author: WILSON, J.,

text:
    Holly S. MORGAN, Appellant v. MML INVESTORS SERVICES, INC., Massachusetts Mutual Life Insurance Company and Stephen Collins, Individually and d/b/a Collins Financial Network, Appellees
    NO. 2016-CA-00732-COA
    Court of Appeals of Mississippi.
    08/29/2017

      ATTORNEYS FOR- APPELLANT: ROBERT G. GERMANY, CRYMES G. PITTMAN
    ATTORNEYS FOR APPELLEES: ROY H. LIDDELL, TREY C. DELLINGER, REBECCA B. COWAN, WHITMAN B. JOHNSON III, BEN C. LEWIS
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J.,

FOR THE COURT:

¶1. Ralph “Skip” Moore was a registered representative of Massachusetts Mutual Life Insurance Company (MassMutual) and a unit sales manager for Collins Financial Network (CFN). Holly Morgan had known Moore for twenty-five years. In February 2009, Morgan gave Moore $20,000 in cash. She says the cash was for an unspecified “investment” and that Moore promised an eighteen to twenty-five percent return in only six months. However, Moore says that Morgan asked him to hold the cash for her as a favor and later told him to bet it on the Super Bowl. He says that he eventually lost all the money on bets on the Super Bowl and basketball games. In February 2009, Morgan also gave Moore a check for $75,000. The payee line was blank, and Moore filled in his name. Morgan says these funds were for another unspecified “investment” and that Moore promised a return of eighteen to twenty-five percent in twelve to eighteen months. However, Moore says that the funds were for a loan to a friend of his. The friend was unable to repay the loan.

¶2. Morgan sued Moore, MassMutual and one of its subsidiaries, and Stephen Collins, individually and d/b/a CFN, in circuit court. Morgan eventually narrowed her complaint to claims for breach of contract and conversion. She argued that MassMutual and Collins were liable because they clothed Moore with “apparent authority” to enter into the alleged investment contracts and to accept funds for the alleged investments. She also argued that Collins was liable because Moore was CFN’s employee. On motions for summary judgment, the circuit court ruled that there were no genuine issues of material fact and that neither MassMutual nor Collins was liable for Moore’s alleged actions under a theory of apparent authority or otherwise. The court granted summary judgment for both and certified its rulings as final pursuant to Mississippi Rule of Civil Procedure 54(b), and Morgan filed a timely notice of appeal. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Morgan and Moore have been casual acquaintances for over twenty-five years. In January 2009, they crossed paths at Tico’s Steak House in Ridgeland. They spoke briefly, and Morgan gave Moore her telephone number. He soon called her, and they made plans to meet for lunch at Nick’s Restaurant in Jackson.

¶4. Morgan and Moore discussed his position as unit sales manager for CFN and a registered representative of Mass-Mutual. Morgan expressed interest in purchasing a life insurance policy from Moore, and on February 17, 2009, Morgan completed and signed an application for life insurance with MassMutual at Moore’s office. However, Morgan ultimately decided to abandon the application. Morgan never submitted any payment in connection with this application and did not expect Mass-Mutual to issue a policy to her.

¶ 5. In February 2009, Morgan gave Moore two large sums of money. In early February, she gave him $20,000 in cash. Morgan says that the cash was for an “investment.” She alleges that Moore promised that she would be repaid the principal plus eighteen to twenty-five percent interest in only six months. According to Moore, there was no further discussion of the nature of the “investment,” and she never received or requested any documentation concerning the investment. Morgan was unsure whether she gave Moore the cash at Nick’s or at his office.

¶ 6. On February 17, 2009, Morgan gave Moore a check for $75,000. Morgan says that this money was also for an unspecified “investment.” She alleges that Moore promised that she would be repaid the principal plus eighteen to twenty-five percent interest in twelve to eighteen months. Once again, according to Morgan, there was no further discussion of the nature of the “investment,” and she never received or requested any documentation of it. Morgan says that she gave Moore the check in his office and that she left the payee line blank because Moore said he would “stamp” it for her. When Morgan received her bank statement, she noticed that Moore had written in his name as the payee, but this did not concern her.

¶ 7. Moore’s version of events is significantly different. He claims that after he and Morgan reconnected at Tico’s, they began a romantic relationship. He denies that he provided Morgan any financial services other than accepting her application for a life insurance policy, which she ultimately decided against. Moore claims that Morgan gave him the $20,000 cash to hold while she was on vacation in Cabo San Lucas, Mexico. Moore claims that Morgan gave him the cash at Nick’s and that this .was not the only time that she asked him to hold a large sum of cash for her. Moore says that after Morgan returned from Mexico, he tried to return the money to her multiple times, but she told him to continue holding it. According to Moore, Morgan eventually told him to bet the money on the Super Bowl. He lost $10,000 on the Super Bowl and then lost the rest of the money on basketball games. Moore placed the bets with a short man he knew only as “Ben.” Moore would meet Ben in the parking lot at Northpark Mall to transact business.

¶ 8. Moore claims that Morgan’s $75,000 check was for a loan to his friend Ray Winstead and that Morgan knew about the loan when she wrote the check. Winstead needed the money because' he “was involved in several different businesses,” and “things were fixing to be really good” for him, but “he was in a cash flow bind” at the timé. Winstead promised to repay the loan in a year with eight percent interest “no matter what,” but if things went well, he might pay Morgan “double” that amount. Moore says that Morgan gave him the check while at Nick’s. He deposited the funds in his personal account and then obtained a cashier’s check for Winstead. Moore never told MassMutual or Collins about the cash or check from Morgan because he did not believe that either was related to his work.

¶9. Morgan acknowledges that Moore never told her that her money was invested with or through MassMutual or CFN. In fact, Morgan says that she and Moore never discussed .anything about the nature of the alleged investments—other than the returns that Moore allegedly promised. Morgan also acknowledges that she never received a receipt, contract, statement, or any other documentation from MassMutual or CFN. She “just assumed [that each investment] had to be an investment with MassMutual.” To justify this assumption, Morgan emphasizes that she met with Moore in his office at CFN’s office on Leila Drive in Jackson, which is identified as a ^Supervisory Office” of MassMutual. She also emphasizes that Moore gave her a business card that identified him as a “Unit Sales Manager” for CFN and a “registered representative” of MassMutual, with authority to “offer[] securities through MML Investor Services, Inc., a MassMutual subsidiary.” The card also prominently displayed MassMutual’s logo.

¶ 10. In January 2010, Morgan sent Moore a text message demanding to know when she would receive her “first payment,” apparently a reference to the $20,000 investment. In response, Moore acknowledged that the “smaller payment” (the $20,000) “obviously [had] not gone well,” but he told Morgan that he expected a payment in May, by which he meant a payment from Winstead on the $75,000 loan. However, Winstead never made any payments on the loan, and Moore never made any payments to Morgan. According to Moore, Winstead was unable to repay the loan because of unrelated litigation. Morgan never contacted MassMutual or CFN regarding her alleged investments.

¶ 11. On January 4, 2011, Morgan filed suit against Moore, MassMutual, and Collins, individually and doing business as CFN, in Hinds County Circuit Court. She asserted claims for breach of contract, conversion, negligence, and alleged violations of the Mississippi Securities Act. Following discovery, MassMutual filed a motion for summary judgment in July 2015, and Collins filed a motion for summary judgment in September 2015. In response, Morgan abandoned her claims for negligence and for alleged violations of the Securities Act. However, Morgan argued that Moore had apparent authority to act for MassMutual and Collins and that both were liable for breach of contract and conversion as a result of Moore’s actions. She also argued that Collins was liable because Moore was acting as CFN’s employee rather than as an independent contractor.

¶ 12. The circuit court concluded that there was no genuine issue of material fact because neither MassMutual nor Collins knew of or authorized the alleged transactions or “did or said anything to Ms. Morgan to clothe Mr. Moore with apparent authority to bind [MassMutual or Collins] regarding these transactions.” Accordingly, the court granted summary judgment for both MassMutual and Collins and certified its rulings as final pursuant to Mississippi Rule of Civil Procedure 54(b). Morgan filed a timely notice of appeal. Her claims against Moore remain pending in the circuit court and are not at issue in this appeal.

ANALYSIS

¶ 13. On appeal, Morgan argues that the circuit court erred by granting summary judgment in favor of MassMutual and Collins. She argues that genuine issues of material fact preclude summary judgment on her claims for breach of contract and conversion. She further argues that there are genuine issues of material fact as to whether MassMutual and Collins clothed Moore with apparent authority to bind them with regal’d to the alleged transactions. She also argues that there is a genuine issue of material fact as to whether Collins is liable because Moore was acting as CFN’s “employee” rather than a mere independent contractor.

¶ 14. We review the circuit court’s order granting summary judgment de novo. Thomas v. Chevron U.S.A. Inc., 212 So.3d 58, 60 (¶ 7) (Miss. 2017). Summary “judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The focal point of our standard for summary judgment is on material facts,” which means those facts “that matter[] in an outcome determinative sense.” Simmons v. Thompson Mach. of Miss. Inc., 631 So.2d 798, 801 (Miss. 1994). “The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Sanders v. Advanced Neuromodulation Sys. Inc., 44 So.3d 960, 965 (¶ 11) (Miss. 2010) (quoting Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 17) (Miss. 2006)); see also Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch. Inc., 759 So.2d 1203, 1208 (¶ 12) (Miss. 2000) (“Numerous, immaterial facts may be controverted, but only those that affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” (quotation marks omitted)).

¶ 15. We view the evidence in the light most favorable to the nonmoving party. Thomas, 212 So.3d at 60 (¶7). However, the nonmoving “party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). A party is entitled to summary judgment if the evidence before the court demonstrates that there is no genuine issue of material fact and the party moving for summary judgment is entitled to judgment as a matter of law. M.R.C.P. 56(c).

¶16. We begin by briefly addressing Morgan’s argument that Collins is liable for Moore’s actions because Moore was an “employee” of CFN rather than a mere agent or independént contractor. Although Morgan argues that Moore was CFN’s “employee,” she does not explain how an employment relationship, standing alone, would render Collins liable for Moore’s alleged misconduct. At oral argument, counsel for Morgan agreed that this was in substance a “respondeat superior” claim and also conceded that there is no evidence that Moore’s actions benefitted CFN or served CFN’s purposes. Where an employee acts for a purpose of his own and not in service of his employer’s interest, the employer cannot be held liable under the doctrine of respondeat superior. See Akins v. Golden Triangle Planning & Dev. Dist. Inc., 34 So.3d 575, 579-81 (¶¶ 10-21) (Miss. 2010). Therefore, even if Morgan was CFN’s “employee,” that status, standing alone, would not provide a basis for imposing liability on Collins. Accordingly, this issue requires no further discussion.

¶ 17. We now address the primary issue in this appeal: apparent authority. “In order to recover under a theory of apparent authority, the claimant must put forth ‘sufficient evidence’ of ‘(1) acts or conduct of the principal indicating the agent’s authority, (2) reasonable reliance upon those acts by [the claimant], and (3) a detrimental change in position by [the claimant] as a result of that reliance.’” Adams Cmty. Care Ctr. LLC v. Reed, 37 So.3d 1155, 1160 (¶ 14) (Miss. 2010) (quoting Eaton v. Porter, 645 So.2d 1323, 1325 (Miss. 1994)). Our Supreme Court has explained that

[a]n act is considered to be within the agent’s apparent authority when a third party is justified in concluding that the agent is authorized to perform it from the nature of the duties which are entrusted to him. Apparent authority is to be determined from the acts of the principal and requires reliance and good faith on the part of the third party.

FSC Securities Corp. v. McCormack, 630 So.2d 979, 985 (Miss. 1994) (citations omitted) (quoting Terrain Enters. Inc. v. W. Cas. & Sur. Co., 774 F.2d 1320, 1322 (5th Cir. 1985)). The Court has also held that an agent’s apparent authority is -that authority which, in light of the principal’s conduct, “persons of reasonable prudence, ordinarily familiar with.business practices, dealing with the. agent might rightfully believe the agent to have.” Eaton, 645 So.2d at 1325 (quoting Steen v. Andrews, 223 Miss. 694, 697-698, 78 So.2d 881, 883 (1955)). If there is sufficient evidence as to each of the three elements of apparent authority, the issue “is a question of fact, to be determined ... by the jury.” Id... However, “if evidence on any of the three elements is missing, summary judgment is appropriate.” Hutton v. Am. Gen. Life & Accident Ins., 909 So.2d 87, 94 (¶21) (Miss. Ct. App. 2005).

¶ 18. In FSC Securities, supra, our Supreme Court discussed the concept of apparent authority in a somewhat similar context. There, the McCormacks sued FSC Securities (FSC) after FSC’s “registered representative,” Donald Manuel, allegedly misappropriated funds that they had entrusted to him. FSC Secs., 630 So.2d at 982-85. The McCormacks testified that they instructed Manuel to invest the funds in bonds.and.a money market account, but Manuel used the money for “bridge loans” to his radio stations and personal purposes. Id. at 984-85. The McCormacks testified that Manuel held himself out as a representative of FSC. Id. at 983-84. He gave them a business card that identified him as such, as well as an IRA brochure from FSC. Id. He also wrote them a letter on stationary that referenced FSC. Id. However, the McCormacks had no contact with anyone else affiliated with FSC, and they did not contact FSC when they began to worry about their money; Id. The McCormacks also 'testified that they did not notice that Manuel’s business card and stationary identified him as president of a company called “Financial Services Limited,” nor did they read the information that he provided to them about their investment. Id. Finally, the McCormacks made payment to, and received a receipt from, Financial Services Limited, not FSC. Id. at 982-83, 986. On these facts, the Supreme Court held that the McCormacks “had notice” that Manuel was not acting for FSC, that their reliance on Manuel’s alleged apparent authority was unreasonable, and that FSC could not be held vicariously liable for Manuel’s actions. See id.. at 986.

¶ 19. The lead opinion in FSC Securities was a plurality opinion. Chief Justice Hawkins, specially concurring, also concluded that -FSC did nothing- to clothe Manuel with apparent authority. See id. at 990-91 (Hawkins, C.J., specially concurring). Chief Justice Hawkins acknowledged that Manuel “was a representative of FSC Securities and an agent of sorts” and perhaps had apparent authority to do “some things” on its behalf. Id. at 991. However, FSC did nothing to create the impression that Manuel had “any authority whatever to take a check for $150,000 solely in his own firm's name and thereby bind FSC Securities just as though the check had been payable to it.” Id.

¶ 20. Morgan contends that the facts of the present case are more analogous to Eaton v. Porter, supra, where our Supreme Court affirmed the county court’s imposition of vicarious liability based on apparent authority. In that case, the Porters went to Eaton Motors, where they met J.W. Eaton Sr. and discussed repairs to their car, which had been in a collision. Eaton, 645 So.2d at 1324. Eaton Sr. “agreed to have the car fixed,” “made arrangements for the car to be moved to Eaton Motors from [another shop] where it had been towed,” and gave the Porters his Eaton Motors business card. Id. Eaton Sr. also signed the estimate and endorsed the check from the Porters’ insurer on behalf of Eaton Motors. Id. However, Eaton Sr. actually arranged for another body shop to perform the work. Id. According to the Porters, he did so without their knowledge. Id. When the Porters discovered that the repair work was defective, they sued Eaton Motors. Eaton Motors argued that it neither performed the work nor “held itself out to the public as a repair business,” and therefore Eaton Sr. lacked authority to contract for repair work on its behalf. Id. at 1324-26.

¶ 21. The Supreme Court rejected Eaton Motors’s argument and held that Eaton Motors clothed Eaton Sr. with apparent authority to agree to perform the work by providing him a desk on the premises, business cards, and authority to endorse checks. See id. at 1326-27. The Court also held that the Porters’ perceptions of Eaton Sr.’s authority and their reliance thereon were reasonable. The Court reasoned that there was no reason that the Porters, who were not from the area, should have known that “Eaton Motors” did not perform repair work on cars other than the cars that it offered for sale. See id.

¶ 22. To determine whether Moore had apparent authority for purposes of this case, it is first necessary to define precisely what it is that Morgan alleges that Moore had apparent authority to do on behalf of MassMutual and CFN. As Chief Justice Hawkins reasoned in FSC Securities, Moore undoubtedly was a representative of both entities “and an agent of sorts,” and he obviously had apparent authority to do “some things” on their behalf. See FSC Secs., 630 So.2d at 991 (Hawkins, C.J., specially concurring). As in Eaton v. Porter, Moore’s business card, office, and titles with both entities clothed him with some degree of apparent authority. Morgan relies heavily on Moore’s business card, which showed Moore to be a unit sales manager for CFN and a registered representative of MassMutual. The card also included a MassMutual logo and represented that Moore “offer[ed] securities through MML Investor Services, Inc., a MassMutual subsidiary.” Consistent with Eaton v. Porter, these circumstances certainly were sufficient to clothe Moore with apparent authority to engage in such transactions on behalf of MassMutual and CFN.

¶ 23. However, the issue in this case is whether Moore had apparent authority to bind MassMutual and CFN to alleged “investment” contracts of a materially different type. Taking all of Morgan’s testimony and evidence as true and granting her all favorable inferences, the evidence supports, at best, the following version of events: Morgan gave Moore $20,000 in cash and then a $75,000 check payable to Moore. Morgan says that the money was for unspecified “investments,” but she never received a contract, an account statement, or any other documentation from either MassMutual or CFN. Morgan was never contacted by—and never contacted—any other person affiliated with either entity. She says that she never requested or received any information whatsoever concerning the nature of her investments. Morgan maintains that she gave Moore the money based on his promises of eighteen to twenty-five percent returns in only six months in one case and in twelve to eighteen months in the other case. She acknowledges that Moore never stated that these investments were with or through MassMutual or CFN. In her own words, Morgan “just assumed” that the investments were with MassMutual. Consistent with Morgan’s claims and deposition testimony, the alleged “contracts” were described at oral argument in this Court as agreements to pay eighteen to twenty-five percent interest, guaranteed, within the time periods specified as returns on “investments” of an entirely unknown nature.

¶ 24. On these facts, even granting Morgan the benefit of all favorable inferences, the circuit court properly determined that there was no genuine issue of material fact and that MassMutual and Collins were entitled to judgment as a matter of law. The test of apparent authority is whether “the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have.” Eaton, 645 So.2d at 1325 (quoting Steen, 223 Miss. at 697-98, 78 So.2d at 883). MassMutual and/or Collins provided Moore with an office, business cards, and titles, but none of those things provides a basis for “persons of reasonable prudence, ordinarily familiar with business practices,” to assume that Moore had authority to bind MassMutual or Collins to the vague and highly unusual “investment” contracts described by Moore. Nor did MassMutual or Collins do anything to clothe Moore with apparent authority to accept cash or checks that were not made payable to either of them. See FSC Secs., 630 So.2d at 986; id. at 991 (Hawkins, C.J., specially concurring).

¶25. Stated slightly differently, Morgan’s alleged reliance on her own assumption that Moore had the authority to enter into the alleged investment contracts on behalf of MassMutual and Collins was not reasonable reliance. Morgan did not pay the funds to MassMutual or Collins, and she never received any receipt, contract, statement, or other documentation from them. Morgan acknowledges that Moore never even said that the investments would be with or through MassMutual or CFN. Morgan argues that her alleged reliance was reasonable because she had known Moore personally for a number of years. While that fact might be relevant to her claims against Moore, it has nothing to do with the objective reasonableness of her unilateral assumptions about Moore’s authority and her investments. Morgan’s assumption that Moore was acting on behalf of MassMutual and CFN was not reasonable given that, among other things, she never paid money to MassMutual or Collins and never received any receipt, contract, or statement indicating that either entity had received the funds. See FSC Secs., 630 So.2d at 986; id. at 991 (Hawkins, C. J., specially concurring).

¶ 26. In summary, the circuit court correctly concluded that there were no genuine issues of material fact as to whether Moore had “apparent authority” to act on behalf of MassMutual or Collins/CFN with respect to the alleged “investments.” On the undisputed material facts, MassMutual and Collins, individually and doing business as CFN, were entitled to judgment as a matter of law.

¶ 27. AFFIRMED.

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

      . Morgan’s claims against Moore remain pending and are not at issue in this appeal.

      . Stephen Collins is a general agent for Mass-Mutual. CFN is his business name.

      . He bet on the Pittsburgh Steelers, but they did not cover the spread.

      . Moore says that he and Morgan had a falling out in March 2009, when Morgan saw him kissing another woman in a parking lot outside of Reed Pierce's, a restaurant in By-ram. Moore claims that Morgan became angry and demanded immediate reimbursement for a plane ticket that she had purchased for him for an upcoming trip to Cabo San Lucas. Morgan denies that any such incident occurred. She agrees that she bought the plane ticket and that Moore repaid her for it. However, she says that she invited Moore on the trip to discuss investments with her friends, not because they were romantically involved, and that the trip was cancelled for unrelated reasons.

      . Collins maintains that Moore was an independent contractor, not an employee.

      . MassMutual and CFN rely heavily on their contracts with Moore, which place various restrictions and limitations on his authority. However, these contracts were not available to Morgan or any other member of the public. Thus, although the contracts are highly relevant to any issue of Moore's actual authority, their relevance to the issue of his apparent authority is far from clear, and our opinion does not rely or depend on them.

      . As discussed above, Morgan left the payee line blank, but she was unconcerned when she saw that Moore had made it payable to himself.

      . In contrast, in Eaton v. Porter, the check was endorsed to the principal, Eaton Motors, and there was nothing unusual about the repair work that the agent agreed to have performed. Eaton, 645 So.2d at 1324.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Kevern FIELDS, Appellant v. Brian LADNER and Classification Hearing Officers, Appellees
    NO. 2016-CP-00996-COA
    Court of Appeals of Mississippi.
    08/29/2017

      ATTORNEY FOR APPELLANT: KE-VERN FIELDS (PRO SE)
    ATTORNEY FOR APPELLEES: ANTHONY LOUIS SCHMIDT JR.
    BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Kevern Fields is an inmate in the custody of the Mississippi Department of Corrections (MDOC). Fields was confined at the Central Mississippi Correctional Facility (CMCF). In early 2016, Fields was issued two separate rule-violation reports (RVR) for possessing various contraband items. After hearings on the two RVRs, Fields was found guilty—and lost 180 days of earned time. Fields then appealed the decision with the MDOC’s administrative remedy program (ARP). Warden Brian Ladner affirmed Fields’s RVRs through the MDOC’s ARP. Fields then appealed to the Rankin County Circuit Court—which affirmed the MDOC’s decision. Fields now appeals to this Court. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2013, Fields was convicted in the Madison County Circuit Court for two separate offenses of cocaine possession—one with an enhanced penalty. For the cocaine possession with the enhanced penalty, Fields was sentenced to twelve years in the custody of the MDOC; for the other cocaine possession, Fields was sentenced to five years in the custody of the MDOC. These two terms were ordered to run consecutively.

¶ 3. While housed as an inmate at CMCF, Fields was issued two separate RVRs, which are relevant to this appeal. The first RVR, issued on January 27, 2016, was for a bottle filled with homemade alcohol. Fields was given notice of his hearing, which was held on February 8, 2016. Fields admitted the bottle was his, and did not request any witnesses. At the hearing, Fields was found guilty based on the evidence presented. The second RVR, issued on February 3, 2016, was for multiple contraband items including a cell phone, a cell-phone charger, head phones, a pack of spice, multiple packs of tobacco, and a bottle of homemade alcohol. Fields was given notice of his disciplinary hearing, which was held on February 9, 2016. Fields did not request any witnesses for this RVR hearing, and was found guilty based on the evidence presented. As a result of the hearings, Fields lost 180 days of earned time.

¶4. On February 18, 2016, Fields filed two separate grievances with the MDOC’s ARP. Fields claimed that he was not given a legible copy of the first RVR, issued in January. Additionally, as to the second RVR—issued in February—Fields claimed that the disciplinary official did not follow the MDOC’s disciplinary procedures. On March 9, 2016, Ladner affirmed Fields’s RVRs through the MDOC’s ARP. Then Fields appealed to the Rankin County Circuit Court—which affirmed the MDOC’s decision. Fields now appeals to this Court.

DISCUSSION

¶ 5. This Court will not disturb an administrative agency’s decision on appeal “unless the decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers or violated the constitutional or statutory rights of the aggrieved party.” Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss. Ct. App. 2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss. 2001)). Indeed, “[t]here is a rebuttable presumption which favors the agency’s decision and the challenging party has the burden of proving the contrary.” Ross v. Epps, 922 So.2d 847, 849 (¶ 4) (Miss. Ct. App. 2006).

¶ 6. The MDOC’s.decision—as to both of Fields’s RVRs—was supported by substantial evidence, was not arbitrary or capricious, was not beyond the agency’s scope or powers, and did not violate his constitutional or statutory rights. As to the first RVR, Fields does not contest the circumstances surrounding the RVR itself; instead, Fields merely complains that he was not given a legible copy of the RVR— and so, he could not properly build a defense. As to the legibility of the RVR, the MDOC admits that the copy was not ideal. Even so, a review of the record shows that Fields was informed of the charge against him when he was issued the RVR. As for the second RVR, Fields makes a blanket assertion that the disciplinary official did not follow the MDOC’s disciplinary procedures. Yet Fields fails to point to any specific reason for this claim. It is clear that he was given notice of his hearing, requested no witnesses, and failed to present any evidence at the hearing to refute the claim of the found contraband.

¶7. On appeal, Fields argues that the contraband was not his, but was another inmate’s—Tony Payton. In fact, Fields stated that he had left his locker open and asked Payton to lock his locker. Fields further stated that after the shakedown, Payton told him that he “would give him an affidavit stating what [he] [did].” But we find—as the circuit court found in its order—that the hearing officer simply did not believe the affidavit of Payton and instead relied upon the evidence that was presented.

¶ 8. Also, underlying Fields’s arguments on appeal is Fields’s assertion that these various alleged errors violated his right to due process as it relates to the loss of his earned time. The Mississippi Supreme Court has held that earned time is a privilege and not a right. Ross v. State, 584 So.2d 777, 779 (Miss. 1991). And so, an inmate has no vested liberty interest in receiving earned time. Id, Here, Fields seems to argue that his punishment—resulting in a loss of earned time—violated his right of due process. But as we stated above, meritorious earned time is a privilege and not a right, and therefore Fields’s loss of earned time did not violate his federal or state constitutional rights.

¶ 9. In conclusion, having reviewed the record, we find the MDOC’s decision was supported by substantial evidence, was within the agency’s scope or powers, was not arbitrary or capricious, and did not violate Fields’s constitutional or statutory rights. We affirm the circuit court’s judgment.

¶ 10. AFFIRMED.

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

      . The MDOC’s brief states that Payton’s affidavit was not presented until on appeal to the circuit court—after a finding of guilt. The MDOC’s brief further states that Fields made no mention of calling Payton as a witness, nor mentioned him in the disciplinary hearings. Yet the circuit court’s order stated that “[t]he hearing officer simply did not believe the affidavit of ... Payton[.j” And so, it is not clear from the record when this affidavit was presented; nevertheless, it was found to be unpersuasive.


author: CARLTON, J.,

text:
    Karl HODGES, individually and on behalf of other wrongful death beneficiaries of Isaac Hodges, deceased, and as Administrator of the Estate of Isaac Hodges, Appellant v. The UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Appellee
    NO. 2016-CA-00870-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEY FOR APPELLANT: JAY MAX KILPATRICK
    ATTORNEYS FOR APPELLEE: WALTER T. JOHNSON, SUSAN LA-THAM STEFFEY, WILLIAM ABRAM ORLANSKY
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Karl Hodges, individually and on behalf of other wrongful-death beneficiaries of Isaac Hodges, deceased, and as administrator of the estate of Isaac Hodges, filed suit against the University of Mississippi Medical Center (UMMC) asserting a claim of medical negligence stemming from the death of Karl’s son, Isaac. At a bench trial, Karl tendered Dr. Lawrence Brickman as an expert witness in the field of general vascular and trauma surgery. After hearing testimony from Dr. Brick-man, the trial judge made a ruling from the bench finding Dr. Brickman’s testimony unreliable and insufficient to support a claim of medical negligence. The trial judge then entered a judgment in favor of UMMC.

¶ 2. Karl now appeals, asserting that the trial judge erred in finding Dr. Brickman unqualified to render an expert medical opinion' in the present case. Finding no error, we affirm the trial judge’s judgment of dismissal in favor of UMMC.

FACTS

¶ 3. Shortly before midnight on January 10, 2013, Isaac was admitted to UMMC for treatment of two gunshot wounds. The record reflects that Dr. Douglas Soltys performed an exploratory laparotomy on Hodges. Dr. Soltys discovered that Hodges suffered from a large gastric perforation, a liver wound, issues with his gallbladder, and a fractured humerus. Dr. Soltys performed a repair of the perforation, a chole-cystectomy, and a packing of the liver bed during the initial procedure. After the procedure, Hodges remained in the surgical intensive-care unit (SICU) until Dr. Wesley Vanderlan performed a wound closure secondary abdomen procedure on January 11, 2013.

¶4. As part of the monitoring process postsurgery, Isaac’s physician and nurse asked'Isaac if he had experienced a bowel movement-and passed gas since his surgery. Isaac’s mother, Celesta Hodges, testified .that Isaac untruthfully told the physician and nurse that he had experienced a bowel movement and passed gas.

■ ¶ 5. UMMC discharged Isaac on January- 15, 2013. Celesta testified that shortly after leaving the hospital, Isaac’s conditiori deteriorated, so she and Karl drove Isaac back to UMMC for treatment. Isaac died four days later. In the autopsy, the coroner listed Isaac’s manner of death as homicide and opined- that Isaac’s death was caused by complications from multiple gunshot wounds.

' ¶ 6. Oh January 7, 2014, Karl filed a complaint alleging that UMMC was liable for Isaac’s death based on medical malpractice due to the collective alleged negligence of members of its medical staff who provided medical care to Isaac. At a. bench trial held on February 3, 2016, the. trial judge heard testimony from Celesta,.Dr. Brickman, and Dan Murphy, a friend of the Hodges family who visited Isaac in the hospital.

¶ 7. The record reflects that at the bench trial, Karl tendered Dr. Brickman as an expert witness in the field of general vascular and trauma surgery, as well as the coordination of residency programs. Counsel for UMMC objected and requested that the trial judge allow him to voir dire Dr, Brickman regarding the doctor’s qualir fications.

¶8. During voir dire by counsel for UMMC, Dr. Brickman explained that he does not have an office in general surgery and is no longer board certified, but he “do[es] academic things in general surgery.” Dr. Brickman admitted that he is not the primary surgeon on any surgery, but that he does assist in surgery three times a week. Dr. Brickman confirmed that he had not béen the primary surgeon, “or the one [who] cuts,” in over a decade, nor . had he provided a patient with postoperative care since 2005. Dr. Brickman also admitted that he had never possessed a board certification in critical-care medicine.

5 9. Counsel for UMMC also questioned Dr. Brickman about the relevant standard of care in the present case, as well as Dr. Brickman’s definition of standard of care:

Q: You have testified- before that the standard of care is how you would do a thing?
A: Yes, I have.
Q: And is that still your opinion today? A: Yes.
Q: And you have said that if—that un-
, derstandably two physicians can differ in what they think a thing should be?
A: Yes.
Q: However, the one that is wrong about a, thing, then that’s the one who’s breached the standard of care?
A: It’s a very broad question. And I have to be honest with you. Every ease is different.
Q: Where did you learn that definition of standard of care, Doctor?
-A: Something that I just- formulated in my own head. If you practice well you pay attention to detail, you have very few complications. I think you’re defining the standard of care.

Counsel for UMMC then made an ore tenus motion for the trial judge to strike Dr. Brickman as an expert witnéss. The trial judge .held the issue under advisement.

¶ 10. After hearing Dr. Brickman’s testimony in its entirety, the trial judge made a ruling from the bench wherein he found that Dr. Brickman failed to meet the requirements of Mississippi Rule of Evidence 702 and also failed .to sufficiently articulate the applicable medical standard of care or a breach thereof. The trial judge explained:

In my dual role as trial judge and fact finder in this case, I have the difficult task of determining whether the plaintiff’s expert testimony presented yesterday was sufficient to support a claim of medical negligence against UMMC under Mississippi law. After hearing the testimony of the plaintiffs expert Dr. Lawrence Brickman, yesterday, and considering the objections by the defendants, and after much careful consideration and a study of the applicable law, I find that the testimony is unreliable and insufficient under Mississippi law to support a claim of medical negligence.

¶ 11. Accordingly, the trial judge struck Dr. Brickman’s testimony. Since Karl failed to provide any additional medical expert testimony at trial, the trial judge thus granted a dismissal with prejudice in favor of UMMC.

¶ 12. Karl filed a motion for reconsideration and a new trial, which the trial judge denied. This appeal followed.

STANDARD OF REVIEW

¶13. “The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion.” Troupe v. McAuley, 955 So.2d 848, 855 (¶ 19) (Miss. 2007). We also review a trial court’s determination as to the qualifications of an expert witness under an abuse-of-discretion standard, Hubbard v. Wansley, 954 So.2d 951, 956 (¶ 11) (Miss. 2007).

II14. The Mississippi Supreme Court has articulated that “[t]he trial judge has the sound discretion to admit or refuse expert testimony; an abuse of discretion standard means the judge’s decision will stand unless the discretion he used is . found to be arbitrary and clearly erroneous.” Troupe, 955 So.2d at 856 (¶ 19). When determining whether to admit or refuse expert testimony, we recognize that “[tjrial court judges have a gate-keeping responsibility to assure a proposed expert’s opinion has a reliable basis in the knowledge and experience of the relevant discipline.” King v. Singing River Health Sys., 158 So.3d 318, 322 (¶ 15) (Miss. Ct. App. 2014) (internal quotation marks omitted) (citing Worthy v. McNair, 37 So.3d 609, 614 n.3 (Miss. 2010)).

DISCUSSION

¶ 15. Karl argues that the trial court erred in finding Dr. Brickman unqualified to provide expert testimony in the present case. Karl maintains that Dr. Brickman’s testimony met the requirements to present a prima facie case of medical negligence.

¶ 16. In support of his claim, Karl states that Dr. Brickman testified that he held medical licenses in two states and had never had his license suspended or revoked. Karl also asserts that the testimony showed that Dr. Brickman received specialty training in vascular and trauma surgery and practiced general vascular and trauma surgery in New York for thirty years. Karl states that Dr. Brickman testified that he had performed over 1,000 abdominal laparotomies in his career, including the postoperative care and discharge of the patient, and that he was familiar with the signs and symptoms of ischemic bowel syndrome. Karl acknowledges that although Dr. Brickman admitted that he had not performed an abdominal laparotomy in the last ten years, Dr. Brickman testified that the standards of care for postoperative care and the signs and symptoms of ischemic bowel syndrome have not changed in the last ten years. Karl also maintains that UMMC failed to file a motion to strike Dr. Brickman’s testimony.

¶ 17. In McDonald v. Memorial Hospital at Gulfport, 8 So.3d 175, 181 (¶ 15) (Miss. 2009), the supreme court 'stated:

Expert testimony should only be admitted if it withstands the two-prong inquiry under Rule 702. First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.

¶ 18. Additionally, “the success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert. The expert must articulate an objective standard of care.” Cates v. Woods, 169 So.3d 902, 906 (¶ 11) (Miss. Ct. App. 2014) (citing McGee v. River Region Med. Ctr., 59 So.3d 575, 578 (¶ 9) (Miss. 2011)). “Not only must an expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id.

¶ 19. In providing his ruling from the bench, the trial judge acknowledged his role as “gatekeeper” to determine the admissibility and reliability of expert-witness testimony. The trial judge also acknowledged the standard set forth in Rule 702 regarding the testimony of an expert witness, and he explained that Mississippi law requires objective testimony from a qualified expert. The trial judge cited to Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 9) (Miss. 2009), and stated that “a medical expert who answerfe] in terms of what he would do as a physician [was] found not to be articulating an objective standard.” The trial judge also explained that “[a]n expert witness who is opining as to a hospital’s alleged negligence is required to have a knowledge and familiarity with the hospital or similar facility.”

¶ 20. The trial judge observed that

the sole issue in this case has been described by [Dr. Brickman] as being premised on an alleged breach of the standard of care concerning post-operative care by UMMC by discharging [Isaac] too soon. Dr. Brickman also alluded to opinions of alleged failures of UMMC ... to sufficiently supervise resident physicians.

¶21. Regarding UMMC’s objections to Dr. Brickman’s qualifications as an expert and his testimony, the trial judge stated:

Dr. Brickman unequivocally denied any knowledge of UMMC’s hospital procedures and UMMC’s residency program rules and requirements. Similar to t]ie expert that was disqualified in Palmer [v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1358 (Miss. 1990)], Dr. Brickman .admitted that he had “never visited UMMC,” that he is “unfamiliar with these facilities and their staff.” And importantly both here and in Palmer, the experts “currently had no affiliations with any hospital anywhere.” The disqualified expert in Palmer had been without hospital privileges for nine years when offered as an expert; in this case, [Dr. Brickman] had been without hospital privileges for ten years.
The failure to produce a competent medical expert prohibits the plaintiff from bringing the case to trial, and in every kind of case, a judgment notwithstanding the verdict is generally appropriate when the plaintiff has failed to produce sufficient admissible evidence to establish a prima facie case of medical negligence.

¶ 22. In Palmer, 564 So.2d at 1358-60, the supreme court held that the trial judge’s disqualification of a plaintiff’s expert witness in a medical-malpractice suit was “fully justified” where the. expert witness “lacked both knowledge and familiarity with the hospital or similar facility.” The supreme court found that the expert witness’s trial testimony therein reflected his lack of knowledge and familiarity with the hospital at issue. Id. at 1358. The supreme court also recognized that the expert witness “currently has no affiliations with any hospital anywhere and has had no hospital privileges for the past nine years.” Id.

¶ 23. Next, the trial judge herein opined:

Most alarming to this Court[ ] was Dr. Brickman’s clear inability to articulate the applicable standard of caret,] which he contends should have been followed during [Isaac’s] discharge. '
Furthermore, [Dr. Brickman] testified that medical negligence can be inferred simply when a patient experiences complications. Dr. Brickman’s opinions are significantly and legally flawed. Mississippi law is clear, that the simple existence of medical complications is not considered a breach of the standard of care.
Further, claims of negligence cannot be evaluated through the lens of hindsight. Dr. Brickman further described the standard of care as one “he formulated in his own head,” which is contrary to the objective requirement found in Mississippi law. In sum, the expert opined that a physician who practices meticulously is not guilty of medical negligence.

As previously stated, an expert witness “must articulate an objective standard of care.” McGee, 59 So.3d at 578 (¶ 9).

¶ 24. The trial judge acknowledged that Dr. Brickman mentioned a few specific medical records related to his opinion that UMMC discharged Isaac too soon. The trial judge stated that Dr. Brickman also discussed that Isaac exhibited “two or three symptoms indicating a serious medical problem,” which “were improperly ignored by UMMC.” However, the trial judge explained that during cross-examination, “counsel for UMMC established reasonable alternative bases for these symptoms.” Regarding Dr. Brickman’s claim that UMMC’s medical records contained many omissions óf alleged symptoms suffered by Isaac prior to his discharge, ' the trial judge determined that “[t]hese conditions and symptoms, such as vomiting and unsteady gait, were not noted by any of the numerous medical providers assisting Isaac, but instead are alleged only by lay family members, and aré directly contrary to the documented medical records, including assertions made by Isaac himself concerning his condition.”

¶ 25. The trial judge ultimately held that even when considering all of the evidence in the light most favorable to the plaintiff, the Court finds that [Dr. Brick-man] shall be stricken based on his lack of qualifications, and even more so, based on his failure to identify an applicable standard of care or any breach by UMMC related thereto.

¶ 26. Based on our review of the record and applicable precedent, and in keeping in mind our standard of review, we cannot say that the trial judge abused his discretion in striking Dr. Brickman as an expert witness. As a result, we affirm the trial judge’s judgment of dismissal in favor of UMMC.

¶ 27. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

      . Rule 702 discusses testimony by an expert witness and provides:
      A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
      (a)the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
      (b) the testimony is based on sufficient facts or data;
      (c) the testimony is the product of reliable principles and methods; and
      (d) the expert has reliably applied the principles and methods to the facts of the case,


author: WESTBROOKS, J,

text:
    CITY OF JACKSON, Mississippi, Appellant v. Wavie GRAHAM, Appellee
    NO. 2016-CA-00805-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEYS FOR "APPELLANT: JAMES RICHARD DAVIS JR: MONICA DAVIS JOINER
    ATTORNEYS FOR APPELLEE: BENJAMIN SETH THOMPSON STACY EVERETT PEPPER
    • BEFORE LEE, C.J, BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J,

FOR THE COURT:

¶ 1, This appeal arises from a notice of claim filed by Wavie Graham against the City of Jackson pursuant to the Mississippi Tort Claims Act (MTCA). Graham asserted that Officer Undráe Martin acted with reckless disregard for the safety of others when he hit her truck in his patrol car. Following a bench trial, a judgment was entered in favor of Graham, and damages were awarded. Following the calculation of Graham’s medical expenses, an amended order was entered, and damages were awarded to Graham in the amount of $121,530.87. It is from this judgment that the City now appeals. After our review, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Around November 12, 2010, at approximately 10:30 p.m., Graham and Annie Robinson left a church service at Word of Truth Church located on Northside Drive near Flag Chapel Road. Graham and Robinson were headed directly across the street to Graham’s house after the service. Graham testified she looked both ways before crossing the four-lane highway to enter into her driveway, and that a car passed right before she drove into the street. Testimony determined that Graham and Robinson were headed somewhat eastbound on Northside Drive prior to impact.

¶ 3. Officer Martin proceeded down Northside Drive, toward Clinton, responding to a “priority two” emergency call without using his emergency lights or siren. Officer Martin testified that use of sirens and police lights when answering a “priority two” call is discretionary. As Graham and Robinson crossed the street, Officer Martin struck the side of Graham’s truck with his patrol car, a Crown Victoria.

¶ 4. Antonio Wallace, a witness at trial, testified that right before the accident, he heard what sounded like someone “racing cars.” At the time, Wallace was the owner of an automotive shop located almost directly in front of Graham’s church. Wallace also testified that after the crash, Officer Martin exited his vehicle and sat on its hood, while he and another man attended to Graham and Robinson. According to Wallace, Graham was pinned in the driver’s side of the vehicle, and Robinson had been ejected from it and was crying.

¶ 5. Graham filed a notice of claim against the City of Jackson and Officer Martin, pursuant to the MTCA, alleging that Officer Martin acted with reckless disregard for the safety of the public. Graham testified that she could not remember all of the details regarding the accident. Officer Martin testified he suffered blunt-force trauma to his head as a result of the accident and could not recall all the details from that night.

¶ 6. The trial court used the ten factors the Mississippi Supreme Court previously used when analyzing police-pursuit cases, citing City of Jackson v. Gray, 72 So.3d 491 (Miss. 2011), and determined that the evidence supported a finding that Officer Martin acted in reckless disregard for the safety of others. Therefore, Officer Martin was not covered under the immunity afforded under the MTCA. The City now appeals.

STANDARD OF REVIEW

¶ 7. “A circuit court judge sitting without a jury is afforded the same deference as a chancellor.” City of Jackson v. Lewis, 153 So.3d 689, 693 (¶ 4) (Miss. 2014) (citations omitted). “The circuit court’s findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. (citations and quotation marks omitted). Further, the supreme court has held that “although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond [the reviewing] [c]ourt’s power to disturb the findings of the trial judge if supported by substantial evidence.” Id.

DISCUSSION

I. Whether the trial court properly used the ten-point test previously used only in “pursuit cases” to determine whether Officer Martin was guilty of reckless disregard.

¶8. The City contends that the trial court erred by attempting to formulate an objective test for “reckless disregard” using a modified form of the ten factors in a pursuit case rather than using precedent on the definition of gross negligence. The Mississippi Supreme Court has established ten factors to analyze cases where police officers are in pursuit of suspects, which are as follows:

(1) length of the chase; (2) type of neighborhood; (3) characteristics of the streets; (4) presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; (6) seriousness of the offense for which the police are pursuing the suspect; (7) whether the officer proceeded with sirens and blue lights; (8) whether the officer had available alternatives which would lead to the apprehension of the suspect besides pursuit; (9) existence of a police policy which prohibits pursuit under the circumstances; and (10) rate of speed of the officer in comparison to the posted speed limit. It is appropriate for trial courts to consider all ten factors, and to look at the totality of the circumstances when analyzing whether someone acted in reckless disregard.

Gray, 72 So.3d at 496-97 (¶ 17) (citation and quotation marks omitted).

¶ 9. We find that the trial court incorrectly applied the ten factors to the facts in this case. However, we agree with the trial court’s finding of substantial evidence supporting that Officer Martin acted with reckless disregard for the safety of others. “A long-standing rule of [our appellate courts] is that we will not reverse a lower court’s decision where that court reaches the right conclusion although for the wrong reason.” Briggs v. Benjamin, 467 So.2d 932, 934 (Miss. 1985); see also Huffman v. Griffin, 337 So.2d 715, 723 (Miss. 1976); Tex. Gas Transmission Corp. v. City of Greenville, 242 So.2d 686, 689 (Miss. 1970).

¶ 10. The MTCA “shields the government from liability based on any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.” Lewis, 153 So.3d at 693 (¶ 5) (quotation marks omitted); see also Miss. Code Ann. § ll-46-9(l)(c) (Rev. 2012). “An appellate court utilizes a totality-of-the-circumstances standard in order to determine reckless disregard for purposes of defeating immunity under the MTCA.” City of Jackson v. Jackson, 200 So.3d 1141, 1145 (¶ 12) (Miss. Ct. App. 2016) (citation omitted). -

¶ 11. The record reflects that at trial the court heard testimony from several witnesses, including an accident recon-structionist, to determine whether Officer Martin’s actions deprived him of the protections afforded by the MTCA.

¶ 12. “Reckless disregard denotes more than mere negligence, but less than an intentional act.” Lewis, 153 So.3d at 693-94 (¶ 5) (citations omitted). Further, “reckless disregard. [is found] when the conduct involved evinced not only some appreciation of the unreasonable -riskjnr volved, but also a deliberate disregard of that risk and the high probability of harm involved.” Id. (quotation marks omitted).

¶ 13. Cheryl Grayson and Brenda Matthews stood in front of the church during the time of the collision. Grayson and Matthews testified at trial that Officer Martin drove down Northside Drive at a very high speed. Grayson testified that Officer Martin drove so fast that she stopped talking mid-conversation, because of the loud noise from the speeding. Matthews testified Officer Martin was speeding like a “bat of out hell.”

. ¶ 14. Mildred Champion, another witness at trial, testified that Officer Martin sped past her as she was headed to work the night of the collision. She testified .she thought Officer Martin lost control of the patrol car given his fast speed. Further, Champion stated that if one approached the hill on Northside drive at a normal speed, that person could brake to avoid making contact, with other cars that .may be in the street.

¶ 15. Tim Corbitt, the City’s accident reconstructionist, testified that' based ■ bn his calculations, Officer Martin’s" patrol car was traveling between fifty-seven and sixty-eight miles per hour before the crash. The speed limit on the road during thetime of the accident was forty miles per hour. Corbitt, also noted that if Officer Martin was traveling between fifty-seven and sixty-eight 'miles per hour at- impact, he had to-be going faster prior tb braking. Corbit further testified that following the crash, the speedometer was stuck on Officer Martin’s car at seventy-two miles per hour.

¶ 16. Although the use of the police lights and sirens is discretionary for an officer responding to a “priority two” call, Officer Martin testified that the purpose of the lights and siren is to allow citizens to get out of the way. However, Officer Martin neglected to. use either one while speeding down the street at approximately 10:30 p.m. Officer Martin also made the decision not to use the lights and sirens while traveling on a street with a hill that prevented him from seeing what was on the other side. The supreme court has held “wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care.” Maye v. Pearl River Cty., 758 So.2d 391, 395 (¶ 21) (Miss. 1999) (quotation marks omitted) (citing Turner v. City of Ruleville, 735 So.2d 226, 229 (¶ 16) (Miss. 1999)).

¶ 17. In Maye, an officer backed out of the parking space, and up an incline, and he did not know what was behind him. Id. at (¶24) As a , result, the officer backed into a private citizen. Id. The supremae court opined that “although [the officer] did not intend to hit [the] car, his actions [rose] to the level of reckless disregard^] because [the officer] showed a conscious disregard for the safety of others when he backed up. the incline entrance to the parking lot knowing he could not be sure the area was clear.” Id. - !-

¶ 18, The record reflects that while the trial court relied on the analysis from the “officer in pursuit” cases, the trial court also considered the “totality of the circumstances” based on the set of facts and evidence presented. The record also reflects that while Officer Martin did not intend to hit Graham and Robinson, he showed a conscious disregard for the safety of others when he sped down a darkly lit street without using his emergency lights and the siren to warn other cars of his presence. Therefore, the trial court did not err in finding that there was substantial, credible, and reasonable evidence to support its finding that Officer Martin acted with reckless disregard for the safety of the public and was removed from immunity under the MTCA.

II. Whether the trial court erred in not requiring expert testimony to determine the causation of Graham’s injuries.

¶ 19. The City argues that the trial court erred by not requiring expert testimony to determine Graham’s injuries. We disagree. “Proof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.” Boggs v. Hawks, 772 So.2d 1082, 1085 (¶ 7) (Miss. Ct. App. 2000); see also Miss. Code Ann. § 41-9-119 (Rev. 1993). Further, the supreme court has previously held that, “when a party takes the witness stand and exhibits bills for examination by the court and testifies that said bills were incurred as a result of the injuries complained of, they become prima facie evidence that the bills so paid or incurred were necessary and reasonable.” Jackson v. Brumfield, 458 So.2d 736, 737 (Miss. 1984). “However, the opposing party may, if desired, rebut the necessity and reasonableness of the bills by proper evidence.” Id. “The ultimate question is then for the [fact-finder] to determine.” Id.

¶ 20. In its amended final judgment, the trial court acknowledged that Graham, Robinson, and Officer Martin were taken to the hospital after the accident. Graham also testified that she went to several doctors because of the accident. The trial court further determined that it could not be seriously contended by the City that Graham went to the various doctors for anything other than the accident. Accordingly, the trial court found that the City did not rebut any testimony proving that Graham’s treatment was a result of the crash. We agree.

¶ 21. Graham did not need to proffer any testimony from an expert witness regarding causation. She submitted medical bills and records stipulating that she attended physical therapy after the accident. Chaney Harper, the release-of-information coordinator for St. Dominic’s Hospital, also authenticated Graham’s medical records from the treatment she received. The City’s counsel stated that Harper’s testimony satisfied the issue of treatment, even though he stated he still had an issue with her testimony proving causation. Further, once Graham submitted the bills and records, the City had the opportunity to rebut her testimony during cross-examination regarding causation.

¶22. Accordingly, this Court finds no error in the trial court allowing Graham’s testimony to authenticate her medical recr ords.

¶ 23. AFFIRMED.

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

      . At certain points in the record, Graham’s first name is also spelled ‘‘Waivie,”

      . Officer Martin testified that he was answering a "disturbance of the peace” call, which is classified as a “priority two” call. According to Martin’s testimony, a "level-two priority call” is when property is being damaged or human life is being threatened. The dispatcher documented loud music playing in the area, "AVD subjects hanging out,” and a knocked out street light as the reason for the "priority two” call; however, Officer Martin testified he could not remember very well, but he thought the light had been shot out.

      . In Briggs, 467 So.2d at 934, the supreme court held that since the trial court incorrectly viewed the garnishment action as an attempt to enforce a lien on insurance-policy proceeds, it was error to dismiss the action on that basis; however, because the plaintiff sought to garnish proceeds from the wrong insurance company, a judgment was correctly entered in favor of that insurance company.


author: BARNES, J.,

text:
    David YATES, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00254-COA
    Court of Appeals of Mississippi.
    09/12/2017

      DAVID YATES (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. David Yates, appearing pro se, appeals the Covington County Circuit Court's denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2009, Yates was indicted for one count of sexual battery of a child under the age of fourteen, and one count of fondling of a child under the age of sixteen, under Mississippi Code Annotated sections 97-3-95(l)(d) and 97-5-23 (Rev. 2014), respectively. Yates entered an open plea to both counts before Special Circuit Court Judge Frank Vollor. The trial court accepted the guilty plea and ordered a presentencing report. Judge Vollor sentenced Yates to life in the custody of the Mississippi Department of Corrections (MDOC) for the sexual-battery charge and fifteen years for the fondling charge, to be served consecutively.

¶3. Yates filed a timely pro se PCR motion alleging ineffective assistance of counsel, an involuntary guilty plea, and lack of a factual basis for his plea. In support of his claims, Yates attached to the PCR motion his own affidavit and an affidavit from his sister who, along with other family members, had been present at Yates’s meetings with defense counsel.

¶ 4. An evidentiary hearing was held on Yates’s PCR motion with William Barnett, special circuit court judge, presiding. Yates’s former public defense counsel, Oby Rogers, testified, as did Yates. Rogers recollected that Yates gave a knowing, voluntary, and informed plea. He claimed that the Mississippi Bureau of Investigation had been very involved in the case, and had “a pretty well put together file.” Rogers testified:

Mr. Yates chose to plead guilty after advising him of what I thought were the facts that would be presented at trial. ... I went over to [Yates] and I told [Yates], “I understand your version and I understand the State’s version. And what I’m worried about is what version ... the jurors [will] believe.”

After reviewing the State’s file and the video statements of Yates and his wife/co-defendant, it was Rogers’s opinion that Yates would be convicted of both counts, and he told Yates so. Rogers admitted telling Yates the benefits of giving an open plea, but denied telling Yates what he thought the judge would or could do, or that if convicted by a jury Yates would be sentenced to life. Two identically worded affidavits were also submitted at the evi-dentiary hearing, in support of Yates’s claims. The witnesses were family members who were not present at the hearing due to its rescheduling, but were present at defense counsel meetings.

¶ 5. After testimony was heard, Judge Barnett stated:

[Yates’s] guilty plea was about as thorough as I’ve seen and certainly probably more thorough than I would have done. And I also notice that ... at a later date Mr, Yates was sentenced. The court finds that there’s no new evidence. ... The main complaint is that he entered a guilty plea thinking that he would not get the maximum. So I guess -his complaint is that he received the maximum instead of something less than that. And .the court can certainly not fault him for trying to get his life sentence changed.

However, the trial court found no grounds to grant Yates’s POR motion, and denied it. Yates timely appealed, raising three errors: ineffective assistance of counsel, an involuntary guilty plea, and failure to prove the age of the victim.

STANDARD OF REVIEW

¶6. The standard of review for denial of post-conviction relief after an evi-dentiary hearing is the clearly erroneous standard, meaning an appellate court will only disturb the circuit court’s factual findings if the findings are clearly erroneous. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss. 2009); Davis v. State, 980 So.2d 961, 954 (¶ 5) (Miss. Ct. App. 2007). Questions of law are reviewed de novo. Id.

ANALYSIS

I. Ineffective Assistance of Counsel

¶'7, Yates argues that his trial counsel gave him incorrect advice about pleading guilty, and failed to investigate witnesses that would prove his innocence. Yates contends his trial counsel advised him to enter an open plea of guilty so that he would receive a lighter sentence, because if he went to trial he would be found guilty and sentenced to life imprisonment. Yates claims he would not have entered a guilty plea had he known the trial court judge would impose a sentence of life imprisonment.

¶8. To succeed on a claim of ineffective assistance of counsel, the defendant must show: (1) counsel’s performance was deficient, and (2) this deficiency prejudiced the defense. Williams v. State, 110 So.3d 840, 844 (¶ 21) (Miss. Ct. App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In the context of a guilty plea,'the defendant must show that his “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, the defendant would not have entered the guilty plea.” McCollum v. State, 81 So.3d 1191, 1192-93 (¶ 8) (Miss. Ct. App. 2012) (quoting Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss. Ct. App. 2006)). The defendant must show “unprofessional errors of substantial gravity’ alleged with “specificity and detail.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss. Ct. App. 2006) (citation omitted); Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss. Ct. App. 1999) (citation omitted). However, “there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Hooghe v. State, 138 So.3d 240, 247 (¶ 31) (Miss. Ct. App. 2014) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 9. Yates properly submitted affidavits in an attempt to support his allegations, but he failed to prove ineffective assistance under Strickland. He attached his own affidavit and an affidavit by his sister to his PCR motion, and at his evidentiary hearing attached two identical affidavits from family members, all claiming his counsel advised him to plead guilty to avoid a harsher sentence. However, Yates’s plea petition and sworn testimony at the plea and evidentiary hearing contradict these affidavits, showing that Yates understood the maximum sentence for sexual battery was life imprisonment, the maximum sentence for fondling was fifteen years, and the sentences could be imposed consecutively.

¶ 10. Yates signed a plea petition explaining the maximum and minimum sentences for each charge. He agreed that he had not been made any promises by anyone that he would receive a lighter sentence if he pleaded guilty except (he wrote in) “an open plea.” He also agreed with the statement: “I AM SATISFIED WITH THE ADVISE AND HELP [COUNSEL] HAS GIVEN ME,” and that if he had “been told by [his] lawyer that [he] might receive probation or a light sentence, this is merely [counsel’s] prediction and is not binding on the Court.”

¶ 11. At the plea hearing, Yates specifically acknowledged that no one told him the judge would give him a lighter sentence if he pleaded guilty. The State represented that it was not making any recommendation for sentencing under the open plea. The judge explained the maximum and minimum sentences to Yates, and that he might have to serve them day-for-day. Yates stated he understood. Finally, Yates claimed he was satisfied with the services of his counsel. However, at the evidentiary hearing, Yates testified that Rogers gave him incorrect advice about pleading guilty, and that he only agreed to an open or guilty plea because Rogers told him if he went to trial he would “definitely receive a life sentence,” but if he agreed to an open plea, the judge would most likely sentence him to twenty years, with only ten years to serve.

¶ 12. Rogers, however, testified to the contrary, denying that he told Yates how the judge might sentence him. Judge Barnett, who was not the sentencing judge, found there to be no new evidence presented, but that he understood Yates’s attempt to get a life sentence changed when he was apparently expecting to be sentenced to something less than the maximum sentence. However, there were no grounds to grant post-conviction relief.

¶ 13. Regarding Yates’s claim of failure to call or investigate witnesses who would prove his innocence, Yates attached the affidavit of his sister to his PCR motion in support of his claim. The affidavit stated that she knew

without doubt that the charges against [Yates] [were] bogus and fabricated by [MJ] in an attempt to keep [KJ] and [Yates] apart. That [Yates] was never alone with said child, and the child lived with [MJ]. That indeed, it was [MJ], [LJ], and [KJ] that were forcing a sexual relationship upon said child.[]

However, the sister did not testify at the evidentiary hearing. Rogers testified at the hearing that he did not recall Yates having any alibi witnesses, and if Yates did have such witnesses, he would have contacted them. Rogers also testified that the prosecution’s case was strong, and the evidence clearly placed Yates and his -wife at the hotel where the crime occurred. Further, Rogers stated that Yates never complained about his representation.

¶ 14. Yates’s allegations of ineffective assistance of counsel are contradicted by the plea petition, his sworn testimony at the plea and evidentiary hearings, and sworn testimony of counsel at the evidentiary hearing. Accordingly, under Strickland, Yates fails to prove that his counsel’s performance was deficient. This issue is without merit.

II. Guilty Plea

¶ 15. Next, Yates argues that he pleaded guilty due to his counsel’s erroneous advice, which renders his plea invalid. Yates claims his counsel had him lie at his plea hearing, and he pleaded guilty out of fear of receiving a sentence of life imprisonment.

¶ 16. A guilty plea is valid if it is entered into “voluntarily, knowingly, and intelligently.” Williams v. State, 31 So.3d 69, 74 (¶ 13) (Miss. Ct. App. 2010) (citations omitted). To determine whether the plea is voluntarily and intelligently given, “the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. “The burden of proving a guilty plea is invalid rests with the defendant, and must be proven be a preponderance of the evidence.” Id. Lastly, “statements made in open court under oath ‘carry a strong presumption of verity.’” Thomas v. State, 159 So.3d 1212, 1216 (¶ 12) (Miss. Ct. App. 2012) (citations omitted).

¶ 17. Yates’s plea petition and plea-hearing transcript show he was thoroughly informed of the nature and consequences of his guilty plea, including a possible maximum life sentence for the sexual-battery charge. Yates signed his plea petition indicating he had read and understood it. At the plea hearing, Judge Vollor thoroughly questioned Yates prior to accepting his plea. Yates was advised of his constitutional rights, and that by entering a guilty plea, he was waiving those rights. Yates denied being coerced into pleading guilty. Judge Vollor found Yates understood the charges against him, his plea petition, the nature and consequences of his plea, and the minimum and maximum sentences for the charges.

¶ 18. The affidavits submitted by Yates in support of his argument for this issue and ineffective assistance of counsel are contradicted by the plea- and evidentiary-hearing transcripts. “A trial court may disregard the movant’s assertions where they are substantially contradicted by the court record that culminated in the entry of the guilty plea.” Larry v. State, 129 So.3d 263, 265-66 (¶ 10) (Miss. Ct. App. 2013) (citation omitted). Moreover, any misconceptions Yates had prior to the plea hearing were corrected by Judge Vollor at the plea hearing. “A guilty plea is voluntary despite erroneous advice by counsel if the defendant’s misconception is corrected by the court during the plea colloquy.” Id. at 265 (¶ 9). The trial court did not err in finding Yates’s guilty pleas voluntary and thereby valid.

III. Age of the Child

¶ 19. Finally, Yates argues that the prosecution failed to introduce proof of the age of the victim within the meaning of sections 97-3-95(l)(d) and 97-5-23. Yates claims that in charging him with sexual battery of a child under the age of fourteen and fondling of a child under the age of sixteen, the State did not provide a birth certifícate or sworn testimony to prove the victim’s age. Therefore, Yates contends that the State failed to meet its burden of proving the . elements of the indicted charges beyond a reasonable doubt.

¶20. “A guilty plea operates to waive . the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Garrett v. State, 110 So.3d 790, 793 (¶ 9) (Miss. Ct. App. 2012) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989)). The victim’s birth certificate'was not needed as evidence at Yates’s plea hearing to prove the element of age.' During the plea hearing, the trial judge asked the prosecution what evidence it expected to show at trial. The prosecution’s offer of proof included establishing that -the victim was under the age of fourteen at the time of. the offenses, Yates did not contest the offer of proof. Accordingly, Yates’s guilty plea operates as a waiver of this claim. This issue is without merit.

CONCLUSION

¶ 21. The trial court did not abuse its discretion in denying Yates’s PCR motion. The judgment of the circuit court is therefore affirmed.

¶ 22. AFFIRMED.

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

      . Yates's wife Kimberly was also indicted as a codefendant for the same charges.

      . In Yates’s affidavit, he stated that he told his attorney he was innocent of sexual battery, but his attorney replied that if Yates went to trial he would be found guilty and sentenced to life imprisonment without parole; however, if he pleaded guilty he would not get a life sentence.

      .Yates’s sister stated that the charges were fabricated. She also claimed that Yates was encouraged by his counsel to enter an open plea by defense counsel in order to avoid sentencing by a jury or the district attorney, because the judge would give a lighter sentence.

      . The identical affidavits stated that defense counsel advised Yates against pleading not guilty and going to trial because "the jury would crucify him,” and Yates should enter an open plea, which would allow the judge to determine the sentence instead of the district attorney. When Yates signed his plea papers, however, he noted they said "guilty,” but he did not understand this significance, trusting counsel who said he was pleading “open.”

      . Initials have been substituted for names in this statement to protect the victim's anonymity.


text:
    Frank STOCKETT, Appellant v. CLASSIC MANOR BUILDERS, INC. and Appellees Roger H. Morris, Jr., Appellees
    NO. 2016-CA-01027-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEYS FOR APPELLANT: KEITH D. OBERT, ROY GREGG ROGERS, WILLIAM F. BROWN
    ATTORNEYS FOR APPELLEES: DAVID L. SANDERS, JOHN BRIAN HYNEMAN
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   ISHEE, J.,

FOR THE COURT:

¶1. In 2011, Frank Stockett was involved in a motor-vehicle accident with Roger Morris in Flowood, Mississippi. At the time of the accident, Morris was driving a company vehicle for Classic Manor Builders Inc. (Classic Manor). - Stockett sustained injuries as a result of the accident, prompting litigation. A jury trial was held, wherein Morris and Classic Manor were found to be 100% at fault. The jury awarded Stockett $50,000. Stockett moved for a new trial or, in the alternative, an additur, which the circuit court denied. Displeased with the amount awarded, Stockett appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On October 11, 2011, Stockett, while traveling in the left-hand lane of Lakeland Drive, began slowing with the traffic ahead of him. Morris, in the course and scope of his employment for Classic Manor, was traveling immediately behind Stockett. Stockett stated that he realized Morris was approaching his vehicle at a pace too rapid to stop in time. Morris stated that, at the time, he was traveling approximately fifteen to twenty miles per hour before attempting to brake heavily and veer left in order to avoid a collision. Morris ultimately struck the rear of Stockett’s vehicle.

¶ 3. Stockett claimed the impact caused his seatbelt to restrain his left shoulder and left him dazed; he testified to a burning sensation in his shoulder while at the scene. Soon thereafter he went to the emergency room, where he allegedly complained of pain in his left shoulder, left knee, back, and head. The medical record created from this emergency-room visit, however, reflected only that Stockett “complain[ed] of pain involving the lower portion of [his] back and arms.” Stockett was given a prescription and advised to visit his family physician, which he did. His family physician ordered physical therapy and injections, but Stockett’s pain persisted. He was then referred to Dr. Scott Jones, an orthopedic surgeon.

¶ 4. Dr. Jones performed a physical examination of Stockett’s shoulder and concluded that Stockett had pain over his AC joint, pain with rotation, and a weakened rotator cuff. An MRI taken later revealed that Stockett had a superior labral tear and AC-joint arthrosis. In March 2012, Dr. Jones performed surgery to. alleviate Stockett’s pain. Stockett began postsur-gery physical therapy and returned to work with restrictions on the use of his left shoulder. In July 2012, Dr. Jones concluded Stockett had reached maximum medical improvement with 0% permanent partial impairment (PPI), and released Stockett from his care.

¶ 5. Stockett returned to Dr. Jones in November 2013, some sixteen months later, complaining of pain in his shoulder from overhead use. Dr. Jones administered an injection and prescribed Stockett anti-inflammatory medication with supplemental physical therapy. In January 2014, after Stockett had again returned to Dr. Jones, Dr. Jones revised his assessment of Stockett’ to 10% PPI, based largely upon what Stockett had to conveyed to him pain-wise. Dr. Jones, however, testified that there was “no structural or anatomical reason” for Stockett’s pain, and that Stock-ett may have been embellishing his pain. Nonetheless, Dr. Jones was convinced to a reasonable degree of medical certainty that the accident caused Stockett’s initial shoulder injury.

¶ 6. Morris and Classic Manor’s expert, Dr. William McCraney, testified otherwise, stating that in his professional opinion, Stockett’s torn labrum was not related to the accident. Dr. McCraney concluded such after review of Stockett’s medical records from the emergency-room visit, his family physician, and Dr. Jones. In addition, Dr. McCraney opined the fact that Stockett waited fifteen days after the accident to lodge a formal complaint with this family physician regarding the burning or pain in his shoulder weighed against his finding that the accident caused the injury—this statement contradicted Stockett’s testimony that he complained of the shoulder pain at the emergency room. Dr. McCraney further stated that the type of injury Stockett experienced was not common based upon the position Stockett’s shoulder would have been in during the accident.

¶ 7. At the conclusion of trial, the jury found Morris and Classic Manor 100% at fault. Stockett proved medical expenses of $41,882.18, and lost wages of $3,397.08, totaling $45,279.26 in actual damages. The jury ultimately awarded Stockett $50,000. Stockett then moved for a new trial or, in the alternative, an additur, claiming that the verdict was contrary to the overwhelming weight of the evidence, or that the jury evinced bias, passion, and. prejudice against Stockett. The circuit court denied his motion. Stockett appeals.

DISCUSSION

¶ 8. Stockett argues that the jury award is so inadequate as to be against the weight of the evidence, and that the circuit court erred in refusing to enlarge the award via an additur. Morris and Classic Manor assert that the jury, as the trier of fact, was presented all the evidence, weighed the same,' and rendered a verdict above and beyond Stockett’s actual damages, which should stand on appeal.

I. Additur

¶ 9. A court’s power to impose an additur derives from Mississippi Code Annotated section 11-1-55 (Rev. 2014), which states: •

The supreme court or any other court of record in a case in which the money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only.

“Thus, an additur may be awarded: (1) if the court finds that the jury was influenced by bias, prejudice, or passion or (2) if the damages were contrary to the overwhelming weight of credible evidence.” Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 944 (Miss. 1992).

¶ 10. “[Stockett] relies on [the Mississippi Supreme] Court’s general line of decisions holding that evidence of corruption, passion, prejudice^] or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages.” Id. at 944-45. Stockett’s primary assertion, then, is that an additur was warranted “[g]iven the ridiculously small amount of the verdict over and above [his] actual’ medical expenses and lost wages, [such that] it is apparent that the verdict was the product of the jury’s bias, passion[,] or prejudice[.]” This alleged inference—that the $4,720.74 award above and beyond his actual damages evinces jury bias, passion, or prejudice—is the sole foundation for Stockett’s claim that an ad-ditur is required.

¶ 11. “The scope of appellate review in an additur appeal is limited to determining whether the trial court abused its discretion.” Id. at 945. “[The supreme court] has further noted that the party seeking the additur has the burden of proving his.injuries, damages[,] and loss of income.” Id. “In determining whether this burden is met, [an appellate court] must view the evidence in the light most favorable to the defendant, giving that party all favorable inferences that reasonably may be drawn therefrom.” Id.

¶ 12. “Awards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Id. “This is because the amount of damages awarded is primarily a question for the jury.” Id. “Additurs represent a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution.” Id. (emphasis added).

¶ 13. To support his argument, Stockett attempts to analogize his case with four supreme court cases wherein additurs were awarded for uncompensated pain and suffering.' These cases are all distinguishable from Stockett’s, and we will discuss each in turn.

¶ 14. In Rodgers, the plaintiff was a passenger in a car that collided with a Pascagoula public-school bus. Id. at 943. Rodgers presented proof of actual damages, pain and suffering, and a PPI of 40% for his entire body. Id. at 944. The jury awarded Rodgers damages for his medical expenses alone. Id. Rodgers moved for an additur, but the circuit court denied him relief. Id. On appeal, our supreme court held an additur was warranted because Rodgers presented undisputed proof of pain and suffering. Id. at 945. Thus, because the jury awarded medical expenses alone—despite the uncontested proof of pain and suffering—-the Rodgers court found the verdict to be against the overwhelming weight of the evidence. Id, at 945-46.

¶ 15. Similarly, in Moody, Moody was rear-ended by an RPM employee acting in the course and scope of his employment. Moody, 659 So.2d at 878. Moody presented uncontested proof of pain and suffering, but the jury awarded him damages only in the amount of his medical expenses. Id. at 881. Displeased,' Moody moved for a new trial or, in the alternative, an additur. Id. at 878. The circuit court denied his motion, and Moody appealed. Id.. On appeal, the Moody court did as the Rodgers court did, and found that because Moody’s pain and suffering was uncontested, a jury award for medical expenses alone was against the overwhelming weight of the evidence. Id. at 883. Unlike Rodgers and Moody, however, Stockett was awarded damages above his actual damages—thus, we find Rodgers and Moody inapplicable here.

¶ 16. Stockett next relies upón Harvey. Harvey involved an automobile collision that left Harvey initially unconscious and eventually complaining of knee pain. Id. at 185. Harvey presented evidence of medical expenses and lost wages totaling $5,279.20, as well á 10% PPI, of his leg.' Id. at 186, 189. The jury, however, awarded Harvey only $5,300 in damages—a mere $20.80 beyond his actual damages. Id. at' 186. Harvey moved for an additur, which the circuit court denied. Id. On appeal, the supreme court found that “the proof [was] uncontradicted that [Harvey] did sustain some pain and suffering.” Id. at 188. As such, the Harvey court found an additur was necessary, as $20.80 did not adequately compensate Harvey for his pain and suffering in light of the uncontradicted evidence. Id. at 190.

¶ 17. Lastly, Stockett relies on Pham, 542 So.2d 884. Pham was involved in an automobile collision that resulted in immediate emergency surgery and twelve days spent in the intensive-care unit. Id. at 888. Pham presented evidence of permanent deformity to his leg, as well as a permanent limp. Id. at 888-89. His total damages amounted to $28,682.70, which encompassed medical expenses and lost wages. Id. at 889. Nevertheless, the jury awarded Pham only $30,000, despite the uncontested evidence of his pain and suffering. Id. Pham moved for an additur, which the circuit court denied. Id. at 885. In light of Pham’s severe injuries, as well as the uncontested proof of his pain and suffering, the supreme court found an additur was warranted. Id, In finding such, the Pham court stated that the award of $1,327.30 beyond Pham’s actual damages shocked the conscience, and ignored Pham’s evidence as to his pain, suffering, and future disability. Id.

¶ 18. But unlike Harvey and Pham, who received nominal amounts for their pain and suffering, Stockett received a sum of $4,720.74 above his actual damages. See DePriest v. Barber, 798 So.2d 456, 459 (¶ 11) (Miss. 2001) (holding an award of $3,000 for pain and suffering “is far from a level that ‘shocks the conscience’”). And, as will be discussed in further detail below, Harvey and Pham both involved uncontested evidence of pain and suffering, which is not the case here. Thus, despite Stockett’s best arguments, we likewise find Harvey and Pham inapplicable.

¶ 19. Therefore, in light of the facts of this case compared to the cases discussed above, we cannot say that the jury’s award was so “inadequate as to shock the conscience and to indicate bias, passion[,] and prejudice on the part of the jury[.]” Walker v. Gann, 955 So.2d 920, 931-32 (¶ 38) (Miss. Ct. App. 2007) (quoting Walmart Stores Inc. v. Johnson, 807 So.2d 382, 392 (¶ 27) (Miss. 2001)). As such, we find no abuse of discretion by the circuit court in denying Stockett’s motion for an additur. This issue is without merit.

II. Motion for a New Trial

¶ 20. We next address whether the circuit court erred in denying Stockett a new trial. “The motion for a new trial has only been employed in rare cases when there would be injustice either in allowing the verdict to stand or in granting a [judgment notwithstanding the verdict.]” Walker, 955 So.2d at 934 (¶ 45). “Rule 59 of the Mississippi Rules of Civil Procedure allows a trial judge to grant a new trial if so required by justice.” Id. “Justice requires the granting of a new trial when the verdict is against the overwhelming weight of the evidence[.]” Id. (internal quotations omitted). “As with an additur, we review the trial court’s denial of a motion for a new trial under an abuse of discretion standard.” Id. “As such, we give ‘substantial weight, deference[,] and respect to the decision of the trial judge.’ ” Id. (quoting Hamilton v. Hammons, 792 So.2d 956, 965 (¶ 44) (Miss. 2001)).

¶ 21. Stockett asserts that the circuit court erred in failing to grant a new trial solely on the basis that the jury’s award was so inadequate that it shocks the conscience, evinces bias, prejudice, and passion, and was contrary to the overwhelming weight of the evidence. As discussed above, however, we do not find that the jury’s award of $50,000 was so inadequate as to shock the conscience or evince bias on the part of the jury. We likewise do not find that the jury’s decision is against the overwhelming weight of the evidence.

¶22. We find such because the record before us presents a large degree of conflicting evidence. Here, the jury heard Stockett testify that he' complained of shoulder pain both at the scene of the accident and to the treating emergency-room physician. Medical records related to the incident, however, revealed no documentation of Stockett’s left-shoulder pain until fifteen days after the accident. The jury likewise heard testimony from Dr. Jones regarding his treatment of Stockett, as well as his statement that fifteen days was a “seemingly long time not to mention [the injury].” The jury further heard Dr. Jones state that he had released Stockett with 0% PPI (i.e., full recovery)—and because of that, he found Stockett’s return some sixteen months later suspicious, as there was “no structural or anatomical reason” for Stockett’s pain; this caused Dr. Jones to conclude Stockett possibly may have been embellishing his pain. And though Dr. Jones was convinced to a reasonable degree of medical certainty that the accident caused Stockett’s initial shoulder injury, Dr. McCraney testified otherwise. Lastly, the circuit court, in its order denying Stockett’s posttrial motions, found:

[Stockett’s] evidence concerning his shoulder injury was certainly contradicted. The jury may well have found that the shoulder injury was not related to the accident and awarded damages for lost wages, medical bills unrelated to the shoulder[,] and for pain and suffering.

¶ 23. “When evidence is in conflict, the jury is the sole judge of both the credibility of a witness and the weight of his testimony.” Walker, 955 So.2d at 934 (¶ 47). “As the fact-finder, the jury in this case was entitled to believe whomever it found to be most credible.” Id. Therefore, in light of the conflicting evidence present before us, we find the circuit court did not abuse its discretion in refusing to grant a new trial. This issue is without merit.

CONCLUSION

¶ 24. In sum, when viewing the evidence in the light most favorable to Morris and Classic Manor, we find no abuse of discretion by the circuit court in denying Stock-ett’s motion for an additur—put simply, the damages are not so inadequate as to shock the conscience or evince bias, passion, or prejudice by the jury. See generally Rodgers, 611 So.2d 942. Moreover, the presence of conflicting evidence leads us to find that the circuit court did not abuse its discretion in denying Stockett a new trial. See Walker, 955 So.2d at 934 (¶ 45). As such, we affirm the judgment of the circuit court.

¶ 25. AFFIRMED.

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

      . Stockett’s shoulder injury was the primary injury litigated below; as such, his other inju-ríes will not be discussed in detail.

      . Rodgers, 611 So.2d 942; Harvey v. Wall, 649 So.2d 184 (Miss. 1995); Moody v. RPM Pizza Inc., 659 So.2d 877 (Miss. 1995); and Pham v. Welter, 542 So.2d 884 (Miss. 1989).