So.3d 127, 130 (¶ 7) (Miss.Ct.App.2014). Brown collaterally attacked two judgments and a total of five counts in a single petition. Thus, it would have been proper for the circuit court to dismiss Brown’s petition on that basis alone.

CONCLUSION

¶ 12. We affirm the circuit court’s dismissal of Brown’s second PCR petition on the basis that it is procedurally barred.

¶ 13. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR.


author: FAIR, J.,

text:
    Carl Lee JORDAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-00489-COA.
    Court of Appeals of Mississippi.
    May 24, 2016.
    Rehearing Denied Nov. 1, 2016.
    Certiorari Denied March 2, 2017.

      Michael W. Crosby, Gulfport, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Carl Jordan shot David Carter during an argument. According to Jordan, he did this because he believed Carter was about to shoot him and his fiancée, Tanya, who was Carter’s (recently divorced) ex-wife. At trial, Jordan proffered Tanya’s testimony regarding a long history of abuse and threats by Carter, which Jordan was aware of at the time of the shooting. The trial court found that the evidence was too remote in time because it had largely occurred prior to the separation, about two years before the shooting. We conclude that this was error and that Jordan did not receive a fair trial as a result. We reverse and remand for a new trial.

FACTS

¶ 2. The shooting incident occurred on December 10, 2011, a day Carter had visitation with his three children with Tanya, his ex-wife. The two had divorced several months prior, but they had been separated for several years at this point. Carter took the children to the home of his girlfriend,-where, later that day, he encountered Tanya outside the house. According to Carter, Tanya was upset because he had taken their children to his girlfriend’s house. She demanded that he hand over the children, but he refused, and she reached into her purse and put her hand on a pistol. Carter asked whether Tanya was going to shoot him, and smiled in a way that he described as intended to diffuse the situation. He again asked her to leave, and she left.

¶ 3. That night, Carter went out to his truck to get some things for the children, and he saw Tanya and Jordan, who was her boyfriend (or fiancé, depending on the testimony), coming down the sidewalk, apparently on the opposite side of the street. Tanya and Jordan appeared to be intoxicated, and they approached Carter and demanded that he return the children. Carter refused and asked them to leave. He tried to talk to Tanya while Jordan aggressively tried to intercede. At some point, Tanya began laughing, and she drew the pistol from her purse and handed it to Jordan. Jordan then fired on Carter, as Tanya yelled “no!” Carter turned to run when Jordan pointed the gun at him, but he was hit in the buttocks, which caused him to fall. He then got up and ran, and Jordan pursued and fired several more shots. The shots missed until Carter was rounding the corner of a house, where he was struck in the buttocks a second time. Carter made it into safety at the house of a neighbor who was watching the altercation. The neighbor testified at trial and largely confirmed Carter’s account.

¶4. Jordan and Tanya described the incident differently. According to them, they were in the neighborhood to help Tanya’s aunt repair a water heater. When Carter saw them outside his girlfriend’s house, he became very angry and came outside and began threatening to kill them. Carter was conspicuously carrying a pistol in his waistband, and when he reached for it, Jordan took Tanya’s pistol from her purse. Carter began “fumbling” with his gun, apparently attempting to prepare it to fire. This prompted Jordan to fire several “warning shots” to dissuade Carter, but they were not effective. When Carter started to point his gun at Jordan, Jordan shot him twice, and Carter fled. Jordan testified that he aimed low in an effort to avoid killing Carter. When Carter ran, Jordan followed briefly to ensure that he was no longer a threat, but he did not continue firing. Jordan then left the scene at Tanya’s suggestion, to avoid a confrontation with Carter’s brother, who Tanya warned was nearby.

¶ 5. Jordan was tried and convicted of aggravated assault. He was sentenced to fifteen years’ imprisonment for the underlying offense and an additional five years as an enhancement for the use of a firearm.

DISCUSSION

¶ 6. Jordan contends that the trial court erred in refusing to allow Tanya to testify about the threats, physical abuse, and intimidation she suffered at Carter’s hands during their marriage, separation, and divorce. Jordan proffered Tanya’s testimony that, among other things, Carter had held knives and screwdrivers to her neck and choked her. He boasted he was not afraid of going to prison because he had already been there. Carter had been violent with his coworkers, leading to him being required to attend therapy—where, with Tanya present, he admitted he had tried to kill her. He also admitted he had access to weapons.

¶7. Tanya testified that Jordan was aware of these incidents and that they had escalated during the separation and immediately following the divorce. During the separation, Carter would come outside her door “all time of the night” and had tried to get inside her house. He had come to her job and threatened her, leading to her coworkers locking her in a bathroom. Carter was angry about Tanya’s relationship with Jordan and had told one of their children he intended to murder Tanya and Jordan. Tanya knew Carter to act on his threats when he was able to do so.

¶8. Tanya also testified that Carter and his brother were members of a street gang, where Carter was a “kingpin.” Members of Carter’s gang were sometimes with him when he threatened or intimidated Tanya or Jordan, and Tanya had told Jordan to leave the scene of the shooting because she expected the gang to retaliate against him.

¶9. The prosecution objected to this testimony on two separate bases. Initially, the prosecutor argued that the testimony had not been disclosed in a timely fashion—that it had been revealed by email at approximately 4 p.m. the day before the trial. The defense attorney responded that the gist of the testimony had been known by the prosecution and that the emails had been sent out of an abundance of caution in response to the prosecution’s stated intent to move to suppress the testimony. The trial judge agreed that any ruling would be premature until after the prosecutor met with Tanya pursuant to the procedure outlined in Rule 9.04 of the Uniform Rules of Circuit and County Court Practice. After meeting with Tanya, the prosecutor apparently withdrew the motion, as the issue was never revisited on the record. Ultimately, the testimony was excluded on the basis that it was inadmissible character evidence, more prejudicial than probative, or too remote from the shooting incident to be relevant.

¶10. Yet, on appeal, the State seems to contend that the trial judge ruled the testimony inadmissible because of the alleged discovery violation. This is simply not the case, and it would be impossible for an appellate court to resolve the sharply conflicting accounts of the prosecutor and defense attorney to find a discovery violation when the trial judge did not. “Exclusion of evidence is a radical sanction that ought be reserved for cases in which the defendant participates significantly in some deliberate, cynical scheme to gain a substantial tactical advantage.” Myers v. State, 145 So.3d 1143, 1149 (¶ 15) (Miss. 2014) (citation and quotation marks omitted).

¶ 11. Otherwise, the State offers no response to the issue other than the naked assertions, in its statement of the issue and the summary of its argument, that the trial court was correct in finding the testimony too remote. The State does not address the remoteness claim whatsoever in the argument section of its brief. Mississippi Rule of Appellate Procedure 28(c) requires that the brief of the appel-lee, like the brief of the appellant, contain an argument in support of its contentions, and that argument must be supported by citations to authority and to the record. See M.R.A.P. 28(a)(6). “An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant.” Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (citation and quotation marks omitted). The same rule applies where the appellee files a brief, but fails to address an issue. See In re Estate of Estes, 111 So.3d 1223, 1231 (¶ 38) (Miss.Ct.App.2012).

¶ 12. “ [Automatic reversal is not required if this Court can say with confidence that the case should be affirmed.” Chatman, 761 So.2d at 854 (¶ 9). But we are “not obligated to search the record on the appellee’s behalf in order to counter or subvert the appellant’s argument.” Estes, 111 So.3d at 1231 (¶ 38).

¶ 13, After reviewing the record, we are far from being able to say with confidence that the case should be affirmed. Mississippi Rule of Evidence 404(a)(2) specifically provides an exception to the general rule against character evidence in self-defense cases:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor[.]

The comment adds the following:

The fact that a “bad” man rather than a “good” man was murdered or beaten is inconsequential. Spivey v. State, 58 Miss. 858 (1881). Under specific circumstances, however, the character of a victim may be relevant. This would most likely arise in instances where the defendant claims that the victim was the initial aggressor and that the defendant’s actions were in the nature of self-defense.

“[I]t has long been the rule in this State that when the question of who was the aggressor in either a homicide or assault with a deadly weapon prosecution, proof of the victim’s bad reputation for violence or threats that he has made against the defendant is competent.” McDonald v. State, 538 So.2d 778, 779 (Miss.1989) (listing authorities).

¶ 14. At trial, the trial judge seems to have held that specific acts evidencing the victim’s character were not admissible for that purpose. It is true that character evidence ordinarily may be offered only in the form of testimony as to reputation or opinion, with specific instances of conduct being limited to cross-examination. M.R.E. 405. However, Rule 405(b) allows proof of specific instances of conduct to be directly admitted “[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense.” Our supreme court has held that a character trait of “violence” of the victim is an essential element of self-defense, and that specific instances of conduct of the victim are admissible as direct proof of the victim’s character. Jackson v. State, 784 So.2d 180, 184-85 (¶ 23) (Miss. 2001) (citing Newsom v. State, 629 So.2d 611, 613-14 (Miss.1993)); see also Green v. State, 614 So.2d 926, 934-35 (Miss.1993); Heidel v. State, 587 So.2d 835, 845 (Miss. 1991).

¶ 15. Also, under pre-rules Mississippi caselaw, there was a requirement that the defendant show an “overt act by the victim that could be construed as aggression” before evidence of the victim’s character would be at issue, but the supreme court has recently suggested that the requirement has been abrogated by the adoption of the Rules of Evidence, and that the concerns underlying the requirement should now be addressed to the Rules, specifically Rules 401 and 404. See Richardson v. State, 147 So.3d 838, 842-43 (¶¶ 18-19) (Miss.2014).

¶ 16. As to remoteness, the trial judge seems to have made that finding based on his view that the evidence was admissible, if at all, only under Rule 404(b). A finding that some of the incidents were too remote for non-character purposes under Rule 404(b) does not equate to a finding that the incidents were too remote to evidence Carter’s character under Rule 405.

¶ 17. That being said, we are also not convinced that the trial court was correct in ruling the incidents inadmissible under Rule 404(b). Evidence of prior violent acts of the victim, when known to the defendant, are also relevant and admissible under Rule 404(b) to show the defendant’s state of mind at the time of the incident and the reasonableness of his use of force. Richardson, 147 So.3d at 842 (¶ 16). The same is true of threats made by the victim, when known to the defendant. McDonald, 538 So.2d at 779. Even though we recognize that the trial judge has considerable discretion under Rule 404 in deciding whether proffered evidence is too remote; the fact that the prior incidents were linked with more contemporaneous ones and formed part of a continuing course of conduct weighs in favor of admission. See May v. State, 524 So.2d 957, 965 (Miss. 1988) (noting that remoteness under the Rules of Evidence is a Rule 403 question, and that Rule 401 defines relevant evidence very broadly).

¶ 18. Although we find error in the trial court’s refusal to allow this evidence, a ruling admitting or excluding evidence cannot amount to reversible error unless it affects a substantial right of a party. M.R.E. 103. The refusal of evidence of the character of the victim affects the defendant’s right to a fair trial; and thus reversal is required unless “on the whole record, the error was harmless beyond a reasonable doubt.” Newsom v. State, 629 So.2d 611, 614 (Miss.1993) (citation omitted). Exclusion of evidence of the victim’s character is harmless where it was established through other evidence that was admitted. See id.; see also Swindle v. State, 755 So.2d 1158, 1170-74 (¶¶ 41-45) (Miss.Ct.App.1999).

¶ 19. Here, the jury was permitted to hear very little of the substance of the proffered testimony. Given that, and that the evidence was sharply conflicting, essentially amounting to a swearing match between Carter and his neighbor and Jordan and Tanya, we cannot say the error was harmless.

CONCLUSION

¶ 20. Given the State’s failure to brief the character-evidence issue on appeal, we are to reverse unless we “can say with confidence that the case should be affirmed.” Chatman, 761 So.2d at 854 (¶ 9). Under the authorities we have previously discussed, that is clearly not the case, and so we reverse Jordan’s conviction and remand for a new trial.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, 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, JAMES, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: WILSON, J.,

text:
    Vince HARDAWAY, Appellant v. HOWARD INDUSTRIES, INC. and Corvel Enterprise Comp. Inc. f/k/a Safety Risk Services, Appellees. Tommie McCray, Appellant v. Howard Industries, Inc., Appellee.
    Nos. 2014-CA-01790-COA, 2014-CA-01792-COA.
    Court of Appeals of Mississippi.
    May 24, 2016.
    Rehearing Denied Oct. 25, 2016.
    Certiorari Denied Feb. 28, 2017.

      Jonathan B. Fairbank, attorney for appellant.
    Richard Lewis Yoder Jr., Richard T. Lawrence, Jackson, Richard L. Yoder, Laurel, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and WILSON, JJ.
   WILSON, J.,

for the Court:

¶ 1. A workers’ compensation claimant cannot maintain an independent action for bad faith denial of benefits until the underlying claim for the benefits is final. Vince Hardaway and Tommie McCray filed separate lawsuits in the Jones County Circuit Court against their employer, Howard Industries (Howard), alleging bad faith refusal to investigate and pay their workers’ compensation claims for temporary partial disability (TPD). Hardaway’s lawsuit also named CorVel Enterprise Company (CorVel), Howard’s workers’ compensation claims administrator, as a defendant. Because Hardaway’s and McCray’s underlying claims for TPD benefits were not final when they filed suit, we affirm the circuit court’s dismissal of the cases. However, we do so on grounds different from the circuit court, and we reverse and render the judgments as dismissals without prejudice.

FACTS AND PROCEDURAL HISTORY

I. Vince Hardaway

¶ 2. On July 9, 2009, Hardaway developed bilateral carpal tunnel syndrome while an employee of Howard. Thereafter, Hardaway worked “intermittently” at Howard under certain medical limitations and restrictions. These limitations prevented him from working the same number of hours as prior to his injury. Harda-way claimed that this reduction in hours worked entitled him to TPD benefits under Mississippi Code Annotated section 71-3-21 (Rev.2015).

¶ 3. On January 18, 2011, Hardaway filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission), and on February 7, 2011, he filed a motion to compel TPD benefit payments in the underlying case. On March 4, 2011, Howard paid Hardaway $4,782.33 for his alleged TPD benefits, but Howard and Hardaway did not settle his claim at that time.

¶4. On February 12, 2014, Hardaway filed a complaint against Howard in the Jones County Circuit Court. Hardaway alleged that Howard had acted in bad faith by refusing to investigate or pay his claim for TPD benefits. Hardaway also named Howard’s workers’ compensation claims administrator, Corvel, as a defendant.

¶5. Hardaway’s underlying claim for TPD benefits had not been finally adjudicated when he filed suit. Although the administrative judge ruled in favor of Hardaway in July 2013, Howard filed a petition for review by the Commission. In April 2014, the Commission affirmed the administrative judge’s determination that Hardaway suffered a compensable injury; however, the Commission amended the administrative judge’s calculation of TPD benefits. Howard then appealed the Commission’s ruling. On September 15, 2015, this Court issued an opinion affirming the Commission. Howard Indus. Inc. v. Hardaway, 191 So.3d 1257 (Miss.Ct.App.2015). We denied Howard’s motion for rehearing on February 16, 2016, and on May 19, 2016, the Mississippi Supreme Court denied Howard’s petition for a writ of certiorari.

II. Tommie McCray

¶ 6. In June 2009, McCray injured her left wrist while employed at Howard. Around July 2010, McCray developed carpal tunnel syndrome in her right wrist while employed at Howard. McCray returned to work at Howard, but due to medical restrictions, she worked fewer hours than she had prior to her injuries. McCray claimed that she was entitled to TPD benefits based on her reduced earning capacity.

' ¶ 7. McCray filed two petitions to controvert with the Commission. In November 2012, Howard paid McCray $986.72 for TPD benefits arising from her June 2009 injury, and in April 2013, Howard paid McCray $2,196.51 for TPD benefits arising from her July 2010 injury. However, McCray and Howard did not settle McCray’s claims.

¶ 8. McCray alleges that Howard acted in bad faith by refusing to investigate and pay her claim for TPD benefits in a timely fashion. On February 12, 2014, McCray filed suit against Howard in the Jones County Circuit Court alleging bad faith failure to pay workers’ compensation benefits.

¶ 9. McCray’s underlying claim for TPD benefits had not been finally adjudicated when she filed suit. The administrative judge ruled in favor of McCray in December 2013, but Howard appealed that ruling—including its award of TPD benefits—to the Commission. On September 29, 2014, the Commission affirmed the administrative judge’s order as modified. McCray v. Howard Indus. Inc., MWCC Nos. 0908739-M-0443 & 1203931-M-1724, 2014 WL 5094061 (Miss.Work.Comp. Comm’n Sept. 29, 2014). No appeal was taken from the Commission’s ruling.

III. Circuit Court Proceedings

¶ 10. Howard filed essentially identical motions to dismiss Hardaway’s and McCray’s complaints. Howard argued that the circuit court lacked jurisdiction because Hardaway’s and McCray’s underlying claims for workers’ compensation benefits were not yet final. Howard also argued that the complaints failed to state a claim upon which relief could be granted. Citing the Commission’s June 8, 2012 order in a separate proceeding, In re Howard Industries Inc., Howard essentially contended that—as a matter of law—it had no duty to pay TPD benefits until ordered specifically to do so by an administrative judge.

¶ 11. CorVel’s answer to Hardaway’s complaint asserted a number of defenses, including that Hardaway’s bad faith claim was “premature” because his underlying workers’ compensation claim had not been “finally adjudicated.”

¶ 12. The circuit court granted Howard’s motions to dismiss under Rule 12(b)(6). Citing In re Howard Industries, the circuit court adopted Howard’s argument that the complaints failed to state a claim upon which relief could be granted because it was “impossible for [TPD] benefits to be late”—i.e., denied in bad faith— until there had been a hearing on the issue before an administrative judge.

¶ 13. CorVel then moved to dismiss Hardaway’s claims against it based on the reasoning of the circuit court’s order dismissing his claims against Howard. On December 2, 2014, the circuit court granted CorVel’s motion and dismissed Harda-way’s suit “with prejudice as to all defendants.”

¶ 14. Both Hardaway and McCray timely appealed, and the Supreme Court granted CorVel’s unopposed motion to consolidate the appeals.

DISCUSSION

¶ 15. Hardaway and McCray contend that the circuit court erred in dismissing their cases for failure to state a claim upon which relief could be granted. We review a circuit court’s dismissal of a claim under Rule 12(b)(6) de novo. Bevis v. Linkous Constr. Co., 856 So.2d 535, 539 (¶ 6) (Miss.Ct.App.2003). “We ... accept as true all well-pled factual allegations in the complaint,” and we will affirm only if “it appears beyond doubt that the plaintiff would be unable to prove any set of facts that would support a right of recovery.” Id.

¶ 16. Mississippi law recognizes that a claimant may have an independent cause of action in tort for bad faith refusal to pay workers’ compensation benefits when an insurance carrier or self-insured employer denies benefits without a legitimate or arguable basis, commits a willful or malicious wrong, or acts with gross and reckless disregard for the claimant’s rights. See Miss. Power & Light Co. v. Cook, 832 So.2d 474, 479 (¶¶ 8-9) (Miss. 2002); Chapman v. Coca-Cola Bottling Co., 180 So.3d 676, 681 (¶ 20) (Miss.Ct.App. 2015); Walls v. Franklin Corp. (Walls II), 177 So.3d 1156, 1163 (¶ 30) (Miss.Ct.App. 2015); AmFed Cos. v. Jordan, 34 So.3d 1177, 1183(21) (Miss.Ct.App.2009). However, the Commission has exclusive jurisdiction to determine in the first instance whether the claimant is entitled to such benefits. Therefore, the claimant must obtain a final judgment from the Commission that he is entitled to benefits—i.e., he must exhaust his administrative remedies—before instituting an action for the alleged bad faith denial of those benefits. See Harper v. Cal-Maine Foods Inc., 43 So.3d 401, 403 (¶ 5) (Miss.2010); Bullock v. AIU Ins., 995 So.2d 717, 723 (¶ 21) (Miss.2008); Walls v. Franklin Corp. (Walls I), 797 So.2d 973, 976-77 (¶¶ 16-18) (Miss.2001); Walls II, 177 So.3d at 1161-63 (¶¶ 24-33). If the Commission’s decision is appealed, the judgment is not considered final—and the claimant’s bad faith claim does not accrue—“until a final mandate has issued from the appeals process.” Harper, 43 So.3d at 403 n. 3 (discussing the commencement of the statute of limitations on a bad faith claim); see Walls II, 177 So.3d at 1163 (¶ 33) (“[T]he requirement to exhaust administrative remedies before filing a lawsuit for bad faith ensures that the proper body—the Commission—adjudicates [the underlying claim]” and “also marks when the statute of limitations begins to run.”). This requirement to exhaust administrative remedies does not mean that “conduct prior to the exhaustion of administrative remedies cannot form the basis of a bad-faith lawsuit.” Walls II, 177 So.3d at 1163 (¶ 33) (emphasis in original). It only means that the lawsuit cannot be filed and maintained until the claimant first obtains a final judgment that the benefits at issue are compensable. See id.

¶ 17. As recounted above, Harda-way and McCray filed their bad faith lawsuits prior to obtaining a final judgment that they were entitled to the benefits allegedly denied in bad faith. Accordingly, binding precedent clearly dictated dismissal of Hardaway’s and McCray’s complaints.

¶ 18. Although Hardaway’s and McCray’s claims were correctly dismissed, they should have been dismissed without prejudice for failure to exhaust administrative remedies. See Whitehead v. Zurich Am. Ins., 348 F.3d 478, 480-82 (5th Cir. 2003); Kitchens v. Liberty Mut. Ins., 659 F.Supp. 467, 469-70 (S.D.Miss.1987); see also Chevron U.S.A. Inc. v. Smith, 844 So.2d 1145, 1149(15) (Miss.2002) (dismissal for failure to exhaust administrative remedies should be without prejudice). A ruling that a plaintiffs claim is premature is not a ruling on the merits of the claim. Accordingly, although we affirm the circuit court’s dismissal, we will reverse and render the judgment as a dismissal without prejudice.

¶ 19. The circuit court dismissed theses cases with prejudice because it adopted Howard’s argument that it is “impossible” for an employer to deny TPD benefits in bad faith until the employer has been specifically ordered to make such payments by an administrative judge. As noted above, Howard’s argument and the circuit court’s order both relied on a decision of the Commission in a separate proceeding, In re Howard Industries. However, Howard reads too much into that decision.

¶ 20. In re Howard Industries involved a motion filed by multiple claimants to revoke Howard’s self-insured status. In denying that motion, the Commission simply rejected the argument “that a claimant is conclusively entitled to [TPD] benefits immediately upon the establishment of decreased actual post-injury earnings with his employer.” In re Howard Indus, at 5, 6 (emphasis added). The Commission declined to reach the merits of any specific claimant’s entitlement to TPD benefits and made clear that—depending on the facts and circumstances of a particular case— the difference between pre- and post-injury earnings may or may not support a claim for TPD benefits. See id. at 3-24. The Commission stated a claim for TPD benefits should be decided after a hearing before an administrative judge rather than on a motion to revoke the employer’s self-insured status, see id. at 8, 21, 23, but it did not hold or suggest that an employer never has an obligation to pay such benefits until specifically ordered to do so. Moreover, the Commission expressly stated that the question whether any of the movants might be “successful ... in a bad faith lawsuit against Howard in the context of [TPD] would be for a court of proper jurisdiction to determine in the event such is filed.” Id. at 13. The Commission stated that it had “no jurisdiction over a ‘bad faith’ lawsuit” and, therefore, made “no ... findings in ... regard” to such a claim. Id. Accordingly, we do not believe that anything in the Commission’s decision should be read to foreclose a claim for bad faith denial of TPD benefits.

¶21. As discussed above, Mississippi has long recognized that a claimant may maintain an action in tort for an insurance carrier’s or self-insured employer’s bad faith refusal to investigate or pay workers’ compensation benefits. See S. Farm Bureau Cas. Ins. v. Holland, 469 So.2d 55, 56-59 (Miss.1984). Moreover, as this Court recently made clear, a defendant’s “conduct prior to the exhaustion of administrative remedies” may give rise to a claim for bad faith. Walls II, 177 So.3d at 1163 (¶ 33). None of our precedents have suggested that a delay in paying or denial of TPD benefits cannot, as a matter of law, supply the basis for such a claim— i.e., no case holds or suggests that such action is never in “bad faith.” If a claimant establishes that such benefits were delayed or denied without a legitimate or arguable basis, willfully and maliciously, or with reckless disregard for the claimant’s rights, then the claimant may be able to recover in tort. See Chapman, 180 So.3d at 681 (¶ 20). The Commission’s decision in In re Howard Industries explains that a claimant’s entitlement to TPD benefits may depend on a number of factors in addition to his pre- and post-injury earnings. Therefore, on the facts of a particular case, it may be difficult for a claimant to prove bad faith. But that possible difficulty does not support Howard’s argument that, in all cases, it is “impossible” for the delay or denial of such benefits to amount to bad faith.

CONCLUSION

¶ 22. Neither Hardaway’s nor McCray’s claim for TPD benefits was final at the time they filed bad faith lawsuits against Howard and CorVel. Accordingly, Harda-way’s and McCray’s complaints were due to be dismissed without prejudice based on the failure to exhaust administrative remedies. ■ However, we reject Howard’s argument that a claim for bad faith denial or failure to investigate a claim for TPD benefits necessarily fails to state a claim upon which relief could be granted. Accordingly, the complaints should not have been dismissed with prejudice. We reverse and render the judgments as dismissals without prejudice.

¶ 23. THE JUDGMENTS OF THE JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, DISMISSING THE COMPLAINTS ARE AFFIRMED. THE DISMISSALS WITH PREJUDICE ARE REVERSED AND RENDERED AS DISMISSALS WITHOUT PREJUDICE. ALL COSTS OF THESE APPEALS ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND APPELLEES.

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

      . “On motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, the well-pleaded factual allegations of the complaint are taken as true....” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1142 (¶ 24) (Miss.2004).

      . That order is available at http://www.mwcc. state.ms.us/ords/9999999061912.pdf.

      . The circuit court expressly dismissed Hard-away’s complaint "with prejudice.” The order of dismissal in McCray’s case did not specifically state that the dismissal was with prejudice, but that was its clear intent, as the order addressed the substantive merits of her claims, not the procedural issue of exhaustion of remedies, and concluded that it would be "impossible” for her to state a viable claim for bad faith denial of TPD benefits. See also M.R.C.P. 41(b) ("Unless the court in its order of dismissal otherwise specifies, a dismissal ..., other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”); Nagle v. Lee, 807 F.2d 435, 442 (5th Cir.1987) (discussing the substantively identical language of F.R.C.P. 41(b)); Rinehart v. Locke, 454 F.2d 313, 314-15 (7th Cir.1971) (same).

      . The Commission’s decision does not identify the claimants who filed the motion. At the hearing in the circuit court, Hardaway's attorney mentioned that Hardaway was one of those claimants.


author: ISHEE, J., CARLTON, J.,

text:
    Natasha Orlantha STEWART a/k/a Natasha Stewart a/k/a Pebbelz Da Model, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-01101-COA.
    Court of Appeals of Mississippi.
    May 31, 2016.
    Rehearing Denied Oct. 25, 2016.
    Certiorari Denied Feb. 2, 2017.

      Jared Keith Tomlinson, Kevin Dale Camp, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE AND FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Natasha Orlantha Stewart was convicted by a jury in the Hinds County Circuit Court of culpable-negligence manslaughter and conspiracy to commit culpable-negligence manslaughter. She was sentenced to fifteen years for the crime of manslaughter, with eight years suspended and seven to serve, followed by three years of supervised probation, with credit for time served. She was also sentenced to serve five years for conspiracy to commit manslaughter, followed by three years of supervised probation, with the two sentences running concurrently, all in the custody of the Mississippi Department of Corrections. Stewart filed a motion for a judgment notwithstanding the verdict (JNOV). The motion was granted as to the verdict for conspiracy to commit culpable-negligence manslaughter, and denied as to the culpable-negligence-manslaughter verdict.

¶2. Aggrieved, Stewart appeals arguing: (1) the circuit court erred in denying the JNOV motion for the culpable-negligence-manslaughter conviction; and (2) her conviction is in violation of her right to due process. Finding error, we reverse and render.

STATEMENT OF FACTS

¶ 3. Beginning in 2010, Stewart, a self-proclaimed “urban” model, communicated with Karima Gordon via social media. Ka-rima expressed admiration for Stewart’s physical appearance, specifically Stewart’s enhanced buttocks. Over the course of two years, Karima asked Stewart for information regarding who had helped Stewart enhance her buttocks. Eventually, Stewart invited Karima and Karima’s friend, Anglean, who had also shown interest in being an urban model, to a party she was hosting in New York, New York.

¶ 4. In February 2012, Karima and An-glean attended the party in New York and met Stewart in person for the first time. Following the party, Karima called Stewart to explain that Karima had issues with her appearance because she had not liked the results of a previous buttocks-enhancement procedure. Once again, Karima asked who Stewart used to perform her buttocks enhancement. Stewart informed Karima that she went to Tracey Garner, who Stewart believed to be a nurse, located in Jackson, Mississippi. Stewart told Karima that Garner performed the type of procedure that Karima desired. On Kari-ma’s behalf, Stewart contacted Garner and explained what kind of enhancements Ka-rima desired. According to Stewart, the price for the procedure was $1,500. Stewart put the two in touch by texting Kari-ma’s phone number to Garner. Thereafter, Karima paid Stewart $200. Stewart explained that Karima wanted to pay her as a way of thanking her, and considered it a gift. According to Anglean, however, the payment was necessary to procure Garner’s information.

¶ 5. On March 16, 2012, Karima and Anglean traveled to Jackson from Atlanta, Georgia. Stewart notified Karima and An-glean that she was not able to meet them in Jackson as she originally had planned, but again texted Karima Garner’s number. Karima and Anglean called Garner for directions and arrived at a house where Garner administered the injections. Anglean, after arriving at a house and meeting Garner, decided to not move forward with the injections. Karima chose to continue with the procedure, and Garner injected Kari-ma’s buttocks with silicone. According to Anglean, the procedure took about two hours. After the procedure, Karima and Anglean drove back to Atlanta. During the drive back to Atlanta, Karima began coughing and having difficulty breathing.

¶ 6. When Anglean and Karima reached Atlanta on March 17, 2012, Karima went to the emergency room but did not inform anyone at the hospital that she had received silicone injections. She was released and given an antibiotic. Karima went back the same day, this time telling the treating physician that she had received silicone injections, but again she was released from the hospital. On March 19, 2012, she returned to the emergency room and was admitted for further treatment. Her condition persisted and treatment proved unsuccessful. Eventually, Karima died on March 24, 2012. Karima’s autopsy stated that her death was due to an “adult respiratory distress syndrome with lipoid pulmonary embolization due to massive soft tissue injection with a non-pharmaceutical lipoid substance.” At trial, the forensic pathologist who performed the autopsy testified that the fatal substance in question was silicone.

¶ 7. On November 9, 2012, Stewart was indicted for the felony offenses of murder, wire fraud, conspiracy to commit murder, and conspiracy to commit wire fraud. On February 3, 2014, after a trial, a jury found her guilty of manslaughter and conspiracy to commit manslaughter, and not guilty on the other counts. On February 24, 2014, Stewart timely filed a motion for a JNOV, or for a new trial, arguing that the jury’s guilty verdict of manslaughter and the guilty verdict of conspiracy to commit manslaughter were contrary to the law, and the evidence that was presented at trial did not support the verdicts. On July 3, 2014, the circuit court granted the JNOV motion as to the conspiracy verdict but denied the motion as to the manslaughter verdict. Stewart now appeals the denial of the JNOV motion for the manslaughter conviction.

DISCUSSION

¶ 8. Stewart contends on appeal that the circuit court erred in denying her JNOV motion with respect to the manslaughter verdict. “A motion for JNOV challenges the legal sufficiency of the evidence.” Stringer v. State, 131 So.3d 1182, 1190 (¶ 32) (Miss.2014) (citing omitted). Before ruling on a JNOV motion, the circuit court views all credible evidence of the defendant’s guilt in the light most favorable to the State. Id. If the evidence presented shows “beyond a reasonable doubt that the accused committed the act charged” and that she did so “under such circumstances that every element of the offense existed,” then this Court will not disturb the ruling of the circuit court. Id. (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). However, this Court will reverse a judgment when the evidence does not meet this test and is “insufficient to support a conviction.” Id.

¶ 9. Stewart complains that the State failed to meet its burden in proving that she committed the act of culpable-negligence manslaughter. Specifically, Stewart argues that the State failed to present sufficient evidence that she entered into an agreement with Garner to inject Karima with silicone, and that Stewart possessed the requisite intent for the commission of the crime. The State proceeded under the theory that Stewart was an accessory before the fact to Karima’s death due to Stewart’s role in securing Karima’s silicone injection, which was performed by a person that Stewart held out to be a nurse, but in fact was not.

¶ 10. Mississippi Code Annotated section 97-1-3 (Rev.2014) states that “[ejvery person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal ha[s] been previously convicted or not.” Mississippi caselaw has also dictated that culpable negligence involves “conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as the result of the willful creation of an unreasonable risk.” Campbell v. State, 285 So.2d 891, 893 (Miss.1973) (citations omitted). Furthermore, “[mjanslaughter may result from the doing of an unlawful act or as the result of gross negligence in the performance of an act otherwise lawful[.][C]onsequently, one who procures another to use a dangerous agency which causes death may be guilty as accessory before the fact.” Id. (quoting 26 Am.Jur. Homicide § 59, at 199 (1940)). Nevertheless, “[cjulpable negligence must be ascertained from the facts of each case, and no ironclad statement can be set forth as applicable to all classes of cases.” Shumpert v. State, 935 So.2d 962, 967 (¶ 13) (Miss.2006) (quoting Sims v. State, 149 Miss. 171, 115 So. 217, 219 (1928)).

¶ 11. After a thorough review of the record, we find that the circuit court erred in denying Stewart’s JNOV motion with regard to the manslaughter conviction. At trial, Stewart testified that Garner performed over twenty procedures on Stewart, including several buttocks enhancements. Stewart testified that she never had any health-related issues with any of the procedures Garner performed. Stewart also testified that Garner told her that Garner was a nurse. Stewart believed Garner was a nurse and relayed this information to Karima. Stewart also declared that had she known Garner was not a nurse, she would not have gone to her for the procedures. Nor would she have referred Karima to Garner. Stewart stated that she did not know anyone who died from a buttocks enhancement prior to Ka-rima’s death. According to the record, we also note that Karima herself had a previous buttocks enhancement before going to Garner, and that was clearly not a fatal procedure.

¶ 12. As an accessory before the fact, Stewart’s actions are inconsistent with putting Stewart on the path of “conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as the result of the willful creation of an unreasonable risk.” Campbell, 285 So.2d at 893. In Campbell, a case cited by both parties, at issue was whether the defendant, a joint participant in an illegal automobile race that resulted in the death of a bystander, could be held criminally liable although the defendant did not directly cause the fatal accident. Id. at 892. The Mississippi Supreme Court in Campbell declined to address the issue of the defendant being an accessory before the fact, reasoning that the defendants had jointly engaged in the illegal race, which amounted to criminal negligence. Id. at 893. Here, it is undisputed that Stewart did not jointly engage in administering the silicone injections. In Campbell, the victim was not involved in the decision-making process of the defendants who chose to participate in the car race that resulted in a fatality. In the ease at bar, we note that Karima had free will to make a decision to have her buttocks enhanced after the referral. In other words, Karima had a choice. Thus, Campbell is not instructive.

¶ 13. Mississippi caselaw is minimal involving an accessory before the fact to manslaughter, none of which is dispositive. As such, we look outside of our jurisdiction for guidance. In Fight v. State, 314 Ark. 438, 863 S.W.2d 800, 801(1993), Fight and Renee Smith consumed alcohol at Smith’s house. Fight shared a marijuana cigarette with Smith. They left the house in Smith’s pickup truck with Smith driving. Smith drove on a highway past the scene of a burning car and several emergency vehicles. She then turned her truck around and headed back toward the scene. At least one emergency vehicle was parked in the middle of the highway, and hoses were stretched from the emergency vehicle over to the burning car. Instead of driving around the scene, Smith drove between the emergency vehicle and the burning car. Her truck struck two policemen and one fireman, killing one and injuring the other two. Fight and Smith were arrested. Fight was found guilty of manslaughter, leaving the scene of a personal-injury accident, and two counts of aggravated assault on the basis that he contributed to the driver’s intoxication by sharing the marijuana cigarette with the driver. Fight’s directed-verdict motions were denied.

¶ 14. As the Supreme Court of Arkansas explained, “[i]t is obvious that, as Fight did not directly cause the injuries resulting in the charges, his criminal responsibility must be based upon an [accessory before the fact].” Id. at 802. The Fight court ultimately held:

The [t]rial [c]ourt erred in failing to grant Fight’s directed[-]verdict motions. The evidence was not sufficient to prove beyond speculation or conjecture that Fight’s actions in any way were done with the purpose of promoting or facilitating the commission of any of the crimes allegedly committed by Ms. Smith. Nor is there evidence to show that Fight took any action which could be shown to have aided or encouraged Smith to engage in the conduct causing death or in the language of the statute, to have acted with respect to that result ... with the kind of culpability sufficient for the commission of the offense.

Id. at 805 (quotations omitted).

¶ 15. We find the Fight court’s reasoning applicable to the case at bar. Stewart’s referral was not made with the purpose of promoting or facilitating the criminal act of manslaughter. The dissent refers to Stewart aiding in the illegal practice of medicine and/or nursing, but we have already noted that Stewart was not aware that Garner was acting illegally. Also, Stewart did not have reason to speculate that the procedure could cause Karima’s death. Finally, the record does not support the contention that Stewart encouraged Garner to perform illegal buttocks enhancements.

¶ 16. We also point out that a referral does not create a conspiracy, nor is it a criminal act to make a referral. Allowing criminal prosecution for a referral that may lead to undesirable consequences could be considered an enlargement of the application of the statute. Moreover, the fact that Garner performed an illegal service does not render Garner’s “patient” a criminal by association.

¶ 17. We acknowledge that there was a transfer of funds between Stewart and Ka-rima. However, the record does not support the belief that the transaction was part of a bigger scheme or conspiracy involving Garner and Stewart. In fact, the trial court rejected this theory when it granted a JNOV in favor of Stewart on the conspiracy-to-commit-manslaughter conviction.

¶ 18. Karima’s death is a tragic occurrence. The act of injecting a non-pharmaceutical substance into someone under the pretense of being a nurse is no doubt heinous. Garner did this. Stewart’s actions, on the other hand, were not a reckless act'or done with wanton disregard for human life. As stated earlier, Garner performed the same procedure on Stewart several times. As such, we -find that the trial court erred in denying Stewart’s motion for a JNOV with regard to the manslaughter conviction.

¶ 19. Stewart also argues that her conviction is in violation of her right to due process. She argues that she cannot be convicted as an accessory before the fact to culpable-negligence manslaughter because it is a novel construction of a criminal statute. We decline to address this issue in light of our finding that the circuit erred in denying the JNOV motion on the manslaughter conviction.

¶ 20. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING, P.J., BARNES, FAIR, JAMES, WILSON AND GREENLEE, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.

CARLTON, J.,

dissenting.:

¶ 21. I respectfully dissent. In applying the controlling appellate standard of review to the evidence in this case, I respectfully submit that we must affirm the trial court’s judgment and conviction of Stewart for culpable-negligence manslaughter. See Davis v. State, 165 So.3d 537, 541 (¶ 18) (Miss.Ct.App.2015). Stewart engaged in unlawful actions that disregarded the probability of fatal consequences to others arising from her creation of an unreasonable risk, and she engaged in conduct that facilitated the commission of culpable-negligence manslaughter as an accessory before the fact.

¶ 22. The killing of another human being, without legal authority, by the act, procurement, or culpable negligence of another, constitutes the statutory crime of manslaughter in Mississippi. Miss.Code Ann. § 97-3-47 (Rev.2014). The offense of culpable-negligence manslaughter is established where the evidence shows “the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as the result of the willful creation of an unreasonable risk.” Campbell v. State, 285 So.2d 891, 893 (Miss.1978) (citations omitted).

¶23. Jurisprudence establishes that, if there is competent evidence to support the jury’s verdict, then the verdict must be upheld. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). Our standard of review of the sufficiency of the evidence to support the verdict establishes:

The critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed. If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. The jury determines the credibility of witnesses and resolves conflicts in the evidence.

Davis, 165 So.3d at 541 (¶ 18) (quoting Barron v. State, 130 So.3d 531, 536 (¶ 13) (Miss.Ct.App.2013)).

¶ 24. Within our statutory meaning, culpable negligence constitutes a departure from the conduct of an ordinarily prudent and careful person under the same circumstances so as to furnish an indifference to the consequences. See Shows v. State, 175 Miss. 604, 604, 168 So. 862, 864 (1936); Sims v. State, 149 Miss. 171, 171, 115 So. 217, 219 (1928). Otherwise stated, culpable-negligence manslaughter is that criminal conduct that evinces “a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of [an] act under the surrounding circumstances!!, so] as to render [the] conduct tantamount to willfulness.” Dickerson v. State, 441 So.2d 536, 538 (Miss. 1983).

¶25. At Stewart’s trial, the State argued that Stewart was an accessory before the fact to culpable-negligence manslaughter resulting in Karima’s death. Mississippi Code Annotated section 97-1-3 (Rev. 2014) provides that “[e]very person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” Our caselaw recognizes that “[t]he concept of an accessory before the fact involves some participation in the criminal act.” Evans v. State, 145 So.3d 723, 727 (¶ 19) (Miss.Ct.App.2014) (quoting Clemons v. State, 482 So.2d 1102, 1105 (Miss.1985)). “The Mississippi Supreme Court has affirmed numerous convictions of defendants as accessories ‘where the evidence reflected some conduct on the part of the accused which facilitated the consummation of the principal crime.’ ” Id. (quoting Clemons, 482 So.2d at 1105).

¶ 26. In the present case, the jury received an accessory-before-the-fact instruction that tracked the language of section 97-1-3. The jury instruction further stated:

[A]n accessory before[ the fact] is one who arranges for or counsels or commands another to commit a felony ... but is not necessarily present himself when the felony is committed.... [S]hould you find from the evidence in this case, beyond a reasonable doubt, that on March 16, 2012, ... Stewart ... did willfully, unlawfully!,] and feloniously arrange for or counsel or command ... Garner to inject a silicone substance into the body of ... Gordon ..., then it is your sworn duty to find [Stewart] guilty as an accessory before the fact.

¶ 27. The record contains evidence from which the jury could have found Stewart guilty as an accessory before the fact. The evidence before the jury reflected that Stewart entered into an agreement with Garner and Karima to arrange the unlawful administration of silicone injections, and evidence was also presented of Stewart’s conduct in arranging for Gamer to perform the unlawful medical procedure that resulted in Karima’s death by culpable-negligence manslaughter. As the majority opinion acknowledges, the jury heard evidence that Stewart contacted Garner on Karima’s behalf, and the evidence reflected that Stewart explained to Garner the kind of enhancements that Ka-rima sought. The jury also heard evidence that Stewart referred Karima to Garner by providing Karima’s phone number to Garner. In addition, the evidence showed that Stewart later sent Garner’s number to Karima.

¶ 28. The State also presented evidence at trial to show that Stewart falsely informed Karima that Garner was a nurse. The record reflects, however, that Garner was actually a cook at a nursing-home facility with no apparent medical training. As the record also reflects, the State’s evidence at trial further showed that Stewart accepted money, totaling $200, for her participation in the agreement and for arranging the unauthorized medical procedure. While Stewart claimed Karima gave her the money as a gift, the jury is the finder of fact and determines witness credibility. See Price v. State, 892 So.2d 294, 297-98 (¶ 15) (Miss.Ct.App.2004).

¶29. In Campbell, the supreme court found that the fatal consequences of an unreasonable creation of risk and the creation of a dangerous environment sufficiently established culpable-negligence manslaughter for a driver in an illegal road race that resulted in the death of the other driver in the same illegal race. Campbell, 285 So.2d at 895. In the present case, the State presented evidence to support its argument that Stewart engaged in conduct that facilitated the commission of culpable-negligent manslaughter. The record contains evidence to show Stewart’s agreement to engage in unlawful conduct, to create a dangerous environment, and to commit various actions that facilitated the commission of culpable-negligent manslaughter. Furthermore, the State’s evidence showed that Stewart’s conduct created an unreasonable risk in disregard of human life and of the consequences of her actions. As our precedent recognizes, the unauthorized practice of medicine is unlawful in Mississippi, and the supreme court has found that the State’s regulation of the practice of medicine constitutes a legal exercise of police power. See Harris v. State, 229 Miss. 755, 768-69, 92 So.2d 217, 223 (1957).

¶30. The record in this case contains sufficient evidence for a jury to find Stewart guilty as an accessory before the fact and, thus, guilty of culpable-negligent manslaughter. In summary, the evidence before the jury included Stewart’s agreement to arrange the illegal injection procedure by a cook and her conduct of actually procuring and arranging the unauthorized silicone injections. The evidence in the record also included Stewart’s receipt of money for her willful conduct of agreeing to arrange and to facilitate the unreasonably dangerous procedure that resulted in Karima’s death by culpable-negligence manslaughter. Clearly, in viewing the evidence in the light most favorable to the State, sufficient evidence was admitted at trial from which the jury could find Stewart guilty beyond a reasonable doubt of the essential elements of acting as an accessory before the fact and, thus, guilty beyond a reasonable doubt of the essential elements of culpable-negligent manslaughter. See Davis, 165 So.3d at 541 (¶ 18). The evidence the State presented at trial clearly showed that Stewart’s conduct created an unreasonable risk and evinced a reckless disregard for the probabilities of injury and fatal consequences arising from her actions. As a result, I would affirm Stewart’s conviction for culpable-negligence manslaughter. I therefore respectfully dissent from the majority’s opinion.

GRIFFIS, P.J., JOINS THIS OPINION.

      . Garner was a cook at a nursing-home facility and, according to the record, had no medical training.

      . Arkansas has codified the concept of accessory before the fact and it is now referred to as an accomplice.

      . See Campbell v. State, 285 So.2d 891, 893 (Miss. 1973); Miss.Code Ann. § 97-1-3 (Rev. 2014) (defining accessory before the fact).

      . See Tait v. State, 669 So.2d 85, 90 (Miss. 1996) (holding that the evidence supported culpable-negligence manslaughter); Gebben v. State, 108 So.3d 956, 975 (¶ 57) (Miss.Ct.App. 2012) (‘‘[C]ulpable negligence is defined as ‘the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable.. risk thereof,’ ” (quoting Chandler v. State, 946 So.2d 355, 361 (¶ 22) (Miss.2006))).

      . See also Miss.Code Ann. § 73-15-5 (Rev. 2012) (defining the "practice of nursing” and other related terms); Miss.Code Ann. § 73-25-33 (Rev.2012) (defining the practice of medicine in Mississippi).