author: FAIR, J., FOR IRVING, P.J.,

text:
    Teiawan COX, Appellant v. SMG AND CAPITAL CITY CONVENTION CENTER COMMISSION d/b/a Jackson Convention Center Complex, Appellees
    NO. 2016-CA-00200-COA
    Court of Appeals of Mississippi.
    09/05/2017
    ATTORNEY FOR APPELLANT: JA-WANZA KOBIE WATSON
    ATTORNEY FOR APPELLEES: MICHAEL D. SIMMONS
   FAIR, J., FOR

THE COURT:

¶ 1. In late 2013, Teiawan Cox filed a personal injury lawsuit against SMG and the Capital City Convention Center Commission, alleging that she was injured as a result of an unsafe' condition at the Jackson Convention Center Complex. Cox did not have process issued for any of the named defendants, and the case sat on the docket for more than a year and a half before Cox filed a motion for an extension of time to serve process. On July 24, 2015, she filed an amended complaint and had process issued for SMG and the Convention Center, who were apparently then served. SMG and the Convention Center filed answers on September 3, 2015, that did not assert deficiency of service of process as a defense. On October 30, 2015, they filed motions to amend their answers to raise that defense.

¶2. The trial court ultimately entered an order denying the motion for an extension of time to serve process. It further found the motions to amend the answers moot, and the same day also entered a final judgment dismissing the case without prejudice for insufficiency of process. On appeal, Cox contends that SMG and the Convention Center waived the defense of insufficiency of process by failing to assert it in their answer. We agree, and we reverse the dismissal and remand the case for further proceedings consistent with this opinion.

DISCUSSION

¶ 3. The question of the sufficiency of the process is not at issue on appeal, nor whether the trial court should have granted an extension of time to serve process. The only issue raised by Cox is whether the defense of insufficiency of process was waived.

¶ 4. Mississippi Rule of Civil Procedure 12(h)(1) provides that a defense of insufficiency of process is waived if it is not raised in a pre-answer motion or in the answer. Mississippi courts “have consistently held that failure to assert the defense in an answer, motion, or other pre-responsive pleading is a waiver that will be enforced.” U.S. Bancorp v. McMullan, 183 So.3d 833, 836 (¶ 10) (Miss. 2016) (citation omitted).

¶ 5. Burleson v. Lathem, 968 So.2d 930, 935-36 (¶¶ 14-15) (Miss. 2007), is almost exactly on point. There, the service of the Summons was untimely, as it was in our case. The defendant did not raise the defense of insufficiency of process in its answer, and the Mississippi Supreme Court found the defense to have been waived. See id.

¶6. SMG and the Convention Center attempt to distinguish this case from Burleson by the fact that, unlike the defendant there, they filed motions to amend their answers to include the defense. These motions were filed outside the thirty days allowed for amendment as a matter of course under Mississippi Rule of Civil Procedure 15(a), so SMG and the Convention Center requested leave of the court to amend the answers, as the Mississippi Supreme Court 'has held to be potentially allowed under Rule 15(a). But the trial court never granted those motions, apparently finding them to be moot.

¶7. On appeal SMG and the-Convention Center suggest that we should nonetheless affirm the trial court here because it “likely would have granted the motion” had it recognized it as a predicate to dismissal, instead of denying it as moot. We agree that the motions were not moot, but we cannot, as they urge, affirm the trial court because the motions “likely” would have been granted.

¶ 8. First of all, the law governing the motions is not so clear as SMG and the Convention Center suggest. It is true that our supreme court has, at least twice, stated that the issue of untimely/insufficient service of process may be raised in an amended answer filed with leave of court under Rule 15. Rains v. Gardner, 731 So.2d 1192, 1197 (¶ 17) (Miss. 1999); accord Burleson, 968 So.2d at 934-36 (¶¶ 12 & 14). While we (and the trial court) are bound to follow that precedent, it does not appear to be consistent with the text of the rules or the holdings of other courts. Rule 12(h)(1) provides that the defense of insufficiency of process “is waived” if it is not asserted in a party’s answer “or an amendment thereof permitted by Rule 15(a) to be made as a matter of course,” The rule’s advisory committee note similarly states that a party “must raise”’insufficient service of process and other enumerated defenses “in the answer or an amended answer made as a matter of course pursuant to Rule 15(a) to avoid waiver of such defenses.” As we read its text, Rule 12(h)(1) permits a party to assert these specified defenses in an amended answer only if the amended answer is one permitted as a matter of course under Rule 15(a), and not if leave of court is required. That appears to be the prevailing interpretation of the parallel federal rule. See Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983); Morgan Guar. Tr. Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. 1981); Konigsberg v. State, 435 F.2d 551, 552 (3d Cir. 1970); Miller v. Batesville Casket Co., 219 F.R.D. 56 (E.D.N.Y. 2003); 5C Wright & Miller, Federal Practice and Procedure § 1391 (2004).

¶ 9. Moreover, even if it is permissible to grant leave to amend, it should be “freely given”—but only “when justice so requires.” M.R.C.P. 15(a). “[Ljiberality in permitting amendments is not allowed to encourage delay, laches and negligence.” Natural Mother v. Paternal Aunt, 583 So.2d 614, 617 (Miss. 1991) (citation omitted). Appellate courts have- “consistently affirmed ... denial . of an amendment where the party requesting the amendment has not exercised due diligence,” Id.

¶ 10. Whether to grant leave to amend a pleading is entrusted to the sound’ discretion of the trial court. Id. at 616-17. We cannot say‘that discretion could only have been exercised to grant the motion for leave to amend.

¶ 11. SMG and the Convention Center also seem to contend that, although they may have waived the defense of insufficiency of process, the trial court could still dismiss the action on its own initiative pursuant to Mississippi Rule of Civil Procedure 4(h). Rule 4(h) could indeed be read to permit or even require a court to dismiss an untimely served complaint even if the defendant has already waived the defense, though SMG and the Convention Center present no authority to that effect, and the authorities of which we are aware do not support it. Construing the parallel federal rule, the Second Circuit held that Rule 4 and Rule 12(h) concerning waiver of defenses must be read together, and therefore Rule 4’s “provision that the court may dismiss for untimely service on its own motion does not mean that the court may revive a service-of-process defense that the defendant has waived.” Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990). Other federal courts of appeals have reached the same conclusion. See O’Brien v. R.J. O’Brien & Assocs., 998 F.2d 1394, 1399 (7th Cir. 1993); Pusey v. Dallas Corp., 938 F.2d 498, 501 (4th Cir. 1991); Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). The Third Circuit reasoned that Rule 4’s “mandatory language”—requiring a court to dismiss an action if the plaintiff, without good cause, fails to serve process within 120 days—“is applicable until” the defendant waives the defense pursuant to Rule 12(h), and Rule 12(h), regarding waiver of defenses, “governs thereafter.” McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 195 (3d Cir. 1998); accord Kersh v. Derozier, 851 F.2d 1509, 1511-12 (5th Cir. 1988). This is a persuasive interpretation because, otherwise, a court could be required to dismiss a case even if the issue of untimely service is first noticed or raised after years of litigation on the merits.

¶ 12. Accordingly, we reverse the trial court’s order dismissing SMG and the Convention Center, and we remand this ease for further proceedings consistent with this opinion.

¶ 13. REVERSED AND REMANDED.

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

IRVING, P.J.,

DISSENTING:

¶ 14. With respect, I must dissent because, unlike the majority, I do not believe that Burleson is controlling. For the reasons discussed below, I would affirm the judgment of the circuit court.

¶ 15.1 recite the relevant facts in Burle-son-.

On May 15, 2002, Mary P. Burleson, the mother and personal representative of Bobby Shiers, Jr., filed a complaint against [Roy Michael] Lathem in the Circuit Court of Warren County, asserting a claim for wrongful death on behalf of and for the benefit of the five minor children of the deceased. The summons was issued on September 12, 2002. La-them was served with process on September 17, 2002,125 days after the filing of the complaint, exceeding the 120-day requirement of Mississippi Rule of Civil Procedure 4(h). On October 15, 2002, Lathem filed his answer to the complaint, asserting only the affirmative defenses of failure to state a claim upon which relief can be granted and improper venue.

¶ 16. I do not find Burleson controlling for two reasons. First, the Burleson facts are different from our facts in a material way. In Burleson, the initial responsive pleading was made to the initial complaint. Second, Burleson does not address the interplay between Rule 15(a) of the Mississippi Rules of Civil Procedure, which allows a party to amend a pleading anytime before a responsive pleading is served, and Rule 4(h) of the Mississippi Rules of Civil Procedure, which requires that the service of the summons and complaint be made within 120 days of the filing of the complaint. Since the initial responsive pleading in Burleson was made to the initial complaint, the court did not reach the outcome-determinative issue in today’s case— whether the affirmative defense of insufficiency of service of process is waived if it is not asserted in the initial response to an amended complaint filed, without permission of the court, more than 120 days after the date of the filing of the initial complaint.

¶ 17. SMG and the Convention Center filed an answer to an unauthorized, amended complaint, which, in my view, is not permitted by our rules or caselaw. So they could not waive the affirmative defense of insufficiency of process for failing to assert it in the initial responsive pleading that they filed but were not required to file. I explain.

¶ 18. Cox filed her initial lawsuit on October 13, 2013, and did not have process issued for any of the defendants. On July 9, 2015, Cox filed a motion for an extension of time to serve process but did not notice the motion for hearing until December 2, 2015. In the interim, on July 24, 2015, Cox filed an amended complaint, without permission of the court, and had summons issued for the first time. It is the amended complaint that SMG and the Convention Center answered, without asserting the affirmative defense of insufficiency of process.

¶ 19. Although Rule 15(a) of the Mississippi Rules of Civil Procedure permits “a party to amend a pleading as a matter of course at any time before a responsive pleading is served,” a common-sense interpretation of the rule, in my view, compels the conclusion that the at-any-time provision of the rule is qualified by the condition that the amended pleading does not and cannot extend the 120-day time period specified in Rule 4(h) of the Mississippi Rules of Civil Procedure. To interpret the provision otherwise would render meaningless the provision of Rule 4(h) that requires the service of the summons and complaint—and by extension an amended complaint filed as a matter of course— upon a defendant within 120 days of the filing of the complaint. So when Cox failed to have her initial complaint served within 120 days, she could not do an end-run around the requirements of Rule 4(h) by fifing an amended complaint and restarting the 120-day time period. Her only remedy was to file a motion for an extension of time to serve process and show good cause why service of process was not made within the 120 days required by Rule 4(h). Failing to obtain an extension, Cox would have been required to voluntarily dismiss her complaint, assuming it was not dismissed by the court, and file a new complaint.

¶20. Implicit in the reasoning of the majority is the conclusion that the amended complaint—to which SMG and the Convention Center responded and failed to assert the affirmative defense of insufficiency of process—extended the 120-day time period that began to run on October 13, 2013, when Cox filed her initial complaint. I disagree, for neither our rules nor our caselaw allows a plaintiff to split or spread her single cause of action between two lawsuits, which is exactly what Cox attempted to do here.

¶ 21. I am aware of Mississippi Comp Choice v. Clark, 981 So.2d 955 (Miss. 2008), holding that “Rule 15(a) does not require that a pleading be served before it may be amended; rather, it allows a plaintiff to amend his complaint “at any time before a responsive pleading is served.” Id. at 959 (¶ 12). However, in Clark, the amended complaint was filed within 120 days of the fifing of the original complaint, as the original complaint was filed on September 14, 2005, and the amended complaint on January 9, 2006, or 117 days after the fifing of the original complaint. Id. at 957 (¶ 5). It is noteworthy that the amended complaint was served on the defendants on January 10, 2006, or 118 days after the filing of the original complaint. Id. at 958 (¶ 7). So the original complaint was still viable when the amended complaint was filed, and the amended complaint was served within 120 days of the fifing of the original complaint. The issue in Clark was not whether an amended complaint was viable despite the amendment having been made as a matter of course more than 120 days after the fifing of the original complaint, but whether the substituted plaintiff named in the amended complaint—which was served within 120 days of the original complaint— was the real party in interest, resulting in the amended complaint relating back to the date of the filing of the original complaint.

¶ 22. As noted, on July 9, 2015, Cox filed a motion to extend the time to serve process with respect to her initial complaint. While that motion was pending and without dismissing her initial complaint, Cox filed a second complaint, covering the same matter, and captioned it an amended complaint. The circuit court denied Cox’s motion to extend the time for serving process on SMG and the Convention Center because Cox did not even attempt to serve the defendants within 120 days of the filing of her initial lawsuit. I find no abuse with that ruling. It would be an absurdity to find, as does the majority, that notwithstanding the lawful ruling of the circuit court refusing to grant an extension of time to serve process, Cox is nevertheless entitled to pursue her lawsuit because SMG and the Convention Center answered her amended lawsuit, which was filed, without permission of the court, three days prior to the running of the statute of limitations and more than 120 days after the filing of her initial complaint that she never attempted to serve. Had Cox dismissed her original complaint and filed and served another complaint within the three days prior to the expiration of the statute of limitations, everything would have been fine, but she did not do so. Rather, she waited until after the statute of limitations had expired and sought a ruling on her motion for an extension of time to serve process of the original complaint.

¶23. For the reasons discussed, I dissent. As stated, I would affirm the judgment of the circuit court.

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

      . The advisory committee "notes, while not official comments of the Supreme Court, are the product of extensive research and review and have been vetted by the members of the [Supreme Court Rules Advisory] Committee ,as well.as other trial judges and practicing members of the bar," Order Adopting the Mississippi Rules of Civil Procedure Advisory Committee Notes, No. 89.-R-99001-SCT (Miss. June 9, 2014).

      . Prior to 1993, the parallel federal provision was Federal Rule of Civil Procedure 4(j). In 1993, it was moved to Rule 4(rp).

      . The record does not inform us if the amended complaint was served within the three days remaining before the statute of limitations ran. The docket sheet reflects that the summons was issued, but it does not show a return.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Fred HILL, III Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00594-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEY FOR APPELLANT: M.A. BASS JR.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   PROCEDURAL HISTORY

LEE, C.J.,

FOR THE COURT:

¶ 1. A jury in the Lincoln County Circuit Court convicted Fred Hill of first-degree murder, shooting into a dwelling, and felon in possession of a firearm. Hill was sentenced to life imprisonment for the murder conviction, and five years each for the other two convictions. All three sentences were ordered to be served consecutively in the custody of the Mississippi Department of Corrections, and Hill was ordered to pay an $8,000 fíne and $6,000 restitution to the Crime Victims’ Compensation Fund. Hill’s posttrial motions were denied, and he now appeals, asserting the following issues: (1) the evidence was legally insufficient; (2) the jury verdict is against the overwhelming weight of the evidence; and (3) the trial court erred in denying his two motions to suppress.

FACTS

¶ 2. On April 1, 2015, around 11:30 p.m., Hill drove up to Ezzard and Gwendolyn Campbell’s trailer located on Spur Road in Lincoln County. According to both Ezzard and Gwendolyn, a car horn woke them up and, upon looking outside, they saw Hill standing beside the car holding a rifle. Both Ezzard and Gwendolyn testified that Hill asked where Timothy Green was, then said, “I’m going to kill him.” Green is Ezzard’s son and Gwendolyn’s stepson. Hill then got back in the car and drove home, which was approximately 400 yards from the Campbells’ home. Ezzard testified that he followed Hill home to determine why Hill was angry with Green. Ez-zard said Hill told him that Green was trying to steal Hill’s girlfriend, Keirra Ma-gee. Ezzard then returned home. Ezzard heard Hill return sometime later. Both Ezzard and Gwendolyn saw Hill run between their trailer and their daughter’s trailer next door. They then heard two gunshots and saw Hill run back to his car carrying a rifle. Green’s body was discovered in the area between the Campbells’ trailer and their daughter’s trailer.

¶ 3. Green had two bullet wounds; one entered the upper-left chest area, and the other entered the back of his left shoulder. Dr. Lisa Fuente, from the state medical examiner’s office, performed an autopsy on Green and noted that either bullet wound could have resulted in Green’s death.

¶4. One of the Campbells’ neighbors, Jessica Matlock, had also seen Hill at the Campbells’ trailer that night. Matlock, watching from a window in her trailer, saw Hill drive up and exit the car. She saw him carrying a gun and a flashlight. Hill then walked toward the Campbells’ trailer. Mat-lock testified that she heard two gunshots, then saw Hill running back toward the car.

¶ 5. Several members of the Lincoln County Sheriffs Department responded to the scene, including Deputy Patrick Hardy, Chief Deputy Johnny Hall, Investigator Damian Gatlin, and Investigator Byron Catchings. Two .223-caliber shell casings were recovered from the area near Green’s body, and a .223-caliber bullet was recovered from a bullet hole in the side of the Campbells’ trailer. After Hill became a suspect and his house was searched, the police found several .223-caliber shell casings in his house and in the yard. However, lab tests could not determine if all of the .223-caliber shell casings recovered from both Hill’s house and the crime scene had been fired from the same gun. The murder weapon was never found.

¶ 6. Hill was first interviewed by Deputy Hall and Investigator Gatlin, and he denied involvement in Green’s death. Deputy Hall testified that after he had walked Hill to the booking area, Hill confessed to the crime, but recanted a few minutes later. Hill was also interviewed by Investigator Catchings. Investigator Catchings, who recorded the interview with Hill, testified that he was trying to determine if Magee was involved in Green’s murder. Investigator Catchings stated that Hill said he shot Green, but Magee was not involved and was not with Hill when he disposed of the gun. Investigator Catchings then spoke with Magee, and she told him where Hill disposed of the gun. Hill also told Investigator Catchings where he threw away the gun. Investigator Catchings, another deputy, and Magee then went to search for the gun, but it was never recovered.

¶ 7. A gunshot-residue test was conducted on samples taken from Hill’s hands and the car he was driving, which belonged to Magee. Particles indicative of gunshot residue were found on the car’s steering wheel and door handle, but no gunshot residue was found on Hill’s hands.

¶ 8. Hill admitted that he drove to the Campbells’ house that night and honked the horn, but did not exit the car or threaten to kill Green. Hill denied involvement in Green’s death. Hill testified that he and Magee had gone to her mother’s house to avoid Green. According to Hill, Green had tried to break into their house while Ma-gee and their children were home. Hill also testified that while he was in custody, the deputies threatened to arrest Magee for Green’s murder. They also handcuffed Ma-gee and led her past Hill while he was in a holding area in order to provoke him into confessing to Green’s murder.

¶ 9. According to Deputy Hall, Magee was in the booking area when Hill was in a holding cell nearby. But Deputy Hall testified that Magee had not been arrested and was not in handcuffs.

DISCUSSION

I. Insufficient Evidence

¶ 10. In his first issue, Hill argues that the evidence was legally insufficient; thus, the trial court erred in denying his motion for a directed verdict, his request for a peremptory instruction, and his motion for a judgment notwithstanding the verdict (JNOV).

¶ 11. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss. 2003). All challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). “We review a challenge to the sufficiency of the evidence on the last occasion that the trial court ruled on the sufficiency of the evidence.” Henley v. State, 136 So.3d 413, 416 (¶ 8) (Miss. 2014). In this case, the last occasion on which the trial court ruled on the sufficiency of the evidence was in its denial of Hill’s motion for a JNOV.

¶ 12. Mississippi Code Annotated section 97-3-19(1)(a) (Supp. 2016) defines first-degree murder as “[t]he killing of a human being without the authority of law by any means or in any manner ... when done with deliberate design to effect the death of the person killed, or of any human being[.]” The State must prove beyond a reasonable doubt that: “(1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030 (¶ 27) (Miss. 2007) (quotations omitted). Mississippi Code Annotated section 97-37-29 (Rev. 2014) states: “If any person shall willfully and unlawfully shoot or discharge any ... firearm of any nature or description into any dwelling house or any other building usually occupied by persons, whether actually occupied or not, he shall be guilty of a felony whether or not anybody be injured .... ”

¶ 13. Hill claims that insufficient lighting in the area created reasonable doubt as to the shooter’s identity. However, there was testimony from Ezzard, Gwendolyn, and Matlock that even though it was dark outside, several outdoor lights illuminated the area. Although no one saw Hill shoot Green, these three witnesses saw Hill carrying a gun to the area where Green’s body was found, heard two shots, and then saw Hill flee the area. Furthermore, both Ezzard and Gwendolyn testified that Hill told them he was looking for Green and wanted to kill him. Gwendolyn also heard a “ding” that she thought was a bullet hitting their trailer. And a bullet was removed from a bullet hole in the side of the Campbells’ trailer.

¶ 14. Hill claims that the Camp-bells’ testimony was biased due to their familial relationship with Green. However, the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss. Ct. App. 2003). Here, the jury found the Campbells’ testimony more credible. Viewing the evidence in the light most favorable to the State, a rational juror could have found beyond a reasonable doubt that Hill was guilty of murder and shooting into a dwelling. This issue is without merit.

II. Overwhelming Weight of the Evidence

¶ 15. A motion for a new trial challenges the weight of the evidence. Hawthorne, 835 So.2d at 21 (¶ 31). When reviewing a denial of a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). Hill’s arguments are identical to those expressed in the previous issue. From the evidence previously described, we cannot find that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

III. Motions to Suppress

¶ 16. Hill argues that the trial court erred in denying his motion to suppress statements he made to the police and his motion to suppress evidence obtained from the search of Magee’s car. “This Court will reverse a trial court’s denial of a motion to suppress only if the ruling is manifest error or contrary to the overwhelming weight of evidence.” Barnes v. State, 158 So.3d 1127, 1134 (¶ 22) (Miss. 2015) (emphasis omitted).

A. Statements to Police

¶ 17. Hill claims that any incriminating statements he made to the police were coerced because the police threatened to arrest Magee. During the suppression hearing, Deputy Hall testified that at the formal interview Hill denied shooting Green. But while Hill was being booked into the jail, Hill said Matlock (the Camp-bells’ neighbor) lured Green from the woods and he then shot Green twice. Deputy Hall stated that he asked Hill where he disposed of the gun, and Hill responded by denying involvement. On cross-examination, Deputy Hall was asked whether he informed Hill that Magee would be arrested unless he cooperated. Deputy Hall responded that he told Hill that Magee could in fact be arrested, but not to coerce Hill into confessing. Deputy Hall stated that Magee was being questioned about her role in Green’s murder, but it was determined that she was not a suspect. Deputy Hall denied handcuffing Magee and marching her in front of Hill and stated that she was never in the same area of the police station as Hill.

¶ 18. Investigator Catchings testified he had information at the time indicating that Magee was in the car with Hill immediately after the shooting;, thus, it was possible that Magee was involved in Green’s murder. Investigator Catchings further stated that Hill’s incriminating statements to him were voluntary and no threats or promises were made to coerce him into confessing.

¶ 19. Magee testified that she was handcuffed and walked past Hill. Onc,e Hill saw Magee, she heard him say, “no, no, you [are] not going to jail.” Magee further denied knowledge, of the gun’s location.

¶20. In denying Hill’s motion to suppress, the trial court stated,* .

I have no doubt that it was paramount in [Hill’s] mind that [Magee] ... not be charged with anything.- And’ there is some evidence that threats were made against [Magee] ... that she may be charged with a crime. However, I haven’t heard any evidence that those threats were made objectively. I think that the threats perceived by [Hill] were just that, perceived by him. I find that [Hill] was properly Mirandized, that he waived his Miranda rights,, and ... whatever statement he gave, the Court finds was freely, voluntarily given, without coercions or threats or under duress. And that those statements will be admissible at a trial of this matter.

¶ 21. The Mississippi Supreme Court has held that “[t]hreats to arrest a defendant’s family member(s) do not render a confession involuntary so long as probable cause exists to arrest such persons.” Armstead v. State, 978 So.2d 642, 648 (¶ 26) (Miss. 2008). At the time Hill was interviewed, the police had information that the car used in the crime was registered to Magee, and Magee might have been in the car with Hill immediately after the shooting. We find that the trial court did not manifestly err by holding, from the totality of the circumstances, that any statements regarding Magee did not induce Hill’s incriminatory statements.

B. Search of Magee’s Car

¶ 22. Hill argues that the police needed to produce the consent-to-search form ox-show that exigent circumstances existed to search Magee’s car.' Although Magee did not testify regarding the consent-to-search issue,, a stipulation was entered stating she would testify that she did not consent to the search.

¶ 23. Consent to search is recognized as an exception to the requirements of a warrant and probable cause. Moore v. State, 933 So.2d 910, 916 (¶ 18) (Miss. 2006). “Whether a person voluntarily consents to a search is a question of fact to be determined by the total circumstances.” Id. at (¶ 20) (internal quotation marks and citation omitted); “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 132 n.1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also White v. State, 571 So.2d 956, 958-59 (Miss. 1990).

¶24. The State argues that Hill does not have standing to object since he did hot own the car. See Walker v. State, 962 So.2d 39, 41 (¶ 7) (Miss. Ct. App. 2006) (a passenger who does not own the car being searched cannot complain about the legality of the search); Head v. State, 246 Miss. 203, 207, 136 So.2d 619, 621 (1962) (“Since the defendants were not in possession of the automobile, either in the control or ownership of the car, they have no right to raise the constitutional question of [the] search.”). However, in Powell v. State, 824 So.2d 661, 664-65 (¶ 15) (Miss. Ct. App. 2002), this Court found that a defendant did have a reasonable expectation of privacy in his girlfriend’s car; thus, the defendant had standing to challenge the search of the car. There was evidence that: the car was the defendant’s principal and usual mode of transportation; the defendant had the implicit right to exclude others from using the car; and the defendant had a possessory interest in the car. Id.

¶25. Although the trial court determined that Hill did have standing to object to the legality of the 'search, we note that, unlike Powell, Hill did not offer any testimony showing that he had a possessory interest in Magee’s car or that the car was his principal and usual mode of transportation. Even if Hill had standing, the trial court found that, based on the totality of the circumstances, the testimony of Investigator Catchings and Deputy Whitaker that Magee consented to the search was credible. Investigator Catchings testified that Magee told him that Hill was driving her car the night of April 1, 2015. Investigator Catchings then asked Magee for permission to search her car, which Magee had driven to the police station. Magee consented and the gunshot-residue test was conducted on samples taken from the car. Investigator Catchings admitted that the eonsent-to-search form had been misplaced, but that Magee had verbally consented to the search. Another sheriffs deputy, John Whitaker, testified that he was present when Magee verbally consented to the search and signed the form. From the totality of the circumstances, we find the trial court did not err in denying Hill’s motion to suppress.

¶ 26. AFFIRMED.

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

      . By the time of Hill's trial, he and Magee were married.

      . Hill's argument does not address his conviction for possession of a firearm.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Kendrick Jemond DUNNAWAY a/k/a Kendrick Jumund Dunnaway a/k/a Kendrick Jumond Dunnaway a/k/a Kendrick J. Dunnaway a/k/a Kendrick Dunnaway, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01125-COA
    Court of Appeals of Mississippi.
    09/12/2017

      OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Kendrick Dunnaway. was convicted by a jury in the Harrison County Circuit Court, Second Judicial District, of possession of a controlled substance with intent to distribute and sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or early release. Dunnaway appealed his conviction, and his appellate counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005), submitting to this Court that there are no arguable issues for appellate review. Dunnaway was given additional time to file a pro se supplemental brief, which he has failed to do. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On June 23, 2015, Dunnaway was arrested and subsequently charged with possession of a controlled substance with intent to distribute in violation of Mississippi Code Annotated section 41-29-139(a)(1) (Supp. 2016). On the day prior to trial, Dunnaway told the trial court that he did not want his appointed trial counsel to represent him. He stated that his appointed counsel was unprepared and that they had not gone over any trial strategies. Dunnaway further stated that his family was trying to hire a paid lawyer, and he requested a continuance so that he could obtain another lawyer. Dunnaway also stated he had asked his appointed lawyer to request a continuance so that he could finish a drug-rehabilitation class and hire another lawyer.

¶ 3. Dunnawa/s appointed counsel stated that he disagreed with Dunnawa/s statements but did not wish to further discuss their conversations due to attorney-client privilege. The prosecution then stated to the court that Dunnaway’s trial had been originally set for January 2016— several months prior—and that it was moved to March while plea discussions took place. In March, Dunnaway’s counsel advised the prosecution that Dunnaway did not want to plead guilty and wanted to go to trial. Trial was then set for April 11, 2016. Dunnaway’s trial counsel asked the prosecution for a week’s continuance, and at the prosecutor’s request, the trial was set for April 19, 2016, The prosecution indicated that Dunnaway’s appointed counsel had discussions with Dunnaway at all stages of the pretrial process regarding the initial January trial date, the trial continuance to March, plea discussions, and the April trial dates.

¶ 4. The trial court ruled that Dunnaway was not entitled to any additional continuances, and that the trial was to proceed as scheduled the next day. On April 19, 2016—the day of trial—Dunnaway went on the record and stated that he was not prepared for trial, and did not believe he would have a fair trial with his appointed representation, and he requested another continuance, which was denied. Dunnaway then stated that he did not want to be present for the trial and that if he were present, he would be disruptive. The court advised Dunnaway of his right to be present and the possibility of negative inferences being drawn by the jury if he was absent. Despite the urging of the court and Dunnaway’s appointed counsel, Dunnaway opted to not be present for any part of his trial.

¶ 5. At trial, Rubin Sabio, a police officer with the Biloxi Police Department, testified that on June 23, 2015, he was dispatched to a motel in Biloxi, Mississippi, following an anonymous call reporting prostitution activity. Officer Sabio and Officer Brandon Franovich went to room 316. Dunnaway was present in the room along with Michael Maples and Karen Stockton. Officer Sabio testified that he noticed drug paraphernalia, a scale, and glass pipes in plain view. Additional officers were dispatched. Officer Sabio also testified that he lifted up a laptop computer that was on the bed and saw a white baggie containing a crystalized substance under it, and found a small baggie of white substance in Stockton’s purse. Officer Franovich’s testimony at trial was nearly identical to Officer Sa-bio’s.

¶ 6. Investigator Byron Williamson testified that Dunnaway gave him verbal consent to search the room and that Dunna-way then signed a written consent to search the motel room. Investigator Williamson testified he found approximately twelve grams of a quarter-sized-rock substance, several glass pipes with residue in them, several hypodermic needles, plastic bags, small plastic ziplock-type bags, and two digital scales on the bed. Investigator Williamson testified that Dunnaway admitted that the drugs were his and that he was breaking it up into “party packs” for people who were about to come because he was having a party. Laura Fulks, a forensic scientist with the Mississippi Forensics Laboratory, testified regarding the substance delivered by Investigator Williamson, and she stated that the substanee was determined to be methamphetamine. On cross-examination, Fulks stated that the results were 99.7 percent certain, plus or minus .04 percent for statistical error.

¶ 7. Ultimately, the jury found Dunna-way guilty of possession of a controlled substance with intent to distribute in violation of section 41—29—139(a)(1). The trial court subsequently sentenced Dunnaway as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015) to twenty-five years in the custody of. the MDOC without eligibility for parole or early release. This appeal followed.

DISCUSSION

¶8. On appeal, where the appellant’s counsel.does not find any arguable issues for review) the Mississippi Supreme Court has instructed that:

(1) -Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-[ (5), (8) ]
(2) As a part of the brief filed in compli-anee with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically ' éxamining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to.the defendant, inform the, client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se. brief.
(4) Should the defendant then raise any arguable issue, or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on- appeal.
(5)Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Bergeron v. State, 196 So.3d 173, 174-75 (¶ 6) (Miss. Ct. App. 2016) (quoting Lindsey, 939 So.2d at 748 (¶ 18)).

¶ 9. In the instant case, Dunnaway’s appellate counsel filed a brief asserting that he had “diligently searched both the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the court on Mr. Dunnaway’s behalf in good faith for. appellate review, and upon conclusion, ha[d] found none.” Dunnaway’s appellate counsel also asserts that in his search he reviewed and considered: (1) the reason for the arrest and the circumstances surrounding it; (2) any possible violations of' Dunnaway’s' right to counsel; (3) the entire trial transcript; (4) all rulings of the trial court; (5) possible prosecutorial misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; and (8) possible misapplication of the law in sentencing. Also, Dunnaway’s appellate counsel sent a copy of the brief to Dunnaway, informing him of his right to file a pro se brief. Dunnaway was given forty days to file a pro se brief, but he failed to do so. Our independent review of the record has not revealed any arguable issues that would require supplemental briefing. Accordingly, we affirm the trial court’s judgment.

¶ 10. AFFIRMED.

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


author: IRVING, P.J.,

text:
    Thomas E. ETHRIDGE, III, Appellant v. Christy Ward ETHRIDGE, Appellee
    NO. 2016-CA-00785-COA
    Court of Appeals of Mississippi.
    09/26/2017

      ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS
    ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS
    BEFORE IRVING, P.J., FAIR AND WILSON, 33.

   IRVING, P.J.,

FOR THE COURT:

¶ 1. Thomas Ethridge III appeals the judgment of the Forrest County Chancery Court, arguing that the court erred in awarding Christy Ethridge physical custody of their minor child and in not awarding him a new trial after learning of Christy’s alleged perjured testimony.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Thomas and Christy were married February 20, 2015, and one child was born to the marriage. Thomas and Christy filed competing complaints for divorce, and the chancery court consolidated the complaints. The parties later withdrew all fault grounds and agreed to a divorce on the ground of irreconcilable differences, leaving the issue of custody, among other issues, to be determined by the chancery court. At the conclusion of the trial, the court conducted an on-the-record Al-bright analysis to determine custody and visitation. The court awarded physical custody to Christy and joint legal custody to Christy and Thomas.

¶4. After the court’s ruling, Thomas filed a motion for reconsideration pursuant to Mississippi Rules of Civil Procedure 59 and 60, arguing that Christy perjured herself during her testimony and, given the Albright analysis, he should have -been awarded custody of the child or more extensive visitation. He contended that the failure of the trial court to award custody to him was based solely upon the court’s excessive reliance upon the tender-years doctrine and was therefore- an abuse of discretion. Thomas’s motion was denied, and this appeal followed.

DISCUSSION

¶ 5. “In reviewing a child custody decision, we will affirm unless the chancellor was manifestly wrong, [the decision] was clearly erroneous, or [the chancellor] applied an erroneous legal standard. Error arises if the chancellor’s .decision is not supported by substantial evidence in the record.” Limbaugh v. Limbaugh, 749 So.2d 1244, 1246 (¶ 9) (Miss. Ct. App. 1999).

¶ 6. Before discussing the issues raised by Thomas, Christy has raised an issue that requires addressing. She argues that Thomas’s notice of appeal states that he is appealing from the April 26, 2016 ruling on his motion for a new trial. The notice does not state that he is appealing from the judgment of divorce and custody that was entered by the court on January 5, 2016. Therefore, she argues the notice of appeal is limited to the April 26, 2016 order, and the custody issue is not properly before the court.

¶7. We disagree. Thomas timely filed his motion for reconsideration of the January 5, 2016 judgment of divorce; therefore, the January 5, 2016 judgment did not become final and appealable until the court disposed .of the motion on April 26, 2016. Thomas’s notice of appeal reflects that he is appealing the denial of relief sought in all of his pleadings and all relief granted to Christy. Consequently, the issues that Thomas asserts on appeal are properly before this Court, as those issues were placed before, the chancery court during the course of the trial and in Thomas’s timely filed motion for a new trial.

I. Custody and Visitation

¶ 8. Thomas argues that the trial court incorrectly applied the tender-years doctrine and the fact that he is a male, when it decided the issues of custody and visitation, and, in so doing, incorrectly considered and applied the Albright factors. He notes that the chancellor stated that “both parents can certainly care for, feed, bathe, change diapers, rock, hold, put to sleep, [and] get up at night with their child when she is with them.” He contends that there was no testimony ever presented by any witness, including Christy, that he was incapable of caring for his child. In spite of all of this testimony regarding his ability to care for the child, the court denied him custody and limited his visitation until the child reaches the age of twenty-four mopths.

¶9. Next, Thomas argues that in the absence of the tender-years doctrine, he would have been awarded either physical custody or “standard” visitation with his daughter. He further argues that such a limitation of visitation based upon his gender and the tender-years doctrine is an abuse of discretion, and in the absence of any evidence of a need for restrictions on the visitation to protect the child from harm, the chancellor committed reversible error,

¶ 10. Christy responds that the court did not abuse its discretion by awarding her physical custody, nor did the court improperly rely on the tender-years doctrine, despite Thomas’s representations to the contrary. The child was only eight months old at the time of the custody determination, clearly a child of “tender years.” She notes that, even though the tender-years doctrine has been weakened, “there is still a presumption that a mother is generally better suited to raise a young child.” See Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss. Ct. App. 2002). Therefore, according to Christy, the court’s reliance on the tender-years doctrine was not improper. In addition, she notes that out of all the Albright factors addressed by the chancellor, two were in her favor and the rest were neutral. Although not a delineated factor, the chancellor also stated that “personal values” were in Christy’s favor because of Thomas’s alcohol consumption.

¶ 11. In response to Thomas’s arguments regarding visitation, Christy states that the court did not restrict his visitation. She states that the court awarded him all reasonable visitation as the parties could agree upon but, at a niinimum, the schedule contained in the judgment of divorce.

¶ 12. In reviewing the chancellor’s thorough on-the-record analysis of the Albright factors, we are satisfied that he considered all applicable facts and law before he reached his decision. Despite Thomas’s argument’s that the court relied too heavily on the tender-years doctrine in determining custody, the chancellor stated the following: “[T]he [court] is aware of ... a presumption under the law that used to be what is called' the [t]ender[-][y]ears [doctrine that still applies[,] but not with the weight that it did previously.” See Law v. Page, 618 So.2d 96, 101 (Miss. 1993). The chancellor also indicated his thorough understanding that the tender-years doctrine “is only one factor out of the numerous Albright factors” and is-not a “presumption that the best interests of the child in general should favor the mother ....” The court further acknowledged that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” (Quoting Mercier v. Mercier, 717 So.2d 304, 307 (¶ 15) (Miss. 1998)).

¶ 13. Lastly, the court declared that “the Albright analysis is not a formula[,] and it does not involve who wins how many factors to get custody. It is a balancing test and an analysis that the law requires for the [c]ourt to consider custody .... ” See O’Briant v. O’Briant, 99 So.3d 802, 805 (¶ 15) (Miss. Ct. App. 2012). '“[T]he chancellor has the ultimate discretion to weigh the evidence the way he sees fit. The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor .... ” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003).

¶ 14. As to Thomas’s argument regarding visitation, we note that the visitation schedule awarded by the chancellor was the same as. contained in the temporary order, and Thomas did not complain then. The visitation awarded is within the guidelines normally employed by chancellors in determining the amount of visitation to award. “On visitation issues ... the chancery court enjoys a large amount of discretion in making its determination of what is in the best interests of the child. [The Mississippi Supreme] Court has held that the best interest of the child is the main concern in determining visitation.” Rogers v. Morin, 791 So.2d 815, 820 (¶ 9) (Miss. 2001). We find no evidence that the chancellor abused his discretion in awarding visitation. This issue is without merit.

II. Perjury

¶ 15. The judgment of divorce was entered on January 5, 2016, and Thomas filed his motion for a new trial on January 11, 2016. In seeking a new trial, he alleged that the trial court had, in its Albright analysis involving the physical and mental health and age of the parents, found that both he and Christy were in good health. However, he alleges that Christy has a history of inpatient treatment for mental-health issues, including dépression and suicidal ideation, having been treated as an inpatient for such at Pine Grove Recovery Center. He alleges that she intentionally failed to disclose these facts and committed outright perjury at trial in order to affect the outcome of the case. Thomas asserts that the reason the issue of her mental fitness was not brought before the court was because his trial counsel was involved in a hit-and-run accident and was distracted when he returned to the court. In response, Christy points out that Thomas’s counsel rested before the break for lunch, and after lunch, the judge announced his ruling from the bench, so Thomas’s counsel’s incident during the break had no effect on the proceedings.

¶ 16. In rejecting Thomas’s post-trial motion for a new trial based on the allegation that Christy had committed fraud during the trial, the chancellor stated:

At oral argument [Christy]’s counsel represented that all parties and [Thomas]’s trial counsel were aware that [Christy] had a prior stay at Pine Grove in Hattiesburg as a result of a break up with a prior fiance before her marriage to [Thomas]. Those records were provided in discovery and appear to concern the years 2010 through 2012. Copies of those records were provided by [Christy]’s counsel to the Court and [Thomas]’s current counsel at the motion hearing. Those records are being filed under seal in the court file. The records are not in evidence from trial.
The use, non-use, or relevance of such information by [Thomas] at trial is deemed by the Court to involve trial strategy. The information was apparently known to [Thomas] and his counsel at trial. It was not introduced nor offered into evidence.' Thus, there is no new or unknown evidence intentionally withheld by [Christy] that supports [Thomas]’s motion for a new trial on the grounds of perjury or fraud upon the Court.

¶ 17. As noted, the chancellor found that there was “no new or unknown evidence intentionally withheld by Christy that supports Thomas’s motion for a new trial on the grounds of perjury or fraud upon the Court.” If Thomas believed that Christy gave false testimony when his trial counsel questioned her about her mental fitness to care for the parties’ minor child, it was incumbent upon him to confront her with her medical records at that time if he thought they contradicted her testimony. Thomas does not claim, and there is no evidence, that he was somehow prohibited from bringing Christy’s past mental history to the court’s attention during the trial.

¶ 18. The standard for obtaining relief based upon an allegation of fraud upon the court has been succinctly addressed by the Mississippi Supreme Court:

Relief based on fraud upon the court is reserved for only the most egregious misconduct, and requires a showing of an unconscionable plan or scheme which is designed to improperly influence the court in its decision. Mere nondisclosure of pertinent facts to the court does not add up to fraud upon the court for purposes of vacating a judgment under Rule 60(b). Furthermore, the fraud must be proved by clear and convincing evidence.

Doe v. Smith, 200 So.3d 1028, 1033 (¶ 15) (Miss. 2016) (internal citations and quotation marks omitted).

¶ 19. As noted, the chancellor found that “there [was] no new or unknown evidence intentionally withheld by [Christy] that supported] [Thomas’s] motion for a new trial on the grounds of perjury or fraud upon the [c]ourt.” We agree. This issue is without merit, and we find no error in the April 26, 2016 order denying the relief requested by Thomas.

¶ 20. AFFIRMED.

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

      . The Albright factors are specific circumstances that must be considered by chancellors in reaching decisions regarding child custody. See Albright v. Albright, 437 So.2d 1003 (Miss. 1983).


text:
    Sharon WILLIAMS, Appellant v. POTTER & SIMS FOODS, INC. d/b/a Food Depot, Appellee
    NO. 2016-CA-00824-COA
    Court of Appeals of Mississippi.
    09/26/2017

      FRANK THACKSTON, GREEN-VILLE, ATTORNEY FOR APPELLANT
    FRANCES R. SHIELDS, JACKSON, ATTORNEY FOR APPELLEE
   IRVING, P.J.,

FOR THE COURT:

¶ 1. The Hinds County Circuit Court, First Judicial District, granted Potter & Sims Food Inc. d/b/a Food Depot’s (Food Depot) motion for summary judgment, finding no genuine issue of material fact was raised by Sharon Williams’s complaint. Believing that the circuit court erred, Sharon appeals.

¶2. We find no error; therefore, we affirm.

FACTS

¶ 3. On May 1, 2013, Williams was shopping at Food Depot in Jackson, Mississippi. In a complaint filed against Food Depot on July 9, 2014, she alleged that she inhaled a white powder that emanated from the inside of a box of light bulbs when she shook the box. The box contained a broken bulb or bulbs. Apparently, there is a video that was not made a part of the record on appeal showing Williams removing a box of bulbs from the shelf, shaking it, and returning it to the shelf. In any event, she reported the incident to a cashier, and the next day she met with the manager, Aubrey Wren, and filled out an incident report. Wren admitted in his deposition that, as a matter of store policy, defective merchandise is not allowed on the store’s shelves.

¶ 4. Williams alleged that she sustained injuries, for which she obtained medical treatment, including nasal surgery, as a result of inadvertently inhaling the powder/dust from the broken incandescent light bulbs. She also alleged that the light bulbs were broken as a result of the negligent actions on the part of the store’s employees and that the Food Depot failed to exercise ordinary care to discover the presence of the powder on or about the outside of the light-bulb box when the boxes were placed on the shelves. She further alleged that the Food Depot employees failed to exercise reasonable care to discover and remove the boxes from the shelves when it was foreseeable that the boxes would be handled by customers—a failure, she argues, that constituted negligence.

¶ 5. Food Depot, in its answer, denied all allegations of negligence. Food Depot did not dispute that the bulbs were broken; however, who broke the bulbs and whether the Food Depot knew that the broken bulbs were on the shelf were contested issues. After depositions, the trial was set to begin on August 3, 2015, with the deadline for designating experts set for June 4, 2015. On June 17, 2015, Food Depot filed a motion for summary judgment; Williams responded on July 13, 2015. However, on July 8, 2015, approximately one month before trial, Williams filed a motion seeking an order allowing her to take the deposition of her treating physician, Dr. Jadíen Young. The circuit court denied her motion on two bases: it was untimely, as the deadline to designate expert witnesses had passed, and according to the deposition testimony of Dr. Young, Williams’s injures were not connected to the incident at Food Depot, or at least, Dr. Young could not make the connection. On or about October 14, 2015, the circuit court issued its order granting Food Depot’s summary-judgment motion. This appeal followed.

DISCUSSION

¶ 6. Our standard of review is succinctly addressed in Gorman-Rupp Co. v. Hall, 908 So.2d 749, 753-54 (¶¶ 12-15) (Miss. 2005):

[The appellate court] applies a de novo standard of review on appeal from a denial of summary judgment by the trial court. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact. The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non[ ]moving party should be given the benefit of every reasonable doubt. A fact is material if it tends to resolve any of the issues properly raised by the parties. If, in this view, there is no genuine issue of material fact and[ ] the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.
⅜: ⅜ ⅝ ⅜
To avoid summary judgment, the non[ ]moving party must establish a genuine issue of material fact within the means allowable under the Rule. If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise the decision is affirmed.

(Internal citations and quotation marks omitted).

¶ 7. This Court has stated that “[a] claim of negligence has four elements: duty, breach, causation, and damages. To establish a prima facie case, [the plaintiff] must present sufficient evidence on all four elements of the claim to carry the burden of going forward.” Price v. Park Mgmt. Inc., 831 So.2d 550, 551 (¶ 5) (Miss. Ct. App. 2002) (internal citation omitted).

¶8. In her complaint, Williams states that she was an invitee of Food Depot and was, therefore, owed a duty of care.' She alleges that Food Depot failed to exercise ordinary care to discover and/or remove the broken light bulbs or the light-bulb boxes from’ its shelves. She essentially argues that is not likely that a customer or customers broke all of the bulbs and placed the boxes containing the broken bulbs back on the shelves without Food Depot’s knowledge. She further alleges that she sustained personal injuries after she inadvertently inhaled a white powder/dust associated with the broken light bulbs on Food Depot’s shelf, that it was foreseeable that these boxes would be handled by Food Depot’s customers, and that Food Depot’s failure to remove the boxes constituted negligence. Finally, she argues that she suffered damages, as the incident caused her serious injury that required surgery,

¶ 9. Additionally, she maintains that the court should have granted her motion to take Dr. Young’s deposition, despite the, expiration of the deadline for designating expert witnesses. She argues that she could not locate Dr. Young, as he had relocated to Florida, and the Florida clerk’s office refused to issue a subpoena without an order from the Mississippi circuit court.

¶ 10. In its motion for summary judgment, Food Depot asserts that Williams failed to establish that it had actual or constructive knowledge that the broken light bulbs existed prior to the incident. Williams did not establish when or how the light bulbs were broken, who broke them, or how long they had-remained on the store .shelf before she picked them • up. The surveillance video, which was attached to the Food Depot’s motion for summary judgment, indicates that Williams’s own- actions in removing the light bulbs, shaking the box, and- placing the bulbs back on the shelf could have been what caused some bulbs to break, although that would not explain how the bulbs in the other six or seven boxes were broken.

¶ 11. We have said:

[I]n order to succeed in a premises[-]liability action, the plaintiff must prove one of three things: (1) a negligent act by the defendant caused the plaintiffs injury; or, (2) ... [the] defendant-had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant.

Byrne v. Wal-Mart Stores Inc., 877 So.2d 462, 465 (¶ 5) (Miss. Ct. App. 2003). Despite her contentions to the contrary, Williams failed to prove negligence, actual knowledge, or constructive knowledge on behalf of Food Depot.

¶ 12. Food Depot argues, and we agree, that no genuine issue of material fact existed on whether there was a causal link between the dust or powder allegedly inhaled- by Williams and the injury she claimed to have suffered. Food .Depot’s medical expert, specializing in otolaryngology, opined that, based upon his education, training, experience, and review of Williams’s medical records and to a reasonable degree of medical probability, there existed no objective medical evidence that Williams’s sinus surgery was causally related to the incident at Food Depot. In response, Williams did not provide any testimony from a medical expert establishing that the alleged inhalation of the white powder from the broken bulbs caused her sinus condition. Also, there was no expert testimony that the white powder from the bulbs was toxic or inherently dangerous as Williams suggests. So, even accepting Williams’s contentions that Food Depot was negligent in allowing'the boxes of broken bulbs to remain on its shelves, that a white powder or dust emanated from the boxes of broken bulbs, and that she inhaled the powder or dust, she still could not prevail because she failed to establish that her injuries were caused by her inhalation of the dust from the bulbs.

¶ 13. The circuit court correctly relied on Byrne, which states:

The duty of a store owner to its invitees has repeatedly been cited as a duty to exercise ordinary care and to keep the premises reasonably safe while warning invitees of dangerous conditions known to the store owner. However, the store owner is not an insurer of business invitees’ injuries .... The basis of liability is negligence and not injury. Proof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor. Proof that the floor on which the fall occurred had present thereon litter and debris is similarly insufficient.

Byrne, 877 So.2d at 465 (¶ 6). Analogous to Byrne, Williams’s claim that she inhaled a white powder or dust while shopping in the Food Depot was insufficient to prove that Food Depot was negligent. Similarly, her subsequent medical treatment was insufficient to show a causal connection between the white powder or dust and her injury without medical proof to a reasonable degree of medical certainty that such was the cause of her injuries.

¶ 14. Pursuant to Rule 56(c), if there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law. We agree with the circuit court’s finding that Williams failed to meet her burden of proof concerning the required elements of a premises-liability claim of negligence, as she failed to show the existence of a genuine issue of any material fact that she would have been required to prove at trial. The circuit court properly granted Food Depot’s motion for summary judgment.

¶ 15. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . “An 'otolaryngologist' is a physician who specializes in the diseases of the ear, larynx[,] and throat, including the upper[-]respiratory tract.” Kent v. Baptist Mem’l Hosp.-N. Miss. Inc., 853 So.2d 873, 877 n.1 (Miss. Ct. App. 2003).