text:
    Muriel PENNY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-00544-COA.
    Court of Appeals of Mississippi.
    April 28, 2009.
    Rehearing Denied Sept. 22, 2009.
    Certiorari Denied Dec. 17, 2009.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Muriel Penny was convicted in the Tate County Circuit Court of fondling a six-year-old girl. The trial court sentenced him to fifteen years, with nine years suspended, in the custody of the Mississippi Department of Corrections. Penny appealed his conviction, and in December 2006, this Court affirmed the trial coui't’s judgment. Penny v. State, 960 So.2d 533, 541(¶ 31) (Miss.Ct.App.2006). In December 2007, Penny filed an application with the Mississippi Supreme Court for leave to file a post-conviction relief motion in the trial court. A panel of supreme court justices granted the motion, finding that Penny’s newly-discovered-evidence argument warranted review. Therefore, the supreme court ordered that an evidentiary hearing be held.

¶ 2. On February 1, 2008, the hearing was held in the Tate County Circuit Court, and Penny’s wife, Jearlene, provided the only testimony. On March 12, 2008, the trial court denied Penny’s motion. Penny appeals and asserts: (1) that the trial court abused its discretion in refusing to allow a witness to testify at the evidentiary hearing, (2) that the trial court erred in finding that he failed to produce documentation to support his allegations, and (3) that the trial court erred in excluding as hearsay the evidence that he offered.

¶ 3. Finding no reversible error, we affirm.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 4. In his post-conviction relief motion before the trial court, Penny stated that Sydatrius Futrell (Shay) was the only witness that connected him to the crime. He contended that Lakesha Porter was a newly discovered witness who would contradict Shay’s testimony in a material way which, in his opinion, would have altered the outcome of his trial had she been discovered prior to trial.

¶ 5. In denying Penny’s motion, the trial court stated the following:

The proof presented at the hearing consisted totally of hearsay. The “new evidence” which Penny alleges consists of certain information which would hurt the credibility of the victim’s testimony at trial. One such bit of evidence was that the child in an interview with a child psychologist said that she was watching a particular children’s show which supposedly only comes on cable television and only at certain times. [Jearlene] testified at the hearing that the home where an event supposedly took place did not have cable television and the show was not on at the time of a specific incident. [Jearlene] presented no documentation. Also, [Jearlene] testified that [Shay] stated that [Shay] went to a specific football game on the night of one of the incidents and that [Jearlene] now has proof that the particular* football game did not occur on that night. Again, [Jearlene] produced no documentation. [Jearlene] also testified that a particular witness, Connie Blair, who testified at trial, now says that [Jane] was not at the home where the crime allegedly occurred, but was at the Blair home at the time a specific incident occurred. Blair did not testify at the hearing. All of this evidence was available at the time of the trial. The witnesses actually testified at trial and could have testified to this evidence at the time of the trial. Penny was convicted of a lesser charge which in the indictment occurred over a span of time. Penny was acquitted of the count which occurred on a specific date.
The only evidence that could remotely be considered new evidence was the hearsay testimony that [Shay], who testified at trial that she saw something supposedly, told [Porter] that [Shay] was only told of the event by [Jane] and not that [Shay] actually witnessed it. [Shay], who did not testify at the hearing, but who testified at trial, was subject to cross-examination at the trial and was thoroughly questioned regarding whether she was told or whether she witnessed the event. The only evidence of this at this point is an affidavit of [Porter] who had a telephone conversation with [Shay]. Most of the evidence presented at trial was purely hearsay. Only one of the persons who submitted affidavits in support of the petition actually testified and her testimony was purely impeachment evidence.

(Footnotes added).

¶ 6. As stated, Jearlene was the only witness to testify at the evidentiary hearing that was held pursuant to the supreme court’s mandate. In this appeal, Penny first asserts that the trial court erred in refusing to allow Porter to testify at the evidentiary hearing, arguing that Porter’s testimony would have established that the “State’s only witness linking [him] to the alleged abuse lied under oath.” We note at the outset that the record does not bear out Penny’s assertion. The transcript of the evidentiary hearing reveals that Porter was present at the hearing; however, our review of the transcript does not reveal any instance where either Penny or Porter expressed an interest in having Porter testify and was denied the opportunity to do so.

¶ 7. Porter’s cousin, Shay, testified at Penny’s trial but did not testify at the evidentiary hearing. However, Jearlene testified as to her recollection of Shay’s trial testimony. The following is a summary of Jearlene’s account of Shay’s trial testimony:

On the day that the abuse is alleged to have occurred, Shay, Jane, and Erlando were at the Penny residence watching videos and playing video games. Jane entered Erlando’s bedroom where Shay and Erlando were and instructed them to smell her hand; Jane then requested that they follow her. Jane led them to Penny’s bedroom where Jane went over to Penny and “put her hand on his private area.” Shay and Erlando went downstairs for a brief period. Upon their return, they observed that Penny had his hand on top of Jane’s hand which was placed on Penny’s genitals on top of his clothing.

Sometime after Penny’s trial, Porter provided an affidavit wherein she stated that Shay had admitted to her, during a telephone conversation that occurred two weeks after the trial, that she had been “under pressure to tell a lie.” Porter claims that she did not learn of the possibility that Shay’s trial testimony may not have been truthful until after Penny had been convicted. Porter’s affidavit reads as follows:

Shay is my cousin and we live down the street from the Penny house and the Thomas house, Shay’s grandmother. About two weeks after they went to court, I was talking to Shay on the phone. I asked her to tell me the truth, what did you really see or did you see anything[?] She said, “really ... to tell you the truth, I was under pressure to tell a lie.” I asked her, why? She said, “to help [Jane] and beside[s] they told us what to say.” I said, “Well, Shay, you are known for lying, but why did you have to lie?” She said, “I don’t know.” I asked [Shay] if [Jane] told her to lie for her. She said[,] “no.” I asked [Shay] if [Jane] told [Shay] that [Jane’s] grandfather touched her in a nasty way. [Shay] said[,] “yeah, but I know [Jane] was lying because he was outside.” I said, “what really happened?” Shay said, “[Jane] told me he touched her but [Shay] didn’t really see it, so [Shay] can’t say it is true or not.” I told her I just wanted to know what really happened. Shay said[,] “Please don’t tell my mother that I lied, okay.” I told her “okay” and that was the end of the conversation.

¶ 8. We disagree with Penny’s contention that Porter provides any new evidence that would have materially altered the outcome of the trial had it been discovered prior to trial. In her affidavit, Porter describes what appears to be an entirely different incident than the one about which Shay testified at trial, an incident that was not the subject of Penny’s indictment. Accordingly, this Court agrees with the trial judge that, as shown by the affidavits and testimony presented at the evidentiary hearing, all of the evidence that Penny characterizes as newly discovered evidence is nothing more than hearsay and impeachment evidence.

¶ 9. Next, Penny argues that the trial court erred in finding that he did not produce any documentation to support his allegations at the evidentiary hearing. At the hearing, Jearlene testified that Jane testified during the trial that a particular program was on television at the time that the incident allegedly occurred. Jearlene also informed the court that she had a television schedule that, according to her, proved that Jane’s testimony regarding when the incident occurred was not credible. The record does not indicate any effort on the part of either Jearlene or Penny to introduce the schedule or to have the trial court review it, but even if they had made the effort, it would not have mattered because it, at best, was nothing more than impeachment evidence. While the trial judge stated that Penny produced no documentation to support his allegations, it is clear that what the trial judge meant was no documentation regarding newly discovered evidence, since the purpose of the hearing was to determine if any new evidence existed. Therefore, the trial court was correct in finding that Penny produced no documentation because the television schedule did not qualify as newly discovered evidence. In Brewer v. State, 819 So.2d 1169, 1172(¶ 10) (Miss.2002) (quoting Ormond v. State, 599 So.2d 951, 962 (Miss.1992)), the Mississippi Supreme Court held that:

Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence “has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching.”

(Emphasis added). Jearlene testified that the printouts were from 2004; thus, we find that they were available in July 2005, when Penny went to trial. There is no merit to this issue.

¶ 10. In his final issue, Penny asserts that the trial judge erred in concluding that “[t]he proof presented at the hearing consisted totally of hearsay.” As he argued in his first issue, Penny again argues that the trial judge erred in refusing to allow Porter to testify at the evidentiary hearing. We decline to address this issue further, because we have already concluded that the trial court did not refuse to allow her to testify and because Penny asserts no new arguments to support this issue.

¶11. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . We have changed the name of the child to protect her identity.

      . The trial judge's summary of Jearlene's testimony concerning what Shay allegedly told Porter is not quite accurate. Jearlene’s testimony at the evidentiary hearing was that Shay told Porter that Shay did not witness the incident about which Shay testified but that it was told to her by Jane. This was an incident where Shay and Jearlene’s grandson, Erlan-do, allegedly had observed Penny with his hand on top of Jane's hand that was placed on Penny’s genitals on top of his clothing. On the other hand, Porter’s affidavit says that Shay told Porter about an incident where Jane’s grandfather (Penny) had touched Jane inappropriately, rather than an incident where Shay and Erlando had observed Penny’s hand on top of Jane’s hand.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Rita M. HIGGINBOTHAM, Individually and as Mother and Personal Representative of the Wrongful Death Beneficiaries of Heather Dawn Higginbotham, Deceased, Appellant, v. LEHMAN-ROBERTS COMPANY, Appellee.
    No. 2008-CA-00006-COA.
    Court of Appeals of Mississippi.
    May 5, 2009.
    Rehearing Denied Sept. 29, 2009.
    Certiorari Denied Dec. 17, 2009.

      Dana J. Swan, Clarksdale, C. Kent Haney, attorneys for appellant.
    Michael N. Watts, R. Bradley Best, Oxford, Benjamin E. Griffith, Michael S. Carr, Cleveland, attorneys for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Rita M. Higginbotham (Higginbotham), the administratrix of Heather Higginbotham’s estate, filed a wrongful death action against Hill Brothers Construction Company (Hill Brothers), Endevco Company Inc. (Endevco), and Lehman-Roberts Company (Lehman-Roberts) on June 14, 2002, in the Tunica County Circuit Court. Endevco and Hill Brothers filed motions for summary judgments, and on November 23, 2004, the circuit court granted both motions. We affirmed the circuit court’s decision in Higginbotham v. Hill Brothers Construction Co., 962 So.2d 46 (Miss.Ct.App.2006) (Higginbotham I).

¶ 2. On August 31, 2007, Lehman-Roberts filed its motion for summary judgment, and on December 3, 2007, the circuit court granted the motion. Aggrieved, Higginbotham appeals and asserts that the circuit court erred in granting summary judgment in favor of Lehman-Roberts.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. The underlying facts for today’s case are identical to the underlying facts in Higginbotham I. In Higginbotham I, we stated the facts as follows:

[On December 12, 1999,] Heather [Higginbotham], traveling south from Memphis to Clarksdale, lost control of her vehicle on Highway 61 in Tunica County after hitting a puddle that had formed in the roadway and was thrown from the vehicle when it subsequently flipped several times. Tina Read, an eyewitness to the accident, testified in her affidavit that Heather began to hydroplane when she hit the puddle that was located on what Read called both a “crossover” and “connecting road.” Read was referring to what is known as a “temporary connector,” which diverts traffic from a four-lane roadway to a two-lane roadway. At the time of the accident, two lanes were being added to Highway 61 to make it a four-lane highway from Clarksdale to Memphis. North of the temporary connector involved in this fatal accident, Highway 61 consisted of four lanes, but south of the accident scene there were still only two lanes. The temporary connector on which the puddle accumulated was moving southbound traffic from the two newly constructed lanes on the western side of the highway to the eastern two lanes that made up the original highway. A second temporary connector that was under construction at the time of the accident intersected with the existing temporary connector making an “X.” It was designed to eventually move northbound traffic from the new western side of the highway to the old lanes on the eastern side of the highway while the old portion of Highway 61 was being paved south of where the accident occurred. In 1996, the Mississippi Department of Transportation (MDOT) hired Endevco to construct an additional two lanes on Highway 61 from the point where Highway 4 intersects it down to the location of the temporary connector. Endevco was the prime contractor responsible for the construction of the temporary connector on which Heather hydroplaned. Endevco also repaved the original two lanes on this stretch of the highway. Endevco completed the work according to MDOT’s specifications and was given its “Final Maintenance Release” on December 8, 1998. After inspecting the work done by Endevco, MDOT also gave formal notice to the company on September 20, 1999, that the project was satisfactorily completed and officially accepted. Lehman-Roberts Co. was the paving subcontractor for Endevco on the 1996 project and paved the temporary connector that was completed during that project.
In July of 1998, MDOT hired Lehman-Roberts as the primary contractor to pick up where Endevco’s project ended and complete the construction of the two new lanes and repave the older roadway 11.7 miles down to the place where Highway 49 intersects Highway 61 in Coahoma County. Lehman-Roberts was responsible for the construction of the second temporary connector that intersected with the original temporary connector that Endevco had built. Lehman-Roberts hired Hill Brothers Construction Co., primarily as a “sub-grade” subcontractor. Hill Brothers was also responsible for drainage in connection with the second temporary connector. Although Higginbotham argues to the contrary, all evidence contained in the record reflects that Hill Brothers had absolutely no responsibility for the first temporary connector, which was the connector involved in Heather’s fatal accident[.] Hill[ ] Brothers did not construct or contribute in anyway to the construction of the first temporary connector, and, the company was never responsible for ongoing maintenance or drainage of that connector.
On December 10, 2002, Rita Higginbotham, the administratrix of Heather’s estate, filed an amended complaint in the Circuit Court of Tunica County for the wrongful death of her daughter against multiple defendants, including Hill Brothers and Endevco. Higginbotham alleged that the negligence of Hill Brothers, Endevco[,] and other defendants involved in the road construction process directly and proximately caused or contributed to the car wreck and eventual death of her daughter. More specifically, Higginbotham alleged that the defendants were negligent in many respects including: failure to properly drain the temporary connector, failure to properly construct the temporary connector so as to prevent rainwater from ponding, and failure to warn the traveling public about an extremely hazardous condition about which they had actual knowledge. Hill Brothers and Endevco filed motions for summary judgment, which were granted by the trial court on November, 17, 2004.

Id. at 49-51 (¶¶ 2-7).

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. It is well settled that in reviewing a trial court’s grant or denial of a motion for summary judgment, the standard of review is de novo. Todd v. First Baptist Church, 993 So.2d 827, 829(¶ 9) (Miss.2008) (citing Harmon v. Regions Bank, 961 So.2d 693, 697(¶ 10) (Miss.2007)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, a court shall grant summary judgment where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The evidence must be viewed in the light most favorable to the party against whom the motion has been made, and the moving party has the burden of demonstrating that no genuine issue of material fact(s) exists. Harmon, 961 So.2d at 697(¶ 10). The trial court’s decision to grant summary judgment will be reversed if there exists any triable issues of material fact. Todd, 993 So.2d at 829(¶ 9) (citing Harmon, 961 So.2d at 697(¶ 10)).

¶ 6. Central to the resolution of the issue before us is the fact that, as noted in Higginbotham I, Heather’s accident occurred on the first temporary connector. Higginbotham, 962 So.2d at 50(¶ 5). The primary contractor for construction of the first temporary connector was Endevco. Id. at (¶ 3). Endevco hired Lehman-Roberts as the subcontractor to do the paving on this connector. Id. The work on the first connector was completed on December 8, 1998, and officially accepted by the MDOT on September 20,1999. Id.

¶ 7. In Higginbotham I, this Court stated:

After the contractor has turned the work over and it has been accepted by a public board or a commission as satisfactory, the contractor incurs no further liability to third parties, by reason of the condition of the work, and that the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the public board or commission. This rule, however, is subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons.

Higginbotham, 962 So.2d at 52(¶ 12) (citing McKay v. Boyd Constr. Co., 571 So.2d 916, 925 (Miss.1990)).

¶ 8. Here, Lehman-Roberts relies on Higginbotham I and argues that although it was the subcontractor for the first temporary connector, it cannot be held liable for the accident occurring on that connector because this Court has already held that Endevco, the contractor, was not liable. In her brief, Higginbotham attempts to rebut this argument, asserting that Higginbotham I “only addressed the completed and accepted North project and that [Lehman-Roberts was] the general contractor for the South Project, which had not been completed at the time of the accident.” (Footnote added). Higginbotham further argues that Lehman-Roberts’s liability stems from Lehman-Roberts’s “failure to construct the intersection according to MDOT specifications and [its] failure to warn of a hazardous condition of which they [had] constructive notice.”

¶ 9. For the reasons that we now explain, we are not persuaded by Higginbotham’s argument that the circuit court erred in granting summary judgment in favor of Lehman-Roberts. In opposition to Lehman-Roberts’s motion for summary judgment, Higginbotham offered the affidavit of Tina Read, a fact witness, and excerpts from the deposition of Jackie Ray Tucker, another fact witness. She also offered the affidavit of Derek Barrentine, a licensed highway construction engineer, along with excerpts from Barrentine’s deposition, and excerpts from the deposition of Ulmer Bullock III, an engineer with the MDOT. We briefly discuss the factual allegations set forth in each of these documents.

¶ 10. In Read’s affidavit, she stated in pertinent part:

1. I am familiar with the section of Highway 61 where the accident occurred, as I made a round trip from Clarksdale, Mississippi to Memphis, Tennessee utilizing that road at least once a week from 1990 to 2003;
2. At the time of the accident, and the place of the accident[,] traffic on Highway 61 north of the accident was four lane, and traffic on Highway 61 south of the accident was two lane;
3. Traffic traveling [sic] from Memphis to Clarksdale at the accident scene crossed over from the southbound four[-]lane road onto the northbound two[-]lane road;
4. I observed water on this section of the road on numerous occasions after it rained. In fact, every time it rained, water would stand on that road, or on that connecting road;
5. On the day of the accident, I was approximately three car lengths behind Heather’s vehicle!,] and I saw her vehicle approach the crossover. As her vehicle entered the crossover, I saw water splashing[,] and it was apparent that she hit a puddle of water in the crossover;
6. After she hit the water, her vehicle immediately began to hydroplane!,] and she began to fishtail and lost control of her vehicle. I slowed down and continued to watch her vehicle as it traveled south. After hitting the water in the road[,] she was never able to regain control of her vehicle!,] and her vehicle ultimately flipped overt,] and she was thrown out of the vehicle.

¶ 11. In his deposition, Tucker stated that he was a passenger in Heather’s vehicle when the accident occurred and that at the time of the accident, they were on their way to Higginbotham’s house for dinner. He stated that it had been raining heavily for an hour or two prior to their leaving and that they had traveled approximately a mile before they arrived at the place where the temporary connector connected the four southbound lanes to the two northbound lanes. He stated that there was a dip in the middle of the connector that was holding water. We quote directly from Tucker’s deposition as follows:

Q. What I’m actually trying to figure out is where in that temporary connector the water that y’all are saying the car hit was. Was it when you first entered the connector or in the middle of the connector?
A. It was in the middle.
Q. In the middle?
A. Yeah.
Q. Okay. So it wasn’t near the end where the connector spits you out on the two-lane [road]?
A. No, it was kind of in the middle.

¶ 12. Barrentine stated in his affidavit that “[i]t was foreseeable by Lehman-Roberts that a southbound vehicle would encounter the standing water in the ‘S-connector,’ hydroplane, and ultimately lose control of the vehicle [sic].” Additionally, Barrentine issued a written expert opinion wherein he contended that “Lehman-Roberts was negligent, in that [it] failed to recognize [s]tate and [fjederal guidelines for drainage and traffic control at the accident site, and [it] failed to complete construction in a timely manner. Failure to do so created an on-going hydroplane and edge drop-off hazard.” Barrentine further stated:

During construction of the new lanes in the south project, the southbound connector from the north project remained in use. According to MDOT daily reports around the time of the accident, a new co-located connector was also under construction. This would allow the newly constructed southbound lanes of the south project to be used for 2-way traffic during resurfacing of the original highway lanes on the same job. As both connectors would intersect in the median (creating an “X” at the center), additional fill material needed within the median raised the adjacent ground to within inches of the original [southbound] connector’s pavement elevation.
According to construction drawings and post-accident photographs by others, storm runoff between the normal crowns of the northbound and southbound lanes converged within the median and flowed [s]outh toward the intersecting connectors. The higher elevation of the southbound connector’s asphalt surface served to dam up approaching storm water along its north edge. Without proper drainage, rain would simply pond up at that location. (Reference MDOT lan/Profile Sheet at Station 1560, and ERC drawing “Drainage at Southbound Connector,” and ERC drawing “Section A-A at Southbound Connector,” and construction[-]site photos).

¶ 13. In his deposition, the following exchange occurred between Barrentine and counsel for one of the defendants:

Q. All right. What facts do you have to substantiate that Lehman-Roberts knew water stood on the connector?
A. I’m wanting to refer to one of the employee’s depositions. Right now I’m going to have to stop and go look for it again. Primarily[,] I’m looking at the fact that in the normal standard of care for construction companies who [sic] build roads on a continuous basis[,] they have to remain aware of potential problems like this and accommodate for them at that time. Understand [,] road hazards are created sometimes that are unavoidable but the important thing is to navigate traffic around it until they can subsequently fix the problem.
Q. What I want to know is, notice is an issue in this case, what I want to know is what facts do you have to substantiate that Lehman-Rob erts was on notice of there being a water problem on the connector?
A. Can we stop and look?
Q. Sure.
A. Okay. I’ll need to look over some things if [sic] I can find it if it’s there.
⅜ ⅜ ⅜ ⅜ ⅜ :[:
Q. Mr. Barrentine, you looked through your file to refresh your memory. What facts do you have to substantiate that Lehman-Roberts had notice of the water on the connector?
A. First of all, I apologize for the delay. I’m not always aware of what questions you’re going to ask until I get here—
Q. Of course.
A. —so sometimes I have to go look. I was looking, what I was remembering was Darrey Williamsfs] deposition where he made reference to where he had seen the water numerous times. Of course he worked for MDOT so and what I was looking for was his reference to whether he had told Lehman-Roberts about the problem. He said he had not.
Q. Okay.
A. He did mention that they frequently run through the job site, the employees of Lehman-Roberts, would certainly have an opportunity of seeing it for themselves[,] but I don’t have anything on record that says they did.

(Emphasis added).

¶ 14. The final item offered by Higginbotham in opposition to Lehman-Roberts’s motion for summary judgment was a limited portion of Bullock’s deposition. Higginbotham points specifically to Bullock’s testimony wherein he admitted that “[i]f [water] was ponding it would indicate that we had a problem somewhere.” We should point out here that Bullock was quick to say that he was not aware of any ponding.

¶ 15. Higginbotham’s argument, as we understand it, is that although the south connector (where the accident occurred) had been completed and accepted by the MDOT, that fact has no bearing on Lehman-Roberts’s liability because Lehman-Roberts was the general contractor for the remaining portion of the project (the South Project) and that, as the general contractor, Lehman-Roberts was responsible for the safe passage of vehicles that were traveling through the construction zone. According to Higginbotham, the construction zone included the portion of the roadway containing the south connector because it provided the connecting link or access to the south project portion of the highway.

¶ 16. As stated, Higginbotham argues that there are genuine issues of material fact regarding Lehman-Roberts’s negligence, notwithstanding the fact that the accident occurred on that portion of the highway that was constructed by Endevco. Implicit in Higginbotham’s argument is that the southbound connector could not have been properly constructed because water would stand, stand, pond, or puddle in its middle section. However, she realizes that Higginbotham I foreclosed any chance of a recovery against Lehman-Roberts under this theory. Therefore, she takes her argument one step further, alleging that Lehman-Roberts is liable because it did nothing to prevent, or warn motorists of, the ponding even though it knew that the normal crowns of the northbound and southbound lanes allowed storm drainage to converge within the median and flow south toward the intersecting connectors. According to Higginbotham, the higher elevation of the southbound connector’s asphalt surface served to dam up approaching storm water along its north edge. Without proper drainage, rain would simply pond up at that location. Higginbotham relies on Barrentine’s opinion that “[t]here was an opportunity for or there was water standing there in the gore that clearly could inundate a portion of the southbound connector and that doesn’t accommodate traffic as specified here [in regulatory guideline 104.04].” (Emphasis added).

¶ 17. While there is a dispute as to whether water ponded in the dip of the southbound connector where the accident occurred, there is no evidence that this ponding, if indeed it occurred, was caused by anything that Lehman-Roberts did or failed to do during its construction of the South Project and of the northbound connector. As stated, Higginbotham tries mightily to attach liability to Lehman-Roberts with her argument that Lehman-Roberts sat idly by and allowed water to accumulate in the gore of where the two connectors crossed. Assuming that this is the case, and we do not make that assumption, there still is not one scintilla of evidence that, at the time of the accident, water was flowing from the gore onto the southbound connector. Quite to the contrary, the controverted evidence is that there was a dip in the middle of the southbound connector and that this dip allowed water to pond or puddle when it rained.

CONCLUSION

¶ 18. Higginbotham I makes it clear that Lehman-Roberts’s liability may not be premised on faulty construction of the southbound connector. We have found nothing in Higginbotham’s response to Lehman-Roberts’s motion for summary judgment that raises a genuine issue of material fact regarding whether Lehman-Roberts’s dereliction of duty in the construction of the South Project was the proximate cause or a proximate contributing cause of Heather’s vehicle hydroplaning, which cost Heather her life. Therefore, we affirm the decision of the circuit court granting summary judgment for Lehman-Roberts.

¶ 19. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The South Project included the construction of the second temporary connector.


author:
      CARLTON, J.,
      IRVING, J.,

text:
    MISSISSIPPI PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Albert “Butch” LEE, Appellee.
    No. 2008-SA-00627-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.
    Rehearing Denied Oct. 6, 2009.
    Certiorari Denied Dec. 17, 2009.

      Mary Margaret Bowers, attorney for appellant.
    Mark C. Baker, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This appeal involves the denial of a motion for an out-of-time appeal filed by the Public Employees’ Retirement System of Mississippi (PERS) in the Circuit Court of Hinds County, Mississippi. Finding that the circuit court abused its discretion by denying the motion, we reverse the circuit court’s judgment and remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal turns upon the application of procedural rules and pleadings, rather than upon the underlying merits of the factual claim. Nevertheless, a brief factual recitation is contextually helpful. Albert “Butch” Lee injured his back on November 8, 2004, when he attempted to lift a training dummy at the State Fire Academy, where he worked as an instructor/supervisor. The record reflects no dispute that Lee suffered a permanent disability rendering him unable to continue working in this capacity. Rather, the issue presented on the underlying merits concerns solely whether this injury resulted from an on-the-job traumatic injury or if the injury was related to a pre-existing condition. The parties agree that Lee’s monthly benefits are not affected by the classification; however, Lee argues that the classification of pre-existing condition results in negative tax liability ramifications.

¶ 3. After the injury at the State Fire Academy, Lee sought a disability determination. Ultimately, PERS determined that the injury was the result of a preexisting condition. PERS Disability Appeal Committee relied upon medical evidence, including that of Lee’s treating physician to find that Lee suffered from back pain for approximately ten years prior to the injury at the State Fire Academy. The documentation he submitted indicated that he had been diagnosed with a congenital spinal condition.

¶ 4. Lee appealed to the Circuit Court of Hinds County, which heard oral argument. Lee’s counsel submitted a proposed order to the circuit court, with a copy to PERS. The trial judge signed the order on June 29, 2007, and the order was entered on July 2, 2007. The record reflects that the first notice PERS actually received that the circuit court had entered the adverse opinion and order was a telephone call from Lee’s counsel to PERS’s counsel on August 30, 2007. By then, the time for filing a notice to appeal had already expired. PERS filed a motion for leave to file an out-of-time appeal on September 5, 2007. The motion was denied on November 21, 2007. PERS filed a motion for reconsideration of the denial on December 3, 2007, and this was denied as well.

DISCUSSION

¶ 5. The decision of whether to grant leave for an out-of-time appeal is discretionary, and it is subject to the provisions of Mississippi Rule of Appellate Procedure 4(h), which provides:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

(Emphasis added). “While the party seeking relief under Rule 4(h) bears the burden of persuading the trial court of lack of timely notice, a specific factual denial of receipt of notice rebuts and terminates the presumption that mailed notice was received.” M.R.A.P. 4(h) cmt. Once the presumption of notice is rebutted, a trial court must address the issue of prejudice. Pre-Paid Legal Servs., Inc. v. Anderson, 873 So.2d 1008, 1009-10 (¶¶7-9) (Miss.2004).

¶ 6. In Horowitz v. Parker, 852 So.2d 686 (Miss.Ct.App.2003), this Court discussed the application of the second prong of Rule 4(h), i.e., whether prejudice would occur to either party if the time for appeal was reopened. In Horowitz, we found that prejudice must entail more than simply the chance of reversal and a subsequent loss of any benefit gained by virtue of the initial judgment. Id. at 688 (¶¶ 7-8) (citing M.R.A.P. 4(h) cmt.). “Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal.” Id. at 688(¶ 7) (quoting M.R.A.P. 4(h) cmt.). Upon the backdrop of this examination of precedent and interpretations of M.R.A.P. 4(h) by the Mississippi Supreme Court and this Court, we must now examine the plain language of Rule 4(h).

¶ 7. The dissent states that “it is entirely plausible to me that the trial judge may have believed that PERS actually received notice of entry of the order within the twenty-one days of it being entered.” With all due respect, the analysis of the dissent overlooks the supreme court’s clear direction to the trial courts that a party’s specific factual denial of receipt is sufficient to conclusively overcome any subjective reasoning by a trial judge or ambiguity in a record as to whether notice was actually received. Anderson, 873 So.2d at 1009 (¶¶ 6-7). Once the presumption of notice is rebutted, then controlling precedent and a plain reading of Rule 4(h) require the trial court to address the issue of prejudice. Id. The supreme court made clear that any prevailing party may protect itself from the possibility of an adverse party claiming lack of notice and, thereby, “insure the running of the clock by mailing notice of the entry of judgment themselves.” Id. at 1010(¶ 8).

¶ 8. The dissent asserts that Rule 4(a)(6) of the Federal Rules of Appellate Procedure is identical to our Mississippi Rule of Appellate Procedure 4(h). However, we note that the Mississippi rule enjoys the guidance of an informative comment explaining the termination of the presumption of notice by a specific factual denial. The federal rule does not contain any comment. Even though left without the benefit of the instructive comment to the procedural rule, the federal courts nonetheless apply the plain language of the rule, which is the approach set forth in the comment to our Mississippi Rule of Appellate Procedure 4(h). See Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir.1995).

¶ 9. The dissent argues that the majority emasculates the word “may” in its construction and interpretation of Rule 4(h). However, be not afraid, the majority seeks not to emasculate the rule, but only to apply the plain and unambiguous language of the rule in the context as it is written. The construction of the plain language of the rule, when read in the proper context and with its correct punctuation, reflects that the court “may” upon motion reopen the time for appeal if the two prongs are satisfied.

¶ 10. In examining the law as it applies to the case before us, we note that the circuit court’s order denying PERS’s motion for leave to file an out-of-time appeal fails to make any findings of fact as to any prejudice that Lee might suffer. The standard of review in this situation is well known:

Where the trial court failed to make any specific findings of fact, this Court will assume that the issue was decided consistent with the judgment and these findings will not be disturbed on appeal unless manifestly wrong or clearly erroneous. The reviewing court must examine the entire record and must accept, “that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” That there may be other evidence to the contrary is irrelevant.

Flowers v. State, 805 So.2d 654, 656(¶ 4) (Miss.Ct.App.2002) (quoting Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47(¶4) (Miss.1998)). Therefore, we must examine the record to see if any prejudice can be found that would support the circuit court’s denial.

¶ 11. In the case before us, the record neither contains any evidence nor supports any inference that Lee would have suffered any prejudice from allowing an out-of-time appeal that would not have endured had the appeal been timely filed. While Lee might suffer some adverse tax consequence from the classification of his retirement benefits, he would have chanced this consequence in a timely filed appeal. Moreover, tax filings are subject to amendment. In sum, the record suggests nothing to show that Lee took any action in detrimental reliance upon the circuit court’s judgment. Therefore, the record contains no credible evidence to support the trial judge’s inherent finding of prejudice. In order to find prejudice, an evidentiary basis must exist to show some adverse consequence, other than the costs of having to oppose the appeal and encounter the risk of reversal inherent in every appeal. Horowitz, 852 So.2d at 688 (¶¶ 7-8). See also Nunley, 52 F.3d at 795. Based on this record, we reverse the denial of the motion to reopen and remand this cause to the circuit court for further proceedings consistent with this opinion.

¶ 12. THE JUDGMENT OF THE HINDS 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 APPELLEE.

KING, C.J., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND MYERS, P.JJ., AND BARNES, J.

IRVING, J.,

Dissenting.

¶ 13. The majority finds that the circuit court abused its discretion in denying PERS’s motion for an out-of-time appeal. While noting that the circuit court did not make any specific findings of facts as to prejudice, the majority finds that the record contains neither any credible evidence nor any inference to support the trial judge’s inherent finding of prejudice. (Maj. opinion at (¶¶ 10-11)). Because of this lack of evidence to support a finding of prejudice, the majority concludes that the circuit court abused its discretion and reverses the trial judge’s order denying PERS an out-of-time appeal. In my view, the majority errs. Therefore, I dissent.

¶ 14. For the reasons that I now explain, I would affirm the decision of the trial judge. I do not believe, as the majority apparently does, that Rule 4(h) of the Mississippi Rules of Appellate Procedure requires a trial judge to grant a party’s motion to reopen the time for taking an appeal if the other party will not suffer any prejudice. In other words, I believe the trial judge retains some discretion to deny the motion even if the requirement of “no prejudice” is established. The comment to the rule says as much:

While the trial court retains some discretion to refuse to reopen the time for appeal even when the requirements of Rule U(h) are met, the concept of excusable neglect embodied in Rule 4(g) simply has no place in the application of Rule 4(h). See Avolio v. Suffolk, 29 F.3d 50, 53 (2d Cir.1994). “To hold otherwise would negate the addition of Rule 4[h], which provides an avenue of relief separate and apart from Rule 4[g].” Nunley v. City of Los Angeles, 52 F.3d 792, 797 (9th Cir.1995). Thus, “where non-receipt has been proven and no other party would be prejudiced, the denial of relief cannot rest on [a lack of excusable neglect, such as] a party’s failure to learn independently of the entry of judgment during the thirty-day period for filing notices of appeal.” Id. at 798.

M.R.A.P. 4(h) cmt.(emphasis added).

¶ 15. We cannot know on the current record why the trial judge denied PERS’s motion for an out-of-time appeal, but imputing a requirement in the rule and then scouring the record for evidence of the imputed requirement is not a permissible option. Whether an out-of-time appeal should be granted is left to the sole discretion of the trial court. Fortunately or unfortunately, depending upon one’s point of view, the rule only prescribes the threshold requirements or prerequisites for a judge’s exercising of that discretion. In other words, if the nonmoving party will suffer prejudice, a trial judge has no discretion to exercise. The judge must deny the motion for an out-of-time appeal. The majority erroneously reads the rule as establishing the criteria for judging whether a trial judge has abused the discretion that is conditionally granted. In reading the rule this way, the majority not only emasculates the word “may” in the rule, it replaces it with “shall.” The Mississippi Supreme Court has made clear that the term “may” is considered permissive or discretionary and that “shall” is considered mandatory. Weiner v. Meredith, 943 So.2d 692, 695(¶ 11) (Miss.2006).

¶ 16. Since “may” and not “shall” is used in Rule 4(h), it is my view that the majority errs in reversing the trial judge for exercising the very discretion that he is permitted by the rule to exercise. In Avo-lio, 29 F.3d at 54, the Second Circuit Court of Appeals reversed the decision of the district court, which denied the plaintiffs’ motion to reopen the time to file an appeal pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure, and remanded for further proceedings. Federal Rule 4(a)(6) is identical to our Rule 4(h). The Avolio court reversed because the district court improperly read into the rule a requirement that the moving party prove excusable neglect before being allowed to proceed with an out-of-time appeal. Id. at 52. But more importantly for our purposes, the Avolio court recognized that the rule does not prescribe the breadth of a trial judge’s discretion:

We need not determine to what extent discretion may lie in the district court under this rule; we do determine, however, that a denial of relief may not be based on a concept of inexcusable neglect for not having learned of the entry of judgment. That concept has no place in the application of subdivision (6).

Id. at 54.

¶ 17. As stated, the trial judge did not provide his reason for denying PERS’s motion. Therefore, it cannot be legitimately argued that the judge denied the motion because he found PERS’s actions inexcusable in not discovering that the judgment had been entered. I quote the pertinent portion of the judge’s order:

This cause having come by way of the Appellee’s Motion for Leave to File an Out-of-Time Appeal and the Court having considered the Motion of the Appel-lee, the Reply of the Appellant and the Memoranda of Law supporting said pleadings, does hereby find that the Motion is not well-taken and is hereby denied.

After its motion was denied, PERS filed a motion for reconsideration, and the trial judge denied the motion, stating: “This cause having come by way of the Appel-lee’s Motion for Reconsideration and the Court having considered the Motion of the Appellee and the Reply of the Appellant, does hereby find that the Motion is not well-taken and is hereby denied.”

¶ 18. It is immediately apparent from a reading of the trial judge’s order that the judge did not find that PERS did not receive notice of the entry of the order in Lee’s favor or that Lee would not be prejudiced if the motion were granted. Although PERS stated in its motion for leave to file an appeal out of time that it did not receive notice of the entry of the order until August 30, 2007, after the expiration of the time in which to file an appeal, Lee did not admit this allegation in his response. In fact, Lee’s response to PERS’s motion suggests that he believes PERS was not entirely honest in making such an assertion. In his response, Lee stated in part:

Prior to providing this proposed order, counsel for Mr. Lee advised the Court of the impending deadline with respect to such ruling, copies of this correspondence are attached as Exhibits “A,” “B,” and “C.” PERS was copied on the correspondence from Mr. Lee’s counsel to the Court; therefore, based upon this correspondence and the mandates of the aforementioned rule, it is inconsistent with the facts and law for PERS to claim surprise that the Court ruled when it did and that PERS did not learn of such ruling until the time for appeal had expired. PERS’s motion fails to meet the requirements of MRAP 4(h) and the authority relied upon to formulate the rule; therefore, PERS’s motion should be dismissed and the time for appeal should be deemed to have expired.

¶ 19. Based on Lee’s response to PERS’s motion, it is entirely plausible to me that the trial judge may have believed that PERS actually received notice of entry of the order within twenty-one days of it being entered. Therefore, under such circumstances, PERS would not have met the first of the two threshold requirements for the trial judge to even exercise his discretion in PERS’s favor. In any case, it was incumbent upon PERS to move the trial court to make specific findings with respect to the notice and prejudice issues. It did not, even in its motion for reconsideration. Therefore, because of this additional reason, the majority errs in reversing the trial judge.

¶ 20. For the reasons presented, I dissent. I would affirm the order of the trial judge denying PERS an out-of-time appeal.

LEE AND MYERS, P.JJ., AND BARNES, J., JOIN THIS OPINION.

      . The construction asserted by the dissent equates the disjunctive term “or” with the conjunctive “and." However, the words “and” and "or" are not equivalent. In drafting the rules, the supreme court clearly expressed its intention by the use of the conjunctive "and.” See Earle v. Zoning Bd. of Review, 96 R.I. 321, 191 A.2d 161, 163 (1963) (explaining use of “and” and “or” in statutory language); see also F. Reed Dickerson, The Difficult Choice Between “And” and "Or,” 46 A.B.A.J. 310 (1960) (explaining the meaning of conjunctive as a connective word and notes that punctuation such as commas and semicolons can shed light on the meaning of a statute as intended by the supreme court).

      . However, in its construction and interpretation of Rule 4(h), the dissent ignores the punctuation in the rule and the impact of the drafters' insertion of the connector word "and.” In examining the context of the words and punctuation and resulting impact on the meaning of Rule 4(h), we examine the drafters’ use of two commas setting off the word "may” in the rule. The two conditions joined by the connector "and” precede the commas setting off the insertion of the permissive “may.”

      . Rule 4(h) provides:
      The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.
      (Emphasis added).


author: KING, C.J.,

text:
    Walter CONLEE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00724-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.
    Rehearing Denied Sept. 22, 2009.
    Certiorari Denied Dec. 17, 2009.

      Walter Conlee (pro se).
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Walter Conlee pled guilty to a two-count indictment: Count I, manslaughter, and Count II, transfer of a controlled substance. Conlee was sentenced to serve twenty years on Count I and thirty years on Count II in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run concurrently. Conlee timely filed a motion for post-conviction relief. The Rankin County Circuit Court held an evidentiary hearing on Con-lee’s motion on March 18, 2008, and denied relief. Conlee appeals, raising the following issues: (1) whether Conlee was indicted by a legally convened grand jury; (2) whether the trial court erred in accepting Conlee’s guilty plea; and (3) whether there is a factual basis to support the charge of transfer of a controlled substance. Finding no error, we affirm.

FACTS

¶ 2. In December 2002, a Rankin County grand jury indicted Conlee for the murder of Connie Bounds and three counts of the transfer of a controlled substance, hydro-codone and cocaine. On March 9, 2005, Conlee entered a guilty plea in Count I to manslaughter as a lesser-included offense of murder, and in Count II, the transfer of a controlled substance, hydrocodone. Conlee was sentenced to serve twenty years on Count I and thirty years on Count II in the custody of the MDOC, with the sentences to run concurrently.

¶ 3. On January 17, 2008, Conlee filed a petition styled “Motion to Correct Sentence/Habeas Corpus.” The trial court treated the motion as a request for post-conviction relief. On March 17, 2008, the trial court held an evidentiary hearing on the motion. As a result of the evidentiary hearing, the trial court found that Conlee’s claims for relief were without merit and denied relief.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial of a petition filed pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act (MUPCCRA), Mississippi Code Annotated section 99-39-1 to -29 (Rev.2007), “[t]his Court will not disturb the trial court’s decision to deny post-conviction relief unless the trial court’s decision proves to be clearly erroneous. The Court, however, reviews questions of law de novo.” Johnson v. State, 962 So.2d 87, 88-89(¶ 8) (Miss.Ct.App.2007) (internal citations omitted).

DISCUSSION

I. Whether Conlee was indicted by a legally convened grand jury.

¶ 5. Conlee was indicted by the July 2002 term grand jury, which was recalled on December 19, 2002. Conlee contends that he was indicted by an illegally convened grand jury because the July 2002 term grand jury had completed its duties and the indictment was not signed and filed until January 13, 2003. Conlee argues that the grand jury was not legally convened because the Rankin County judiciary calendar shows that the term of court ended on December 17, 2002, and a new term started on the first Monday in January 2003. Conlee claims that there is no evidence to suggest that a new grand jury convened on December 19, 2002, or that the term of the July grand jury was extended to January 13, 2003.

¶ 6. “Once a grand jury is impaneled, it continues to serve during each successive term of court until a subsequent grand jury is impaneled.” Gray v. State, 819 So.2d 542, 546(1121) (Miss.Ct.App. 2001). The supreme court held that:

A grand jury may be impanelled at a regular term of court, and it may be recalled at any time before the next criminal term of court in term time or in vacation, but when a new criminal court is convened, a new grand jury must be impanelled. The old grand jury may, however, report indictments obtained in vacation when it makes its final report for final discharge, but, the old grand jury cannot hear evidence and obtain indictments at the second term of the criminal court.

Ingram v. State, 330 So.2d 602, 604 (Miss. 1976). “[Ojnce empaneled or recalled, a grand jury is in session for the duration of the term or until discharged.” Oates v. State, 421 So.2d 1025, 1028 (Miss.1982). The record does not indicate that the circuit court had discharged the July 2002 term grand jury from its duties before it was recalled on December 19, 2002. Con-lee provided no evidence to prove that a new criminal court had convened, which would trigger the empanelling of a new grand jury. Thus, this argument is without merit.

¶ 7. Alternatively, Conlee contends that if the grand jury was legally convened, the indictment was void because the affidavit of the grand jury foreman was neither signed nor filed until January 13, 2003, after the grand jury had adjourned. According to Rule 7.06 of the Uniform Rules of Circuit and County Court, an indictment shall include the following:

1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment was brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed ... ;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

Conlee’s indictment met these requirements. Pursuant to Mississippi Code Annotated section 99-7-9 (Rev.2007), “the endorsement by the foreman, together with the marking, dating, and signing by the clerks shall be legal evidence of the finding and presenting to the court of the indictment.” Conlee argues that his indictment was not endorsed by the foreman of the grand jury and filed by the court’s clerk until January 13, 2003, which was not the same date as the grand jury returned the indictment. According to Gray v. State, 728 So.2d 36, 70 (¶ 169) (Miss.1998), “[defects on the face of an indictment must be presented by way of demurrer.” “When ‘the formal defect is curable by amendment ... the failure to demur to the indictment in accordance with our statute’ will waive the issue from consideration on appeal.” Id. See Wilson v. State, 904 So.2d 987, 995(¶ 27) (Miss.2004) (an indictment which was not marked filed was procedurally defective and objections, therefore, could not be raised for the first time on appeal).

¶ 8. There is no indication that Conlee presented this matter to the trial court. Because Conlee failed to object prior to his appeal, his arguments about the timeliness of the grand jury foreman signing the affidavit and the clerk stamping the indictment filed are procedurally barred. Accordingly, we find this issue is without merit.

II. Whether the trial court erred in accepting Conlee’s guilty plea.

¶ 9. Conlee claims that his guilty plea was not knowingly and voluntarily given because: (1) he was not informed about the minimum and maximum sentence for possession; (2) the earned-time statute changed between the time of his indictment and the time of his guilty plea; (3) the indictment was defective because it failed to list the correct controlled substance and the weight, amount, or dosage of the drug; and (4) he improperly pled guilty to a Schedule II controlled substance instead of Schedule III controlled substance.

A.Minimum and Maximum Sentence

¶ 10. Conlee asserts that his guilty plea was not voluntary because the trial court failed to inform him of the statutorily required minimum and maximum sentence provided by law for delivery of a controlled substance. The plea transcript in this case is not contained in the record presented to this Court. Because the record is inadequate, it is impossible for this Court to make a determination of whether Conlee was informed of the maximum and minimum penalties associated with his offense. It was Conlee’s responsibility to be sure that the plea transcript was placed before this Court. See Harwell v. State, 817 So.2d 598, 600(¶ 11) (Miss.Ct.App.2002). “As a general rule, when an appellate record contains no transcript of a plea hearing, this Court must presume that the trial court acted properly.” Bates v. State, 914 So.2d 297, 299(¶ 7) (Miss.Ct.App.2005) (citing Ford v. State, 708 So.2d 73, 75(¶9) (Miss.1998)). Therefore, we find that this issue is without merit.

B. Earned-time statute

¶ 11. Conlee asserts that at the time that he was indicted for the transfer of a controlled substance, Mississippi Code Annotated section 41-29-139 (Rev.2001), allowed him to receive “earned time.” Conlee was sentenced in 2005, but Mississippi Code Annotated section 47 — 7—3(g) (Rev.2004) changed in 2004, making him ineligible for earned time. Conlee alleges that his guilty plea was not voluntary because the trial court failed to inform him of a statutory and administrative change that required him to serve 85% of his sentence and eliminated the possibility of parole that had previously existed.

¶ 12. As this Court stated in Robinson v. State, 964 So.2d 609, 613(¶ 16) (Miss.Ct.App.2007) that “[ejarly release and parole are matters of legislative grace and are not consequences of a guilty plea.” Because it is not a consequence of a guilty plea, a trial court is not required to explain it. Because the trial court is not required to explain administrative matters such as early release to the defendant, we find that this issue is without merit.

C. Defective Indictment

¶ 13. Conlee argues that his guilty plea was involuntary because the indictment was defective. Conlee asserts that the indictment erroneously stated that he willfully, unlawfully, feloniously, knowingly, and intentionally transferred a quantity of hydrocodone. Conlee claims that he had dihydrocodeinone (Lortab). Conlee also claims that the indictment failed to list the weight, amount, or dosage of the drug.

¶ 14. “Defects in the indictment that are non-jurisdietional are waive-able by a valid guilty plea.... Furthermore, defects in the indictment that do not go to the merits or elements of a charge are amendable.” Richardson v. State, 769 So.2d 230, 233(¶ 4) (Miss.Ct.App.2000) (internal citations omitted). The record does not contain a transcript, nor is there any evidence which indicates that prior to entering his guilty plea, Conlee made an objection to the indictment or informed the trial court that he had Lortab or that the weight, amount, or dosage of the drug was not contained in the indictment. However, the record does indicate that Conlee did enter a guilty plea on March 9, 2005; thus, this issue has been waived.

¶ 15. Notwithstanding this Court’s finding that this issue is waived, Conlee’s argument fails because after our examination of Conlee’s indictment, we find that the indictment meets the requirements contained in Rule 7.06, which are necessary for an indictment to be valid. We have previously listed and discussed those requirements under Rule 7.06 in Issue I. Therefore, Conlee’s claim for a defective indictment lacks merit.

D. Hydrocodone v. Lortab

¶ 16. Conlee claims that he improperly pled guilty to the transfer of hydrocodone, a Schedule II controlled substance instead of dihydrocodeinone (Lortab), which Conlee alleges is a Schedule III controlled substance. Con-lee is incorrect in his position. According to Mississippi Code Annotated section 41-29-115(A)(l)(x) (Rev.2005), hydroco-done is a Schedule II controlled substance. Hydrocodone is the narcotic component of Lortab. Rushing v. State, 711 So.2d 450, 452(¶ 5) (Miss.1998). In other words, “Lortab is a pain reliever which contains hydrocodone, thus making it a Schedule II drug.” Rushing v. State, 911 So.2d 526, 529 n. 4 (Miss.2005). Although Conlee mistakenly believed that Lortab was a Schedule III controlled substance, that does not entitle him to relief. “A mere expectation of a lesser sentence than the sentence imposed will not render a plea unknowing or involuntary.” Mullins v. State, 859 So.2d 1082, 1084(¶ 7) (Miss.Ct.App.2003). Therefore, this claim is without merit.

III. Whether there is a factual basis to support the charge of transfer of a controlled substance.

¶ 17. Conlee claims that there is no factual basis for his guilty plea because no drugs were recovered; no drugs were transferred; and no drugs were tested. Conlee asserts that no independent evidence was obtained other than his confession.

¶ 18. According to Uniform Rule of Circuit and County Court 8.04(A)(3), the trial court must determine that there is a factual basis for a plea before a trial court may accept a plea of guilty. “[T]his Court is not limited to the transcript of the guilty plea hearing, but we are allowed to review the record as a whole.” Ealey v. State, 967 So.2d 685, 690(¶12) (Miss.Ct.App.2007). In the instant case, because the record does not contain a plea transcript, plea petition, or evidentiary hearing transcript, this Court cannot make a determination of whether a factual basis exists to support the charge against Conlee. “[T]he necessary transcripts are to be made part of the record, and [sic] [Clark] bears the burden of presenting a record which is sufficient to undergird his assignment of error.” Harwell, 817 So.2d at 600(¶ 11). Generally, when the record does not contain the necessary transcripts, “this Court must presume that the trial court acted properly.” Bates v. State, 914 So.2d at 299(¶7). Therefore, we find that there was sufficient factual basis to support Con-lee’s conviction of the transfer of a controlled substance.

CONCLUSION

¶ 19. We find that the judgment of the trial court to deny Conlee’s motion for post-conviction relief is proper. Therefore, we affirm the judgment of the trial court.

¶ 20. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: MYERS, P. J.,

text:
    Evelyn Gwen MOORE, Appellant, v. DELTA REGIONAL MEDICAL CENTER, Appellee.
    No. 2008-CA-00041-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Sept. 29, 2009.
    Certiorari Denied Dec. 10, 2009.

      Jared Ashton Kobs, Jackson, attorney for appellant.
    Christopher Wayne Winter, Greenville, Mary Frances Stallings-England, attorneys for appellee.
   MYERS, P. J.,

for the Court.

¶ 1. Evelyn Gwen Moore filed a medical malpractice suit against Delta Regional Medical Center (DRMC) and its personnel alleging their negligence caused her to suffer a stroke. DRMC filed a motion to strike Moore’s experts as the designation of experts was incomplete and untimely. The trial court granted DRMC’s motion to strike and, subsequently, granted summary judgment to DRMC. Aggrieved from the trial court’s judgment, Moore appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Moore was taken to the emergency room at DRMC on or about September 20, 2003, after it was discovered that her blood pressure was dangerously high. It was also discovered that Moore had low potassium levels and was experiencing renal failure. Dr. Robert Corkern examined Moore and sent her to the nursing unit. Moore ultimately suffered a stroke while at DRMC.

¶ 3. On March 18, 2005, Moore filed a complaint against DRMC, Dr. Corkern, and DRMC’s nurses alleging medical malpractice. She contended that the defendants were negligent in their examination, assessment, and care of her. She claimed that the defendants failed to place her in the intensive care unit, failed to properly check her blood pressure, prescribed her the wrong medication, and gave her medication too quickly. Moore contended that these negligent acts proximately caused her stroke.

¶ 4. The procedural history is particularly relevant to the present appeal. After Moore filed her original complaint, DRMC moved to dismiss the claim for Moore’s failure to attach a certificate of compliance in accord with Mississippi Code Annotated section 11-1-58 (Supp.2008). Moore filed a motion to amend her complaint, which the defendants agreed to allow. Following a motion to dismiss based on a failure to attach a certificate of consultation and an interlocutory appeal on other issues, the trial court set a scheduling order as follows: the plaintiff must designate her expert witness by August 24, 2007, and defendant must designate its expert witness by September 24, 2007.

¶ 5. On August 24, 2007, Moore designated Dr. Richard Sobel as her expert. On September 12, 2007, almost three weeks after her designation deadline, Moore filed her first supplemental designation of expert witnesses. In this first supplemental designation, Moore listed Dr. Sobel and Netra Cattenhead, a certified family nurse practitioner, as her experts. On September 24, 2007, on the date of its deadline, the defendant, DRMC, filed its designation of experts, listing three experts. On October 11, 2007, DRMC filed a motion for summary judgment alleging that Moore failed to comply with Mississippi Rule of Civil Procedure 26 by not adequately designating her experts prior to the deadline in the scheduling order; the court took the motion under advisement. On October 22, 2007, Moore filed her second supplemental designation of experts.

¶ 6. Thereafter, DRMC filed a motion to strike Moore’s expert designations as being untimely. The trial court conducted a hearing on DRMC’s motion to strike. At the conclusion of the hearing, the trial court found that Moore’s August 24, 2007, designation did not comply with Rule 26 and struck Moore’s expert, Dr. Sobel. The trial court also struck the designation of Nurse Cattenhead because the designation was made outside the designation deadline. Without an expert to support Moore’s claim, the trial court ultimately granted DRMC’s motion for summary judgment.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment. Heigle v. Heigle, 771 So.2d 341, 345(¶8) (Miss.2000). The evidence must be viewed in the light most favorable to the party against whom the motion has been made, and the moving party bears the burden of demonstrating that no genuine issue of material fact exists. Id. “[Tjhis Court looks at all evi-dentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 228(¶ 11) (Miss.2005) (citation omitted). If there is no genuine issue of material fact, then the moving party is entitled to judgment as a matter of law. Heigle, 771 So.2d at 345(¶ 8). On the other hand, “[i]f there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the non-moving party.” Neely v. N. Miss. Med. Ctr., Inc., 996 So.2d 726, 729(¶ 11) (Miss.2008) (citations omitted).

I. WHETHER THE TRIAL COURT ERRED IN STRIKING MOORE’S EXPERTS.

¶ 8. A prima facie case for medical malpractice must be made by proving the following elements: (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant. Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). ‘When proving these elements in a medical malpractice suit, expert testimony must be used.” Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992) (citing Latham v. Hayes, 495 So.2d 453, 459-60 (Miss.1986)). “Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id.

¶ 9. In order to facilitate and expedite the proceedings in the present case, the trial court, upon agreement by both parties, instituted a scheduling order. The relevant deadlines were: plaintiff must designate her expert by August 24, 2007; defendant, DRMC, must designate its expert by September 24, 2007; all discovery must be completed by November 9, 2007; and all motions, except motions in limine, must be filed by November 23, 2007. Trial was set to begin on December 3, 2007, with an alternative date of June 9, 2008.

¶ 10. In regard to matters relating to discovery, the trial court has considerable discretion. The discovery orders of the trial court will not be disturbed unless there has been an abuse of discretion. Thompson v. Patino, 784 So.2d 220, 223(¶22) (Miss.2001) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992)).

¶ 11. On August 24, 2007, the date of Moore’s deadline for designating an expert, she filed a designation listing Dr. Sobel as her expert witness. This designation was in response to DRMC’s interrogatories. We quote Moore’s designation of Dr. Sobel verbatim:

[T]he above-listed expert will provide testimony regarding the breach of the standard of care owed to Plaintiff by DRMC and Robert Corkern, M.D. Plaintiff reserves the right to introduce the transcript of Dr. Sobel’s deposition testimony in lieu of calling him live at trial. Plaintiff expects to request that Dr. Sobel’s opinions may be modified by the evidence presented. Furthermore, Dr. Sobel may rebut any expert opinions offered by experts testifying on behalf of Defendant. All opinions of Dr. Sobel will be expressed in terms of reasonable medical probabilities and are based on his education, knowledge, training, and experience. Plaintiff reserves the right to supplement the substance of which Dr. Sobel is expected to testify to as discovery develops. A copy of Dr. Sobers curriculum vitae is attached hereto as exhibit “A.”

DRMC filed a motion to strike Moore’s experts arguing that this designation did not comply with Rule 26. Naturally, Moore argues that the designation fulfilled the requirements of Rule 26.

¶ 12. Mississippi Rule of Civil Procedure 26 (b) (4) (A) (i) states that: “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.” Under this rule, the opposing party must supply the identity of their experts, the subject matter of their opinions, their opinions, the facts on which they based their opinions, and a summary of their opinions. Id. “Rule 26 requires strict compliance to avoid unfair surprise.” Thompson, 784 So.2d at 223(¶ 22).

¶ 13. We must begin by determining whether Moore met the requirements of Rule 26. The supreme court addressed this issue in State Highway Commission v. Havard, 508 So.2d 1099 (Miss.1987). Ha-vard was an eminent domain case with the measure of compensation for the taking being one of the issues on appeal. Id. at 1100. The State Highway Commission argued on appeal that the plaintiff’s expert was allowed to testify about comparable land sales that were not disclosed in discovery. Id. at 1103. In response to one of the defendant’s interrogatories, the plaintiff responded that:

John Guthrie, Wiggins, Mississippi, Mr. Guthrie will testify that the highest and best value of the property in question is rural residential and that the value of the property taken and the damage to the remainder is $14,200.00. Mr. Guthrie will base that opinion upon a series of comparable sales for approximately the past eight (8) years.

Id. The supreme court found that this disclosure met the summary of the grounds requirement under Rule 26, “albeit a barebones one.” Id. at 1104.

¶ 14. The supreme court addressed this issue again in Palmer v. Volkswagen of America, Inc., 904 So.2d 1077 (Miss.2005). In this tort action, the plaintiffs, in their designation of experts, “named Myrna Kruckenburg as a fact and expert witness to testify to the extent and nature of injuries sustained by Plaintiffs, Randal Palmer, Lynn Palmer, and Ann Palmer, as well as the treatment rendered.” Id. at 1089(¶ 52). “Plaintiffs further stated that they had ‘not yet received Mr. and Mrs. Kruckenburgs’ curriculum vitae or estimated cost for deposition or trial testimony, but they will supplement as soon as said documents are received.’ ” Id. The supreme court found that the plaintiffs failed to provide the required expert information under Rule 26 and affirmed the trial court’s refusal to allow the expert to testify. Id. at 1089-90 (¶¶ 53-55).

¶ 15. In the case at bar, we cannot say that Moore’s designation fulfilled the requirements of Rule 26 prior to the deadline. Moore’s designation of Dr. Sobel on August 24, 2007, satisfied one or two, at best, of the requirements of Rule 26. Moore provided the name of her expert and, arguably, the subject matter of his opinion. Regardless of whether the designation contained the subject matter of Dr. Sobel’s expert opinion, the designation failed to state his opinion, the facts on which he based his opinion, and a summary of the grounds supporting his opinion. Moore’s designation of Dr. Sobel provided considerably less information than the “barebones” designation in Havard.

¶ 16. The next step is to determine whether the trial court abused its discretion in striking Moore’s experts.

¶ 17. Courts have applied a four-factor test to determine whether excluding evidence for a transgression in discovery is an appropriate sanction. This four-factor test was applied in Mississippi Power & Light Co. v. Lumpkin, 725 So.2d 721, 733-34(¶ 60) (Miss.1998). There, the supreme court stated that before a trial court excludes evidence for a transgression in discovery, it should consider: (1) the explanation for the transgression; (2) the importance of the testimony; (3) the need for time to prepare to meet the testimony; and (4) the possibility of a continuance. Id. (citing Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir.1981)). “The first consideration involves a determination whether the failure was deliberate, seriously negligent or an excusable oversight. The second consideration involves an assessment of harm to the proponent of the testimony. The third and fourth considerations involve an assessment of the prejudice to the opponent of the evidence, the possibility of alternatives to cure that harm and the effect on the orderly proceedings of the court.” Id.

¶ 18. In Lumpkin, the defendants responded to the plaintiffs expert interrogatories stating that their experts were “expected to testify that in their opinion the pole and line in question was constructed and maintained in accordance with the National Electric Safety Code and generally accepted industry standards.” Id. at 733(¶ 59). At trial, the defendants asked their expert about the foreseeability of accidents at a certain location, which was objected to and sustained. The supreme court ruled the trial court erred in limiting the expert’s testimony finding that:

Answers to interrogatories indicated that he would state an opinion that the placement of the pole complied with NESC standards. That testimony necessarily includes an assessment as to the foreseeability of accidents such as this. Foreseeability was clearly the main issue in the case about which Lumpkin was prepared to and did offer expert testimony.

Id. at 734(¶ 61). The court also considered that there would be no need for additional time to prepare for the expert testimony and that Lumpkin did not claim surprise or prejudice if the expert testimony was admitted. Id. Thus, the supreme court ruled that excluding the expert testimony, under the circumstances of the case, was an abuse of discretion. Id.

¶ 19. Turning to the case at bar, we will address each factor in detail using only the original designation. We will not consider the first and second supplemental responses because they were filed outside the designation deadline.

1. Explanation for the Failure to Comply

¶ 20. During the hearing on the motion to strike, Moore’s counsel was asked why he did not adequately designate Moore’s expert, Dr. Sobel, by the deadline. Moore’s attorney attempted to blame his own expert for the tardiness. He continuously stated that he provided the experts with the documents to formulate an opinion, yet the experts did not provide their reports and opinions prior to the deadline. Moore’s attorney also tried to blame the court as a reason he did not designate the experts by August 24, 2007. On October 28, 2005, DRMC filed a motion to dismiss based upon the statute of limitations. The motion was heard on March 16, 2006, at which time the trial court stayed its ruling pending a decision in a separate case in the supreme court. On April 9, 2007, the trial court denied DRMC’s motion to dismiss. Moore’s counsel tried to argue that this case really started on April 9, 2007, when the trial court denied the motion to dismiss, rather than on March 18, 2005, when Moore filed her complaint against DRMC. We find this argument to be unpersuasive. Moore’s counsel is charged with obtaining experts and providing the necessary information to the experts in order to receive an expert opinion by the designation-of-expert deadline. Over two and one-half years passed between Moore’s filing of her complaint and her deadline for designating an expert. We find that this is more than ample time to find an expert and obtain their opinion. The reasons proffered by Moore’s counsel do not rise to good cause, excusable neglect, or special circumstances. See Mallet v. Carter, 803 So.2d 504, 507(¶ 9) (Miss.Ct.App.2002). Accordingly, this factor weighs in favor of DRMC.

2. Importance of the Testimony

¶21. In order to prove medical malpractice, an expert is needed. See La-tham, 495 So.2d at 459-60. By striking Dr. Sobel and Nurse Cattenhead, Moore was left without an expert and was unable to prove medical malpractice. Thus, Dr. Sobel and Nurse Cattenhead’s expert testimonies are very important to Moore’s case.

¶ 22. However, the United States Fifth Circuit Court of Appeals has stated that “the importance of [expert] testimony cannot singularly override the enforcement of ... scheduling orders.” Barrett v. Atlantic Richfield Co., 95 F.3d 375, 381 (5th Cir.1996). “[T]he claimed importance of Plaintiffs’ expert testimony merely underscores the need for Plaintiffs to have complied with the court’s deadlines or at least informed the trial judge in advance if good faith compliance was not possible.” Id. Moore filed this suit knowing that it required expert testimony. In fact, Moore had to attach a certificate of consultation with a physician in order for her to proceed with the medical malpractice suit under Mississippi Code Annotated section 11-1-58. Obviously, Moore’s counsel had to discuss Moore’s case with a physician prior to filing the complaint. However, Moore sat on her hands for over two and one-half years before sufficiently designating her experts.

¶ 23. Additionally, Moore could have employed another expert who would have provided a report prior to the designation deadline. Accordingly, this factor weighs in favor of neither party.

3. The Need for Time to Prepare to Meet the Testimony

¶ 24. Contrary to what Moore adamantly states in her brief, this factor involves determining the prejudice to DRMC, not Moore. The Fifth Circuit has substituted potential prejudice in allowing the testimony in lieu of the time needed to prepare to meet the testimony factor applied in Mississippi. See, e.g., Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir.2007).

¶ 25. Both parties agree that this is a complex case. It involves thousands of documents, several witnesses, and, more importantly, experts testifying for both sides. Obviously, it will take a great deal of time to prepare for trial. Relevant to this appeal is the time expended and the prejudice DRMC will suffer if Moore is allowed to proceed using Dr. Sobel and Nurse Cattenhead as experts.

¶ 26. DRMC will suffer great prejudice if it is forced to proceed only with Moore’s original designation. As we stated earlier, it failed to provide Dr. Sobel’s opinion, the facts on which he based his opinion, and a summary of the grounds for his opinion. Using only the original designation, DRMC will not have the necessary information to provide its expert with the materials needed to formulate an appropriate opinion. DRMC’s expert would not have Dr. Sobel’s expert’s opinion or the facts on which he based his opinion. Moreover, by using only the original and timely designation, DRMC would not know that Nurse Cattenhead was going to be used an expert. One of the main principles of Rule 26 is to avoid unfair surprise at trial. See Young v. Meacham, 999 So.2d 368, 372(¶ 16) (Miss.2008) (citations omitted). If DRMC was to proceed using only Moore’s original designation, it would have been a complete shock to them when Moore attempted to use Nurse Cattenhead as one of her experts.

¶ 27. Additionally, if Dr. Sobel’s deposition was allowed to proceed as scheduled, DRMC would also have been prejudiced. Trial in this case was scheduled to begin on December 3, 2007, approximately two weeks after Dr. Sobel’s deposition. In preparation for trial, DRMC would likely have requested that their expert, or another physician, review Dr. Sobel’s deposition and the facts and exhibits from which he derived his conclusions. This would surely require more than two weeks of preparation. If DRMC was forced to proceed with the deposition and trial at its scheduled times, it likely would not have been fully prepared for cross-examination, thus causing great prejudice to its case. Therefore, this factor weighs in favor of DRMC.

A The Possibility of a Continuance

¶ 28. As stated above, trial was set to begin on December 3, 2007. If both parties were not ready for trial, they had agreed on an alternative date of June 9, 2008. However, given the two-and-one-half-year gap from when the complaint was filed and the scheduled trial date, the trial judge was not open to continuing this matter for another six to seven months. This matter had been ongoing for over two years. The Fifth Circuit recognized such a problem in Barrett, stating that “it is likely that a continuance would have resulted only in additional delay and would have unnecessarily increased the expense of defending the lawsuit.” Barrett, 95 F.3d at 381. The same result would likely occur in the case at bar. Moore would have continued her sluggish pace in preparing for the trial. Moreover, Moore has “made no effort to demonstrate to the Court that a continuance would deter future dilatory behavior on [her] part rather than merely create further delay and added expense.” Browning v. City of Batch Springs, 1997 WL 361632, 1997 U.S. Dist. LEXIS 23902, *14-15. Therefore, we find this factor weighs slightly in favor of DRMC.

¶ 29. Applying the four-factor test outlined in Lumpkin, we find the trial court did not abuse its discretion in striking Moore’s experts. Moore’s timely designation of Dr. Sobel failed to meet the requirements of Rule 26. The first and second supplemental responses were clearly outside the deadline and will not be considered. Next, we must determine whether granting summary judgment was proper.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT.

¶ 30. After striking Dr. Sobel and Nurse Cattenhead, Moore was left with no medical expert. Subsequently, the trial court granted summary judgment in favor of DRMC. As stated above, a plaintiff must have an expert to proceed in a medical malpractice action. Without any experts, Moore did not have a leg to stand on. Therefore, we must look to the remaining evidence in the record to determine if Moore can prove medical malpractice. In her responses to DRMC’s motion for summary judgment, Moore provided her original designation of expert, notice of deposition for Dr. Sobel, the scheduling order, and her response to DRMC’s interrogatories, which included the tardy designations, that we will not consider. Moore’s responses contained no affidavits from any experts. After reviewing these documents, we find that Moore did not establish each of the elements of a prima facie case of medical malpractice. Therefore, we find that the trial court’s grant of summary judgment for DRMC was appropriate. Therefore, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A CONTINUANCE.

¶ 31. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” Boone v. State, 973 So.2d 237, 241(¶ 13) (Miss.2008). Moore argues that the trial court abused its discretion by not continuing her case to the alternative trial date. We addressed this argument in Issue I and found that the trial court did not abuse its discretion in not granting Moore’s motion for a continuance. Accordingly, this issue is without merit.

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

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . At DRMC, Moore’s blood pressure was 265/158.

      . The remaining defendants were dismissed with prejudice leaving only DRMC as the defendant.

      . Nelson v. Baptist Mem'l Hosp., 973 So.2d 244, 2008 WL 356510 (Miss.2008).

      . Moore makes a separate argument that it was reversible error because DRMC did not file a motion to compel prior to the trial court striking Dr. Sobel. However, our supreme court has stated that "parties who file appropriate interrogatories seeking expert information [do not] acquire the additional burden of filing a motion to compel, where they are provided an answer which promises supplementation.” Palmer, 904 So.2d at 1090(¶ 55). Thus, Moore's contention that a motion to compel is a condition precedent to striking an expert for failure to be properly and timely designated is without merit.

      .Nurse Cattenhead testified in her November 2, 2007, deposition that Moore's counsel had first contacted her regarding this case approximately one month prior to the deposition.

        . DRMC had deposed Nurse Cattenhead prior to the hearing on the motion to strike.