author: AMY, Judge.

text:
    Ronnaesa REIDER v. CHRISTUS HEALTH SOUTHWESTERN LOUISIANA, et al.
    16-959
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2017
    Jerald L. Album, Suzanne M. Ganu-cheau, Reich, Album & Plunkett, L.L.C., 3850 N. Causeway Boulevard, Suite 1000, Metairie, LA 70002, (504) 830-3999, COUNSEL FOR DEFENDANT/APPELLANT: Hospital Housekeeping Systems, LLC
    Mark A. Delphin, Arthur J. O’Keefe, Delphin Law Offices, 626 Broad Street, Lake Charles, LA 70601, (337) 439-3939, COUNSEL FOR PLAINTIFF/APPEL-LEE: Ronnaesa Reider
    Marne Jones, Beirne, Maynard & Parsons, LLP, 601 Poydras Street, Suite 2200, New Orleans, LA 70130-6097, (504) 586-1241,' COUNSEL FOR DEFENDANT/APPELLEE: Christus Health Southwestern Louisiana

      Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   AMY, Judge.

hThe plaintiff filed suit against the defendant hospital and the defendant-maintenance company due to injury allegedly sustained in a fall at the hospital. She filed a motion for summary judgment against the maintenance company, submitting a video of the incident as well as witness statements indicating that liquid was on the floor. Following a hearing, the trial court entered summary judgment in favor of the plaintiff. The resulting judgment indicated both that the maintenance company was fully at fault in causing the plaintiffs fall and that the plaintiff was free of fault. The maintenance company appeals. For the following reasons, we reverse and remand.

Factual and Procedural Background

The plaintiff, Ronnaesa Reider, filed this matter after falling in the hallway of Christas Health Southwestern Louisiana d/b/a Christas St. Patrick Hospital. By her petition, the plaintiff alleged that, on August 21, 2013, she and a friend, Brandi Jones, were visiting the hospital and that they were “walking down a hallway when, suddenly and without warning, she slipped and fell due to water and/or liquid on the floor surface.” She alleged that the “fall caused her to sustain serious and grievous personal injuries and other damages.” Specifically, the plaintiff alleged injury to her knee. She initially named Christas St. Patrick Hospital as the defendant, contending that the hospital was negligent and/or strictly liable for, among other things, allowing liquid to remain on the floor surface. It also advanced liability based upon a failure to warn. She sought both general and special damages related to the alleged injury,

|2By amended petition, the plaintiff added Hospital Housekeeping Systems, Ltd. d/b/a Hospital Housekeeping Systems, LLC - (HHS), as a defendant. The plaintiff again alleged negligence and/or strict liability against the defendants asserting liability due to, among other things, the presence of a liquid on the floor, failure to warn of the danger of slipping and/or falling, and failure to post visible warning signs. By its answer to the petition, HHS denied the plaintiffs allegations and asserted that “the sole and proximate cause of the accident sued upon herein were the acts, commissions, omissions and negligence of others for whom this defendant is not answerable or responsible.”

Thereafter, the plaintiff filed a motion for summary judgment and asserted that she was entitled to judgment indicating that HHS was “one hundred (100%) at fault in causing the fall made the basis of the above claim for damages.” She further sought a determination that she was “free of fault[.]” In support of her motion, the plaintiff included an excerpt from her deposition, as well as one from Brandi Jones, in which both women addressed her fall. Both women identified a wet streak on the floor at the time of the incident.

The plaintiff also introduced surveillance footage from the hallway in the minutes before, during, and after the plaintiffs fall. In her memorandum in support of the motion for summary judgment, the plaintiff included still images captured from the video, and asserted that they captured HHS employee Jamón Thomas using a scrubber machine on the floor “[mjoments before [her] fall[.]” The plaintiff noted the machine’s movement in the hallway prior to the fall and|3 suggested that “[i]nstead of cleaning and drying the floor as the machine makes its “S” maneuver, it left a streak of transparent water and cleaning fluid on the floor.” Again referencing photographic images from the video, the plaintiff asserted that after Mr. Thomas left the scene, she and Ms. Jones entered the hallway, and that, after she stepped “forward in the area where the machine made its “S” turn,” her left foot slid and she fell “hard on her right knee.” Referencing her deposition testimony, the plaintiff explained that she then identified a streak of liquid on the floor and that her pant leg was wet. The plaintiff then noted that she thereafter stopped hospital personnel, showing the person that there was water on the floor and that the video images reveal Mr. Thomas returning to the area with the scrubber machine. The plaintiff also introduced the affidavit of Mr. Thomas, noting that he explained therein that he returned to the hallway and that, upon cleaning the area, he identified a narrow streak of liquid on the floor, appearing to him that the wiper of the machine failed to remove the subject liquid.

In opposition, HHS suggested that its own evidence demonstrated genuine issues of material fact regarding whether a foreign substance was on the floor, whether it had actual or constructive knowledge of that condition, or whether it created such a condition. In particular, HHS noted that in her deposition, the plaintiff explained that the streak of water ran the length of the hall. This description, HHS asserted, differed from her affidavit and from Ms. Jones’s deposition, wherein she only identified drops in a line, but explained that the streak was only three to five feet long.

Turning to the video footage, HHS suggested that the video identified “a clean, clear hallway” and that it did not appear different before or after Mr. Thomas is shown passing with the scrubber machine. It further asserted that an|4 unidentified male shown on the video prior to the plaintiffs arrival is shown to “place[] his left foot in the exact spot in which Ms. Reider claims to have slipped on water, which occurs exactly 0:05 seconds before Ms. Reider slips.” It suggests that the fall therefore could have “been caused by the shoe of the unidentified male that steps on the exact spot 0:05 seconds prior” to the fall.

Additionally, HHS argued that the videotape rendered Mr. Thomas’s affidavit unreliable, insofar as he had explained therein that he discovered liquid upon his return to the scene, but the video revealed that he did not stop and inspect the area. Rather, HHS asserted that Mr. Thomas re-entered the hallway with the scrubber machine, but that the -video did not evidence that the squeegee function of the machine was engaged at that time. In this regard, HHS further offered the affidavit of Sutton Francis, who explained that in his role as “PM Assistant Director at HHS” at Christus St. Patrick Hospital, he had personal knowledge of the scrubber machine operated in the surveillance video. He stated in the affidavit that, having viewed the video, it appeared “that both the front scrubber pad and the back squeegee were raised and therefore, the machine is not being used to scrub the floor” and that “[w]hen the scrubber head is up, the machine is not placing any liquid on the ground.” He concluded the affidavit by opining that: “Because both the front scrubber pad and back squeegee are up when the HHS employee passes down the hall prior to Ms. Reider’s incident, if there is any liquid on the floor, it neither came from nor was affected (smeared) by the Tennet T3 Floor Scrubber machine.”

Finally, HHS introduced an excerpt of Mr. Thomas’s deposition and asserted that it rendered his affidavit unreliable. It argued that his testimony, coupled with the surveillance video, countered the plaintiffs “insistence that she fell on a|s foreign substance.” HHS suggested instead that the video and derivative photographs revealed “no obvious substance on the floor” and that it “appears to be in the exact same condition before and after Mr. Thomas passes with the scrubber machine before the plaintiffs fall.” It further referenced passages from Mr. Thomas’s deposition in which he denied seeing any liquid on the floor either before or after the accident. Rather, he explained that the operator could feel the machine leaving water and that he “didn’t feel it at all.”

In reply, the plaintiff offered a more expansive excexpt from Mr. Thomas’s deposition, and suggested that his testimony and Mr. Francis’s affidavit were speculative with regard to whether liquid was present on the floor. She contends that the speculation offered by HHS was inadequate to overcome her own affirmative statements regarding the presence of liquid as well as that of Ms. Jones.

Following a hearing on the motion for summary judgment, the trial court rendered judgment in favor of the plaintiff. The resulting judgment determined that HHS was “one hundred (100%) percent at fault in causing the fall made the basis of the above claim for damages[.]” The judgment further indicated that the plaintiff was “free of fault.” It reserved the issues of injuries and damages for future consideration.

By subsequent judgment, the trial court denied HHS’s motion for a new trial and determined that the underlying judgment constituted a final judgment “for purposes of an immediate appeal because there is no just reason for delay.” See La.Code Civ.P. art. 1915(B)(1).

|fiHHS appeals, assigning the following as error:

1) The trial court erred as a matter of law in finding that Reider met her burden of proof on the issue of HHS’s liability as she did not prove that all the elements for non-merchant liability were met.
2) The trial court erred as a matter of law in granting Reider’s Motion for Partial Summary Judgment, declaring that HHS is 100% liable for Reider’s injuries as there are questions of fact as to HHS’s knowledge of the risk.
3) The trial court erred as a matter of law in denying HHS’s Motion for New Trial.

Discussion

Louisiana Code of Civil Procedure Article 966

Louisiana Code of Civil Procedure Article 966(A)(2) indicates that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” The Article further instructs that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

In Suire v. Lafayette City-Parish Consol. Government, 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 (citation omitted), the supreme court explained that “[a] genuine issue exists where reasonable persons, after considering the evidenced could disagree. In considering “whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Id. The supreme court noted that a fact is material in nature if it is one that will matter at the trial on the merits. “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.” Id.

Notably, the burden of proof in seeking summary judgment “remains with the movant.” La.Code Civ.P. art. 966(C)(2). However, “if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense[.]” Id. Instead, the moving party is required “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

On appeal, a trial court’s determination to grant a motion for summary judgment is reviewed de novo. Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-0846 (La. 10/19/16), 218 So.3d 513, 2016 WL 6123862. The appellate court uses the identical criteria that governed the trial court’s consideration of whether summary judgment should be entered. Id.

Motion for Summary Judgment

Recognizing the de novo standard of review applicable here, HHS suggests that the plaintiff failed to carry her burden of proving “that there was no genuine issue of fact as to whether HHS knew or should have known of a liquid on the| s floor when Thomas cleaned the area.” HHS references the evidence presented in support of the plaintiffs motion for summary judgment and argues there was no such evidence indicating either that Mr. Thomas knew there was liquid on the floor, or that he failed to remedy such a condition. Pointedly, HHS asserts that the plaintiff presented “no evidence to show that the substance was on the floor for such a period of time that the HHS employee, by the exercise of ordinary care and diligence, must have known of its existence in general and could have guarded the public from injury.”

We first point out that the parties differ on the elements that the plaintiff was required to demonstrate. Central to their dispute is whether the plaintiff was required to demonstrate actual or constructive knowledge of the existence of liquid on the floor. The plaintiff answers that question in the negative, asserting that the standard elements of the duty/risk analysis are applicable to this case, which she styles in her brief as involving “simple negli-gencef.]” See La.Civ.Code art. 2315; La.Civ.Code art. 2316. Thus, citing Roberts v. Benoit, 605 So.2d 1032 (La.1991) (on rehearing), the plaintiff suggests that hex-ultimate burden of proof would have required her to demonsti-ate that: 1) the defendant had a duty to conduct itself to a specific standard; 2) the defendant failed to do so and, therefore, breached its duty; 3) the substandard conduct was a cause-in-fact of the claimed injuries; 4) the substandard conduct was a legal cause of those injuries; and that 5) actual damages resulted. The plaintiff also asserts that, since HHS’s presence at the hospital wasR in its role as a contractor, it is “deemed to have constructive knowledge of the negligent act he/she commits.”

Contrarily, HHS cites Foster v. Henshaw, 06-414 (La.App. 3 Cir. 9/27/06), 939 So.2d 625, suggesting that, as a non-merchant defendant, the plaintiff was required to show that: 1) it had custody of the property causing the purported damage; 2) the property had a condition presenting an unreasonable risk of harm; 3) the unreasonable risk of harm presented was a cause-in-fact of the purported injury; and that 4) the defendant had actual or constructive knowledge of the risk of harm.

However, and notwithstanding the plaintiffs observation that HHS appears in this case as a contractor, it is notable that the subject accident occurred in a hospital. Certainly, jurisprudence indicates that slip-and-fall claims against a hospital are not controlled by La.R.S. 9:2800.6, as applicable to merchants. See Bell v. Carencro Nursing Home, Inc., 16-0190 (La.App. 3 Cir. 9/28/16), 202 So.3d 499, writ denied, 16-1918 (La. 12/16/16), 212 So.3d 1170, 2016 WL 7638422; Smith v. Northshore Reg. Med. Ctr., Inc., 16-0628 (La.App. 1 Cir. 1/26/15), 170 So.3d 173. Rather, a panel of this circuit has recently explained that a plaintiff pursuing a slip-and-fall case against a hospital or nursing home must demonstrate that he or she sustained injury as a result of a foreign substance on the hospital premises. Bell, 202 So.3d 499 (relying on Neyrey v. Touro Infirmary, 94-78 (La.App. 4 Cir. 6/30/94), 639 So.2d 1214). Thereafter, the burden shifts to the hospital to establish that it exercised reasonable care commensurate with the circumstances involved. Id. See also Smith, 170 So.3d 173.

Yet, and despite HHS’s argument regarding whether it had knowledge of any such condition, the plaintiff was required, in the least, to demonstrate that no genuine issues of material fact existed with regard to whether her injuries were caused as a result of a foreign substance on the hospital premises. Upon review of the parties’ submissions, we conclude that she failed to do so. Undoubtedly, the plaintiff presents compelling video surveillance footage that included the events now at issue. Namely, it reveals the floor cleaning activities by Mr. Thomas and the plaintiffs subsequent fall in the hallway. Both parties note the short period oij^ time between the two occurrences in support of then* respective positions. Additionally, the plaintiff notes that both she and Ms. Jones provided witness testimony, via deposition and affidavit, that liquid was located on the hallway floor. Mr. Thomas also explained by affidavit that he too found liquid in the aréa when he returned after being informed of the fall.

Yet, in opposition, HHS provided the trial court with Mr. Thomas’s deposition wherein he explained that, to the extent the scrubber machine left a “streak” of liquid on the floor, it was dry by the time he travelled two or three feet. He further denied having seen the machine’s squeegee make streaks or leave wetness before the plaintiffs fall. Mr. Thomas further explained that, as the operator, he could “feel” when liquid was leaving the machine and stated that he “didn’t feel it at all” at that time. Additionally, Mr. Francis stated by affidavit that, upon review of the video, it appeared that the scrubber pad and the squeegee were raised at the time it trav-elled through the hallway and that when the scrubber is raised, the machine does not leave liquid on the floor.

In short, and although the surveillance video could allow a trier of fact to reach certain factual findings, the video alone establishes only that Mr. Thomas maneuvered the scrubber machine through the hallway and that the plaintiff fell after-wards in the same area. It does not, alone, demonstrate that liquid was present, nor that HHS was responsible for the foreign substance’s presence. Of course, the plaintiff would be required to demonstrate both of these in her claim against HHS, as the contractor. Instead, the parties attempt to interpret the video footage through the affidavits and deposition testimony offered in their respective! K submissions. But, that testimony differed, at times, as to the presence, or potential presence, of the alleged foreign substance. As such, the necessary factual conclusions are dependent upon credibility determinations, evaluations of testimony, and weighing of evidence. However, the supreme court has explained that, in determination of whether “an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Suire, 907 So.2d at 48. Furthermore, “[a]ny doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.” Id. at 48.

Accordingly, based on the factual conclusions apparent from the parties’ submissions, we find that the trial court erred in entering summary judgment in favor of the plaintiff. We reverse that judgment below and remand for further proceedings.

DECREE

For the foregoing reasons, the summary judgment entered in favor of the plaintiff/appellee, Ronnaesa Reider, and against the defendanVappellant, Hospital Housekeeping Systems, LLC, is reversed and this matter is remanded. Costs of this proceeding are assessed to the plaintiff/ap-pellee.

REVERSED AND REMANDED.

      . This matter appears before the court on a designated record with limited background information available for reference. See Uniform Rules—Courts of Appeal, Rule 2-1.17. See also La.Code Civ.P. art. 2128. However, HHS’s brief to this court indicates that it "provided cleaning services at the hospital pursuant to a contract entered into between Christas St. Patrick Hospital and HHS.”

      . Although the plaintiff's "Reply to Opposition of HHS, L.L.C.” was not included in the designated record, the parties supplemented the record with the filing by Joint Stipulation. See La.Code Civ.P. art. 2128 (providing, in part, that: “a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record.”).

      . While La.Code Civ.P. art. 966 was amended by 2015 La. Acts No. 422, § 1, its provisions became effective on January 1, 2016, a date after the plaintiff filed the motion for summary judgment under review. Accordingly, we consider this matter under the earlier version of Article 966. See 2015 La. Acts No. 422, § 2 (providing that "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act.”).

      . Louisiana Civil Code Article 2315(A) provides that: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,”

      . Louisiana Civil Code Article 2316 provides that: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

      . Entitled "Burden of proof in claims against merchants[,]” La.R.S. 9:2800.6 provides that:
      A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
      C,Definitions:
      (1) "Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
      (2) "Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business, For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
      D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

      . The plaintiff’s brief indicates that the fall occurred approximately 40 seconds after Mr. Thomas is seen passing with the scrubber machine, whereas HHS indicates that 33 seconds elapsed during that time.


source: Caselaw Access Project

author: Judge Roland L. Belsome

license: Public Domain

text:
    Brayan ORELLANA, et al v. John DOE, et al
    NO. 2016-CA-0537
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2017

      Ivan A. Orihuela, RIGUER SILVA, LLC, 3213 Florida Avenue, Suite C, Ken-ner, LA 70065, COUNSEL FOR PLAINTIFF/APPELLANT
    Stephanie B. Laborde, Benjamin M. Chapman, Amy L. Mclnnis, MILLING BENSON WOODWARD, LLP, 445 N. Boulevard, Suite 200, Baton Rouge, LA 70802, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)
   Judge Roland L. Belsome

| ¶ Plaintiffs appeal summary judgment granted in favor of Defendant, Affirmative Insurance Company. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a motor vehicle accident that occurred on August 21, 2014. Plaintiff, Brayan Orellana, was operating a 2010 Dodge Challenger when the vehicle was struck by a 1996 Jeep Cherokee or other white SUV operated by Tory Lewis or John Doe. The vehicle that struck the Dodge Challenger fled the scene of the accident. Plaintiffs Gladys Torres-Ortega, the owner of the Dodge Challenger and the holder of the insurance policy at issue in this case, and Damaris Andino were passengers in the vehicle driven by Mr. Orellana.

Plaintiffs filed suit on August 31, 2015, against John Doe, Tory Lewis, and the alleged uninsured/underinsured motorist insurer for Ms. Torres-Ortega, Affirmative Insurance Company (“Affirmative”), seeking to recover for the injuries and damages allegedly sustained in the collision.

|,,Affirmative filed a Motion for Summary Judgment on the grounds that there was no uninsured/underinsured motorist (“UM”) coverage on the vehicle because Ms. Torres-Ortega rejected UM coverage when she executed her policy. The motion was heard on January 28, 2016, and the trial court subsequently granted the motion and dismissed all claims against Affirmative. Plaintiffs timely appealed the judgment.

On March 24, 2016, during the pendency of this appeal, Affirmative was placed into insolvency by virtue of an Order of Liquidation. As a result, Louisiana Insurance Guaranty Association (“LIGA”) became responsible for claims pending against Affirmative pursuant to La. R.S. 22:2055(6), and thus intervened in this action.

STANDARD OF REVIEW

“Motions for summary judgment are reviewed de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate.” At all times pertinent to this matter, La. G.C.P. Art. 966 B(2) provided that a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” The determination of whether a fact is material turns on the applicable substantive law.

|sOn motions for summary judgment, the burden of proof remains with the movant; however, if the moving party will not bear the burden of proof on the issue at trial he must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. The burden then shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.

The trial court cannot make credibility determinations on a motion for summary judgment, nor may it consider the merits of the issues raised. Further, the weighing of conflicting evidence has no place in summary judgment procedure. “Despite the legislative mandate that summary judgments are favored, any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.”

LAW AND DISCUSSION

In Louisiana, UM coverage is determined not only by contractual provisions, but also by statute. UM coverage “is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected.” “The insurer bears the burden of proof that a rejection of UM coverage or a selection of lower limits has been legally | ¿perfected.” “A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.”

Plaintiffs contend that Ms. Torres-Ortega did not agree to waive UM coverage and did not execute the UM selection form attached to the Affirmative insurance policy. In opposition to summary judgment, Ms. Torres-Ortega submitted an affidavit to that effect. She maintains that the affidavit creates a genuine issue of material fact, and therefore summary judgment is inappropriate. We agree.

In support of the motion for summary judgment, Affirmative attached the UM selection form allegedly executed by Ms. Torres-Ortega. The form contains an electronic signature dated August 2, 2014, which reads “Geladys Ortega.” The typed initials “G.O.” are next to the selection rejecting UM coverage. Affirmative also presented an affidavit by Jose Sergio Vidal, an authorized representative for Affirmative. Mr. Vidal’s affidavit attested to the authenticity of the copy of the insurance policy and declarations page as well as the UM selection form. He also attested that Affirmative did not provide UM coverage to Ms. Torres-Ortega.

In opposition, Ms. Torres-Ortega submitted an affidavit in which she argued that the UM selection form was fraudulently completed. She attested that she never told the insurance agent for Affirmative that she wanted to reject UM coverage, did | ^not give anyone authority to reject UM coverage on her behalf, that Affirmative did not discuss UM coverage with her, that she cannot read the Affirmative documents because they are in English, that nobody translated the documents for her or read them to her, that she did not conduct any electronic transactions with Affirmative, that did not sign and initial the relevant UM selection form, and that her name and initials are misspelled on the relevant UM selection form. Ms. Torres-Ortega maintains that this affidavit creates a genuine issue of material fact that precludes summary judgment.

In a recent case, Weddbom v. Doe, this Court considered a nearly identical set of facts, and found that an affidavit attesting that an insured person did not sign the relevant UM form was sufficient to create a genuine issue of material fact regarding the knowing and voluntary waiver , of UM coverage.

In Weddbom, the insured plaintiffs vehicle was struck by another vehicle, and the driver of the other vehicle fled the scene. The plaintiffs filed suit against two insurance carriers, Affirmative and National Automotive Insurance Company (“National”), alleging that each had issued an insurance policy that included UM coverage. Both insurers filed motions for summary judgment, claiming that the insured, Andrea Weddborn, had rejected UM coverage on her vehicle. Both insurers attached UM selection forms completed by Ms. Weddborn that rejected RUM coverage. Ms. Weddborn’s electronic initials and signature were on the Affirmative form, while the National form contained a handwritten signature and initials. Affirmative also attached an affidavit executed by an authorized representative, who attested that Affirmative’s records indicated that Ms. Weddborn’s insurance policy did not provide UM coverage, that she had never paid any premiums for UM coverage, and that she never made any changes to the coverage under her policy. National attached an affidavit executed by an underwriting manager who attested to the authenticity of the policy and the receipt of a UM rejection form from Ms. Wedd-born.

In opposition, Ms. Weddborn submitted affidavits in which she denied executing either of the two UM selection forms. With respect to the Affirmative form, she attested that she completed all insurance forms in person and not online via electronic signature, and that she did not give anyone else the authority to sign any insurance documents on her behalf. Regarding the National form, Ms. Weddborn attested that the handwritten initials and signature on the form were not authentic, and attached medical documents that reflected her genuine signature, which she argued did not match the signatures on the insurance forms.

The Court stated that while an electronic signature on a UM rejection form is valid, “the production of a UM rejection form, alone, is insufficient to establish 17that an insurer has borne its burden of proof on a motion for summary judgment, when there is a sworn statement by an insured denying that she executed the form.” The Court found that Ms. Wedd-born’s affidavits disputing the validity of the signatures on the UM forms created genuine issues of material fact, and accordingly reversed summary judgment in favor of defendants and remanded the matter to the trial court.

In this case, the affidavit submitted by Ms. Torres-Ortega creates a genuine issue of material fact regarding whether she waived UM coverage, which was sufficient to overcome summary judgment. Accordingly, we reverse the trial court’s judgment granting summary judgment in favor of Affirmative Insurance Company and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED

      . Weddborn v. Doe, 2015-1088, p. 4 (La.App. 4 Cir. 5/4/16), 194 So.3d 80, 84.

      . Smith v. Our Lady of the Lake Hosp,, Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

      . La. C.C.P. Art. 966 C(2).

      . Id.

      . Grant v. Am. Sugar Ref., Inc., 2006-1180, pp. 3-4 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, 748.

      . Id.

      . Bridgewater v. New Orleans Reg'l Transit Auth., 2015-0922, pp. 5-6 (La.App. 4 Cir. 3/9/16), 190 So.3d 408, 412, writ denied, 2016-0632 (La. 5/20/16), 191 So.3d 1071).

      . Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987). See also La. R.S. 22:1295.

      . Duncan v. U.S.A.A. Ins. Co., 2006-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547.

      . Daigle v. Authement, 96-1662, p. 3 (La. 4/8/97), 691 So.2d 1213, 1214.

      . La. R.S. 22:1295(1)(a)(ii).

      . It is of note that Mr. Vidal was not the Affirmative agent who is named as the sales agent on the insurance documents presented by Affirmative. According to the insurance documents, Ms. Torres-Ortega’s sales person was Guillermo Robles, who did not complete an affidavit.

      . She asserts that she initials documents "G.T.” for Gladys Torres.

      . Weddborn, 194 So.3d at 89.

      . Id. at 83.

      . Id.

      . Id. National also argued that under the terms of its policy, the plaintiff’s policy was terminated when she procured a policy with Affirmative.

      . Id. at 85.

      . Id.

      . Id. at 86.

      . Id.

      . Id.

      . Id.

      . Id. at 86-87.

      . Id. at 88.

      . Id. at 89.


author: GRIFFIS, P.J.,

text:
    Damion Leqeuinn LEWIS a/k/a Damion Lewis a/k/a Damien Lewis a/k/a Damion L. Lewis a/k/a Damion Leqeunn Lewis, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01917-COA
    Court of Appeals of Mississippi.
    04/04/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HIN-CHCLIFF, GEORGE T. HOLMES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN, JASON DAVIS
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶1. Damion Leqeuinn Lewis was convicted of felony aggravated domestic violence in violation of Mississippi Code Annotated section 97-3-7(4) (Supp. 2013). Damion was sentenced to twenty years,' with thirteen years suspended and seven years to serve in the custody of the Mississippi Department of Corrections. The circuit court denied the posttrial motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). On appeal, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Damion and Rosa Victor Lewis were married but separated. On June 15, 2014, Rosa traveled to Damion’s home in Gulf-port from her home in Bogalusa, Louisiana, in an attempt to reconcile the marriage.

¶ 3. They planned to celebrate their anniversary and Father’s Day with a visit to a casino and a comedy show. The show was to begin at 8 p.m. Rosa told Damion that she was running late and would not arrive at his home until after the show began. Damion and Rosa arrived just as the show ended. They met up with friends and went into a nightclub at the casino. They both consumed several alcoholic beverages, but neither admitted to being intoxicated.

¶4. Damion and Rosa had a disagreement while leaving the nightclub. They argued during the ride back to Damion’s home. The argument escalated into a physical altercation in Damion’s bedroom. From the physical encounter, Rosa received injuries to her ear, face, and neck.

¶ 5. Rosa drove herself to Garden Park Medical Center in Gulfport. Nurse Ellen Emile was the first to encounter Rosa when she arrived. Emile testified that she was working at the triage station when Rosa came into the emergency room. She stated that Rosa was crying uncontrollably and was unable to explain what happened. Emile further testified that Rosa presented with red marks on the sides of her face, ear, and neck, and redness in each of her eyes. After she calmed down, Rosa informed the nurse that Damion struck her in the face, punched her on the ear, and pushed her onto a bed, where he strangled Rosa.

¶ 6. Rosa was examined and treated by Dr. Ronnie Ali, the emergency-room physician on duty. Dr. Ali testified that Rosa’s injuries were consistent with being hit on the ear with a fist. He observed blood in Rosa’s ear and diagnosed her with a ruptured eardrum, which he believed resulted from an impact. Dr. Ali also testified that Rosa had marks around her neck that were consistent with strangulation. It was Dr. Ali’s opinion that the redness in Rosa’s eyes was “petechia” caused by strangulation. He stated that the petechia was caused by “an extreme amount of force” to Rosa’s neck, which caused the “tiny little blood vessels ... [to] explode and form a small bleed under the skin.” After the assessment and review of Rosa’s CT scan, Dr. Ali ultimately diagnosed Rosa’s medical condition as assault to the head and neck.

¶ 7. Nurse Emile notified the Gulfport Police Department of the assault. Officer Nicholas Guillot was dispatched to the hospital. He interviewed Rosa and took several photographs of her injuries. Officer Guillot and the patrol supervisor went to Damion’s residence, arrested him, and transported him to the police station.

¶ 8. Damion provided a statement to Detective Timothy Adams, an investigator with the Gulfport Police Department. During the recorded interview, Damion admitted that he was “upset” by the events of the evening. He stated that he sent Rosa a text message, which indicated he was displeased because he had spent one hundred dollars on a show that they would likely miss. Damion also stated that he became upset while he was at the nightclub because he felt Rosa was “playing games.”

¶ 9. After Damion recounted the events of the evening, Detective Adams asked Damion to describe the “physical part” of the altercation. Damion claimed that Rosa initiated the confrontation when she got into his face and pushed against his face with her hands. He further explained that Rosa’s injuries must have been received when he and Rosa fell onto the bed, after Rosa began fighting him. Damion stated that his hand hit the side of Rosa’s face as they were falling onto the bed. He denied using a closed hand to hit Rosa’s face. When asked if he choked or strangled Rosa, Damion stated that he “applied a little pressure” to Rosa’s neck after the two fell onto the bed. However, Damion stated that he only applied pressure while “pushing himself up off of her” and in order to get Rosa to stop attacking him. He did not specifically admit or deny that he strangled or choked Rosa.

¶ 10. According to Damion, the full encounter “occurred in one motion,” and he felt as though he needed to protect himself. He also stated that the altercation happened so fast that maybe he “applied more force than [he] intended.” Prior to the conclusion of the interview, Detective Adams photographed “a cut” on Damion’s neck and scratches on his arm. Detective Adams later testified that he believed Damion’s injuries were consistent with defensive wounds made by Rosa during the struggle.

¶ 11. At trial, Dr. Alan Koshan, an ophthalmologist, testified as an expert witness on behalf of Damion. He refuted Dr. Ah’s conclusion that the red marks in Rosa’s eyes were petechia. Instead, Dr. Koshan characterized the red marks as conjunctivitis caused by inflammation in the sinuses. Dr. Koshan did not believe that Rosa had been strangled. He opined that Rosa’s injuries were inconsistent with the injuries of a typical victim of strangulation. He further pointed out that Rosa’s respiratory system was intact, there was no damage to her trachea, and Rosa’s primary complaint had been of pain rather than an inability to breathe.

¶ 12. Damion was indicted on a charge of felony aggravated domestic assault, in violation of Mississippi Code Annotated section 97-8-7(4). After a two-day trial, the jury returned a guilty verdict, and the circuit judge sentenced Damion to a prison term. He filed a timely motion for a new trial or, in the alternative, a JNOV, which was denied. It is from this judgment he now appeals.

ANALYSIS

I. Sufficiency of the Evidence

¶ 13. Damion first argues that there was insufficient evidence to convict him. More specifically, he argues that the State failed to prove that he possessed the intent necessary to sustain a conviction for felony aggravated domestic abuse based on strangulation. He contends the appropriate conviction should have been misdemeanor domestic assault, rather than felony aggravated domestic abuse.

¶ 14. In a challenge to the sufficiency of evidence presented at trial, the Mississippi Supreme Court previously held:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion ... for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss. 1968)) (internal quotation marks omitted). When analyzing the sufficiency of evidence “the relevant question is whether after viewing the evidence in the light most favorable to the [State], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 15. Section 97-3-7(4)(a)(iii) required that the State prove that Damion was guilty of aggravated domestic violence, by establishing that he committed the offense of strangulation or attempted strangulation against his current or former spouse. “‘Strangle’ means to restrict the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means.” Miss. Code Ann. § 97-3-7(9)(a).

¶ 16. Under our facts, the statute requires that the offense be committed or attempted against “a current or former spouse.” It was undisputed that Rosa and Damion were legally married at the time of the incident.

¶ 17. Damion argues that the State failed to prove that he “intentionally” applied pressure to Rosa’s neck. The appellate court “accepts as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawnf.]” Moore v. State, 996 So.2d 756, 760 (¶ 12) (Miss. 2008) (citation omitted). Rosa testified that Damion placed “both his hands around [her] neck and began choking” her. Rosa also testified that during the struggle, she and Damion moved from the bed to the floor, where Damion straddled his body over hers and continued to tighten his grip around her neck. Rosa stated that she was unable to breathe and that she eventually-blacked out from Damion’s grip getting tighter around her neck.

¶ 18. In addition, there was testimony from both medical professionals and law enforcement that the injuries were consistent with Rosa’s account of the incident. Dr. Ali testified that the red marks in Rosa’s eyes resulted from strangulation. Moreover, Dr. Ali opined that the red marks, known as petechia, resulted from the application of “an extreme amount of force” to Rosa’s neck. Officer Guillot testified that he observed scratch marks on Rosa’s neck and redness in her eyes.

¶ 19. Detective Adams testified that, based on his interview with Damion, Damion admitted to choking Rosa. Damion’s recorded statement was played during the trial. However, Damion’s admission that he choked Rosa was not heard on the recording. Damion neither confirmed nor denied that he choked Rosa. Instead, Damion’s voice was heard explaining that there was “pressure because [his] weight was on her, but [he] came right back off her.” Further, Damion’s voice was heard stating that he “got up off her when he noticed the look in her eyes” and that he “may have applied more pressure than he intended to.”

¶ 20. When we consider the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Damion of felony aggravated domestic violence. While Damion did not expressly admit that he choked Rosa, he did admit that he applied pressure to her neck. This explanation, Rosa’s testimony, Dr. Ali’s expert opinion, and the photographs of Rosa’s injuries support the inference that Damion did in fact strangle his wife. In light of these facts, we find that any rational juror could have found beyond a reasonable doubt that all of the elements had been met by the State in proving felony aggravated domestic violence. This issue is without merit.

II. Weight of the Evidence

¶21. Next, Damion argues the jury verdict is contrary to the overwhelming weight of the evidence. According to Damion, the State failed to prove that he intentionally strangled Rosa or that Rosa’s air flow or blood flow was ever restricted. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [an appellate court] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). As we review this issue, we weigh the evidence in the light most favorable to the verdict. Id.

¶22. While it is true that Dr. Koshan testified that the red marks in Rosa’s eyes did not result from strangulation and were not petechia, this opinion was merely one factor of consideration that may have influenced the jury’s verdict. If this conflicting testimony was the only substantive proof presented to the jury, Damion’s argument for a new trial would have merit. However, both the photographic evidence of Rosa’s injuries and the testimony of numerous witnesses that personally observed Rosa’s injuries match up with Rosa’s account of the events that transpired on June 15, 2014.

¶ 23. Damion’s contention that the photographs and testimony related to the redness in Rosa’s eyes heavily influenced the State’s case is without merit. The trial judge, in his discretion, granted Damion’s request to redact the portions of Damion’s recorded statement where Detective Adams, who was not a medical professional or expert, mentioned and defined petechia. Although the expert witnesses provided conflicting opinions regarding strangulation and petechia, this Court has held that resolving the conflict is a task for the jury as the “sole judge of the credibility of witnesses and the weight and worth of their testimony.” Camper v. State, 24 So.3d 1072, 1077 (¶ 22) (Miss. Ct. App. 2010) (quoting Gathright v. State, 380 So.2d 1276, 1278 (Miss. 1980)). Thus, it is plausible that the jury found Dr. Ali’s opinion more credible than that of Dr. Koshan, with regard to the source, of the red marks in Rosa’s eyes.

¶ 24. When we view this evidence in the light most favorable to the verdict, we do not find that the verdict was “so contrary to the overwhelming weight of the evidence that allowing] it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). Therefore, we And that the trial court did not abuse its discretion in denying a new trial.

III. Jury Instructions-

¶25. Finally, Damion argues that the jury instructions were confusing and did not allow the jury to consider the misdemeanor offense “in a straightforward way.” Damion also claims that the jury’s initial verdict, which was returned in a form that favored both felony and misdemeanor domestic assault, provided “inarguable support” for the lesser offense of misdemeanor simple domestic violence.

¶ 26. This Court previously held that “[a] trial judge correctly followed the law by re-instructing ... jurors as to the proper form of the verdict as expressed in [the jury instructions] and sending them back to the jury room for further deliberations.” Clay v. State, 881 So.2d 323, 327 (¶ 14) (Miss. Ct. App. 2004). Here, the trial judge instructed the jurors to return to deliberation, re-read the instructions, and return a verdict in the proper form. After which, the jurors returned a new verdict, in the proper form, and found Damion guilty of felony aggravated domestic violence.

¶ 27. Further, Mississippi Code Annotated section 99-19-11 (Rev. 2015) provides, “if [a] verdict is informal or defective [,] the court may direct it to be reformed at bar.” Thus, Damion’s argument is a mis-characterization of the jury’s intent regarding the misformed verdict. The initial return of two separate but consistent verdicts, and the subsequent unanimous verdict for felony aggravated domestic violence, were properly attained. Accordingly, Damion’s assertion of error for the circuit judge’s denial of his motion for a new trial is without merit.

¶ 28. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF FELONY AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE OF TWENTY YEARS, WITH SEVEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, THIRTEEN YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $2,000 AND RESTITUTION OF $854.61, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: LEE, C.J.,

text:
    Michael DRANKUS a/k/a Michael F. Drankus a/k/a Michael Frederick Drankus, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00320-COA
    Court of Appeals of Mississippi.
    04/11/2017
    ATTORNEY FOR APPELLANT: MICHAEL DRANKUS (PRO SE).
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: DARRELL C. BAUGHN, ANTHONY LOUIS SCHMIDT JR.
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Michael Drankus appeals the Harrison County Circuit Court’s denial of his motion for postconviction relief (PCR). Finding the trial court correctly denied Drankus’s motion, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1987, Drankus was convicted of capital murder, robbery, and burglary of a dwelling. He was released on parole in 2001, but his parole was revoked in 2006 for numerous violations. Drankus was again paroled in 2007, but he violated numerous parole conditions and was returned to the custody of the Mississippi Department of Corrections (MDOC) in 2012.

¶ 3. The Mississippi Parole Board (MPB) denied Drankus parole on April 29, 2015, and set his next parole hearing for April 30, 2018. Drankus filed a PCR motion claiming that he was entitled to a parole hearing at least every year pursuant to Mississippi Code Annotated section 47-7-18(6) (Rev. 2015); thus, the three-year set off violated his constitutional and statutory rights. The trial court denied Drankus’s motion, finding that it was a successive writ since Drankus had filed a prior PCR motion in 1996. The trial court further stated that it did not have jurisdiction over parole matters.

¶ 4. Drankus now appeals, asserting that the trial court had jurisdiction to address the merits of his PCR motion.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 6. In 2014, the Legislature passed House Bill 585, which added and amended numerous provisions regarding sentencing and parole eligibility. See 2014 Miss. Laws ch. 457. These amendments went into effect on July 1, 2014. Section 47-7-18 is one of the newly added statutes and states, in part, “Any inmate not released at the time of the inmate’s initial parole date shall have a parole hearing at least every year.” Miss. Code Ann. § 47-7-18(6).

¶ 7. The Mississippi Supreme Court recently addressed this issue in Drankus v. Mississippi Parole Board, 2015-CP-01049-SCT, — So.3d -, 2017 WL 449621 (Miss. Feb. 2, 2017). Drankus had filed a PCR motion in the Sunflower County Circuit Court raising a similar issue regarding his parole set-off date. The Sunflower County Circuit Court dismissed Drankus’s motion for failure to state a claim upon which relief could be granted. Id. at- (¶ 1), 2017 WL 449621, at *1 (¶1). The Mississippi Supreme Court affirmed the trial court’s decision, finding that the trial court did not have “jurisdiction to hear an appeal of the parole board’s decision to set off Drankus’s next parole hearing for three years.” Id. at-(¶ 7), 2017 WL 449621, at *2 (¶7). See also Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶ 11) (Miss. 2003) (trial courts have no jurisdiction to grant or deny parole).

¶ 8. Regarding the recent amendments to the parole statutes, the supreme court further stated that “those amendments do not apply to prisoners like Drankus who were admitted prior to the amendments’ effective date.” Drankus, — So.3d at - (¶ 7), 2017 WL 449621, at *2 (¶ 7). See Drankus v. Fisher, 204 So.3d 1232, 1236 (¶ 14) (Miss. 2016) (prisoners admitted to MDOC custody prior to July 1, 2014, were not entitled to a case plan under Mississippi Code Annotated section 47-7-3.1 (Rev. 2015)).

¶ 9. Accordingly, we find the trial court properly denied Drankus’s PCR motion.

¶10. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . "A 'set off’ in parole terminology is the period of time an inmate who has been denied parole must wait before his parole is reconsidered.” Way v. Miller, 919 So.2d 1036, 1038 n.1 (Miss. Ct. App. 2005) (citation omitted).

      . In an unpublished opinion, the Mississippi Supreme Court affirmed the trial court’s decision to deny Drankus’s request for relief. Drankus v. State, 691 So.2d 1022 (Miss. 1996).


author: CARLTON, J.,

text:
    Mark ATKINSON, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00024-COA
    Court of Appeals of Mississippi.
    04/11/2017

      ATTORNEY FOR APPELLANT: MARK ATKINSON, (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Mark Atkinson appeals the Lowndes County Circuit Court’s dismissal of his petition for postconviction relief (PCR). On appeal, Atkinson asserts the following issues: (1) whether he was improperly sentenced as a habitual offender; (2) whether his indictment failed to give him sufficient notice; and (3) whether he received ineffective assistance of counsel. Finding no error, we affirm the circuit court’s dismissal of Atkinson’s PCR petition.

FACTS

¶ 2. A Lowndes County grand jury indicted Atkinson for the following charges: Count I, possession of methamphetamine in an amount greater than 0.1 grams but less than 2 grams; Count II, possession of the controlled substance hydrocodone; and Count III, possession of methamphetamine precursors. See Miss. Code Ann. § 41-29-139 (Rev. 2013); Miss. Code Ann. § 41-29-313 (Rev. 2013). On May 15, 2013, the State filed a motion to amend Atkinson’s indictment to reflect his status as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).

%’⅛0040¶ 3.%*u0040 At the start of Atkinson’s plea hearing, also on May 15, 2013, the State introduced evidence of his two prior felony convictions. The State first offered into evidence a certified sentencing order from Lowndes County in cause number 94-444-CR1 to show that Atkinson had previously been convicted of the sale of less than one ounce of marijuana and sentenced to three years in the custody of the Mississippi Department of Corrections (MDOC). The State next offered into evidence a certified pen pack from the Marion County Circuit Court in Alabama in cause number 1998000070.7101 to show that Atkinson had previously been convicted of possession of a controlled substance and sentenced to ten years in the custody of the Alabama Department of Corrections. After Atkinson raised no objection to the State’s motion, the circuit court granted the motion and amended the indictment to reflect Atkinson’s habitual-offender status.

¶4. Pursuant to a plea-bargain agreement, Atkinson pled guilty to Count I, possession of methamphetamine, and the State moved to retire the remaining two counts charged in his indictment. After conducting a plea colloquy, the circuit court found that Atkinson entered his guilty plea to Count I knowingly, voluntarily, and intelligently. The circuit court therefore accepted Atkinson’s guilty plea to Count I and retired the two remaining counts. The circuit court entered its May 15, 2013 order sentencing Atkinson as a habitual offender to serve eight years in MDOC’s custody, without the possibility of probation or parole, and to pay a fine of $50,000.

¶ 5. On July 28, 2015, Atkinson filed a PCR petition asserting that the circuit court erroneously sentenced him as a habitual offender. Aggrieved by the circuit court’s dismissal of his PCR petition, Atkinson appeals.

STANDARD OP REVIEW

¶ 6. “When reviewing a circuit court’s denial or dismissal of a PCR [petition], we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss. Ct. App. 2011).

DISCUSSION

I. Whether Atkinson was improperly sentenced as a habitual offender.

¶ 7. Atkinson contends that one of the underlying convictions used to establish his habitual-offender status identified the defendant in that cause number as “Marty Atkins.” Atkinson argues that “Marty Atkins” is an entirely different person who possesses “a different name, birth date, and [S]ocial [Sjecurity number[.]” As a result, Atkinson asserts that the circuit court improperly sentenced him as a habitual offender. He therefore asks this Court to set aside his sentence as a habitual offender, credit him for time served, and order his immediate release from MDOC’s custody.

¶ 8. “To be sentenced as a habitual offender, ‘all that is required is that the accused be properly indicted as a[ ] habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof,’ ” Madden v. State, 991 So.2d 1231, 1236 (¶ 20) (Miss. Ct. App. 2008) (quoting Keyes v. State, 549 So.2d 949, 951 (Miss. 1989)). “[T]he requirement that the State prove the existence of the prior convictions beyond a reasonable doubt [i]s negated by [the defendant’s] decision to enter a guilty plea.” Easley v. State, 60 So.3d 812, 816 (¶ 15) (Miss. Ct. App. 2011). Mississippi caselaw provides that “[a] guilty plea operates to waive the defendant’s right that the prosecution prove each element of the offense beyond a reasonable doubt.” Id. (citation omitted).

¶ 9. The record before us reflects that the circuit court properly sentenced Atkinson as a habitual offender under section 99-19-81. The State introduced evidence during the plea hearing to establish that Atkinson had “been convicted twice previously of [a] felony or federal crime[, with the] charges separately brought and arising out of separate incidents at different times” and that for each of his prior felonies he had “been sentenced to separate terms of one (1) year or more in [a] state and/or federal penal institution^]” Miss. Code Ann. § 99-19-81.

¶ 10. After the State presented its evidence of Atkinson’s prior felony convictions, the circuit court asked whether Atkinson objected to the motion to amend his indictment. In response, Atkinson’s attorney raised no objection and stated that Atkinson had confirmed his previous convictions for the two felonies introduced into evidence. During the plea colloquy, the circuit court specifically questioned Atkinson about his two prior felony convictions. In response to the circuit court’s questions, Atkinson admitted under oath in open court that he had previously been convicted of the following: (1) the sale of less than one ounce of marijuana in cause number 94-444-CR1 in Lowndes County, Mississippi; and (2) the possession of a controlled substance in cause number 1998000070.7101 in Marion County, Alabama.

¶ 11. As this Court has previously held, “[a]dmissions to prior criminal convictions are sufficient to permit a finding of habitual status.” Sanders v. State, 786 So.2d 1078, 1082 (¶ 14) (Miss. Ct. App. 2001) (citation omitted). Furthermore, our caselaw establishes that “[s]olemn declarations in open court carry a strong presumption of verity.” Pierce v. State, 115 So.3d 869, 873 (¶ 12) (Miss. Ct. App. 2013) (citation omitted). Because Atkinson admitted his prior felony convictions as set forth in his amended indictment, we find no support for his assertion on appeal that the circuit court improperly sentenced him as a habitual offender. As a result, we And that this argument lacks merit.

II. Whether Atkinson’s indictment failed to give him sufficient notice.

¶12. Atkinson also asserts that his indictment failed to give him sufficient notice of the State’s intention to charge him as a habitual offender. Rule 7.09 of the Uniform Rules of Circuit and County Court provides for the amendment of an indictment to charge a defendant as a habitual offender. The Mississippi Supreme Court has recognized that “Rule 7.09 does not speak to the timing of the amendment.” Williams v. State, 131 So.3d 1174, 1177 (¶ 7) (Miss. 2014) (citation and internal quotation marks omitted). However, “the rule implicitly recognizes a right to fair notice by prohibiting amendments to indictments where the defendant is not ‘afforded a fair opportunity to present a defense’ or is ‘unfairly surprised.’” Id. (quoting URCCC 7.09). As the Williams court explained:

[A]dequate notice is achieved through formal pleadings[,] which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a fair opportunity to present a defense and will not be unfairly surprised. Whether notice of a possible enhanced sentence was given sufficiently in advance of trial should be considered on a case-by-case basis.

Id. (internal citations and quotation marks omitted).

¶ 13. In Forkner v. State, 902 So.2d 615, 624 (¶ 28) (Miss. Ct. App. 2004), this Court acknowledged the supreme court’s prior holding “that it is permissible to amend the indictment on the date of trial and to charge the defendant as a habitual criminal ... when defense counsel is aware of the State’s intentions and the defendant is fully aware of the State’s intentions during plea negotiations” (citation omitted). Upon review of the record in the present case, we find that these requirements were met.

¶ 14. The record in this case reflects that the State filed its motion to amend Atkinson’s indictment on May 15, 2013. In his signed plea petition, also filed on May 15, 2013, Atkinson indicated that he understood the State planned to charge him as a habitual offender, what the maximum sentence would be if he pled guilty as a habitual offender, and that his attorney had sufficiently discussed with him the consequences of his guilty plea. The record further reflects that, at the start of Atkinson’s plea hearing, the circuit court afforded Atkinson an opportunity to respond to the State’s motion to amend his indictment. However, after the State offered its evidence of Atkinson’s prior felony convictions, Atkinson asserted no objections to the motion. Instead, Atkinson’s attorney stated that her client had confirmed the existence of his prior convictions. As a result, the circuit court granted the State’s motion and then proceeded with Atkinson’s plea colloquy.

¶ 15. Based on the record before us, we find that Atkinson received sufficient notice of the State’s intention to amend his indictment as well as a fair opportunity to present a defense to the amendment. As a result, we find no error in the circuit court’s grant of the State’s motion. Accordingly, Atkinson’s assignment of error lacks merit.

III. Whether Atkinson received ineffective assistance of counsel.

¶ 16. Atkinson next argues that he received ineffective assistance of counsel because his attorney allowed him to be sentenced as a habitual offender. To prove ineffective assistance, Atkinson must demonstrate that his attorney’s performance was deficient and that this deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With regard to this issue, this Court has previously stated:

In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. When a defendant pleads guilty, he must show unprofessional errors of substantial gravity. The defendant must show his counsel’s conduct proximately resulted in his guilty plea, and that but for counsel’s errors, he would not have entered the plea.

Jackson v. State, 195 So.3d 204, 206-07 (¶ 6) (Miss. Ct. App. 2015) (citations and quotation marks omitted).

¶ 17. Our caselaw establishes that “a defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own.” McBride v. State, 108 So.3d 977, 980 (¶ 11) (Miss. Ct. App. 2012) (citation omitted). In the present case, however, Atkinson relies solely on the allegations made in his appellate brief to support his ineffective-assistance claim. In so doing, he fails to demonstrate either that his attorney’s performance fell below an objective standard of reasonableness or that, but for his attorney’s alleged errors, he would not have pled guilty. See Avery v. State, 179 So.3d 1182, 1190 (¶ 16) (Miss. Ct. App. 2015). Furthermore, as previously discussed, we find that the circuit court properly sentenced Atkinson as a habitual offender. We therefore find no merit to Atkinson’s claim that his attorney rendered ineffective assistance of counsel by allowing him to be sentenced as a habitual offender.

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

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

      . In an April 12, 2016 order, this Court recognized that Atkinson untimely filed his appeal from the dismissal of his PCR petition. We nevertheless granted him leave to proceed with his appeal after finding that his show-cause response was well taken.


author: BARNES, J.,

text:
    IN the INTEREST OF N.M., a Minor: S.M, and M.M., Appellants v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, MARION COUNTY, Mississippi, Appellee
    NO. 2015-CA-01621-COA
    Court of Appeals of Mississippi.
    04/11/2017

      ATTORNEY FOR APPELLANTS: PAMELA L. NELSON
    ATTORNEYS FOR APPELLEE: MARION EARL SCALES SCOTT PHILLIPS
    BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. On September 29, 2014, M.M. gave birth to a child, N.M. The child’s father is M.M.’s husband, S.M. N.M. is the youngest of the couple’s eight children. A month prior to her birth, N.M.’s seven siblings had been adjudicated as “neglected children” and placed into three foster homes under the custody of the Mississippi Department of Human Services (DHS) in Marion County, Mississippi.

¶ 2. The DHS conducted a shelter hearing for N.M. on October 1, 2014, in Marion County Youth Court. At the hearing, the DHS attorney, Scott Phillips, noted the shelter hearing was made out of an “abundance of caution to provide care for this child pending the outcome of the service plan being met by the [parents] and the[ir] meeting all of the requirements of the DHS.” The guardian ad litem, Renee Porter, noted that the other children were all in DHS custody due to neglect (based on a finding of unsafe living conditions) and stated that the youth court judge had instructed the DHS to “notify” the court when N.M. was born “and that we would deal with that immediately.” Porter expressed “concern for this child to be placed in the home of the parents.” Although noting the goal was to reunite the family “as fast as possible,” the youth court judge, Jim Rhoden, removed N.M. from her parents’ custody and placed the child in DHS custody, specifically with Leigh Berry, a youth court officer. The appellants were granted visitation with the child under Berry’s supervision.

¶ 3. In the shelter order, the youth court determined that “[N.M.] is less than one month old, [and] has been alleged to be a Child in Need of Special Care as defined by [section] 43-21-105(o) of the Mississippi Code of 1972, Annotated[.]” This subsection of the statute provides: “ ‘A child in need of special care’ means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.” Miss. Code Ann. § 43—21—105(o) (Rev. 2015). The shelter order further stated:

[T]he effect of the continuation of [N.M.’s] residence within his/her own home would be contrary to the welfare of [N.M.,] and ... the placement of [N.M.] with Marion County DHS is in the best interest of [N.M.]; and ... the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain [N.M.] within his/her own home and there is no alternative to custody[.]

DHS filed a petition on October 10, 2014, alleging that N.M. “is a Child in Need of Special Care within the purview of the Mississippi Youth Court Act[.]”

¶ 4. At the adjudication hearing on October 17, the DHS family protection worker, Sue Watts, testified that “due to aggravated circumstances of neglect, because of the past history of the parent[’]s unchanged neglectful behavior, which included unsafe living conditions,” the DHS was requesting that N.M. be adjudicated as a child in need of special care. Judge Rhoden adjudged that N.M. was “a child in need of special care,” as alleged in the DHS petition. Both parents attended the hearing and did not contest the adjudication at that time.

¶5. On May 27, 2015, a permanency hearing was held before a newly appointed judge. The appellants, now represented by legal counsel, moved to set aside the judgment related to N.M. under Mississippi Rule of Civil Procedure 60(b)(4) and requested that N.M. be returned to their custody. The motion argued that the youth court did not have personal or subject-matter jurisdiction over N.M., as she was not a child in need of special care as defined by the statute and as DHS failed to set forth any facts to support its allegation. Therefore, the appellants claimed the youth court’s orders were void. Counsel for the State acknowledged that N.M. has no mental or physical illness, as did the social worker, Watts. But the State’s attorney noted the horrible living conditions (i.e., “maggots” and only one “moldy and nasty” bed) that had warranted removal of the other seven siblings back in August 2014. The new guardian ad litem, James Johnson, objected that the motion was untimely, being filed nine months after the court’s ruling.

¶ 6. The judge did not rule on the motion to set aside the order adjudicating N.M. as a child in need of special care, deferring his ruling until such time as the transcripts from the prior hearings could be reviewed, and he granted a motion to continue the permanency hearing until July 17, 2015, due to the DHS’s failure to obtain information regarding S.M.’s drug tests and because the parents had not complied with the service agreement. On July 17, 2015, the judge granted a second continuance; however, the order was not filed until October 16, 2015, when the youth court judge summarily denied the appellants’ motion to set aside the judgment, without making any specific findings.

¶ 7. An appeal of the youth court’s denial of the motion was filed on October 26, 2015, reasserting the claim that the youth court did not have jurisdiction over N.M. We find merit to the appellants’ claim there was no evidence N.M. met the definition of a “child in need of special care” and find that the DHS petition, alleging that N.M. was a child in need of special care, did not state a basis for invoking youth court jurisdiction over N.M. However, as there have been ongoing proceedings concerning N.M. and her siblings in youth court since the filing of this appeal that indicate N.M. may indeed have become a neglected child, we reverse the judgment denying the appellants’ motion to set aside the judgment and remand to allow DHS to file the proper petition in this regard, should it choose to do so.

STANDARD OF REVIEW

¶8. On appeal from a youth court’s adjudication hearing, we employ a limited standard of review. In re E.G., 191 So.3d 763, 768 (¶ 14) (Miss. Ct. App. 2016) (citing In re L.H., 87 So.3d 1139, 1144 (¶ 22) (Miss. Ct. App. 2012)). “The youth court judge is the trier of fact, and we will reverse [his] findings only if the evidence is opposed to the findings with such force that reasonable men could not have found as the youth court did by a preponderance of the evidence.” Id. “We review a youth court’s finding of neglect or abuse in the light most favorable to the State.” Id.

DISCUSSION

¶ 9. The appellants argue that the youth court erred in denying their Rule 60(b) motion to “set aside the underlying order adjudicating N.M. as a child in need of special care ... based on lack of subject[-]matter jurisdiction.” Under Rule 60(b)(4), a court may relieve a party from a “final judgment, order, or proceeding” when “the judgment is void.” Although DHS argues the appellants’ motion was untimely, there is no specific time limit on filing a Rule 60(b)(4) motion; the rule simply provides that a motion alleging that a judgment is void “shall be made within a reasonable time.” M.R.C.P. 60(b). “What constitutes a reasonable time period is determined on a case-by-case basis.” Indymac Bank F.S.B. v. Young, 966 So.2d 1286, 1290 (¶ 13) (Miss. Ct. App. 2007) (citing Jenkins v. Jenkins, 757 So.2d 339, 344 (¶ 11) (Miss. Ct. App. 2000)). In Ravenstein v. Ravenstein, 167 So.3d 210, 216-17 (¶ 12) (Miss. 2014), however, the Mississippi Supreme Court recognized that “there is no effective time limit for seeking relief from a void judgment under Rule 60(b)(4), as ‘no amount of time or delay may cure a void judgment.’ ” (Quoting Overbey v. Murray, 569 So.2d 303, 306 (Miss. 1990)). See also Adams v. Miss. State Oil & Gas Bd., 80 So.3d 869, 873 (¶ 18) (Miss. Ct. App. 2012) (holding that since the order of dismissal was void, a “nine-month delay in requesting the appeal be reinstated was not untimely because ‘no amount of time or delay may cure a void judgment’” (quoting Overbey, 569 So.2d at 306)). Therefore, we address the appellants’ appeal on the merits.

¶ 10. “The youth court is a court of statutory and limited jurisdiction, and the facts vesting jurisdiction should be shown affirmatively.” Griffin v. Bell, 215 So.2d 573, 575 (Miss. 1968). Mississippi Code Annotated section 43-21-151(1) (Rev. 2015) provides that, except in specific enumerated cases: “The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child[.]”

¶ 11. As DHS acknowledges on appeal, Mississippi law does “not specifically pro-vid[e] that the youth court is the court of exclusive original jurisdiction for children in need of special care.” Mississippi Code Annotated section 43-21-455(l)(c) (Rev. 2015) states that a petition filed in youth court must set forth with particularity “a statement of the facts, including the facts which bring the child within the jurisdiction of the youth court and which show the child is a delinquent child, a child in need of supervision, a neglected child or an abused childf.]” The DHS petition only stated that N.M. was a “child in need of special care,” although there was no specific allegation by DHS that N.M. had any mental or physical illness.

¶ 12. A comprehensive reading of the “Youth Court Law” indicates that a youth court’s finding that a child is in need of special care is not a basis, in and of itself, for bringing a child within the jurisdiction of the youth court. The youth court must first find that the child is either “a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child.” Miss. Code Ann. § 43-21-151(1). Mississippi Code Annotated section 43-21-611 (Rev. 2015) states:

If the youth court finds at the disposition hearing that a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child is also a child in need of special care, the youth court may, in its discretion, make any appropriate additional disposition designed for the treatment of the disability or infirmity, which may include civil commitment to a state institution providing care for that disability or infirmity.

(Emphasis added). The Mississippi Attorney General’s office has interpreted this statute in this manner, finding that “the youth court would have original jurisdiction over [the] commitment of a mentally ill juvenile only where that juvenile is already in youth court jurisdiction as abused, neglected, delinquent, in need of supervision or dependent.” See Miss. Att’y Gen. Op., 96-0148, 1996 WL 153903, Floyd (Mar. 29, 1996).

¶ 13. Accordingly, we find the DHS petition did not state a basis for invoking youth court jurisdiction over N.M. At the shelter hearing, the youth court judge placed N.M. in DHS custody, reasoning: “The problem I have is we have seven children in custody, and I feel that we have to—we can[no]t place the eighth one with the family with the other seven being in the custody of [the DHS]. Not immediately.” At the adjudication and dispositional hearings on October 17, DHS presented to the youth court “aggravated circumstances of neglect” of the other children, such as “unsanitary living conditions,” and its concern that N.M. would be subjected to that environment. The DHS did not present any evidence that N.M. was a child in need of special care (i.e., any physical or mental illness). There was also no evidence that the parents had met any terms of them service agreement at the time of the adjudication hearing; nor did the parents assert any argument to the contrary, except to claim later, on appeal, that they had moved residences. Thus, it is apparent that the youth court based its decision to place N.M. in DHS custody as a child in need of special care upon evidence of neglect of the other children.

¶ 14. We find no Mississippi case addressing whether the youth court may exercise jurisdiction over a newborn on the basis that its siblings have been recently adjudicated as “neglected,” but a few jurisdictions have determined that a court may have jurisdiction over a newborn under a theory of “anticipatory neglect,” when another related child has been found to be neglected. In a recent case, In re Aniylah B., 406 Ill.Dec. 612, 61 N.E.3d 216, 225 (¶¶ 43-44) (2016), the Appellate Court of Illinois observed:

Under the anticipatory neglect theory, the State seeks to protect not only children who are the direct victims of neglect or abuse, but also those who have a probability to be subject to neglect or abuse because they reside, or in the future may reside, with an individual who has been found to have neglected or abused another child. ... Under the theory of anticipatory neglect, where there is evidence of prior neglect by the parents, the trial court should not be deterred from acting until another child is injured.

(Internal citations and quotation marks omitted). “A child may come within the jurisdiction of the court solely on the basis of a parent’s treatment of another child. Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and application of the doctrine of anticipatory neglect.” In re Gazella, 264 Mich.App. 668, 692 N.W.2d 708, 716 (2005) (superseded by Mich. Comp. Laws § 712A.19b(5) (2012) on other grounds as stated in In re Hansen, 285 Mich.App. 158, 774 N.W.2d 698 (2009)); see also In re Robertson, No. 322301, 2015 WL 1740241, at *2 (Mich. Ct. App. Apr. 16, 2015) (holding that the trial court could assume jurisdiction over a newborn “on the basis of anticipatory neglect,” due to the respondent’s neglect of an older sibling, “without violating respondent’s due process rights because her treatment of [the sibling] supported the conclusion that [respondent] would be unable to provide proper care and a fit home for [the newborn]”). New York courts uniquely employ the term “derivative neglect” in such a scenario where the child is born shortly after an adjudication of neglect of another child/sibling.

While the petitioner agency has the burden of proving that the return of the child to the parent presents an imminent risk to the child’s life or health, proof of the abuse or neglect of one child is admissible evidence on the issue of abuse or neglect of a sibling, and in appropriate cases it can be sufficient alone to sustain a finding of abuse or neglect. Furthermore, where a prior finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future.

In re Kimberly H., 242 A.D.2d 35, 38, 673 N.Y.S.2d 96 (N.Y. App. Div. 1998) (internal citations and quotation marks omitted); see also In re Essence S., 134 A.D.3d 415, 416 (N.Y. App. Div. 2015) (concluding that the “finding of derivative neglect as to [the newborn child] was also proper because the child was bom so close in time to the period in which conditions underlying the mother’s longstanding history of neglect existed that [the child] would have been a neglected child if placed in the mother’s care”).

¶ 15. Our supreme court has addressed a similar issue—that of a sibling adjudicated as “abused.” In E.S. v. State, 567 So.2d 848, 849-51 (Miss. 1990), the Mississippi Supreme Court affirmed the youth court’s finding that siblings of a child who had been sexually abused by her father were also “neglected and abused children within the meaning of the Youth Court Act.” “[T]he harm to a sibling, [the] potential harm done to another child, is sufficient to justify intervention of the court to remove the sibling from the harmful environment.” Id. at 850 (quoting In re A.K.S., 602 S.W.2d 848, 851 (Mo. Ct. App. 1980)); see also S.C. v. State, 795 So.2d 526, 532 (¶ 28) (Miss. 2001) (finding that youth court’s decision to adjudicate child as neglected was based on substantial evidence as the child’s sibling was abused); T.T. v. Harrison Cty. Dep’t of Human Servs., 90 So.3d 1283, 1287 (¶ 20) (Miss. Ct. App. 2012) (concluding that because there was sufficient evidence that a child’s siblings had been abused by a parent, the potential harm to the child warranted removal from the home). Therefore, we believe that in a case involving evidence of neglect of a sibling, the supreme court would adopt the doctrine of “anticipatory” or “potential” neglect, especially where the neglect of a sibling had been determined a mere month prior to the other child’s birth. Moreover, we find our Youth Court Act’s definition of a “neglected child” is sufficiently comprehensive to include a newborn child whose parents have previously demonstrated that they are unwilling or unable to provide proper care for the child. The definition includes, inter alia, any child [w]ho is ... without proper care, custody, supervision or support” or “[w]ho, for any reason, lacks the care necessary for his health, morals or well-being.” Miss. Code Ann. § 43-21-105(Z)(ü) & (iv).

¶ 16. However, because the DHS petition failed to charge that N.M. was a neglected child, we must find the youth court exceeded its authority and jurisdiction in the present case. In In re M.R.L., 488 So.2d 788, 792-93 (Miss. 1986), the supreme court determined that the youth court’s adjudication that three children were “neglected” “exceeded its authority,” as the petitions only charged “that each [was] a child in need of supervision.” There, the court stated:

While concededly there is evidence that would support a finding of neglect, regularity in judicial proceedings forbids the Youth Court making such a determination in this ... case in which the record fails to suggest that anyone even considered the neglected child issue until all of the proceedings at the adjudicatory hearing had been concluded and the Youth Court was announcing its decision.

Id. (finding the youth court “exceeded its authority in finding the children neglected children, given the present petition and record”). Similar to the circumstances before us, the M.R.L. court noted that the finding of neglect by the youth court was likely due to the fact that “a bit of straining” was necessary “to bring the case within ‘child in need of supervision,’ ” and the youth court “recognized that something had to be done for these children.” Id. at 793. Accordingly, pursuant to the Youth Court Act and the supreme court’s holding in In re M.R.L., we find the DHS petition was insufficient to bring N.M. under the youth court’s jurisdiction, and the youth court erred in denying the appellants’ Rule 60(b)(4) motion.

¶ 17. In their brief, however, the appellants have made this Court aware of subsequent legal proceedings involving this child in youth court. We take judicial notice of a DHS appeal to the Mississippi Supreme Court of the Marion County Youth Court’s February 16, 2016 order involving N.M. and her siblings, which held that DHS was to file a petition “seeking the termination of the parental rights of the [appellants].” See In re M.M., 2016-TS-00290-SCT. DHS later requested a voluntary dismissal of the appeal, as the “minor children ... have again been removed from the home of their parents since th[e] appeal was filed due to the conditions of the home,” and the supreme court granted the motion to dismiss on July 11, 2016. Therefore, even if there were no basis for a finding of neglect of the newborn, N.M. may be considered a “neglected” child based on subsequent events or conditions in the home.

¶ 18. The youth court’s judgment, denying the appellants’ Rule 60(b)(4) motion, is reversed, and this case is remanded to allow the DHS to file a proper petition within ten days, should it deem one is justified.

¶ 19. THE JUDGMENT OF THE MARION COUNTY YOUTH COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, FAIR AND WESTBROOKS, JJ„ NOT PARTICIPATING.

      . To protect the minor’s confidentiality, initials are used in place of the child’s and the parents’ names.

      . The parents, M.M. and S.M., will be collectively referred to as "the appellants.”

      . This language is taken from Mississippi Code Annotated section 43—21—603(7)(a)(ii) & (b) (Rev. 2009), which addresses the disposition order requirements for a child who "has been adjudicated abused or neglected[.]"

      . On March 5, 2015, Judge Rhoden recused himself due to a conflict of interest. Because N.M.’s foster parent was a practicing attorney, an order was entered on March 27, 2015, recusing all chancellors from the Tenth Judicial District, and the Mississippi Supreme Court appointed a special youth court judge to hear the case. There are references to other hearings regarding the status of the cases between October 2014 and May 2015, but the transcripts from those hearings are not contained in the record.

      . Although Watts was of the opinion that the children should be allowed to return home, she acknowledged that in January 2015, S.M. had been admitted to the hospital and his drug screen showed "opiates and Suboxone.”

      . In determining whether a judgment is void, the Mississippi Supreme Court has reiterated the federal rule, "which states that ‘a judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.’ ” Ravenstein v. Ravenstein, 167 So.3d 210, 217 (¶ 12) (Miss. 2014) (quoting Overbey v. Murray, 569 So.2d 303, 306 (Miss. 1990)).

      . This Court could find only one other jurisdiction that uses the phrase "child in need of special care.” Title 10A, section 1-1-105(20)(e) of the Oklahoma Statutes Annotated uses this terminology as one of the definitions of a "deprived child,” stating in pertinent part: " ‘Deprived child’ means a child ... in need of special care and treatment because of the child’s physical or mental condition, and the child’s parents, legal guardian, or other custodian is unable or willfully fails to provide such special care and treatment.” See Okla. Stat. Ann. tit. 10A, § 1—4—101(A)(1) (“Upon the filing of a petition, the assumption of the custody of a child, or issuance of an emergency custody order pursuant to the provisions of the Oklahoma Children’s Code, the district court shall obtain jurisdiction over any child who is or is alleged to be deprived.”).

      . See Miss. Code Ann. § 43-21-101 et. seq. (Rev. 2015).

      . We note the supreme court did find that the evidence supported a finding that the children were "in need of supervision. In re. M.R.L., 488 So.2d at 792.


text:
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
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    Supreme Court of Alabama.
    04-10-2015
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    Supreme Court of Alabama.
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    1130759
    Supreme Court of Alabama.
    05-29-2015
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    NATIONAL SECURITY FIRE & CASUALTY CO. v. Diane BATAIN, individually and as personal representative of the estate of Ervin Batain, deceased
    1130808
    Supreme Court of Alabama.
    04-10-2015
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    1130875
    Supreme Court of Alabama.
    04-10-2015
   Reh. denied.


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    Dr. Richard SCHLOEMER, M.D., and Troy Cosmetic Surgery, P.C. v. Tommy WALLACE, as personal representative of the estate of LeAnne Wallace
    1130908
    Supreme Court of Alabama.
    04-17-2015
   Affirmed.


text:
    Barbara CUMMINGS-JACKSON v. Erie BASCOMB et al.
    1131022
    Supreme Court of Alabama.
    04-10-2015
   Affirmed.


text:
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    1131165 (CR-12-1817)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Renaldo Chante ADAMS
    1131166 (CR-13-0029)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Keith L. MATTHEWS
    1131167 (CR-12-1943)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Emanuel McWILLIAMS
    1131168 (CR-12-2111)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Julius REEVES
    1131169 (CR-13-0323)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Cayce Collins MOORE
    1131183 (CR-12-2063)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Thomas Bradley DERRING
    1131221 (CR-13-0405)
    Supreme Court of Alabama.
    04-17-2015
   Cert, denied.


text:
    John David BLACKMON v. CITY OF VESTAVIA HILLS and Sgt. Michael O’Conner
    1131236
    Supreme Court of Alabama.
    04-10-2015
   Affirmed.


text:
    EX PARTE Charles Eugene BLACK
    1131269 (CR-13-0041)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Brandon Solomon FOSTER
    1131288 (CR-12-1982)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Gerald Homer INGRAM, Jr.
    1131289 (CR-13-0062)
    Supreme Court of Alabama.
    05-26-2015
   Cert. denied.


text:
    EX PARTE Charles Vincent PRATT
    1131290 (CR-13-0057)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Nicholas IIAMS
    1131291 (CR-12-2038)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Dennis DUNLAP
    1131292 (CR-13-0380)
    Supreme Court of Alabama.
    05/26/2015
   Cert, denied.


text:
    EX PARTE Richard FORMAN
    1131293 (CR-12-2039)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Willie Lizzlie GARDNER
    1131294 (CR-12-2110)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Clayton Joel FLOWERS
    1131295 (CR-12-1958)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Harris P. WILSON
    1131296 (CR-13-0130)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE William Thomas KNOTTS
    1131297 (CR-12-1861)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Brian R. STOREY
    1131298 (CR-12-1942)
    Supreme Court of Alabama.
    05-26-2015
   Cert. denied.


text:
    EX PARTE James Willis BONDS
    1131299 (CR-12-1729)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    CASH MART, INC., et. al. v. ALABAMA STATE DEPARTMENT OF BANKING
    1131340
    Supreme Court of Alabama.
    04-24-2015
   Affirmed.


text:
    EX PARTE Jimmy Shane CLICK
    1131344 (CR-12-0941)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    SYNOVUS TRUST CO., N.A. v. WARREN, AVERETT, KIMBROUGH & MARINO, LLC
    1131346
    Supreme Court of Alabama.
    05-15-2015
   Affirmed.


text:
    Robert Lee KREITLEIN v. ALABAMA STATE BAR
    1131361
    Supreme Court of Alabama.
    04-17-2015
   Affirmed.


text:
    EX PARTE J.H.F., JR.
    1131406 (CR-12-0529)
    Supreme Court of Alabama.
    04-17-2015
   Cert, denied.


text:
    Christopher Chase CORTE et al. v. Cynthia Corte TRICE et al.
    1131416
    Supreme Court of Alabama.
    05-22-2015
   Affirmed.


text:
    EX PARTE STATE BOARD OF EDUCATION and State Superintendent of Education, Dr. Thomas R. Bice
    1131426
    Supreme Court of Alabama.
    04-24-2015
   Mand. pet. granted.


text:
    Ted BEECH, as the conservator and guardian of Jerry Earl Johnson v. Jerry Earl JOHNSON
    1131430
    Supreme Court of Alabama.
    06-12-2015
   Affirmed.


text:
    LEWIS HOMES, INC., and David Rowe Fine Homes, Inc. v. REGIONS BANK et al.
    1131454
    Supreme Court of Alabama.
    05-15-2015
   Affirmed.


text:
    Rodney WARD, as legal guardian of and conservator of the estate of Laphesia Smith v. COOSA NURSING ADK, LLC, et al.
    1131494
    Supreme Court of Alabama.
    05-15-2015
   Affirmed.


text:
    EX PARTE Alvin WHITE
    1131502 (CR-13-1445)
    Supreme Court of Alabama.
    06-12-2015
   Writ of cert, quashed.


text:
    Kenneth WILLIFORD v. Lyndia LIKELY et al.
    1131508
    Supreme Court of Alabama.
    04-10-2015
   Affirmed.


text:
    Lee HADLEY et al. v. James PAYNE et al.
    1140003
    Supreme Court of Alabama.
    06-12-2015
   Affirmed.


text:
    Andrew HARPER v. CITY OF JASPER HOUSING AUTHORITY and Crimson Eagle, Inc.
    1140035
    Supreme Court of Alabama.
    04-10-2015
   Affirmed.


text:
    Stephanie LETT and Joshua Lett v. KNOLLWOOD CHRISTIAN SCHOOL and Knollwood Church
    1140058
    Supreme Court of Alabama.
    06-26-2015
   Affirmed.


text:
    Ruth YUTZY and Wayne Glover v. Kenneth HESTLA et al.
    1140068
    Supreme Court of Alabama.
    06-12-2015
   Affirmed.


text:
    EX PARTE Earnest Jerome HOGAN
    1140081 (CR-13-0881)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    EX PARTE Timothy STUBBS
    1140085 (CR-13-0867)
    Supreme Court of Alabama.
    05-26-2015
   Cert, denied.


text:
    Linda YANCE v. Laura L. URBAHNS
    1140104
    Supreme Court of Alabama.
    06-05-2015
   Affirmed.