author: WALLER, Chief Justice,

text:
    The ESTATE OF James M. LAUGHTER: Rubye C. Foster v. Marjorie Williams.
    No. 2008-CA-00719-SCT.
    Supreme Court of Mississippi.
    Sept. 24, 2009.
    As Modified on Denial of Rehearing Oct. 29, 2009.
    Rehearing Denied Jan. 7, 2010.

      Roy O. Parker, Jr., Tupelo, attorney for appellant.
    Kenneth E. Stockton, attorney for ap-pellee.
    BEFORE WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   WALLER, Chief Justice,

for the Court.

¶ 1. Rubye C. Foster appeals the decision of the DeSoto County Chancery Court granting summary judgment in favor of Marjorie Williams. The chancellor’s order upheld the validity of a will of James M. Laughter, Williams’s brother, against a challenge by Foster. Foster also appeals the chancellor’s order, entered prior to summary judgment, determining that a promissory note allegedly given by Laughter to Foster during their marriage was an asset of Laughter’s estate.

¶ 2. Finding genuine issues of material fact exist with respect to the testamentary capacity of Laughter and potential undue influence by Williams, we reverse and remand for a trial on the merits as to these issues. Also, because we find Laughter made a valid inter vivos gift of the promissory note to Foster, we reverse the decision of the chancellor holding that the note should have been included in Laughter’s estate.

FACTS & PROCEDURAL HISTORY

¶ 3. In 2003, Laughter sold a business he owned and the land on which it was situated to David Adams. As payment, Adams provided Laughter with a promissory note for $100,000, payment of which was secured by a deed of trust. Laughter and Adams later amended the promissory note and the sales contract to provide that, upon Laughter’s death or inability to accept payment, any remaining payments would be made to Rubye C. Foster. Both Adams and Laughter initialed the amendments to the note and the sales contract.

¶ 4. Foster and Laughter were married at the time the sale and the amendment were made. Foster asserts that Laughter presented her with the amended note and the deed of trust on their anniversary, Valentine’s Day of 2004, and told her, “this is your present.” Thereafter, Foster retained possession of the documents, keeping them at her home.

¶ 5. On March 2, 2005, Laughter and Foster were divorced, allegedly for financial reasons, but they continued to live together. On March 3, 2005, Marjorie Williams, Laughter’s sister, got Laughter to execute a quitclaim deed, giving Williams sole ownership, for one dollar, of a lot jointly owned by Laughter and Williams.

¶ 6. On March 4, 2005, Laughter executed a will in the offices of his attorney, Phillip Stroud. The will named Foster as executrix and bequeathed all of Laughter’s property to Foster, except the lot that he owned jointly with Williams, the same lot he had deeded to Williams the day before. In this March will, Laughter specifically devised to Foster his property interest in the deed of trust, “together with the indebtedness secured thereby, which is further evidenced by [the] Promissory Note.” The meeting with Stroud, at which Laughter and Stroud discussed the will and Laughter signed it, was videotaped.

¶ 7. Also on March 4, 2005, Laughter and Foster executed a warranty deed, conveying ownership of Laughter’s home to himself and Foster “as joint tenants with full right of survivorship and not as tenants in common.” Within the week, Laughter was admitted to the hospital, and on March 11, 2005, he granted power of attorney to Williams. Laughter was later transferred to a nursing home.

¶ 8. On March 28, 2005, Williams’s attorney, Randy Garner, sent Foster a letter instructing her to transfer her interest in the home deeded to Foster on March 4 back to Laughter. The letter explained that Williams and Garner “cannot find where [Laughter] remembers ever executing a deed giving you a joint tenancy ... to his home.” The letter stated that Laughter had signed the deed at a time when he was “extremely ill and unable to handle his affairs.” The letter stated that if Foster did not comply, Williams would pursue legal action.

¶ 9. Jack Nazary, a minister, visited Laughter in the hospital in April of 2005. Nazary provided a sworn affidavit stating that Laughter had told him during the visit that “nothing ha[d] changed” with his relationship with Foster. Laughter stated that he had “been looking for [Foster] everyday [sic].”

¶ 10. In May of 2005, Williams made arrangements for another attorney, Gerald Chatham, to assist Laughter in preparing a new will. On May 4, Chatham met Laughter at the nursing home, where Laughter executed a new will. In this May will, Laughter named Williams as executrix and bequeathed the balance of his promissory note to Lauren Elizabeth and Kaitlyn Elise Roberts. Laughter devised the rest of his property, including his home, to Williams. The meeting with Chatham, at which Chatham and Laughter discussed the new will and Laughter signed it, also was videotaped. Laughter died on July 2, 2005.

¶ 11. In September 2005, Foster and Williams filed petitions for probate of the March will and the May will, respectively. In August 2006, the two cases were combined.

¶ 12. That December, Foster filed a motion for declaratory judgment asking that the promissory note be removed from Laughter’s estate because it was an inter vivos gift to her. Foster also refiled an earlier motion asking the court to view the videotapes that were taken at the execution of the two wills. On April 13, 2007, the chancellor denied both motions, finding that the motion regarding the videotapes was premature and that the promissory note “is in fact an asset of the Estate of James M. Laughter....”

¶ 13. On August 10, 2007, Williams moved for summary judgment to confirm the validity of the May will. A' hearing was held on September 5, at which Chat-ham and Williams both testified. On September 13, 2007, the chancellor granted the motion for summary judgment. Thereafter, Foster filed a motion for a new hearing, which the chancellor denied.

¶ 14. On March 7, 2008, Williams was appointed executrix of Laughter’s estate pursuant to the May will. Williams immediately moved to strike Foster’s original probate claim, which motion was granted on March 19, following a hearing.

¶ 15. On April 3, 2008, the chancellor issued an order enjoining Foster from filing any further motions, except an appeal. Thus, on April 24, Foster appealed, asking this Court to compel that the videotapes of the two wills be included in the record on appeal and viewed by the Court. This Court denied the motion, holding that it needed to be filed in the chancery court. Foster did so, and on November 13, 2008, the chancellor denied the motion on the ground that no proper predicate had been laid for the tapes’ introduction.

¶ 16. Foster appeals the chancery court’s grant of summary judgment in favor of Williams confirming the validity of the May will. Foster asserts that summary judgment was erroneously granted because: (1) there is a genuine issue of material fact concerning Laughter’s testamentary capacity when he executed the May will; (2) there is a genuine issue of material fact regarding whether Williams unduly influenced Laughter in the making of the May will; (3) the chancellor erred in refusing to admit the videotapes; and (4) the chancellor erred in limiting argument at the summary judgment hearing to fifteen minutes. Additionally, Foster asserts that the chancellor erred in deciding that the promissory note should be included in Laughter’s estate and thus was not an inter vivos gift to her.

DISCUSSION

I. Whether summary judgment was granted erroneously.

¶ 17. Our appellate standard for reviewing a trial court’s grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure.

We employ a de novo standard of review of a trial court’s grant or denial of a summary judgment and examine all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should forthwith be entered for the movant. Otherwise, the motion should be denied.

Bullock v. Life Ins. Co., 872 So.2d 658, 660 (Miss.2004) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003)). Concurrently, at the trial-court level, when a motion for summary judgment is made and supported, “an adverse party may not rest upon the mere allegations or denials set forth in his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e).

A. Whether there is a genuine issue of material fact concerning Laughter’s testamentary capacity when he executed the May will.

¶ 18. The burden of proving testamentary capacity is on the proponents of the will, who can present a prima facie case simply by offering into evidence the will and the record of probate. In re Last Will and Testament and Estate of Smith, 722 So.2d 606, 610-11 (Miss.1998) (citing In re Estate of Edwards, 520 So.2d 1870, 1872-73 (Miss.1988)). Once a prima facie case has been established, the burden of going forward shifts to the contestants to overcome the prima facie case. Id. at 611.

¶ 19. Since the May will has been properly admitted to probate, Williams has presented such a prima facie case. Therefore, the burden shifts to Foster to show that Laughter lacked testamentary capacity at the time of the will.

¶ 20. Testamentary capacity is determined based on three factors: (1) whether the testator had the ability at the time of the will to understand and appreciate the effects of his act; (2) whether the testator had the ability at the time of the will to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator was capable of determining at the time of the will what disposition he desired to make of his property. In re Estate of Holmes, 961 So.2d 674, 679 (Miss.2007) (citing Smith, 722 So.2d at 610). However, evidence need not fall squarely under any one of these factors in order to be pertinent. See, e.g., Smith, 722 So.2d at 611.

¶ 21. Excluding allegations based on the -videotapes, Foster has raised three arguments to rebut the presumption that Laughter possessed testamentary capacity. First, Foster asserts that the letter sent on behalf of Williams by her attorney, Garner, dated March 28, 2005, admitted Laughter’s lack of capacity. The Garner letter described Laughter as “extremely ill and unable to handle his affairs,” and it stated that Laughter was unable to remember deeding his home to Foster, as a joint tenant with himself only three weeks earlier.

¶ 22. The mere fact that someone is too ill to handle his affairs does not in and of itself render him mentally incompetent or void of testamentary capacity. See Lee v. Lee, 337 So.2d 713, 715 (Miss.1976) (citing Thomas v. Hamlin, 56 Tenn.App. 13, 404 S.W.2d 569 (1964)). However, Laughter’s alleged inability to remember deeding joint ownership of his home to Foster only three weeks earlier is evidence of a potential lack of capacity. The Garner letter’s implication that Laughter had signed the deed only because he was “extremely ill and unable to handle his affairs” apparently was made to show that the deed of March 4, 2005, was invalid because of Laughter’s incapacity.

¶ 23. Second, Foster points out that the May will “completely changed the distribution of Laughter’s assets” from the March will. This Court has held that a prior will, if made at a time when the testator possessed testamentary capacity, may be admitted into evidence to show a lack of testamentary capacity at the time of a subsequent will. Perry v. Aldrich, 196 So.2d 521, 525 (Miss.1967). Prior state-merits by the testator may be similarly relevant. Moore v. Parks, 122 Miss. 301, 332, 84 So. 230, 237 (1920).

¶ 24. Here, Williams has not formally challenged Laughter’s competency at the time he executed the March will. However, the March will was executed on the same day, March 4, as the deed of Laughter’s home to Foster. As discussed above, the Garner letter implies that the deed is invalid because of Laughter’s poor health at that time. Thus, it is possible that Williams impliedly challenges the validity of the March will because it was executed on the same day as the deed.

¶ 25. Any such challenge, however, would be disingenuous. Williams does not challenge Laughter’s capacity to execute the quitclaim deed to Williams, done only one day before, on March 3. Presumably, any alleged inability of Laughter to appreciate the effects of his March 4 will also would invalidate the March 3 quitclaim deed to Williams.

¶ 26. Laughter’s March will was entirely different from his May will. The March will devised nearly all of Laughter’s property to Foster, whereas the May will, drafted only two months later, devised nearly all of Laughter’s property to Williams. These changes were made even though Jack Nazary recounted that when he visited Laughter in the hospital in April of 2005, Laughter stated that “nothing had changed” with his relationship with Foster.

¶ 27. The differences between the March and May wills raise questions regarding Laughter’s capacity. The dramatic extent of the changes to his will may indicate that Laughter did not remember the prior will or understand how the proposed changes would affect it legally. Thus, the March will, as well as other evidence of Laughter’s intent, such as the Nazary affidavit and the amendment to the promissory note, create a question of material fact as to Laughter’s testamentary capacity at the time he executed the May will.

¶ 28. Foster additionally argues that Laughter did not have the ability to appreciate the effects of his May will because he devised several items that she claims he did not own. Whether an attempted devise of unowned property is enough to call into question a testator’s testamentary capacity is apparently an issue of first impression in Mississippi. Because Foster has presented other evidence sufficient to raise a genuine issue of material fact, however, we need not decide this issue at this time.

¶ 29. Taking the evidence in the light most favorable to Foster, as we must, we find that the evidence presented is enough to raise a genuine issue of material fact regarding Laughter’s testamentary capacity at the time of the May will. The chancellor’s grant of summary judgment therefore was erroneous.

B. Whether there is a genuine issue of material fact regarding whether Williams unduly influenced Laughter in the making of the May will.

¶ 30. Foster argues that Laughter had a confidential relationship with Williams. If true, this could create a presumption of undue influence, which Williams would then have to rebut with clear and convincing evidence. In re Estate of Reid, 825 So.2d 1, 5 (Miss.2002) (citing In re Estate of Dabney, 740 So.2d 915, 921 (Miss.1999)).

¶ 31. A confidential relationship is “a relationship between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust[.]” Id. (quoting Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982)). Whether a confidential relationship exists is determined based on the following factors:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

In re Estate of Holmes, 961 So.2d 674, 680 (Miss.2007) (citing Wright v. Roberts, 797 So.2d 992, 998 (Miss.2001)).

¶ 32. Here, Williams has conceded that Laughter was cared for by others. At various times, especially during the last few months of his life, Laughter was cared for by Williams, Foster, the hospital, and the nursing home.

¶ 33. Williams also had a close relationship to Laughter. Williams was Laughter’s sister, and she testified that she “had always looked after him because [she] was the older of the two, and he had been [her] responsibility after [their] parents passed away to help as much as [she] could.” See Wright, 797 So.2d at 998 (close relationship found on the basis of being related and having had a long friendship). Williams also testified that she had brought Laughter food when he was sick prior to his entering the hospital, and that after he entered the hospital, she stayed with him there.

¶ 34. Also, there is evidence suggesting that Laughter was physically and mentally weak. The Garner letter stated that Laughter was “very ill and unable to handle his affairs” and had been since the time of his divorce from Foster. As discussed above, the letter also indicated that Laughter could not remember deeding a joint ownership in his home to Foster a mere twenty-four days earlier.

¶ 35. Laughter was nearly eighty years old and in poor health at the time of the May will, as well. Williams conceded as much. Laughter had been hospitalized for two months and was in the nursing home, where he would pass away two months later. It is also undisputed that Laughter had given power of attorney to Williams.

¶ 36. In this case, therefore, at least five of the seven factors used to determine whether a confidential relationship exists are present. There is evidence that Laughter was physically and/or mentally weak, of advanced age, and in poor health. He was taken care of by others, and had given power of attorney to Williams, who maintained a close relationship with him. Therefore, we find that there is a genuine issue of material fact regarding whether Laughter was sufficiently dependant on Williams to create a confidential relationship between them.

¶ 37. The mere existence of a confidential relationship, however, is not in itself sufficient to raise a presumption of undue influence. Wright, 797 So.2d at 999 (quoting Croft v. Alder, 237 Miss. 713, 723-24, 115 So.2d 683, 686 (1959)). Such a presumption would arise only in certain circumstances. These circumstances are:

where the beneficiary has been actively concerned in some way with the preparation or execution of the will[;] or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.

Croft, 237 Miss, at 723-24, 115 So.2d at 686 (1959) (internal citations omitted).

¶ 38. In this case, Williams was not actively involved in the execution of the May will. In fact, she was not even in the room when it was executed. But this does not end the inquiry. The Garner letter’s statements that Laughter was “extremely ill and unable to handle his affairs” and that Laughter did not remember deeding his home to Foster suggest that Laughter may have lacked mental capacity as early as March 28. This is evidence that Laughter may have had a mental infirmity.

¶ 39. Moreover, Chatham testified that he was originally contacted by Williams, via Garner, and that Williams had made the arrangements for Chatham to meet with Laughter to execute the May will. This, coupled with the extent of Williams’s benefits under the May will, is consistent with what we have termed “suspicious circumstances.” See In re Last Will and Testament and Estate of Smith, 722 So.2d 606, 612 (Miss.1998) (citing In re Estate of Harris, 539 So.2d 1040, 1041 (Miss.1989)) (beneficiaries drove testatrix to the attorney’s office).

¶ 40. Therefore, viewing the evidence in the light most favorable to Foster, we find that sufficient evidence was presented such that there is a genuine issue of material fact regarding whether Laughter and Williams had a confidential relationship and whether Laughter was thus unduly influenced by Williams.

C. Whether the chancellor erred in refusing to admit the videotapes submitted by Foster.

¶ 41. Foster claims that the chancellor erred in refusing to admit the videotapes of the sessions in which Laughter executed the March and May wills. Foster contends that these tapes demonstrate the deterioration of Laughter’s health and help to prove her claim that the May will is invalid due to a lack of testamentary capacity and/or undue influence.

¶ 42. A trial judge is granted “broad discretion” in his evidentiary determinations. Jones v. State, 920 So.2d 465, 475 (Miss.2006). This Court will not overturn such a determination unless the judge abused his discretion to such an extent as to be prejudicial to one of the parties. Copeland v. Copeland, 904 So.2d 1066, 1073 (Miss.2004) (quoting Stewart v. Stewart, 645 So.2d 1319, 1320 (Miss.1994)).

¶ 43. Before a videotape may be admitted into evidence, the party attempting to introduce it must properly authenticate it. To do this, the proponent of the tape must prove three elements: “[Relevancy of the subject matter to the issues, identity of the subject matter, and that the moving pictures present an accurate and faithful representation of the scenes filmed.” Pittman v. Miss. Power & Light Co., 368 So.2d 238, 240 (Miss.1979) (quoting Barham v. Nowell, 243 Miss. 441, 449, 138 So.2d 493, 495 (1962)).

¶44. We find that Foster failed to properly raise this issue on appeal. In her brief, Foster does not reference any authority in support of her contention that the tapes should have been admitted; indeed, she does not even mention their exclusion in the “Argument” section of her appellate brief. The only argument Foster makes as to this issue is in her reply brief, and there, her only citation to authority is for the proposition that videotapes are helpful in determining the validity of a will. Thus, we are not required to address this issue. See Shavers v. Shavers, 982 So.2d 397, 401 (Miss.2008) (citing Ellis v. Ellis, 651 So.2d 1068, 1072 (Miss.1995)).

¶ 45. Had this issue been properly raised, it would not change the result. The chancellor indicated that he was not excluding the tapes on their merits, but rather because a proper predicate had not been laid for their introduction. Foster failed to provide any evidence that the tapes she provided were what she claimed they were. Since Foster did not properly authenticate the tapes or provide any evidence that they were properly submitted, the chancellor did not abuse his discretion in holding that no proper predicate had been laid for their introduction.

¶ 46. Since we are remanding this case, however, this finding does not prejudice Foster. We are remanding this cause for a determination as to whether Laughter had testamentary capacity when he executed the May will and whether Laughter was unduly influenced by Williams at the time of the May will. On remand, therefore, the admissibility of the tapes will be subject to the relevance and authentication requirements set forth in the Mississippi Rules of Evidence.

D. Whether the chancellor erred in limiting argument at the summary judgment hearing to fifteen minutes.

¶ 47. Foster also contends that at the hearing on summary judgment, the chancellor erred in limiting each side’s argument to fifteen minutes. However, this issue was not properly preserved for appeal. It is well-established that a contemporaneous objection is required in order to preserve an issue for appeal. See Barnett v. State, 725 So.2d 797, 801 (Miss.1998) (citing Crenshaw v. State, 520 So.2d 131, 134-5 (Miss.1988)).

¶48. Foster did not raise this issue until more than six months after the hearing on summary judgment. Foster stated to the chancellor many times at the hearing that she was worried about her time running out, but at no point during the proceedings did Foster object to the time limits set by the chancellor. Thus, Foster is barred from arguing this issue on appeal.

II. Whether the promissory note constituted an inter vivos gift to Foster.

¶ 49. The chancellor’s order in this case did not expressly address whether the note was an inter vivos gift. Instead, the chancellor simply held that the note “is in fact an asset of [Laughter’s estate].” This ruling necessarily rejected Foster’s claim that the promissory note was an inter vivos gift, which is a question regarding application of the law. Thus, we apply a de novo standard of review. In re Estate of Farmer ex rel. Farmer, 964 So.2d 498, 499 (Miss.2007).

¶ 50. A party attempting to prove that an inter vivos gift was made must show the following by clear and convincing evidence: (1) that the donor was competent to make a gift; (2) that the donation was a voluntary act and the donor had donative intent; (3) that the gift must be complete and not conditional; (4) that delivery was made; and (5) that the gift was irrevocable. In re Estate of Ladner, 909 So.2d 1051, 1054 (Miss.2004) (citing In re Estate of Holloway, 515 So.2d 1217, 1223 (Miss.1987), superceded on other grounds by statute, Miss.Code Ann. § 81-5-63 (Rev.2004) (governing payment to one owner of joint deposits)).

¶ 51. Delivery and relinquishment of control are requisites of an inter vivos gift. “A delivery either actual, constructive, or symbolical is an element essential to the validity of a[n inter vivos gift].” Estate of Ladner, 909 So.2d at 1055 (citing Thomas v. Eubanks’ Estate, 358 So.2d 709, 713 (Miss.1978)). One of the essentials of a valid inter vivos gift is that the property must be delivered in such manner that the donor retains no control or dominion over it. Id.

¶ 52. We conclude that the promissory note in this case constitutes a completed inter vivos gift by Laughter to Foster. A gift of notes payable to the donor is perfected by delivery thereof to the donee. Pace v. Pace, 107 Miss. 292, 65 So. 273, 274 (1914) (citing Ashbrook v. Ryon’s Adm’r, 65 Ky. 228, 2 Bush 228 (1867)). See also Maier v. Hill, 221 Miss. 120, 72 So.2d 209 (1954) (holding that transfer of physical possession of nine, $1,000 promissory notes to donee created valid inter vivos gift).

¶ 53. Laughter’s transfer of the note to Foster met all the requirements of a valid inter vivos gift. Laughter had the requisite donative intent to give the promissory note to Foster, at a time when his competence is uncontested. Laughter voluntarily delivered the note to Foster when he gave her actual physical possession of it, completing the unconditional gift. Finally, Foster accepted the note and kept it at her home, which made the gift irrevocable. To make a completed gift of the note, there was nothing more that Laughter or Foster could have done.

¶ 54. At the moment of Laughter’s delivery of the note to Foster, the gift was complete. At that moment, the right to receive payment on the note also vested in Foster. Since Laughter did not indorse and negotiate the note to Foster, which would have extinguished Laughter’s right to payment under the note, Adams had a choice whether to remit payments to Laughter or to Foster. At Laughter’s death, however, the right to payment was vested in Foster alone, pursuant to the terms of the note itself and the sales contract between Laughter and Adams.

¶ 55. The promissory note given to Foster constituted an inter vivos gift. Therefore, the chancellor erred in determining that the note was an asset of Laughter’s estate.

CONCLUSION

¶ 56. The evidence before the chancellor was sufficient to raise genuine issues, of material fact as to Laughter’s testamentary capacity at the time of the May will and as to whether Laughter and Williams had a confidential relationship such that Laughter was unduly influenced by Williams when executing the May will. Further, Laughter’s gift of the promissory note to Foster had all the elements necessary to constitute a completed and successful inter vivos gift, and thus, the note is not an asset of Laughter’s estate. The chancellor’s decision to the contrary was in error.

¶ 57. The chancery court’s order granting summary judgment in favor of Williams is reversed, the chancery court’s finding that the promissory note is an asset of Laughter’s estate is reversed, and this case is remanded for further proceedings consistent with this opinion.

¶ 58. REVERSED AND REMANDED.

CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. LAMAR, J„ NOT PARTICIPATING.

      . Foster asserts that she and Laughter agreed to get divorced because Laughter was suffering from respiratory problems and pneumonia, and Laughter did not want the doctors or hospitals to be able to seek payment from Foster for the extensive medical procedures he was about to undergo.

      . The Robertses have been identified as Williams’s granddaughters.

      . The chancellor did not expressly find that the note was not an inter vivos gift. However, the chancellor's order was in response to Foster’s motion for declaratory judgment, which asserted that Laughter had given Foster the note as a valid inter vivos gift. Thus, the chancellor's order finding the promissory note to be an asset of Laughter’s estate impliedly rejected Foster's argument that the note was an inter vivos gilt.

      . Williams has moved this Court to strike portions of Foster's brief and record excerpts, alleging that they contain information that was not properly before the court below. We reserved decision on that motion for our final opinion in this case. This Court has held that portions of a brief that cite evidence not in the record must be stricken. Brown v. State, 965 So.2d 1023, 1027 (Miss.2007) (citing Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001)). However, in assessing the merits of this appeal, we have determined that every evidentiary matter this Court cites herein is included in the record and was filed with the chancery court well before the chancellor's decision granting summary judgment. Further, "a summary judgment motion is based on the pleadings and any affidavits, depositions, and other forms of evidence relative to the merits of the challenged claim or defense that are available at the time the motion is made.” Miss. R. Civ. P. 56 cmt. (emphasis added). The chancellor recognized as much when, at the summary judgment hearing, he stated that his decision would be based not only on the pleadings and the testimony offered at the hearing, but on "all matters filed" in the cause. Thus, all the sources relied upon herein were available to the chancellor and presumably were considered by him when making his decision on Williams’s motion for summary judgment. Williams's motion to strike, therefore, is dismissed as moot.

      . Although this letter is likely inadmissible hearsay and no proper predicate was laid for its introduction, there was no objection to its being referenced in the court below. Also, neither party has objected to it on appeal, and this Court does not address such issues sua sponte. See, e.g. Derouen v. State, 994 So.2d 748, 750-51 (Miss.2008) (appellate review of hearsay requires contemporaneous objection).

      . Other jurisdictions have commonly held that such errors provide "no ground ... for controversy over” the issue of testamentary capacity. Fissel v. Fissel, 263 Ill. 544, 105 N.E. 756, 757 (1914) (attempt to devise entire farm in which testator only owned a half-interest); accord State v. Goodman, 133 Tenn. 375, 181 S.W. 312, 320 (1915) (will referenced "real estate” in its residuary clause, when testator owned none). But see Mircovich v. Mircovich, 703 S.W.2d 325, 326 (Tex.App.1985) (attempt to bequeath property no longer owned cited by expert as evidence of brain damage).

      . While factors 2, 3, 4, and 7 refer to the party who allegedly unduly influenced the testator, both textual interpretation (i.e., the use of the term "others" rather than "another”) and caselaw indicate that the first factor can include care by any person, not just the person against whom undue influence is claimed. See Dabney, 740 So.2d at 919 (“Also, the testatrix had to be taken care of by other individuals [than the beneficiary][J”).

      . The only evidence in the record pertaining to the tapes' authenticity is the subpoena demanding the March tape from the attorney who recorded it. Only one Mississippi case has been found in which a party was permitted to authenticate evidence using a subpoena, and in that case, the subpoena was corroborated by the testimony of the police officer who served it. Seigfried v. State, 869 So.2d 1040, 1046 (Miss.Ct.App.2003).

      . This is the rule for gifts of promissory notes, which are distinguished from gifts of bank drafts and accounts. For the funds secured by the draft or account to be transferred as an inter vivos gift, not only must the draft or the bank passbook be transferred but the actual funds must be passed as well. Greer v. Hampton, 240 So.2d 253, 255-256 (Miss.1970) (citing Pace, 65 So. at 274). Also, this rule does not affect the requirements for delivery for value, i.e. "negotiation,” of a promissory note that is made payable "to the order of” the payee. Negotiation of such a note to a recipient requires not only delivery to the recipient but proper indorsement by the payee as well. Miss.Code Ann. § 75-3-201 (Rev.2002).

      . There is only one available argument that the gift in this case was conditional or that Laughter did not give up dominion over the payments. The argument relies on the fact that the note expressly provided that Foster would be paid under the note only in the event of Laughter's death or his inability to accept payment.
      Authorities from other jurisdictions are split as to whether this defeats Foster's claim to the note. See Parker v. Mott, 181 N.C. 435, 107 S.E. 500, 502 (1921) (explaining disagreement). Some jurisdictions hold that gifts of negotiable instruments, payment upon which to the donee is conditional upon death of donor, are not effective as inter vivos gifts. For example, in Parker v. Mott, it was held that a delivery which confers on the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Parker, 107 S.E. at 502 (citing Cook v. Lum, 55 N.J.L. 373, 26 A. 803 (1893)). Other jurisdictions reach the opposite conclusion. In Dinslage v. Stratman, 105 Neb. 274, 180 N.W. 81 (1920), it was held that “[t]he mere fact that actual enjoyment of the gift by the donee is, by the declaration of the gift, postponed until the death of the donor, does not render the gift either conditional, or testamentary, or in any way invalid.” Id. at 83; accord Tucker v. Tucker, 138 Iowa 344, 116 N.W. 119 (1908).
      Whether an attempted inter vivos gift of a promissory note is defeated if the note makes payment to the donee conditional upon the donor’s death is apparently a question of first impression in Mississippi. Because we find that Laughter met all the requirements for a valid inter vivos gift, however, we need not address the question here.


source: Caselaw Access Project

author: GRAVES, Presiding Justice, KITCHENS, Justice,

license: Public Domain

text:
    Mack Arthur KING v. STATE of Mississippi.
    No. 2007-DR-01363-SCT.
    Supreme Court of Mississippi.
    Sept. 24, 2009.
    Rehearing Denied Jan. 7, 2010.

      Mississippi Office of Capital Post-Conviction Counsel by Glenn Swartzfager, Louwlynn Vanzetta Williams, attorneys for appellant.
    Office of the Attorney General by Jason L. Davis, Marvin L. White, Jr., attorneys for appellee.
   GRAVES, Presiding Justice,

for the Court.

¶ 1. Mack Arthur King was convicted of capital murder of Lela Patterson in 1980 and was sentenced to death. On October 27, 1982, this Court affirmed both the conviction and the sentence. King v. State, 421 So.2d 1009 (Miss.1982). This Court denied without prejudice King’s subsequent application for leave to file a petition for writ of error coram nobis on December 14, 1983, for failure to comply with Court rules. King then filed a second application for leave to petition the circuit court for writ of error coram nobis, and this Court ordered the trial court to conduct an evi-dentiary hearing regarding King’s claim of ineffective assistance of counsel. See King v. Thigpen, 441 So.2d 1365 (Miss.1983); King v. Thigpen, 446 So.2d 600 (Miss.1984). The trial court conducted a hearing and found that counsel had rendered effective assistance. This Court affirmed the trial court’s denial of relief. King v. State, 503 So.2d 271 (Miss.1987). King’s petition for writ of habeas corpus was then denied by the United States District Court for the Northern District of Mississippi. However, on August 25, 1993, the Fifth Circuit Court of Appeals vacated the sentence of death and remanded the case with instructions to return it to the state court for reconsideration of the sentence of death. King v. Puckett, 1 F.3d 280 (5th Cir.1993). This Court vacated the sentence of death and remanded for a new sentencing trial. King v. State, 656 So.2d 1168 (Miss.1995). On April 9, 1998, King was again sentenced to death. King appealed, and this Court reversed the death sentence and remanded for a new sentencing hearing on the ground that the trial court had erred in instructing the jury to disregard sympathy in its deliberations. King v. State, 784 So.2d 884 (Miss.2001). King was again sentenced to death in 2003 and subsequently appealed. This Court affirmed the conviction of capital murder and sentence of death on May 31, 2007. King v. State, 960 So.2d 413 (Miss.2007).

¶ 2. Thereafter, King filed this application for leave to seek post-conviction relief in the trial court pursuant to Mississippi Code Section 99-39-5. He filed a supplemental petition on September 19, 2008. King asserts the following: 1) Mississippi’s lethal injection procedure creates a substantial risk of serious harm in violation of the Eighth Amendment; 2) he was denied due process when the trial court denied funds for a mental health expert and this Court affirmed the denial, thus denying him the opportunity to fully develop evidence of mental retardation; 3) the trial court erred in failing to allow presentation of mitigation evidence; 4) he was denied his Sixth Amendment right to the effective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the corresponding portions of the Mississippi Constitution; 5) he is mentally retarded as defined by the Court in Chase v. State, 873 So.2d 1013 (Miss.2004), and is ineligible for the death penalty; 6) he was denied his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Mississippi law due to the cumulative effect of the errors at trial; and 7) the sentence is disproportionate and in violation of the Eighth and Fourteenth Amendments to the United States Constitution and corresponding portions of the Mississippi Constitution.

ANALYSIS

¶ 3. Post-conviction relief is limited in nature and is the means “to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3 (Rev.2007).

¶ 4. Mississippi Code Section 99-39-21 also provides, in relevant part:

(1)Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
(2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.
(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

Miss.Code Ann. § 99-39-21(l)(2)(3) (Rev. 2007). Moreover, Mississippi Code Section 99-39-27 provides that “[t]he dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article.” Miss.Code Ann. § 99-39-27(9) (Rev.2007). The exceptions to this procedural bar include: supervening mental illness; an intervening decision that would adversely affect the outcome of the conviction; newly discovered evidence that was not discoverable at the time of trial and that would have caused a different result; expired sentence; and unlawful revocation of probation, parole, or conditional release. Miss.Code Ann. § 99-39-27(9) (Rev.2007).

¶ 5. In Foster v. State, this Court said:

Procedural bars of waiver, different theories, and res judicata and exception thereto as defined in post-conviction relief statute are applicable in death penalty post-conviction relief application. [Citations omitted]. We have repeatedly held that a defendant is procedurally barred by waiver from making a challenge to a capital sentencing scheme as a whole in a petition for post-conviction relief where the issue was capable of determination at trial and/or on direct appeal but was not raised, and defendant failed to show cause or actual prejudice for not raising the issue on direct appeal. [Citations omitted]. Post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial and on appeal. “The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.” Miss.Code Ann. § 99-39-21(3) (Supp.1994). We must caution that other issues which were either presented through direct appeal or could have been presented on direct appeal or at trial are procedurally barred and cannot be relitigated under the guise of poor representation by counsel.

Foster, 687 So.2d 1124, 1129 (Miss.1996).

I. Mississippi’s lethal injection procedure creates a substantial risk of serious harm in violation of the Eighth Amendment.

¶ 6. King failed to raise this issue at trial or on direct appeal. Therefore, this claim is procedurally barred by Mississippi Code Section 99-39-21(1) as set out above. However, notwithstanding the procedural bar, this claim is without merit pursuant to Bennett v. State, 990 So.2d 155, 161 (Miss.2008) (holding that Mississippi’s lethal injection protocol does not violate the Eighth Amendment) (citing Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)).

II. King was denied due process when the trial court denied funds for a mental health expert and this Court affirmed the denial, thus denying him the opportunity to fully develop evidence of mental retardation.

¶ 7. King asserts that he was denied due process when the trial court denied counsel’s request for funds for a mental health expert. This Court previously considered this issue and affirmed the trial court’s denial of funding in King v. State, 960 So.2d 413 (Miss.2007). On direct appeal, this Court offered a detailed analysis of this assignment of error pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and found that King did not show the “substantial need” required to obtain funds for an additional independent expert and did not find that he was prejudiced by the denial of funds. King, 960 So.2d at 420-24. Therefore, King is procedurally barred from reasserting this issue under the doctrine of res judicata. See Miss.Code Ann. § 99-39-21(3) (Rev.2007).

¶ 8. Moreover, King has failed to demonstrate that his claims are not procedurally barred as required by Mississippi Code Section 99-39-21(6) King asserts that Rivera v. Quarterman, 505 F.3d 349 (5th Cir.2007) and Panetti v. Quaterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) constitute intervening decisions and are sufficient to overcome the procedural bar. However, we disagree. Both Rivera and Panetti uphold the requirement that a defendant must make a substantial threshold showing of mental retardation. These holdings are consistent with Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and do not constitute intervening caselaw for the purpose of overcoming a procedural bar. As set out above, this Court previously has determined that King has failed to show substantial need. Therefore, King is procedurally barred from reasserting this issue. See Miss.Code Ann. § 99-39-21(3) (Rev. 2007).

III. The trial court erred in failing to allow presentation of mitigation evidence.

¶ 9. King asserts that the trial court erred in not allowing him to challenge or rebut the State’s case against him by presenting evidence of his innocence during resentencing. King raised this residual-doubt issue on direct appeal, and this Court, citing Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006), found that King is barred by the doctrine of res judicata from making an argument as to his guilt at a resentencing trial. King v. State, 960 So.2d 413, 436-39 (Miss.2007). Therefore, this issue is procedurally barred pursuant to Mississippi Code Section 99-39-21(3) as set out herein. Further, King fails to offer any evidence sufficient to overcome the procedural bar as required by Mississippi Code Section 99-39-21(6).

IV. King was denied his Sixth Amendment right to the effective assistance of counsel pursuant to Strickland v. Washington and the corresponding portions of the Mississippi Constitution.

¶ 10. The United States Supreme Court established a two-part test for determining a claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as follows:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052.

¶ 11. Specifically, King asserts that counsel was ineffective for failure to: 1) challenge the sufficiency of the indictment; 2) preserve the issue of residual doubt for appeal; 3) challenge Mississippi’s lethal injection protocol; 4) raise Panetti v. Quarterman on rehearing; and 5) properly litigate King’s mental retardation claim.

1) Sufficiency of the indictment

¶ 12. King asserts that counsel was ineffective for failing to challenge the sufficiency of the indictment. Specifically, King asserts that the 1980 indictment failed to properly articulate the underlying offense of burglary and cites State v. Berryhill, 703 So.2d 250 (Miss.1997), as authority. However, this Court previously has considered and rejected this argument, finding that it was procedurally barred as untimely. King, 960 So.2d at 431. Accordingly, King is procedurally barred from reasserting this issue. See Miss. Code Ann. § 99-39-21(3) (Rev.2007). Further, King fails to offer any evidence sufficient to overcome the procedural bar as required by Mississippi Code Section 99-39-21(6).

2) Residual doubt

¶ 13. King asserts that counsel was ineffective for failing to preserve the issue of residual doubt for appeal. Specifically, King claims he was denied his constitutional right to present mitigation evidence of his innocence during his resentencing. As discussed previously herein in Issue III, King raised the issue of residual doubt on appeal, and this Court found that it was procedurally barred. Moreover, this issue “cannot be relitigated under the guise of poor representation by counsel.” Foster, 687 So.2d at 1129.

S) Mississippi’s lethal injection protocol

¶ 14. King asserts that counsel was ineffective for failing to challenge the constitutionality of Mississippi’s lethal injection protocol as violating the Eight Amendment’s prohibition against cruel and unusual punishment. However, as discussed previously herein in Issue I, this Court has held that Mississippi’s lethal injection protocol does not violate the Eighth Amendment. See Bennett, 990 So.2d 155. Therefore, there would be no basis for finding counsel ineffective. Further, this issue “cannot be relitigated under the guise of poor representation by counsel.” Foster, 687 So.2d at 1129.

k) Panetti v. Quarterman

¶ 15. King asserts that counsel was ineffective for failing to raise Panetti v. Quarterman on rehearing as authority for King’s claims regarding funding for a mental health expert and on mental retardation. Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). However, as discussed previously herein in Issue II, King is procedurally barred from reasserting these issues, and Panetti does not constitute an intervening decision. Further, King cannot relitigate this issue under the guise of ineffective assistance of counsel. Foster, 687 So.2d at 1129.

5) Mental retardation claim

¶ 16. King argues that to “the extent the Court might find any of the issues regarding [King’s] mental retardation barred, he respectfully submits that his prior counsel was ineffective in failing to properly litigate the mental retardation issue at trial and on appeal” pursuant to Strickland. As discussed herein, King raised the mental retardation issue on appeal, and this Court found it to be without merit. Therefore, King is procedurally barred from reasserting this issue by the doctrine of res judicata. Further, King cannot relitigate this issue under the guise of ineffective assistance of counsel. Foster, 687 So.2d at 1129.

V. King is mentally retarded as defined by this Court in Chase v. State and is ineligible for the death penalty.

¶ 17. King asserts that he is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and, therefore, is ineligible for the death penalty.

¶ 18. In Chase v. State, 873 So.2d 1013 (Miss.2004), this Court clarified the application of Atkins in the trial courts as follows:

The Atkins majority cited, with approval, two specific, almost identical, definitions of “mental retardation.” The first was provided by the American Association on Mental Retardation (AAMR):
Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.

Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242, citing Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed.1992). The second was provided by The American Psychiatric Association:

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” Diagnostic and Statistical Manual of Mental Disorders 39 (4th ed.2000).

Id.

The Diagnostic and Statistical Manual of Mental Disorders, from which the American Psychiatric Association definition is quoted, further states that “mild” mental retardation is typically used to describe persons with an IQ level of 50-55 to approximately 70. Id. at 42-43. The Manual further provides, however, that mental retardation may, under certain conditions, be present in an individual with an IQ of up to 75. [n. 18] Id. at 40. Additionally, according to the Atkins majority, “it is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” Id. citing 2 Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds 7th ed.2000) (emphasis added),

n. 18 This point is conceded by the State. However, IQ, alone, does not determine mental retardation. According to the DSM-IV, “it is possible to diagnose Mental Retardation in individuals with IQ’s between 70 and 75 who exhibit significant deficits in adaptive behavior. Conversely, Mental Retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning.”

These definitions were previously adopted and approved by this Court in Foster v. State, 848 So.2d 172 (Miss.2003). This Court further held in Foster that the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering.... Foster must prove that he meets the applicable standard by a preponderance of the evidence.... This issue will be considered and decided by the circuit court without a jury. Id. at 175.

These definitions, approved in Atkins, and adopted in Foster, together -with the MMPI-II, [n. 19] provide a clear standard to be used in this State by our trial courts in determining whether, for Eighth Amendment purposes, a criminal defendant is mentally retarded. The trial judge will make such determination, by a preponderance of the evidence, after receiving evidence presented by the defendant and the State,

n. 19 Although this Court has identified the MMPI-II as a test that should be given, we now clarify our position by stating that the expert should use the MMPI-II, and/or any other tests and procedures permitted under the Mississippi Rules of Evidence, and deemed necessary to assist the expert and the trial court in forming an opinion as to whether the defendant is malingering.

Procedure to be used.

Having established the definition of mental retardation to be used for purposes of Eighth Amendment protection to mentally retarded defendants, we now turn to the procedure to be used in reaching a determination of mental retardation.

We hold that no defendant may be adjudged mentally retarded for purposes of the Eighth Amendment, unless such defendant produces, at a minimum, an expert who expresses an opinion, to a reasonable degree of certainty, that:

1. The defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or The American Psychiatric Association;

2. The defendant has completed the Minnesota Multi phasic Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not malingering.

Such expert must be a licensed psychologist or psychiatrist, qualified as an expert in the field of assessing mental retardation, and further qualified as an expert in the administration, and interpretation of tests, and in the evaluation of persons, for purposes of determining mental retardation.

Upon meeting this initial requirement to go forward, the defendant may present such other opinions and evidence as the trial court may allow pursuant to the Mississippi Rules of Evidence.

Thereafter, the State may offer evidence, and the matter should proceed as other evidentiary hearings on motions.
At the conclusion of the hearing, the trial court must determine whether the defendant has established, by a preponderance of the evidence, that the defendant is mentally retarded. The factors to be considered by the trial court are the expert opinions offered by the parties, and other evidence if limitations, or lack thereof, in the adaptive skill areas listed in the definitions of mental retardation approved in Atkins, and discussed above. Upon making such determination, the trial court shall place in the record its finding and the factual basis therefor.

Chase v. State, 873 So.2d at 1027-29.

¶ 19. The trial court denied King’s motion to determine mental retardation. On appeal, King asserted that the trial court erred by not granting him a hearing pursuant to Chase. This Court affirmed the denial of his motion to determine mental retardation. King, 960 So.2d at 428. King now reasserts this issue in his instant petition for post-conviction relief.

¶ 20. In previously considering this issue, this Court found that, although Chase had not been decided at the time of the 2003 resentencing trial, King’s hearing complied with the procedures discussed in Chase. Further, this Court found:

Here, both sides presented expert testimony and other evidence regarding King’s mental retardation claim. After hearing all the evidence, which was substantial, the trial judge outlined the evidence that he had considered and gave his reasons for concluding that King was not mentally retarded.
Chase merely affords a defendant a hearing if that defendant fulfills certain requirements. King fulfilled those requirements and had his hearing. For these reasons, we find that King was afforded a hearing on his mental retardation claim in satisfaction with the procedures outlined in Chase. Therefore, we find no error with regard to this issue.

King, 960 So.2d at 428.

¶ 21. Accordingly, King is proeedurally barred from reasserting this issue. See Miss.Code Ann. § 99-39-21(3) (Rev.2007). Further, King fails to offer any evidence sufficient to overcome the procedural bar as required by Mississippi Code Section 99-39-21(6).

VI. Petitioner was denied his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution and Mississippi law due to the cumulative effect of the errors at trial.

¶ 22. This Court previously has found:

King argues that the aggregate of errors in this case requires reversal of his death sentence. This Court’s review of death penalty cases takes into account the aggregate effect of the variety of errors that appear in a capital sentencing trial. Flowers v. State, 842 So.2d 531 (Miss.2003). This Court may reverse a sentence based upon the cumulative effect of errors that, by themselves, do not independently require a reversal. Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992). A review of the record, the briefs, and the arguments shows that there were no individual errors which required reversal and that there is no aggregate collection of minor errors that would, as a whole, mandate a reversal of either the conviction or sentence. Therefore, this issue is without merit.

King, 960 So.2d at 447. Therefore, King is proeedurally barred from reasserting this issue. See Miss.Code Ann. § 99-39-21(3) (Rev.2007). Notwithstanding the procedural bar, as we have found no error, there is no cumulative error and this issue is without merit.

VII. The sentence is disproportionate and in violation of the Eighth and Fourteenth Amendments to the United States Constitution and corresponding portions of the Mississippi Constitution.

¶ 23. King asserts that “the aggravating circumstance of a murder for hire resulted in petitioner’s capital murder conviction” and the imposition of a disproportionate sentence. However, this was not a murder-for-hire case. Therefore, this issue is without merit.

CONCLUSION

¶ 24. Accordingly, for the reasons stated herein, Mack Arthur King’s application for leave to seek post-conviction relief is denied.

¶ 25. POST CONVICTION RELIEF DENIED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, J., CONCURS IN PART WITHOUT SEPARATE OPINION. KITCHENS, J., DISSENTS WITH SEPARATE OPINION JOINED IN PART BY DICKINSON, J.

KITCHENS, Justice,

Dissenting.

¶ 26. The doctrine of res judicata is integral to the functioning of our legal system, but there are times when procedural bars must yield to the exigencies of justice. This case presents such an instance, literally a matter of life and death, and the Court should not forego this opportunity to remediate its prior improvidence before the federal courts do. Because the previous opinion, which provides the basis for the majority’s denial of relief, is afflicted by significant factual and legal errors in its analysis of King’s claims regarding expert assistance, mental retardation, and mitigation evidence, I respectfully dissent.

Expert Assistance

¶ 27. As the majority notes, this Court affirmed the trial court’s denial of funding for a mental health expert, reasoning that King had failed to demonstrate a “substantial need” for such an expert. King v. State, 960 So.2d 413, 423 (Miss.2007) (quoting Holland v. State, 705 So.2d 307, 333 (Miss.1997)). The facts and applicable case law demonstrate the error of that holding.

¶ 28. Before resentencing, King moved for funding for experts to assist him with his Atkins claim. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In support, he attached to his motion the 1984 trial testimony of Dr. Robin D. King, a psychologist who had assessed the defendant’s intelligence quotient (IQ) to be 71 and had testified that the margin of error would place Mack Arthur King in the mentally retarded range. King also attached the 1998 testimony of state psychologist, Dr. Michael Whelan. Dr. Whelan also concluded that King’s IQ was 71, but disagreed that King was mentally retarded. Finally, King attached an affidavit from Dr. Caroline Ev-erington, an expert in the field of mental retardation, which stated that further testing would be required to make an accurate Atkins determination. She noted that: the previously-administered tests were outdated; an evaluation of adaptive skills and developmental delays would be required; and that a psychologist would need to compile a complete social history. The trial court heard oral arguments and later denied the motion in a two-sentence order.

¶ 29. The seminal case regarding funding for psychiatric services for indigent criminal defendants is Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ake held that when an indigent defendant makes a preliminary showing that “his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id., 470 U.S. at 83, 105 S.Ct. 1087. On direct appeal, the State argued that Ake was limited to cases in which the defendant raised an insanity defense or the State planned to present psychiatric evidence at sentencing. King I, 960 So.2d at 420. Although this Court quoted Ake at length, it did not decide whether the State’s argument was valid. Id. at 420-21. What the Court did do was apply the “abuse of discretion” standard appropriate for reviews of funding denials for consultants or investigators, concluding, “[a]fter reviewing the evidence in the record ... we find that King has not shown the ‘substantial need’ required to obtain funds for an independent expert.” Id. at 423 (quoting Holland v. State, 705 So.2d 307, 333 (Miss.1997)).

¶ 30. King I did not fully develop the important interplay between Atkins and Ake. Under Ake, when a defendant’s mental condition is a critical factor, the Fourteenth Amendment’s due process guarantees require the State to provide an indigent criminal defendant with expert assistance. 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53. As Ake makes clear, “[t]his Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.” Id. at 76, 105 S.Ct. 1087. Because, under Atkins, a successful showing that he is mentally retarded would foreclose the penalty of death, King most certainly demonstrated “a substantial need” to trigger his constitutional right to a mental health expert’s assistance.

Atkins Hearing

¶ 31. I also disagree with the determination that the procedure employed to address the issue of King’s mental retardation was sufficient to comply with Chase v. State, 873 So.2d 1013 (Miss.2004). This Court’s decision in King I misapprehended the underlying facts, resulting in a substantial injustice that must be corrected.

¶ 32. On direct appeal, this Court held that “[although Chase had not been decided at the time of King’s 2003 resentencing trial, we find that [the] hearing sufficiently complied with the procedures discussed in Chase.” King I, 960 So.2d at 427. In support of this holding, the Court asserted that “both sides presented expert testimony and other evidence regarding King’s mental retardation claim. After hearing all the evidence, which was substantial, the trial judge outlined the evidence that he had considered and gave his reasons for concluding that King was not mentally retarded.” Id. at 426 (emphasis supplied).

¶ 33. However, while evidence of mental retardation was presented during his resentencing hearing, the trial judge had concluded that King was not mentally retarded prior to trial. This ruling took place in chambers, following brief oral arguments, and without a full evidentiary hearing. During this proceeding, no witnesses were called to testify, and only one document was received into evidence. Chase requires that the “the matter should proceed as other evidentiary hearings on motions,” 873 So.2d at 1029 (emphasis added); but what actually occurred in this instance was nothing more than oral argument by counsel.

¶ 34. Chase also requires that “[t]he factors to be considered by the trial court are the expert opinions offered by the parties, and other evidence of limitations, or lack thereof, in the adaptive skill areas listed in the definitions of mental retardation approved in Atkins.” Id. Thereafter “the trial court shall place in the record its finding and the factual basis therefor.” Id. Yet, in the present case, there is no order or judgment that sets forth the factual basis for the court’s finding, and there is no formal recitation of the factors considered by the trial judge. The oral arguments were immediately followed by a declaration by the trial judge that King did not appear retarded, based on a 1971 report card. The judge pointed to a comment from King’s grade-school teacher that “He could do his work if he attended regularly.” The trial judge went on to say that his wife was a retired school teacher and that “these school teachers sometimes are real observant.”

¶ 35. This abbreviated pretrial proceeding failed to meet the due process requirements of Chase. King was not afforded a hearing on his mental retardation claim in satisfaction of the procedures outlined in Chase. The bulk of the proof relating to King’s mental retardation issues was presented to the jury as mitigating evidence, after the trial court already had determined that King was not mentally retarded. As a result, King was deprived of a meaningful Atkins hearing at which he could present the testimony of expert and lay witnesses, and cross-examine the State’s witnesses.

Mitigation Evidence

¶ 36. Finally, by holding that King is procedurally barred from raising the issue of mitigation evidence, this Court is ratifying a decision in direct conflict with holdings of the United States Supreme Court.

¶ 37. As on direct appeal, King argues that by preventing him from cross-examining the State’s witnesses on the circumstances of Mrs. Patterson’s murder, he was precluded from arguing relevant mitigating evidence. King I, 960 So.2d at 460. At resentencing, following the State’s examination of a pathologist who testified regarding Mrs. Patterson’s final moments, King attempted to cross-examine Sheriff Ray Griner on the absence of physical evidence connecting King to the murder scene. The State objected that such elicitation would amount to a relitigation of the trial’s guilt phase, to which King had no constitutional right under the United States Supreme Court’s decision in Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006). On direct appeal, this Court agreed with the State, concluding that King was attempting to present evidence of “residual doubt.” King, 960 So.2d at 436-39.

¶ 38. In Guzek, the high court found no Eighth Amendment right to adduce evidence of actual innocence during the sentencing phase of a bifurcated murder trial. 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112. However, evidence of actual innocence is distinguishable from mitigation evidence, which is not prohibited. Writing for the six-justice majority, Justice Breyer explained that this sort of mitigating evidence is that “evidence that tend[s] to show how, not whether, the defendant committed the crime.” Id. at 524, 126 S.Ct. 1226 (emphasis included). Evidence of actual innocence, on the other hand, is “evidence directly inconsistent with the jury’s finding of guilt.” Id. The proper inquiry in the instant case, therefore, is whether the evidence offered by King would have shown how the crime was committed or whether the crime was committed.

¶ 39. Under Mississippi law, one need not have had his hands at the throat of the victim at the moment of death to be found guilty of murder. Likewise, although our capital punishment statute seeks to identify the worst of the worst, it leaves open the possibility of a death penalty for a defendant whose intent rises only to the level of a “contemplation] that lethal force be employed.” Miss.Code Ann. § 99-19-101 (Rev.2007).

¶40. The testimony sought by King straddles a fine line. Undoubtedly, King wanted to illustrate that his were not the hands that gripped Mrs. Patterson’s neck and held her beneath the water (in other words, that he did not personally commit the act of capital murder). But just as clearly, even if this were true, King still would be guilty of capital murder by virtue of his involvement in the burglary that resulted in Mrs. Patterson’s death. Said another way, he still would be guilty of the crime of capital murder. Therefore, because adducing such evidence in the penalty phase would not have undermined the guilty verdict, it would not have constituted “evidence directly inconsistent with the jury’s finding of guilt.” Guzek, 546 U.S. at 524, 126 S.Ct. 1226. In other words, the evidence “show[s] how, not whether, the defendant committed the crime.” Id. Specifically, the evidence would have been offered for the purpose of suggesting, not that King should not have been convicted, but rather that his absence from Mrs. Patterson’s immediate murder scene foreclosed a finding that he had acted heinously, atrociously, or cruelly. See Miss.Code Ann. § 99 — 19—101(5)(h) (Rev.2007).

¶ 41. Whether the jury would have accepted that argument is another question, of course. They might have concluded that King’s mere presence on the premises where the homicide was perpetrated, and his participation in the underlying felony of burglary, constituted an acquiescence to the killing, and that this behavior was in and of itself heinous, atrocious, or cruel. But that would have been, and should have been, properly left to the jury.

¶ 42. For the limited purpose of demonstrating how, not whether, King committed the crime of capital murder, he should have been permitted to adduce evidence showing that he was not present in the very room in which the accomplice strangled and drowned Mrs. Patterson, and thus he did not physically and personally participate in that awful process. This Court’s ruling to the contrary amounted to error under the U.S. Supreme Court’s ruling in Oregon v. Guzek.

¶ 48. King should have been afforded the opportunity to adduce evidence before the sentencing jury (in this case, not the same jury that had sat in the guilt phase of the bifurcated trial) that he was not even in the same room where Mrs. Patterson was slain, in order for those jurors to assess whether he had acted heinously, atrociously, or cruelly. The trial court’s ruling to the contrary deprived King of relevant, and likely valuable, mitigation evidence.

Conclusion

¶ 44. While recognizing and respecting the venerable doctrine of res judicata, I am unable to ignore the serious shortcomings of King I, and I lament our failure to seize upon today’s opportunity to rectify the momentous errors of that decision. Accordingly, I respectfully dissent.

DICKINSON, J., JOINS THIS OPINION IN PART.

      . "The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.” Miss.Code Ann. § 99-39-21(6) (Rev.2007).

      . Rivera, 505 F.3d at 358 (citing Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). Panetti, 127 S.Ct. at 2848 (also citing Ford).


author: RANDOLPH, Justice, CARLSON, Presiding Justice,

text:
    Mary SCAGGS v. GPCH-GP, INC. d/b/a Garden Park Medical Center.
    No. 2008-CA-00983-SCT.
    Supreme Court of Mississippi.
    Oct. 8, 2009.
    Rehearing Denied Jan. 7, 2010.

      Woodrow W. Pringle, III, Gulfport, attorney for appellant.
    Kaara Lena Lind, William E. Whitfield, III, Biloxi, attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. This is an appeal of the dismissal of a personal-injury case that began in 2002. Mary Scaggs was being treated at the appellee’s medical facility, where she claims she fell from an examination table and was injured as a result. Scaggs named “Garden Park Medical Center” as the defendant, rather than “GPCH-GP, Inc. d/b/a Garden Park Medical Center” (“GPCH-GP, Inc.”). The procedural history of this matter includes a prior appeal to this Court. See Scaggs v. GPCH-GP, Inc., 931 So.2d 1274 (Miss.2006) (“Scaggs I ”). In September 2007, the Circuit Court of the First Judicial District of Harrison County granted GPCH-GP, Inc.’s dismissal motion, finding that Scaggs’s amended complaint, which amended only GPCH-GP, Inc.’s name, was untimely. Finding error, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. Scaggs filed her original complaint on April 12, 2004. Summons was issued to Garden Park Medical Center, the d/b/a of GPCH-GP, Inc. The return was filed on April 21, 2004, revealing service on the chief executive officer of Garden Park Medical Center. A motion to dismiss and/or for summary judgment was filed by GPCH-GP, Inc., d/b/a Garden Park Medical Center (erroneously identified as Garden Park Medical Center), on May 10, 2004. The motion asserted inter alia that Scaggs had failed to: (1) identify the correct defendant and serve process upon the registered agent for service of process, and (2) file within the applicable two-year statute of limitations. Thus issue was joined. Scaggs responded by arguing that she should be allowed to amend the caption of her pleading so that GPCH-GP, Inc. would be correctly named. The trial court granted GPCH-GP, Inc.’s motion, solely on the statute-of-limitations issue, but did not address the issue of misnomer. On appeal, this Court reversed and remanded, holding that Scaggs was not barred from proceeding, as the statute of limitations had not expired. Id. at 1277.

¶ 3. After remand, GPCH-GP, Inc., filed a motion to dismiss and/or for summary judgment, reasserting that Scaggs had not identified and served process on the correct defendant. Scaggs responded by relying on her previous filings. After a hearing, the trial court granted Scaggs leave to amend. Scaggs then filed her amended complaint in September 2007, amending only the name of the defendant.

¶ 4. GPCH-GP, Inc., then moved to dismiss the amended complaint, arguing that Scaggs had not filed her action against GPCH-GP, Inc., within the statute-of-limitations requirements of Mississippi Code Section 15-1-36. The trial court granted GPCH-GP, Ine.’s dismissal motion, stating, “Since the requirements under Miss. R. Civ. P. 15(c) have not been met, [Scagg’s] amended complaint does not relate back to the original complaint and should therefore be dismissed as time barred.” Scaggs appeals the dismissal.

DISCUSSION

¶ 5. One issue is before the Court.

WHETHER IT WAS ERROR TO DISMISS THE AMENDED COMPLAINT.

¶ 6. We are called upon to rule on a motion to dismiss involving a pure question of law. In such instances, “[tjhis Court reviews de novo a trial court’s grant or denial of a motion to dismiss.” Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So.2d 1179, 1187 (Miss.2008).

¶ 7. Scaggs filed her amended complaint in September 2007. The statute of limitations expired in May 2004. See Scaggs I, 931 So.2d at 1277. Thus, her complaint is time-barred unless it relates back to the original complaint. An analysis of Mississippi Rule of Civil Procedure 15(c) is necessary here. It states the following:

Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

Miss. R. Civ. P. 15(c).

¶ 8. GPCH-GP, Inc., concedes that (1) the amended pleading arose out of the same conduct set forth in the original pleading; and (2) it had received notice of the institution of the action such that it would not have been prejudiced in maintaining a defense on the merits. Thus, the only language in the rule at issue is as follows:

An amendment changing the party against whom a claim is asserted relates back if ... within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment ... knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Miss. R. Civ. P. 15(c) (emphasis added). Here, Scaggs was not attempting to substitute the party brought in originally or to bring in a new party. She was merely attempting to correct a misnomer, so that the defendant would be correctly named as “GPCH-GP, Inc., d/b/a Garden Park Medical Center,” instead of simply its d/b/a “Garden Park Medical Center.” The lack of a claim being asserted against a new party renders the above-quoted portion of Rule 15(c) inapplicable. The applicable portion of the rule is thus reduced to the following: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” GPCH-GP, Inc., has conceded this section of the rule; thus, the amendment relates back, making it error to have dismissed Scaggs’s complaint.

¶ 9. This Court has long recognized that the doctrine of misnomer allows parties to correct party-name errors if doing so would not result in prejudice. See S. Trucking Serv., Inc. v. Miss. Sand and Gravel, Inc., 483 So.2d 321, 323-24 (Miss.1986); Delta Cotton Oil Co. v. Planters’ Oil Mill, 107 So. 764, 766-67, 142 Miss. 591 (1926); Ala. & Vicksburg Ry. Co. v. Bolding, 13 So. 844, 846, 69 Miss. 255 (1891). In Southern Trucking, the plaintiffs complaint misidentified the plaintiffs corporate name, “South Miss. Sand & Gravel,” but instead used “Miss. Sand & Gravel.” S. Trucking, 483 So.2d at 323-24. Although that complaint was dismissed for other reasons, the Southern Trucking Court reaffirmed the doctrine of misnomer. Id. The Court cited Georgia cases holding that an erroneous corporate name should be correctable if “an actual party were in court, but was not called by his proper name.” Id. at 324 (citing Myrtle Lodge No. 1663 v. Quattlebaum, 207 Ga. 575, 63 S.E.2d 365, 366 (1951); Donald v. Luckie Strike Loans, Inc., 148 Ga.App. 318, 251 S.E.2d 168, 169-70 (1978)). The Court stated the “general rule, which is that an amendment correcting a misnomer is permissible at any time or any stage of the proceedings.” S. Trucking, 483 So.2d at 324 (citing 67A C.J.S. Parties § 237). The wisdom revealed in the quote from Corpus Juris Secundum is no less compelling today than when it was first written:

A misnomer or misdescription in the name of a party may be corrected by amendment, provided it does not effect an entire change of parties or cause a fraudulent or unjust result. As a general rule, frequently under statutes or rules of court so permitting, an error in the name or description of a party, whether a misnomer or misdescription in the name of a plaintiff or a misnomer or misdescription in the name of a defendant, may be corrected by an amendment of the appropriate pleading. Such an amendment, however, should not be allowed where it effects an addition or substitution of parties, or entire change of parties, or causes a fraudulent or unjust result. If the effect of an amendment of a pleading is merely to correct the name of a person, and the proper party is actually in court, as where process has actually been served on the true defendant, or he has appeared and defended or otherwise submitted himself to the jurisdiction of the court, there is no prejudice. However, if the other party suffers prejudice or surprise, the petition to change the name of a party will not be permitted. Additionally, when the proper party was not served and therefore is not before the court, a plaintiff who seeks to correct a name or description of the party in the complaint that is deficient in some respect must demonstrate compliance with the rule governing relation back of amended pleadings.

67A C.J.S. Parties § 237, pp. 760-61 (2002).

¶ 10. This Court has allowed judgments to stand, notwithstanding a misnomer, “where the identity of the persons sued and against whom judgment is rendered is not doubtful.” Delta Cotton Oil, 107 So. at 767. In Bolding, the Court allowed execution of a judgment in which the plaintiff sued “A. & V. Railroad Company,” even though the correct name “Alabama & Vicksburg Railway Company” was not pleaded. Bolding, 13 So. at 846.

¶ 11. Our Court of Appeals followed the same logic in Mieger v. Pearl River County, 986 So.2d 1025 (Miss.Ct.App.2008). The plaintiff sued the “Pearl River County Sheriffs Department,” instead of “Pearl River County.” Id. at 1026. Shortly after filing suit, the plaintiff sent a notice of claim to the president and clerk of the county board of supervisors. Id. at 1025-26. After the Sheriffs Department moved for dismissal for failure to name a political subdivision as a party, the plaintiff moved for leave to amend her complaint, arguing that the proper county officials had been put on notice and knew that a suit would be filed. Id. at 1026. The Court of Appeals held that the receipt of the notice of claim by the county officers satisfied the requirements of Rule 15(c). Id. at 1028. Here, as in Mieger, the proper defendant was put on notice and knew not only that a suit would be filed; it already had been filed.

¶ 12. Our ruling today is consistent also with federal court rulings throughout the country. The Fifth Circuit Court of Appeals has held that amended complaints should relate back when a misnomer occurs. See Hensgens v. Deere & Co., 869 F.2d 879, 884 (5th Cir.1989); Montalvo v. Tower Life Bldg., 426 F.2d 1135 (5th Cir.1970). In Hensgens, the plaintiff sued “John Deere Corp.” as opposed to its proper name, “Deere & Co.” Hensgens, 869 F.2d at 880. Hensgens was a diversity case in which the court applied Louisiana law. Id. Judge Wisdom stated, “Law is not a game of scrabble,” and described John Deere’s arguments as “captious puz-zlements [that] have a bearing on this case in the limited sense that they carry to absurdity the defendant’s argument, basically, that the plaintiff must suffer for her lawyer’s mistake, one that the parties knew was an insignificant error in nomenclature.” Id. at 884. In Montalvo, the plaintiffs named the “Tower Life Building” as the defendant, instead of “Tower Life Ins. Corp.” Montalvo, 426 F.2d at 1137-38. That court allowed an amended pleading to relate back because inter alia “the Company knew or should have known that the plaintiffs had every intention of bringing suit against their employer — whatever the employer’s proper legal name might be....” Id. at 1147.

¶ 13. Other federal circuit courts are in accord. See Roberts v. Michaels, 219 F.3d 775, 778-79 (8th Cir.2000) (plaintiff allowed to amend from “Midsouth Food Vending Service, Inc.” to “Ron Michaels d/b/a Mid-South Vending”); Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 224 (4th Cir.1999) (absence of “Inc.” deemed insignificant and irrelevant); Athmer v. C.E.I. Equipment Co. Inc., 121 F.3d 294, 296 (7th Cir.1997) (“A misnomer is nothing more than an error in the drafting of the complaint, and it ought to be corrigible by amendment....”); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir.1993) (“amendment with relation back is generally permitted in order to correct a misnomer of a defendant where the proper defendant is already before the court ... ”).

¶ 14. To support their arguments, ap-pellees have cited Ralph Walker, Incorporated v. Gallagher, 926 So.2d 890 (Miss. 2006), and Wilner v. White, 929 So.2d 315 (Miss.2006), and cases cited therein. However, a reading of each reveals clear and important distinctions. In Ralph Walker, the plaintiff sought to add a new defendant after the expiration of the statute of limitations. See Ralph Walker, 926 So.2d at 892. In Wilner, the plaintiff sought to add four additional defendants after expiration of the statute of limitations. See Wilner v. White, 929 So.2d at 317-18. Thus, in citing Wilner, GPCH-GP, Inc. “fail[s] to consider the well-recognized distinction between a complaint that sues the wrong party, and a complaint that sues the right party by the wrong name.” Roberts v. Michaels, 219 F.3d 775, 777-78 (8th Cir.2000).

¶ 15. The Wilner Court cited two cases that are likewise distinguishable. See Nelson v. Adams USA, Inc., 529 U.S. 460, 120 S.Ct. 1579, 146 L.Ed.2d 530 (2000); Curry v. Turner, 832 So.2d 508 (Miss.2002). In Curry, the plaintiff in a wrongful-death action first sued the person who had killed the decedent. Curry, 832 So.2d at 509. After the original statute of limitations expired, the plaintiff attempted to add additional new defendants: (1) the killer’s relatives, under a negligent-entrustment theory; and (2) the owner of the building where the incident had occurred, under a premises-liability theory. Id. This Court dismissed the complaints against the newly-named defendants, as they had not been given notice of the original complaint. Id. at 513-14. In Nelson, the plaintiff originally sued a corporation and later attempted to add the sole shareholder of the corporation. Nelson, 529 U.S. at 462-63, 120 S.Ct. 1579. The U.S. Supreme Court dismissed the complaint against the newly-named party because he had been denied “all opportunity to be heard in response to the amendment.” Id. at 467 n. 1, 120 S.Ct. 1579. The Court noted also that Federal Rule of Civil Procedure 15 “applies only in cases involving ‘a mistake regarding the identity of a proper party.’” Id. (quoting Fed.R.Civ.P. 15(c)(3)(B)). The Nelson plaintiff had made no such mistake, because he had known of the sole shareholder’s role all along, but had chosen not to include him as a defendant until after the statute of limitations had run. Nelson, 529 U.S. at 467 n. 1, 120 S.Ct. 1579.

¶ 16. GPCH-GP, Inc.’s argument that Scaggs failed to make a diligent effort to amend the complaint is misplaced, as “reasonable diligence” is inapplicable. We have stated that “[reasonable diligence is a standard only for determining the efforts made to discover the true identity of a named fictitious party under Rule 9(h).” Wilner, 929 So.2d at 323. Rule 9(h) does not apply. Scaggs is seeking to correct a misnomer, not to sue a previously-unknown “John Doe” defendant.

¶ 17. Allowing the dismissal to stand would deny Scaggs an opportunity for a trial on the merits because of a misnomer in the complaint. Scaggs should not be penalized for the misnomer, because no such penalty exists under the facts of this case, in which the correction is simple and prejudices no one. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., GRAVES, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLSON, Presiding Justice,

Dissenting.

¶ 19. Because the majority finds that “Scaggs was not attempting to substitute the party brought in originally or to bring in a new party” and that only part of the relation-back doctrine is applicable, I respectfully dissent.

¶ 20. As stated by the majority, Mississippi Rule of Civil Procedure 15(c) states:

Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

Miss. R. Civ. P. 15(c). In the case before us, GPCH-GP, Inc., does not dispute the first two prongs of the relation-back test and concedes that the claims “asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” GPCH-GP, Inc., also does not dispute that it received such notice of the institution of the action that it will not be prejudiced in maintaining a defense. See Miss. R. Civ. P. 15(c)(1). However, GPCH-GP, Inc., correctly disputes the third prong, whether it “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.” Miss. R. Civ. P. 15(c)(2). The majority arrives at the conclusion that Scaggs was “merely attempting to correct a misnomer, so that the defendant would be correctly named as ‘GPCH-GP, Inc., d/b/a Garden Park Medical Center,’ ” so the third prong of the relation-back doctrine is inapplicable. I must disagree with this conclusion.

¶ 21. Here, according to the record, Scaggs failed to serve process upon the correct registered agent for GPCH-GP, Inc. Instead, Scaggs caused process to be issued for service upon “Garden Park Medical Center,” and the process server’s return on the summons reveals that the summons was served upon “Garden Park Hospital” by personally serving William Peaks. Therefore, Mississippi Rule of Civil Procedure 15(c) is applicable in its entirety.

¶ 22. The disputed portion of the relation-back doctrine “essentially asks whether, because of the existence of a mistake as to the parties’ identities on the part of the movant or complainant, the newly-named defendant did not know that an action would be brought against him within the 120 days.” Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 896 (Miss.2006) (emphasis added) (citation omitted). Garden Park asserts that Scaggs cannot argue that a mistake was made regarding the proper identity of Garden Park as GPCH-GP, Inc., since Scaggs’s attorney instituted claims against GPCH-GP, Inc., prior to filing the original complaint in this action, using GPCH-GP, Inc.’s proper name. Further, In Wilner v. White, regarding Mississippi Rule of Civil Procedure 15(c)(2), this Court stated:

This part of the rule essentially asks whether, because of the existence of a mistake as to the parties’ identities on the part of the movant or complainant, the newly-named defendant did not know that an action would be brought against him within the prescribed time. Curry, 832 So.2d at 513-t] The purpose of this rule is to allow some leeway to a party ivho made a mistake, so long as the party does what is required within the time period under the rule. The United States Supreme Court, in looking at the federal counterpart to this rule, Fed.R.Civ.P. 15(c)(3)(B), noted that this “subsection applies only in cases involving ‘a mistake concerning the identity of the proper party.’ ” Nelson v. Adams USA, Inc., 529 U.S. 460, 467, 120 S.Ct. 1579, 146 L.Ed.2d 530, n. 1 (2000) (quoting Fed.R.Civ.P. 15(c)(3)(B)). Here, there can be no attempt to assert that a mistake was made concerning White’s identity. Also, Wilner unquestionably failed to make a reasonably diligent effort to add White’s name to the complaint sooner. White’s name actually appears in the body of the original complaint itself.

Wilner v. White, 929 So.2d 315, 323-24 (Miss.2006) (emphasis added) (footnote omitted). See also Gallagher, 926 So.2d at 896 (“The purpose of this rule is to allow some leeway to a party who made a mistake. ...”). Since there was evidence before the trial court that Scaggs’s attorney previously had filed suit against GPCH-GP, Inc., correctly identifying GPCH-GP, Inc., the trial court did not commit error in determining that Scaggs knew that “Garden Park Medical Center” was not the proper identity of the defendant, and therefore, failed to meet the relation-back test of Mississippi Rule of Civil Procedure 15(c). Furthermore, as also determined by the trial court, Scaggs did not take any affirmative measures to amend the complaint other than a simple request within her Response to the Motion to Dismiss that she be allowed to amend her complaint if the trial court determined that the wrong party defendant was named.

¶ 23. For these reasons, I respectfully dissent.

      . Curry v. Turner, 832 So.2d 508 (Miss.2002).