author: PETTIGREW, J.

text:
    Edward SIMMONS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al
    NO. 2016 CA 0401
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered December 22, 2016.

      EDWARD SIMMONS, ANGOLA, LA, PRO SE, PLAINTIFF-APPELLANT
    WILLIAM L. KLINE, BATON ROUGE, LA, ATTORNEY FOR, DEFENDANT-APPELLEE, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    BEFORE: PETTIGREW AND McDonald, jj., and galloway, j., Pro Tem.

      . Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PETTIGREW, J.

|2The appellant, Edward Simmons, is an inmate in the custody of the Louisiana State Department of Public Safety and Corrections (DPSC), housed at the Louisiana State Penitentiary in Angola. He is also a frequent litigator who, in the past few years, has had at least seven filings in this court. He now appeals a November 4, 2015 judgment of the district court that adopted the written recommendation of Commissioner Nicole Robinson and dismissed his petition for judicial review for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies. We vacate the judgment and remand.

The petition for judicial review forming the basis of this appeal was filed on May 12, 2015. It was filed in a different division of the district court, during the pendency of Simmons’ very recent appeal to this court, in which he challenged a January 28, 2015 judgment that dismissed his petition for judicial review based on a failure to exhaust administrative remedies. The incident forming the basis of that matter was a June 19, 2014 incident between Simmons and another inmate, J. Thomas, following which Simmons was written up for a violation of Rule 11 (aggravated fighting). On November 6, 2015, this court rendered an opinion affirming the district court’s judgment of dismissal. Simmons v. Louisiana Department of Public Safety and Corrections, 2015-0676, 2015 WL 6872489 (La. App. 1 Cir. 11/6/15)(unpublished).

This appeal arises out of another petition for judicial review based on another very similar incident that occurred between Simmons and the same inmate, J. Thomas, on December 15, 2014, following which Simmons was written up for being in violation of Rule 10 (fighting). Simmons filed a petition for judicial review with the warden, challenging the Disciplinary Board’s decision regarding the Rule 10 violation. Apparently, Simmons pled guilty pursuant to a plea bargain to avoid being sent to Camp J. Level 1. He filed a request for relief alleging he had been intimidated by the Board into accepting the plea bargain and raising the same arguments asserted by him in the prior matter regarding allegations that prison officials had orchestrated the incidents between the other inmate and him. That initial grievance was denied in a decision dated February 25, 2015, rendered by the warden, who found Simmons presented nothing to justify reversal | ¡¡or modification of the decision of the Board. That decision contained separate “INSTRUCTIONS TO OFFENDER” that provided:

This decision constitutes the final administrative decision of the agency. The Secretary will only consider appeals from decisions which resulted in imposed or suspended sentences of one or more of the following penalties: ....
Since none of these penalties were imposed, this decision can not (sic) be appealed to the Secretary.

Simmons proceeded to file a petition for judicial review. The Commissioner’s screening report reflects findings that Simmons did not suffer the loss of a substantial right as a result of his plea and that he failed to provide a copy of the final agency decision in the form of a decision from the Secretary, rendering the petition premature. The Commissioner recommended that the appeal be dismissed for lack of jurisdiction and failure to exhaust administrative remedies. The district court adopted the Commissioner’s recommendations, and rendered the November 4, 2015 judgment underlying this appeal.

On appeal, Simmons asserts that the district court erred in finding he had failed to exhaust his administrative remedies because he did not include a .copy of the Secretary’s decision, as the final agency decision. He refers the court to the notation on the warden’s decision advising him that because none of the listed penalties had been imposed, the warden’s decision was the final agency decision, and he could not appeal the decision to the Secretary. To the extent that the district court so found, we agree with Simmons. It would be impossible, in Simmons’ case, to attach a copy of the Secretary’s decision, because he had been notified in writing that he did not have a right to appeal to the Secretary and that the warden’s decision was the final agency decision.

The State has not filed any pleadings in this matter, neither at the district level nor on appeal. Our review of the record, the applicable law, and the jurisprudence reveals no legal authority for the “INSTRUCTIONS TO OFFENDER” provision annexed to the warden’s decision, rendering that opinion the final agency decision and leaving the offender with no right of appeal. Such a limitation violated both the statutory and the regulatory mandates of the Corrections Administrative Remedy Procedure (CARP). La. R.S. 15:1172(B) and (C); 22 La. Admin. Code Pt.1, § 325. J.1 and 2. Both require the | ¿offender to complete a two-step response process prior to appealing to the district court level. Because the State has not shown any legal authority, nor has this court found any, for violating the offender’s administrative remedy procedure by precluding him from taking the second-step response by appeal to the Secretary, Simmons is entitled to the remedy allowed by law. Both the commissioner and the district court erred in dismissing Simmons’ action based on his failure to exhaust the administrative remedy second-step response, when such failure was due to the unlawful information with which he had been instructed.

This court has ruled that when the DPSC has effectively precluded an inmate from proceeding to a review by the district court by failing to issue a timely final decision as directed by the CARP provisions, the inmate will be allowed to seek a legal remedy in the district court or to have the matter remanded for consideration by the DPSC. Harper v. Louisiana Dept. of Public Safety and Corrections, 2014-1320 (La.App. 1 Cir. 3/12/15), 166 So.3d 1078, 1080-81. We find the same applied in this situation. Simmons was precluded by DPSC, without legal authority, from proceeding to his second-step response. Through no fault of his own, he was unable to exhaust this step of his administrative remedy review prior to appealing to the district court. The district court’s judgment dismissing Simmons’ appeal for failure to exhaust his administrative remedies is hereby vacated. We find it proper to remand to the district court with instructions to either remand to DPSC in accordance with La. R.S. 15:1177(A)(8) and allow Simmons to exercise his statutory-right to a second-step response, or for proceedings consistent herewith for additional evidence, whichever the district court in its discretion deems appropriate. No cost assessment is made at this time.

JUDGMENT VACATED; CASE REMANDED.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Albert MORRIS
    NO. 16-KP-712
    Court of Appeal of Louisiana, Fifth Circuit.
    December 29, 2016
    COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Terry M. Boudreaux
    '.COUNSEL FOR DEFENDANT/RELATOR, ALBERT MORRIS, Frank G. DeSalvo
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   WICKER, J.

hln this criminal proceeding, defendant, Albert Morris, Jr., challenges the sufficiency of the evidence presented against him at trial for his misdemeanor conviction for false imprisonment in violation of La. R.S. 14:46. For the following reasons, we affirm defendant’s conviction. However, because we find an error patent requiring corrective action, we vacate defendant’s sentence and reinstate his original sentence imposed.

STATEMENT OF THE CASE

On November 7, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Albert Morris, Jr., with false imprisonment in violation of La. R.S. 14:46. The matter proceeded to a bench trial and on June 16, 2015, the trial judge, the Honorable Ellen Kovach, found defendant guilty as charged. On June 23, 2016, the trial judge sentenced defendant to imprisonment in the parish prison for six months. At the sentencing hearing, defense counsel orally moved for a new trial, challenging the sufficiency of the evidence presented at trial. On July 12, 2016, after sentencing, defendant filed a written motion for new trial. On November 7, 2016, defendant filed a motion to reopen sentencing, claiming that the trial judge was required under La. C.Cr.P. art. 853 to postpone sentencing to allow defendant time to file his motion for new trial. On November 7, 2016, the trial judge conducted a hearing on defendant’s motions, after which she denied defendant’s motion for new trial and resentenced defendant to six months imprisonment in parish prison. This timely writ application follows.

FACTUAL BACKGROUND

Lea Cottrell testified that she and defendant started dating in September 2013, and began living together in defendant’s residence shortly thereafter. In October 2013, defendant was arrested pursuant to a narcotics investigation and investigating officers interviewed Lea in connection with the alleged crime. Lea [ ^testified that, after defendant became aware of the extent of the information she provided to investigating officers in her statement, defendant became angry with her and the two fought often.

Lea explained that in September 2014, while she and defendant were fighting, defendant told her to “shut her mouth,” and she refused. Lea testified that defendant then grabbed her mouth and hit the back of her head on the floor. When she crawled to the bathroom, defendant grabbed her leg, dragged her across the bathroom tile floor and put her in a closet. Lea testified that defendant sat in front of the closet with the light off and would not allow her to get out of the closet. She testified that, at some point, defendant turned on the light and asked her if she wanted to leave him, to which she responded that she “fing hated” him and wanted to leave. Defendant then refused to allow Lea to leave. Lea testified that this incident lasted approximately five hours. Lea testified that defendant eventually let her out of the closet, and once he did so, the two had sex. She recounted that defendant said he wanted to have sex because he “figured” that it would be the last time they had sex; Lea perceived that statement to be a threat. Lea recalled a second incident involving defendant when, after she informed defendant that she wanted to leave him, defendant put her in the shower fully clothed, turned the shower on, and stood next to the shower so that she could not leave.

Lea testified that after those incidents occurred, she did not feel as if she was free to leave defendant’s home. She explained that at all times defendant was either physically with her or watching her “on camera” at one of defendant’s businesses. Lea also explained that she spent time with “Debbie,” who lived in an apartment that defendant owned and who Lea referred to as her “babysitter.”

Lea testified that her mother moved away from the area and, after her mother left town, she was dependent on defendant and had no other source of Lineóme. She explained that she had nowhere else to live in New Orleans and no friends in New Orleans who were not also defendant’s friends.

Lea testified that, after the above-referenced incidents, she contacted “Keith,” the father of one of her children, and told him to come get her. She contended that Keith knew things had been “going bad” for a while, and he agreed to come and get her. When “Keith” was halfway between Alabama and Jefferson Parish, Lea called his phone and discovered that her mother, Diana Cottrell, was with Keith.

Lea explained that she arranged her escape with the help of two of defendant’s employees, “Chad” and “Alex.” She asked Chad and Alex to take defendant to get something to eat while she complained to defendant that she had a migraine headache and needed to rest at home. After defendant left, Lea packed a small backpack of clothes, left defendant’s house, crossed Jefferson Highway, and got into Keith’s vehicle that was waiting at a gas station across the street. She and Keith and her mother went to the police station to report defendant’s behavior.

Lea testified that she told Lieutenant Kevin Clouatre of the Jefferson Parish Sheriffs Office (JPSO) that defendant physically abused her approximately twenty times during their relationship and that she reported this abuse five or six times while receiving medical treatment for her injuries. Lea also testified that she suffers from epileptic seizures and that she has sustained injuries from her seizures.

Diana Cottrell, Lea’s mother, testified that in June or July of 2014, she became worried about her daughter. She noticed a lot of “red flags,” including the fact that Lea spent more time with defendant and less time with her children. Diana testified that in September of 2014, Lea sent a Facebook message stating that she needed help to leave defendant. Diana explained that while Lea dated | ¿defendant, Lea could not simply leave on her own as she was either with defendant or defendant’s employees at all times and defendant had cameras at various places where he could pull up a “live feed” of the activity in his house or business.

Diana testified that she contacted JPSO Lieutenant Donald Meunier, whom she knew from defendant’s October 2013 arrest, for his assistance. Diana testified that defendant is a former police officer and, thus, she did not trust calling 911 to get her daughter help because defendant had friends on the JPSO police force.

Diana testified that she traveled to Jefferson Parish with Keith and waited in his vehicle across the street from defendant’s residence. She stated that she saw defendant leave in his vehicle and, shortly thereafter saw Lea, who appeared “pretty frazzled” and “extremely scared,” running across Jefferson Highway. After Lea got into Keith’s vehicle, they all went to the sheriffs office to make a report.

Diana testified that Lea has “grand mal” seizures where she falls to the ground and convulses, which sometimes cause injuries.

Lieutenant Meunier testified that he investigated defendant pursuant to an October 2013 narcotics investigation that resulted in defendant’s arrest and that he had not met defendant prior to that time. He further testified that during that investigation, Lea gave a statement in connection with that case and that defendant eventually pled guilty to those charges.

Lieutenant Meunier explained that on September 24, 2014, he received a call from Diana regarding her intention to return to Jefferson Parish from out-of-state to retrieve her daughter, Lea. He testified that Diana seemed “genuine” and “concerned” about her daughter’s safety. Lieutenant Meunier testified that he told Diana that her plan was ill-advised and he offered to put an undercover narcotics crew in the area in case any altercation arose. Lieutenant Meunier also set up a patrol unit in the vicinity of Jefferson Highway and waited. He explained that he 1 ¿observed Lea as she exited defendant’s residence and crossed Jefferson Highway. He testified that Lea moved across Jefferson Highway at a quick pace, looking around and turning her head, and her demeanor was “obviously frantic.”

Lieutenant Meunier testified that Lea subsequently reported the incident to him at the sheriffs office. He recalled that Lea’s disclosures to him about being held against her will were consistent with what he witnessed on Jefferson Highway: a frightened person making a hasty exit from defendant’s residence. Lieutenant Meunier turned the investigation at that point over to Lieutenant Clouatre in the personal violence unit.

Lieutenant Clouatre testified that he investigated the domestic violence and false imprisonment claims. He stated that Lea seemed “extremely fearful” for her safety and that her mother Diana seemed angry and also fearful for her daughter. Lieutenant Clouatre had no further involvement in the case after defendant’s arrest.

JPSO Detective Rhonda Goff testified that an individual named “Patrick Shaw” was arrested for shoplifting and had disclosed to an interviewing officer allegations surrounding a murder-for-hire plot involving defendant. Detective Goff explained that they brought Mr. Shaw to his apartment where he retrieved notes he and defendant exchanged while they were in the Jefferson Parish Correctional Center together. The record reflects that defendant owned the apartment where Mr. Shaw resided. Detective Goff testified that she read the notes, which appeared to be written in code, and that they corroborated the murder-for-hire plot to kill Lea’s mother, Diana.

Defendant testified at trial that he owned several businesses, including a collision center, a sign business, and two real estate businesses. He further testified that he previously worked for the Jefferson Parish Sheriffs Office for thirteen years.

| (¡Defendant explained that he met Lea through her brother, Chris, who worked for defendant at a restaurant he previously owned. He eventually learned that Lea had epileptic seizures, which he witnessed. He observed Lea’ seizures, noting that she would fall and beat her head on the floor. Defendant testified that he and Lea never had any physical altercations and that any physical injuries Lea sustained were the result of her seizures and were not from any physical altercation with him.

Defendant claimed that there came a time in their relationship when Lea spent all day and night with him, including going to work with him, but he testified that Lea wanted to be with him and that he was concerned Lea would have a seizure and needed someone nearby. He denied that her constant presence with him was at his insistence. Defendant admitted that in September 2014, he had surveillance cameras “all over” his properties.

Defendant insisted that he never had a physical altercation with Lea and denied her allegations that he physically abused her or locked her into a closet.

Defendant introduced into evidence photographs of three closets in his home. As to the first closet, he testified that a person could not possibly fit into the closet. As to the second closet, defendant testified that the closet door opened from the inside and did not lock. As to the third closet, which was a walk-in closet, defendant testified that the closet was not in the location where Lea described the incident occurred.

After considering the testimony and evidence presented over a two-day bench trial, the trial judge found defendant guilty as charged, stating:

Okay. And let me say this first of all. The three lay witnesses that testified in this case all left something to be desired. But that said, the testimony of the vie— And I’m — and I’m referring to including the 17testimony of the Defendant, which I found inconsistent and evasive. However, the one point that I — that I believed beyond all doubt or beyond any reasonable doubt was that Lea Cottrell was confined and prevented from leaving without her consent and against her will. And so, I am finding the Defendant guilty as charged.

DISCUSSION

In his sole assignment of error, defendant challenges the sufficiency of the evidence presented against him at trial for his false imprisonment conviction. For the following reasons, we find the evidence presented at trial sufficient to support defendant’s conviction.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La. 5/4/07), 956 So.2d 600. An appellate court’s primary function is not to redetermine the defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury’s conclusion. State v. Bone, 12-34 (La.App. 5 Cir. 09/11/12), 107 So.3d 49, 58; State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671. Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred .according to reason and common experience. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208.

Defendant was charged and convicted of false imprisonment. La. R.S. 14:46(A) defines the crime of false imprisonment as “the intentional confinement or detention of another, without his consent and without proper legal authority.” The victim, Lea, testified that in September 2014, while she and defendant argued, defendant grabbed her and threw her to the floor. She testified that when she began crawling away from defendant toward the bathroom, defendant grabbed her leg, dragged her across the bathroom tile floor and put her in a closet. Lea asserted that defendant then sat in front of the closet with the light off and would not allow her out of the closet for approximately five hours. Lea testified that after that incident, she did not feel as if she was free to leave, and further explained that she was physically with defendant or at one of his businesses “on camera.”

Additionally, Lea’s mother, Diana, testified that Lea could not leave on her own as she was either with defendant or defendant’s employees all the time and that defendant had cameras at various places where he could pull up a “live feed” to view the home and business activity. Lieutenant Meunier testified that he was contacted by Diana and waited nearby as Lea made her escape from defendant’s home. He explained that he observed Lea “obviously frantic” and moving at a quick pace as she crossed Jefferson Highway to get into the vehicle with her mother. Lieutenant Meunier recalled that Lea’s subsequent disclosures to him about being held against her will were consistent with what he witnessed: a frightened person making a hasty exit from defendant’s residence.

On the other hand, defendant testified that he and Lea never had any physical altercations and he denied Lea’s allegations, asserting that it would be “impossible” for him to lock her or block her into any closet in his home.

li)After considering the testimony and the evidence, the trial judge found defendant guilty as charged, noting that the three lay witnesses that testified “all left something to be desired” and that defendant’s testimony was inconsistent and evasive. However, the trial judge believed “beyond any reasonable doubt” that Lea was confined, against her will and prevented from leaving defendant’s home without his consent.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Bone, supra; State v. Rowan, 97-21(La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Further, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Benoit, 07-35 (La.App. 5 Cir. 5/29/07), 960 So.2d 279, 284. Viewing the evidence presented at trial in a light most favorable to the prosecution, we find that a rational factfin-der could find that defendant falsely imprisoned the victim, Lea, in violation of La. R.S. 14:46. Accordingly, defendant’s assignment of error challenging the sufficiency of the evidence lacks merit and defendant’s conviction is hereby affirmed.

ERRORS PATENT

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Upon our review of this writ application and the official record in this case, the following error patent requires corrective action.

| inThe record reflects, on June 23, 2016, the trial judge sentenced defendant to imprisonment in the parish prison for six months. At the June 23, 2016 sentencing hearing, before sentence was imposed, defense counsel orally moved for a new trial. Defense counsel indicated his intent to file a written motion for new trial at a later date, but nonetheless stated that defendant was “ready for sentencing.” Defendant was sentenced that day. Thereafter, on July 12, 2016, he filed his written motion for new trial.

On November 7, 2016, defendant filed a motion to reopen sentencing, claiming that the trial judge erred in failing to postpone sentencing pursuant to La. C.Cr.P. art. 853. The record reflects that, on November 7, 2016, the trial judge conducted a hearing on defendant’s motions, denied defendant’s motion for new trial, and resen-tenced defendant to parish prison for six months.

La. C.Cr.P. art. 853 mandates, in relevant part, that a “motion for a new trial must be filed and disposed of before sentence.” See also State v. Williams, 09-82 (La.App. 5 Cir. 12/29/09), 30 So.3d 975, 976. Further, La. C.Cr.P. art. 852 instructs that a motion for new trial “shall” be in writing. Therefore, defendant’s July 12, 2016 written motion for new trial was untimely because it was filed after defendant had been sentenced. Thus, we find the trial court erred in holding a Inhearing on defendant’s motion for new trial and in resentencing defendant after the denial of his untimely motion for new trial. Accordingly, we vacate defendant’s November 7, 2016 six-month sentence and reinstate defendant’s original June 23, 2016 six-month sentence.

CONVICTION AFFIRMED; SENTENCE VACATED; ORIGINAL SENTENCE REINSTATED

      . The record indicates that Lea has four children, two of whom she had custody. However, the record reflects that, at some point after Lea began dating defendant, Lea’s two children moved out-of-state to live with Keith.

      . Diana testified that for a period of time, she lived in the apartment complex with Lea and witnessed that defendant or someone else was with Lea at all times.

      . Detective Goff testified that she later learned that Mr. Shaw overdosed and died at his apartment.

      . Defendant acknowledged that he was six feet tall and weighed between 250 and 265 pounds and that he was significantly larger than Lea, who weighed 120 pounds.

      . The photographs introduced into evidence at trial were not attached to defendant’s writ application and not provided to this Court.

      . Lea also recounted another incident where defendant put her in the shower fully clothed and refused to let her leave.

      . Generally, an error patent review is not conducted on misdemeanor convictions. Nevertheless, this Court has on occasion in the past conducted an error patent review for a misdemeanor conviction. See State v. Jones, 12-640 (La.App. 5 Cir. 10/30/13), 128 So.3d 436, 443; State v. Carruth, 94-147, 94-148 (La.App. 5 Cir. 9/27/94), 643 So.2d 1319, 1322.

      . La. C.Cr.P. art. 853 provides:
      A. Except as otherwise provided by this Article, a motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.
      B. When the motion for a new trial is based on Article 851(B)(3) of this Code, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed. However, if an appeal is pending, the court may hear the motion only on remand of the case.
      C.When the motion for a new trial is based on Article 851(B)(6) of this Code, the motion may be filed within three years after the verdict or judgment of the trial court, although a sentence has been imposed or a motion for new trial has been previously filed. However, if an appeal is pending, the court may hear the motion only on remand of the case.

      .Contrary to defendant's assertions, the trial judge was not "required” under La. C.Cr.P. art. 853 to postpone sentencing in this case. La. C.Cr.P. art. 853, in pertinent part, provides that, "[t]he court, on motion of the defendant and for good cause shown, may postpone the imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.” First, this article is discretionary and not mandatory. Second, because the defense stated it was “ready” for sentencing, defendant waived any error concerning the timing of the imposition of sentence. Notwithstanding, in this writ application, the only assignment of error raised challenges the sufficiency of the evidence presented at trial. Therefore, defendant does not seek review of the denial of his motion for new trial.


text:
    Travon BROWN v. STATE of Mississippi
    2014-CT-00020-COA
    Supreme Court of Mississippi.
    Filed: 04/19/2016
    Closed: 07/21/2016
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Denied


text:
    Shirley ADAMS v. GRACELAND CARE CENTER OF OXFORD, LLC
    2013-CT-00724-SCT
    Supreme Court of Mississippi.
    Filed: 05/05/2016
    Closed: 07/21/2016
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Granted


text:
    Daniel Richard ZALES v. STATE of Mississippi
    2014-CT-01341-COA
    Supreme Court of Mississippi.
    Filed: 05/11/2016
    Closed: 07/21/2016
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Denied


text:
    Mitchell P. SMITH v. Christopher A. FERRELL
    2013-CT-00131-COA
    Supreme Court of Mississippi.
    Filed: 04/26/2016
    Closed: 07/28/2016
   Motion Desc: Mitchell P, Smith and Horace Hoyt Smiths Petition for Writ of Certiorari

Certiorari — Denied


text:
    Dr. Michael MOLLESTON v. RIVER OAKS HOSPITAL, INC.
    2014-CT-00421-COA
    Supreme Court of Mississippi.
    Filed: 05/05/2016
    Closed: 07/28/2016
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Denied


text:
    William Michael JORDAN v. STATE of Mississippi
    2014-CT-00615-SCT
    Supreme Court of Mississippi.
    Filed: 05/11/2016
    Closed: 07/21/2016
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Granted


text:
    Joseph E. DAVIDSON v. William Dwight COLLINS
    2014-CT-00962-COA
    Supreme Court of Mississippi.
    Filed: 05/26/2016
    Closed: 07/28/2016
   Motion Desc: Appellants Petition for Writ of Certiorari

Certiorari — Denied


text:
    Nathaniel WALDEN v. STATE of Mississippi
    2014-CT-00165-SCT
    Supreme Court of Mississippi.
    Filed: 06/17/2016
    Closed: 07/28/2016
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Granted


text:
    Terry E. HARRIS v. Eddie MICHAEL, Jr
    2014-CT-01613-COA
    Supreme Court of Mississippi.
    Filed: 10/31/2016
    Closed: 02/02/2017
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Denied


text:
    Trevioun Lamont Cornelius BRIGGS v. STATE of Mississippi
    2015-CT-00016-SCT
    Supreme Court of Mississippi.
    Filed: 11/01/2016
    Closed: 02/02/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Granted


text:
    Jerry BOWEN v. AMORY HMA, LLC
    2015-CT-00184-COA
    Supreme Court of Mississippi.
    Filed: 11/08/2016
    Closed: 02/09/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Timothy VIVIANS v. BAPTIST HEALTH PLEX
    2014-CT-01828-SCT
    Supreme Court of Mississippi.
    Filed: 11/08/2016
    Closed: 02/02/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Granted


text:
    Casey Mark BURGESS v. STATE of Mississippi
    2013-CT-02078-COA
    Supreme Court of Mississippi.
    Filed: 11/08/2016
    Closed: 02/09/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Natasha Orlantha STEWART v. STATE of Mississippi
    2014-CT-01101-COA
    Supreme Court of Mississippi.
    Filed: 11/08/2016
    Closed: 02/02/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Dwaliues Deon CARTER v. STATE of Mississippi
    2013-CT-01927-COA
    Supreme Court of Mississippi.
    Filed: 11/21/2016
    Closed: 02/16/2017
   Motion Desc: Petition for Certiorari

Certiorari — Denied


text:
    Vince HARDAWAY v. HOWARD INDUSTRIES, INC. Tommie McCray v. Howard Industries, Inc.
    2014-CT-01790-COA
    Supreme Court of Mississippi.
    Filed: 11/22/2016
    Closed: 02/23/2017
   Motion Desc: Appellees Petition for Writ of Certiorari

Certiorari — Denied


text:
    Helene BENSON v. Mack D. RATHER
    2014-CT-01775-COA
    Supreme Court of Mississippi.
    Filed: 11/22/2016
    Closed: 02/02/2017
   Motion Desc: Petition For Writ of Cer-tiorari

Certiorari — Denied


text:
    Charlie C. HENDERSON v. STATE of Mississippi
    2015-CT-00164-COA
    Supreme Court of Mississippi.
    Filed: 12/06/2016
    Closed: 02/02/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Cynthia JOHNSON v. CITY OF JACKSON, Mississippi
    2015-CT-00946-COA
    Supreme Court of Mississippi.
    Filed: 12/06/2016
    Closed: 02/23/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    John OAKS v. Linda Greer BALL
    2014-CT-00528-SCT
    Supreme Court of Mississippi.
    Filed: 12/13/2016
    Closed: 02/16/2017
   Motion Desc: Appellees Petition for Writ of Certiorari

Certiorari — Granted


text:
    James W. BENNETT v. MISSISSIPPI STATE DEPARTMENT OF HEALTH
    2015-CT-00850-COA
    Supreme Court of Mississippi.
    Filed: 12/13/2016
    Closed: 02/02/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Rubin RENFROW v. STATE of Mississippi
    2014-CT-01567-COA
    Supreme Court of Mississippi.
    Filed: 12/13/2016
    Closed: 02/16/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Jeremy FLYNN v. Michael BLAND
    2015-CT-01283-COA
    Supreme Court of Mississippi.
    Filed: 01/23/2017
    Closed: 02/23/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Clarence DeJuan ANDERSON v. STATE of Mississippi
    2014-CT-00239-COA
    Supreme Court of Mississippi.
    Filed: June 3, 2016
    Closed: July 28, 2016
   Motion Desc: Petition for Certiorari

Certiorari — Denied


author: IRVING, P.J.,

text:
    Steve ALTOM and Sheree Altom, Appellants v. Harland JONES, Appellee.
    No. 2014-CA-01295-COA.
    Court of Appeals of Mississippi.
    April 26, 2016.
    Rehearing Denied Sept. 20, 2016.
    Certiorari Denied Feb. 9, 2017.

      Richard Shane McLaughlin, Tupelo, attorney for appellants.
    Walter Alan Davis, Oxford, attorney for appellee.
    Before IRVING, P.J., BARNES and ISHEE, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Steve and Sheree Altom appeal from the judgment of the Chancery Court of Lee County that granted custody of their minor grandchild, Hayden Jones, to his father, Harland Jones (Jones). On appeal, the Altoms argue: (1) the chancellor erred in reinstating the natural-parent presumption, (2) the record establishes that the natural-parent presumption was rebutted due to the evidence presented, and (3) the temporary orders issued by the chancery court acquired sufficient incidents of permanency.

¶2. Finding no error, we affirm the chancery court’s judgment.

FACTS

¶ 3. On September 29, 2007, Jones and Jessica Altom were married. One child, Hayden, was born to the marriage. Jones and Jessica divorced on January 6, 2009. As a result, the chancery court awarded physical and legal custody of Hayden to Jessica and granted Jones visitation rights. Jessica was living with her parents, the Altoms, when the divorce was granted. However, Hayden had been living with the Altoms since he was eight or nine days old. In November 2010, Jessica invited Jones to come to the Altoms’ home in hopes of resolving a dispute. However, when Jones arrived, an additional dispute arose between Jones and Steve. After that incident, the Altoms and Jessica prevented Jones from exercising visitation with Hayden. As a result, Jones retained counsel and, on April 11, 2011, filed a petition for contempt with the chancery court. On May 17, 2011, the chancery court issued an order that modified Jones’s visitation and permitted visitation to take place outside of the Altoms’ home.

¶ 4. On April 21, 2011, despite the fact that Jones was already paying Jessica child support as part of the judgment of divorce, the Mississippi Department of Human Services (DHS) instituted a separate action against Jones. As a result of that proceeding, DHS obtained a separate order of support against Jones, including’ an arrearage award in the amount of $1,584, which was -withheld by the IRS from Jones’s tax refund. After receiving notice of the child-support action, Jones made payments to DHS from June 2012 through August 2013. Ultimately, the IRS refunded the .$1,584 to Jones.

¶ 5. On November 25, 2012, Jessica died in an automobile accident. Following Jessica’s death, the Altoms were granted temporary custody of Hayden by an order of the Lee County Youth Court. Apparently, neither the chancery court nor Jones was provided any prior notice of the youth court’s action. Jones filed a petition for custody of Hayden in which he asked the court to order the Altoms to turn over custody of Hayden to him. After an initial hearing on the matter, held on December 18, 2012, the chancery court granted the Altoms temporary custody of Hayden, with Jones having visitation rights consistent with those granted in the judgment of divorce, and set the matter for a final hearing on February 19, 2013. However, the hearing was not held on February 19 because Jones had failed to provide discovery that had been requested by the Al-toms. Rather, the case was continued .until June 11, 12, and 13, 2013. In the meantime, since Jones also had failed a court-ordered drug test in December 2012, the court had ordered Jones to continue submitting to reasonable drug testing.

¶ 6, The chancery court heard the matter as previously scheduled and, on June 19, 2013, issued an opinion and judgment, in which it found that the Altoms had rebutted the natural-parent presumption possessed by Jones due to his having deserted Hayden for the first two and a half years of Hayden’s life. But the court also found that since Jessica’s death, Jones “ha[d] made a concerted effort to have a relationship with his son, which involved custody.” Nevertheless, the court applied the Albright factors and determined that it was in Hayden’s best interests for the Altoms to retain custody of him. So the court granted temporary physical custody of Hayden to the Altoms, with visitation to Jones, and joint legal custody of Hayden to Jones and the Altoms. The court also ordered Jones to pay retroactive child support to the Altoms in the amount of $2,556.34, with the payment to be made before December 31, 2013, and, thereafter, monthly payments in the amount of $366.62. Apparently the retroactive child-support payment represented child support for the.period of time following Jessica’s death to the June 2013 hearing date. Finally, in the ppinion and judgment, the chancery court set the matter for review one year later on June 17, 2014, and stated: “The terms of this Order, Judgment and Decree are temporary in nature and not res judicata.”

¶ 7; On June 17, 2014, the chancery court reconvened for the review hearing. It heard testimony from the Altoms and Jones regarding how life had been for them and Hayden during the previous year. On June 20, 2014, the court issued an order, granting Jones additional visitation time with his son and keeping all prior orders in full force and effect, including the order giving the Altoms temporary custody of Hayden, and set an additional hearing for July 30,2014.

¶8. At the July 30, 2014 hearing, the chancery court issued a bench ruling followed by an August 7, 2014 order in which it granted temporary custody of Hayden to Jones, with visitation rights to the Altoms. Contrary to its earlier finding in one of the temporary orders, the court found that “the natural[-]parent presumption [was] strong!,] ... extremely strong in this case[,] ... [and that] the natural[-]parent presumption [was] not only in effect but [had] been reinforced by the rehabilitative efforts that ... Jones [had] made in his life.” Following the ruling, the Altoms filed a motion to amend the August 7, 2014 order with an alternative request that the order be certified as a final judgment under Rule 54(b) of the Mississippi Rules of Civil Procedure. The court denied the motion to amend but granted the alternative request to certify the order as a final judgment. This appeal followed.

DISCUSSION

¶ 9. “The standard of review in child custody cases is limited. Reversal occurs only if a chancellor is manifestly wrong or applied an erroneous legal standard.” Floyd v. Floyd, 949 So.2d 26, 28 (¶ 5) (Miss.2007). In McDonald v. McDonald, 39 So.3d 868, 881 (¶ 42) (Miss.2010) (internal citation and quotation marks omitted) (quoting Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003)), the Mississippi Supreme Court stated:

[An appellate c]ourt grants deference to factual findings in custody decisions, as chancellors have the ultimate discretion to weigh evidence the way they see fit. The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence are primarily for the chancellor as the trier of facts.

I. Natural-Parent Presumption Reinstated

¶ 10. On appeal, the Altoms argue that the chancery court erred in failing to recognize that the natural-parent presumption had previously been rebutted. The Altoms further argue that there was no way that the rebuttal of the natural-parent presumption could have been “undone” by Jones’s good behavior. In response, Jones argues that because the chancery court indicated that the June 19, 2013 order was, in fact, a temporary order, the court was not bound by its prior temporary findings. Jones also argues that the chancery court was well within its discretion to reevaluate the question of desertion and reinstate the natural-parent presumption.

¶ 11. It is well established that in custody proceedings between a natural parent and a third party, such as the Al-toms, the law presumes that the child’s best interests are served by allowing him to remain in his natural parent’s custody. Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992). However, the third party may rebut the natural-parent presumption by showing: (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody. Vaughn v. Davis, 36 So.3d 1261, 1264-65 (¶ 12) (Miss.2010); Miss.Code Ann. § 93-5-24(1)(e)(i)-(ii) (Rev.2013). “If the court finds one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors.” Pendleton v. Leverock, 23 So.3d 424, 431 (¶ 24) (Miss.2009) (citing In re Custody of M.A.G., 859 So.2d 1001, 1004 (¶ 6) (Miss.2003)).

¶ 12. Here, the chancery court found, in its temporary order dated June 19, 2013, that

[for] the first two and [one] half (2½) years of Hayden Jones’[s] life, there was clear and convincing desertion of said child by [Jones’s] avoidance of [his] duties and obligations for the child, leaving same nearly totally in the hands of the [Altoms], though with some small monetary contribution and some small sporadic contact by [Jones], thus rebutting the natural[-]parent presumption by clear and convincing evidence.

At that point, the chancery court conducted an Albright analysis and determined that it was in Hayden’s best interests for the Altoms to retain temporary custody of Hayden. However, as revealed in the facts portion of this opinion, the chancery court explicitly stated that the order was “temporary in nature and not res judica-ta,” apparently meaning that none of the court’s findings were final. Consistent with this view is the fact that the court also set a date for further review one year later. As stated, in the court’s bench ruling after the review hearing, the chancellor determined that because Jones had made sufficient strides in rehabilitating himself, he was entitled to the benefit of the natural-parent presumption and that the presumption was strong. The court placed a great amount of weight on the newly presented evidence by Jones, which showed that he had continued to work the same job, that he had moved to a management position at his job, and that he had not tested positive for drug use while under the chancery court’s supervision.

¶ 13. Our review of the record indicates that the chancery court never intended for the “temporary’ orders granting custody to the Altoms to serve as final judgments in the matter. The very fact that the court set a follow-up hearing serves as confirmation that nothing was final regarding custody of Hayden. Therefore, we agree with Jones and find that the chancery court was well within its discretion in finding that Jones was entitled to the natural-parent presumption due to the progress that Jones has made in rehabilitating himself as a parent.

II. Natural-Parent Presumption Rebutted

¶ 14. The Altoms also argue that even with giving Jones the benefit of the natural-parent presumption, they still rebutted the presumption and are entitled to custody of Hayden. In support of this argument, the Altoms point to the other findings that the chancery court made in discussing the Albright factors in the June 19, 2013 opinion and judgment. More specifically, the Altoms point to the chancery court’s finding that Jones had abandoned Hayden for the first two and one-half years of his life, to Jones’s prior positive drug tests, and to the chancery court’s finding that Jones had been involved, on one occasion, in the manufacture and trafficking of marijuana. The Altoms further argue that drug abuse by a natural parent constitutes immoral conduct, which may be used to rebut the natural-parent presumption. The Altoms assert that, regardless of Jones’s improvements over the one-year span, he is bound to the court’s prior factual findings. Based on this assertion, the Altoms conclude that the chancellor’s application of the Albright factors was, in fact, warranted and that the factors still weigh heavily in their favor.

¶ 15. In response, Jones, citing Sellers v. Sellers, 638 So.2d 481 (Miss.1994), argues that prior drug use does not hinder a parent from obtaining custody or render the parent unfit where there is evidence of reform. In Sellers, a father appealed the award of custody of his child to the child’s maternal aunt. The Mississippi Supreme Court held that (1) the presumption in favor of awarding custody to the natural parent should prevail over any imperative regarding separating siblings, and (2) the chancellor erred in awarding custody of the child to her aunt, rather than to the natural father. The Sellers court stated:

The only factor weighing against Raymond was his history of marijuana use. However, this fact was not mentioned by the chancellor in his ruling. Raymond testified that after he was refused custody of his children at the original [yjouth [cjourt hearing, he completely stopped using marijuana. He further testified that he had not used marijuana in over a year, a fact that was not disputed by any party, and also volunteered to submit to drug testing, day or night, if he were awarded custody of Anna. Based on the evidence presented, Raymond appears to have overcome his problem with marijuana.

Sellers, 638 So.2d at 486-87. In addition, Jones argues that there is substantial evidence supporting the fact that he did not desert Hayden. More specifically, Jones cites to the fact that he visited Hayden on a regular basis and even took legal action on the two separate occasions that he was denied visitation with his son. Jones also argues that, while he and the Altoms disagree on the volume of his visitation, the Altoms admit that there was a substantial amount of visitation by Jones. Jones further argues that there is a substantial amount of evidence showing that he provided financial support for Hayden throughout his life.

¶ 16. Here, Jones has demonstrated himself to have been drug free for more than a year prior to his being awarded temporary custody of Hayden, and he has stated his willingness to be drug tested “until the end of time.” Therefore, we agree with Jones that there is substantial evidence supporting the decision of the chancery court. As stated, we afford substantial deference to the chancery court when reviewing its factual findings and determining if those findings are clearly erroneous. Likewise, “[o]n appeal, we cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” White v. White, 26 So.3d 342, 352 (¶ 31) (Miss.2010) (internal citation omitted). “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion and the evidence must be more than a mere scintilla or suspicion.” Knight v. Pub. Emps. Ret. Sys. of Miss., 108 So.3d 912, 922 (¶ 37) (Miss.2012) (internal citation and quotation marks omitted). As such, we find no merit to the Altoms’ assertion that the chancery court erred in not finding that they rebutted the natural-parent presumption by clear and convincing evidence.

III. Incidents of Permanency

¶ 17. The Altoms’ last argument is that the chancellor erred in issuing the August 7, 2014 order, which modified the June 19, 2013 order, because the June 19, 2013 order had acquired sufficient incidents of permanency and operated as a de facto permanent order. The Altoms contend that the passage of a sufficient amount of time can make even temporary orders permanent for custody-modification purposes, thereby requiring that a change of custody be predicated on a showing of a material change in circumstances that adversely affected the child. The Altoms then conclude their argument by stating that Jones failed to prove any material change in circumstances adverse to Hayden’s best interest.

¶ 18. In response, Jones argues that the chancellor’s previous orders were meant to be temporary, citing to the facts that the chancellor stated,that the orders were not to be final or to affect the outcome of the final hearing and that the chancellor set additional proceedings on specific dates. Jones contends that the mere passage of time is not the only factor in determining whether incidents of permanency have been established and such decisions are best left to the chancellor’s sole discretion.

¶ 19. We do not disagree with the Al-toms’ basic argument that for custody-modification purposes, a temporary order in certain circumstances, because of the passage of time, can be considered permanent. See Swartzfager v. Derrick, 942 So.2d 255, 258 (¶ 10) (Miss.Ct.App.2006); Thompson v. Thompson, 799 So.2d 919, 926-27 (¶¶ 30-31) (Miss.Ct.App.2001). However, that is not the case here. We agree with Jones that the chancellor’s previous orders were meant to be, and were in fact, temporary orders. Even a casual review of the temporary orders that were entered makes it abundantly clear that the chancellor intended to review the matter of custody at a later date, precluding a finding that the temporary order had become final. That this is the case is borne out by the fact that in each temporary order that was entered prior to the August 7, 2014 order, the chancellor set a date for further review, and as previously noted, the chancellor explicitly stated, although not very artfully, that none of the temporary orders were res judicata. All parties were aware of the “temporary” nature of the previous orders. That is borne out by the fact that no one attempted to appeal either of the temporary orders, and the Altoms recognized that even the August 7, 2014 order, which underlies this appeal, was temporary because they sought and obtained a Rule 54(b) certification to allow this appeal. So we reject the Altoms’ assertion that the June 19, 2013 order had been transformed into a permanent order. This issue lacks merit. Accordingly, we affirm.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J, BARNES, ISHEE, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).


author: BARNES, J,

text:
    Jerry BOWEN and Cheryl Bowen, Appellants v. AMORY HMA, LLC d/b/a Gilmore Memorial Regional Medical Center and Patrick Anderson Murphree, M.D., Appellees.
    No. 2015-CA-00184-COA.
    Court of Appeals of Mississippi.
    June 28, 2016.
    Rehearing Denied Nov. 1, 2016.
    Certiorari Denied Feb. 9, 2017.

      Ned McDonald III, Tupelo, attorney for appellants.
    Louis G. Baine III, Mark P. Caraway, Stephen P. Kruger, Kimberly Nelson Howland, Jackson, attorneys for appellees.
    Before IRVING, P.J., BARNES and GREENLEE, JJ.
   BARNES, J,

for the Court:

¶ 1. On December 6, 2007, Jerry Bowen underwent outpatient surgery on his right shoulder at Amory HMA LLC d/b/a Gilmore Memorial Regional Medical Center (Amory HMA). Bowen signed a “Consent for Anesthesia Services” form prior to surgery, which stated that “loss of sensation, loss of limb function, [and] paralysis” are complications that can occur with the administration of anesthesia and that “Major/Minor Nerve Block” risks include “weakness, persistent numbness, residual pain.” Dr. Patrick Murphree, an anesthesiologist and employee of Amory HMA, administered an interscalene block prior to general anesthesia. After surgery, Bowen experienced continuous numbness and weakness in his shoulder. He sought treatment from several doctors who opined that Bowen had suffered an injury to his brachial plexus nerve, likely as a result of the interscalene block administered by Dr. Murphree.

¶ 2. Bowen filed a complaint on June 2, 2010, alleging that he suffered a “severe and debilitating injury” due to the negligence of Amory HMA and Dr. Murphree. Bowen’s occupation was installing acoustical tiles in ceilings, and he claimed that since the surgery, he had been unable to raise his right arm over his head. He asserted that the Defendants had breached the standard of care “[b]y failing to obtain informed consent from ... Bowen prior to the interscalene block[.]”

¶3. After discovery was. conducted, Amory HMA filed a motion for summary judgment on October 17, 2014, arguing that Bowen failed to produce “any competent medical evidence to establish that any of the Defendants deviated, in any way, from the applicable standard of care” or caused the alleged damages. None of Bowen’s doctors who had opined regarding the cause of the nerve damage were designated as experts. The motion further noted that any informed-consent claim should be dismissed against Amory HMA, as it was Dr. Murphree’s duty to obtain informed consent. Dr. Murphree joined Amory HMA’s motion for summary judgment on November 18, 2014. Bowen responded that there were disputed issues of fact concerning whether Dr. Murphree obtained informed consent from Bowen, claiming that he'“would not have agreed to both the interscalene block and general anesthesia had he been informed of the risks and feasible alternatives.” Bowen supplemented his response with Dr. Mur-phree’s answer to the Plaintiffs’ interrogatories, specifically noting answers concerning informed consent. In their reply, the Defendants asserted that Dr. Murphree’s interrogatory responses were not sufficient to defeat summary judgment, again noting Bowen’s failure to provide expert medical testimony to support his claim.

¶4. After a hearing, the trial court granted the Defendants’ motion for summary judgment on January 20, 2015. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. We apply a de novo standard of review to a trial court’s grant of summary judgment. Vick v. Brandon HMA, LLC, 167 So.3d 259, 261 (¶ 10) (Miss.Ct.App.2015) (citing Morton v. City of Shelby, 984 So.2d 323, 329 (¶ 10) (Miss.Ct.App.2007)). A trial court’s consideration of a motion for summary judgment involves “viewing] all evidence in a light most favorable to the non-moving party, [and o]nly when the moving party has met its burden by demonstrating that there are no genuine issues of material fact in existence should summary judgment be granted.” Id.

DISCUSSION

¶ 6. The issue presented on appeal is whether Dr. Murphree breached a duty to Bowen by failing to obtain informed consent prior to administering the interscalene block. In Reikes v. Martin, 471 So.2d 385, 392 (Miss.1985), the Mississippi Supreme Court adopted the objective standard used by the “vast majority of the states” to determine whether a plaintiff may recover under the doctrine of informed consent, holding that “the question [is] whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment.” Accordingly, “a physician is required to ‘disclose those known risks which would be material tc a prudent patient in determining whether or not to undergo the suggested treatment.’ ” Jamison v. Kilgore, 903 So.2d 45, 50 (¶ 16) (Miss.2005). “Thus, where a plaintiff charges that a doctor performed a procedure without first obtaining informed consent, the plaintiffs first task is to establish what are known risks of the procedure. This requires an expert opinion.” Id. at (¶ 17) (emphasis added); see also Whittington v. Mason, 905 So.2d 1261, 1266 (¶ 25) (Miss.2005) (“[EJxpert testimony is required to assist the finder of fact in determining whether a particular risk is material, requiring disclosure to the patient prior to a medical procedure.”).

¶ 7. Bowen’s treating orthopedic surgeon, Dr. John Turba, provided deposition testimony that, “based on reasonable medical certainty,” the cause of Bowen’s medical issues was the interscalene block. However, he further testified that the use of an interscalene block was the standard of care and, unless there was some contraindication, his patients having shoulder surgery would almost always receive an interscalene block. Furthermore, Bowen never designated Dr. Turba as an expert. The supreme court has held:

A treating physician must be designated as an expert if the treating physician goes beyond historical facts personally observed and evaluates the evidence in an attempt to explain it to the jury. Therefore, our precedent forbids treating physicians not designated as experts from testifying to standards of care, causation, or using their expertise to explain the significance of a diagnosis or answer hypothetical questions.

Chaupette v. State, 136 So.3d 1041, 1052 (¶ 28) (Miss.2014) (internal citations and quotations omitted). As noted at the motion hearing by counsel for Amory HMA, Dr. Turba “never claimed to be competent to provide an opinion as to the standard of care for an anesthesiologist.”

¶ 8. Bowen argues that Dr. Mur-phree’s responses to his interrogatories “provide[d] the applicable standard of care regarding informed consent.”

INTERROGATORY NO. 2: Provide, in detail, all information you were required to provide to Jerry Bowen to obtain his “informed consent” prior to the December 6, 2007 rotator cuff surgery at Gilmore Memorial Regional Medical Center in Amory, Mississippi.
RESPONSE: Objection is made to this Interrogatory to the extent it requests expert opinions. Expert opinion testimony will be identified pursuant to Rule 26(b) of the Mississippi Rules of Civil Procedure. Without waiving any objection, I was required to describe my portion of the procedure and disclose material known risks. The information I provide to patients, including Mr. Bowen, prior to administering an interscal-ene block [is] described in Interrogatory No. 3. Such disclosure does comply with the applicable standard of care.
INTERROGATORY NO. 3: Provide, in detail, the information you allege you provided, whether in writing or verbally, to Jerry Bowen prior to the December 6, 2007 rotator cuff surgery at Gilmore Memorial Regional Medical Center in Amory, Mississippi.
RESPONSE: The written portion of the disclosure is the Consent for Anesthesia Services that was signed by Mr. Bowen. The verbal portion of informed consent that I perform with regard to an inter-scalene block includes explaining its purpose, which is discussed in detail in my deposition. A patient of mine undergoing such a block would be informed that the block helps alleviate pain within the first eighteen to twenty-four hours of the postoperative period. The block also helps control[] the blood pressure when the surgeon operates; an increase in blood pressure can cause bleeding into the shoulder joint and obscure the surgeon’s view. Employing an interscal-ene block allows us to use less general anesthesia, which has its own risks that I explained. An alternative would be to use only general.
The risks of an interscalene block that I disclose include:
1. The accidental injection of medication into a blood vessel could result in a seizure or cardiac toxicity;
2. Temporary side effects including hoarseness, bloodshot eyes, and drooping of the eyelid on the side of the block;
,3. The block usually has a temporary effect on the diaphragm; rarely, this can result in shortness, of breath;
4. Parasthesias (numbness, tingling or burning) for up to several weeks;
5. Pneumothorax from puncture of the lungs;
6. Spinal or epidural injection of the local anesthetic with resulting temporary paralysis and low blood pressure; and
7. 1 in 5,000 to 10,000 chance of permanent nerve damage,

(Emphasis added).

¶ 9. Bowen denies that Dr. Murphree told him about the chance of permanent nerve damage, thereby, in his. view, creating a genuine issue of material fact. The Appellees note, however, that Dr. Mur-phree’s response “does not attempt to articulate the known risks of interscalene block or to delineate which of the known risks Dr. Murphree believes to be material.” He merely identified the disclosures he makes and confirmed that those disclosures comply with the applicable standard of care. He did not indicate that each and every item was required to be disclosed.

¶ 10. Our supreme court has held:

[N]o doctor could comply with a requirement to disclose every possible risk to every procedure. Therefore, the physician must disclose only material known risks. A known risk is one which would be known to a careful,- skillful, diligent and prudent practitioner or specialist. Once the known risks are enumerated, they can then be evaluated as to which are material.' The physician may not be required to inform the patient of unexpected or immaterial risks. Among the many factors which could weigh on the question of materiality are frequency of occurrence, potential severity or danger associated with the risk, and the cost and availability of an alternative procedure. These factors cannot be established absent expert testimony. If a known risk is found to be material, and was not disclosed to the patient, then the question of causation must be addressed.

Dunn v. Yager, 58 So.3d 1171, 1200-01 (¶ 73) (Miss.2011) (internal citations and quotations omitted) (emphasis added); see also Johnson v. Burns-Tutor, 925 So.2d 155, 159 (¶ 21) (Miss.Ct.App.2006) (concluding that “without the testimony of a medical expert, neither this Court nor a jury e[ould] understand what information [the physician] should have disclosed to [the patient] before she consented to the procedure” (citing Whittington, 905 So.2d at 1266 (¶ 24))). Accordingly, without expert testimony to establish that the risk of the type of injury suffered by Bowen was a “material known risk,” and one for which a “reasonably prudent patient” would have withheld consent upon being adequately informed, Bowen failed to provide sufficient evidence to withstand summary judgment. See Jamison, 905 So.2d at 613 (¶ 12) (“By refusing to offer an expert witness to support [a] claim for lack of informed consent, [the plaintiff] offered no genuine issues of material fact for the trial court’s determination.”). We agree with the trial court that Dr. Murphree’s' interrogatory responses do not supply the missing expert testimony.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Bowen’s wife, Cheryl, also asserted a claim for loss of consortium.

      . Bowen acknowledged that his claim against Amory HMA was based on vicarious liability and that he had no independent claim against the hospital.