author: FAIR, J., FOR THE COURT:

text:
    James Curtis CLARK a/k/a James Clark, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01278-COA
    Court of Appeals of Mississippi.
    August 8, 2017 Rehearing Denied November 28, 2017 Certiorari Denied February 15, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. James Clark was found guilty of second-degree murder and aggravated assault. On appeal, he contends that he received ineffective assistance of counsel and that the verdicts are against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On May 11, 2014, two men entered Patrick Snow's apartment in Hattiesburg, Mississippi. Snow was shot in the upper body and taken to the hospital. Snow's friend, Matthew Campbell, was shot in the forehead and died shortly after.

¶ 3. At the hospital, Snow told the police that two black males forced themselves into his apartment and tried to rob him. He described the intruders as possibly bald or having low haircuts. The following day, he identified the suspects by name to police.

¶ 4. Clark, along with Timothy Jordan and Jarvis Holder, were indicted together in a three-count indictment for conspiracy to commit murder, first-degree murder, and aggravated assault. Jordan and Holder pled guilty and testified against Clark in exchange for more lenient sentences.

¶ 5. At Clark's trial, there was conflicting evidence presented about the shooting. Snow identified Holder and Clark as the robbers. Snow also testified that Clark shot him and Campbell. Holder testified that he and Clark went to rob Snow, and that he fired a shotgun upon entering the apartment. He also said that Clark shot Snow and Campbell. Jordan's testimony differed from his past statements. He initially told police that he got in a physical altercation with Snow over drugs and that Holder did the shooting. Lavivian Wilson, Jordan's sister, initially gave the police the same statement as Jordan-that Holder shot Snow and Campbell. But, like Jordan, she changed her story. At trial, Lavivian testified that she heard about the shooting on Facebook and confronted her brother. A couple of days later, she went to Brookhaven on an errand, and Jordan and Clark rode with her. Unknown to Lavivian, they were moving the guns used in the shooting. Lavivian testified that Clark admitted to shooting both victims. But, ultimately, there was no physical evidence tying Clark, or anyone else, to either crime.

¶ 6. During the jury instruction conference, Clark's attorney requested a heat-of-passion manslaughter jury instruction, which the court denied. The State submitted, and the court granted, a jury instruction for second-degree murder. The jury found Clark guilty of second-degree murder and aggravated assault. The circuit court denied Clark's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Clark appeals.

DISCUSSION

1. Ineffective Assistance of Counsel

¶ 7. Clark was indicted for first-degree murder. The State also submitted a lesser-included-offense instruction on second-degree murder, which the trial court granted. Clark claims that his counsel was ineffective for failing to submit a culpable-negligence-manslaughter instruction. To support his claim, Clark refers to the jury's note during deliberations, asking if Clark "could be charged with an offense of lesser value" in relation to the murder charge.

¶ 8. A reviewing court may address an ineffective-assistance-of-counsel claim on direct appeal only if the issues presented are "based on facts fully apparent from the record." Archer v. State , 986 So.2d 951, 955 (¶ 16) (Miss. 2008) (citing M.R.A.P. 22(b) ). The record before us is sufficient to decide Clark's claim.

¶ 9. To prove his counsel was ineffective, Clark must show (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. A strong but rebuttable presumption exists that counsel's performance was effective. Gilley v. State , 748 So.2d 123, 129 (¶ 20) (Miss. 1999). First, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Quinn v. State , 191 So.3d 1227, 1234 (¶ 27) (Miss. 2016). Second,"the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Gilley , 748 So.2d at 129 (¶ 20) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "If either prong [of Strickland ] is not met, the claim fails." Havard v. State , 928 So.2d 771, 781 (¶ 8) (Miss. 2006).

¶ 10. "A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the Court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Batiste v. State , 121 So.3d 808, 844 (¶ 69) (Miss. 2013) (quotation and citation omitted). Similarly, there must be an evidentiary basis to support a lesser-included-offense instruction. Id. (citing Anderson v. State , 79 So.3d 501, 505 (¶ 17) (Miss. 2012) ).

¶ 11. With respect to the overall performance of the attorney, "trial counsel's decision regarding whether to request certain jury instructions is [traditionally] considered trial strategy." Taylor v. State , 109 So.3d 589, 596 (¶ 27) (Miss. Ct. App. 2013). Here, there was no evidentiary basis for a culpable-negligence instruction. Clark's theory of defense was that he was not the shooter at all. Clark has also failed to show how he was prejudiced by his attorney's actions. Even if the jury had been instructed on culpable negligence, Clark cannot show how the outcome of his trial would have been different. Accordingly, Clark's ineffective-assistance-of-counsel claim lacks merit because he fails to meet his burden as to either prong of Strickland .

2. Overwhelming Weight of the Evidence

¶ 12. Clark next argues that the verdicts are against the overwhelming weight of the evidence. A challenge to the weight of the evidence will be successful only when the verdict "is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State , 895 So.2d 836, 844 (¶ 18) (Miss. 2005). "[T]he evidence must be viewed in the light most favorable to the verdict[.]" Jenkins v. State , 131 So.3d 544, 551 (¶ 23) (Miss. 2013).

¶ 13. A new trial based on the weight of the evidence should be granted "only in exceptional cases in which the evidence preponderates heavily against the verdict." Bush , 895 So.2d at 844 (¶ 18) (citation omitted). And because the trial judge had a firsthand view of the trial, "reversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial." Waits v. State , 119 So.3d 1024, 1028 (¶ 13) (Miss. 2013).

¶ 14. Snow testified that Holder and Clark forced themselves into his apartment. He said that Clark demanded money, so he threw $600 on the floor. Clark said, "F*** that," and shot him. According to Snow, Clark also told Campbell to empty his pockets, and Campbell said he did not have any money. Clark said "F***

that" again and shot Campbell. Snow's testimony at trial was consistent with his prior statements.

¶ 15. Jordan testified that Holder and Clark planned to rob Snow. He also testified that he remained in the vehicle during the attempted robbery. Jordan said he heard gunshots, and then Clark returned to the vehicle and said, "I just shot one in the head and shot another in the chest." Holder confirmed Jordan's testimony. Lavivian testified that Clark admitted he had "f***ed up" and "shot the boy in the head."

¶ 16. Clark claims that a majority of evidence presented at trial is questionable, since it came from co-indictees and witnesses who took plea deals. "[T]his Court has consistently held that the credibility of witness testimony is the province of the jury." Barnes v. State , 99 So.3d 785, 789 (¶ 9) (Miss. Ct. App. 2012) (quotation omitted). There was ample evidence presented to the jury to show Clark was guilty of murder and aggravated assault. The jury was well aware of the deals given to Jordan, Holder, and Lavivian, and it was up to the jury to decide how much weight to give their testimony. Thus, we cannot find the verdicts were against the overwhelming weight of the evidence.

¶ 17. AFFIRMED.

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


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT:

license: Public Domain

text:
    Demarco WOLFE a/k/a Demarico Wolf a/k/a Demarco Antwan Wolfe a/k/a Demarco Antwon Wolfe, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00401-COA
    Court of Appeals of Mississippi.
    August 15, 2017 Rehearing Denied December 5, 2017 Certiorari Denied February 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Demarco Wolfe was convicted of aggravated assault, carjacking, and armed robbery. He was sentenced to serve concurrent terms of twenty, thirty, and thirty-five years. On direct appeal, Wolfe argues that the State impermissibly sought to exclude African American males from the jury in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. During jury selection for Wolfe's trial, the State used two of its peremptory strikes on African American males. A third African American male was not struck and was selected to be an alternate juror. Those three individuals were the only African American males on the two panels of the venire. The two African American males struck had more than a thirty-year age difference between them. Several African American females served on the jury. Wolfe's counsel raised a Batson challenge, asserting that the State was deliberately acting to prevent African American males from serving on the jury.

¶ 3. The State asserted as its race-neutral reason for its peremptory strikes that those two individuals were inattentive and unengaged with the proceedings, even though they were sitting in front of the prosecutor. The State also noted that one of the individuals had indicated on his jury questionnaire that he had been a juror before on a criminal trial, yet failed to respond to the same question asked verbally to the venire. The defense rebutted that "the State believes that because they were African American males, ... [the State] think [s] that probably ... they will empathize with the defendant."

¶ 4. The trial court held that Wolfe did not establish a prima facie case of discrimination and denied the Batson challenge. The court noted that one of the three African American males was not struck and was seated as an alternate, and that "there are a number of jurors, a very large number of African American females, that were accepted by the State without challenge." The case proceeded to a jury trial, and Wolfe was convicted.

¶ 5. On direct appeal, the only issue Wolfe raises is the trial court's denial of the Batson challenge.

DISCUSSION

¶ 6. "Criminal defendants have the right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria." Cox v. State , 183 So.3d 36, 52 (¶ 53) (Miss. 2015) (quoting Batson , 476 U.S. at 85-86, 106 S.Ct. 1712 ). " Batson provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group [or gender] from jury service based upon nothing more than their racial [or gender] identification." Tyler v. State , 911 So.2d 550, 553 (¶ 11) (Miss. Ct. App. 2005).

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race [or gender]. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Berry v. State , 728 So.2d 568, 572 (¶ 11) (Miss. 1999) (citing Hernandez v. New York , 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ).

¶ 7. A prima facie case is established if the objecting party can demonstrate:

(1) that he or she is a member of a cognizable racial or gender group; (2) that the opposing party has exercised peremptory challenges against members of a particular race [or gender]; and (3) that the facts and circumstances raise an inference that the party exercising the peremptory strikes does so for the purpose of striking a particular race [or gender].

Perry v. State , 949 So.2d 764, 767 (¶ 6) (Miss. Ct. App. 2006). "Any determination made by a trial judge under Batson is accorded great deference because it is 'based, in a large part, on credibility.' " Tyler, 911 So.2d at 553 (¶ 10) (quoting Coleman v. State , 697 So.2d 777, 785 (Miss. 1997) ). A criminal defendant "may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson , 476 U.S. at 93-94, 106 S.Ct. 1712.

¶ 8. The use of peremptory strikes on a majority of potential jurors of a particular race or gender does not, standing alone, establish a prima facie case of discrimination. See Strickland v. State , 980 So.2d 908, 917 (¶¶ 12-13) (Miss. 2008). The defense must "produce sufficient evidence to permit the trial judge to infer purposeful discrimination." Id . at ( ¶ 13). Looking at the "totality of the relevant facts," including that "a large number" of African American females served on the jury and that an African American male served as an alternate, we defer to the trial court's determination that the circumstances did not imply discriminatory intent by the State.

¶ 9. Even if a prima facie case was established, inconsistency between oral responses and a juror's questionnaire has been determined a valid neutral reason for exercising a peremptory challenge. Perry , 949 So.2d at 767-68 (¶ 7). Inattentiveness and demeanor during voir dire have also been as held race/gender-neutral reasons for exercising a peremptory strike. Burnett v. Fulton , 854 So.2d 1010, 1014 (¶ 10) (Miss. 2003). "Unless discriminatory intent is inherent in the proffered race/gender-neutral explanation, the reason offered will be deemed a gender/race-neutral explanation." Perry , 949 So.2d at 767 (¶ 7). Conclusory rebuttals not based in fact or evidence are unpersuasive. Thomas v. State , 818 So.2d 335, 345 (¶ 31) (Miss. 2002).

CONCLUSION

¶ 10. The trial court did not commit clear error in denying Wolfe's Batson challenge. No other issues were raised on direct appeal. Wolfe's convictions and sentences are therefore affirmed.

¶ 11. AFFIRMED.

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

      The record does not indicate the exact gender or racial composition of the jury.

      While the court described its ruling as a finding that a prima facie case of discrimination had not been made, for all practical purposes a complete Batson analysis was performed by the court with the State providing its race-neutral reasons, the defense rebutting, and the court factually concluding that the prosecution was not engaged in discrimination.


author: GREENLEE, J., FOR THE COURT: WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    In the Matter of the CONSERVATORSHIP OF Margarette SMITH: Constance Fitzmaurice, Appellant v. Charles VANDEVORT, Conservator, Appellee
    In the Matter of the Last Will and Testament of Margarette Smith, deceased: Constance Fitzmaurice, Appellant v. Charles Vandevort, Executor, Appellee
    NO. 2015-CA-01798-COA NO. 2016-CA-00504-COA
    Court of Appeals of Mississippi.
    August 8, 2017 Rehearing Denied November 21, 2017 Certiorari Denied March 8, 2018
    ATTORNEYS FOR APPELLANT: HARRIS H. BARNES IIIJAMES WILLIAMS JANOUSH
    ATTORNEY FOR APPELLEE: SAM M. BRAND JR.
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Constance Fitzmaurice filed separate contempt petitions against Charles Vandevort stemming from his conduct as Margarette Smith's conservator and the executor of Smith's estate. The Hinds County Chancery Court, Second Judicial District, dismissed the former and stayed the latter. Fitzmaurice's appeals were consolidated before they were assigned to this Court. We agree that the chancellor erred when he dismissed the contempt petition that Fitzmaurice filed in Smith's conservatorship matter. Accordingly, we reverse the chancellor's judgment and remand that case for further proceedings. However, we lack jurisdiction to hear the appeal from Smith's estate, because the chancellor's order staying Fitzmaurice's contempt petition was not a final judgment. As such, we dismiss that appeal.

FACTS AND PROCEEDINGS BELOW

¶ 2. Smith's only daughter, Isabella Robinson, predeceased her. Robinson's daughter, Fitzmaurice, is Smith's sole descendant. The record contains almost no information regarding Vandevort's connection to Smith. Our source is a report prepared by the Mississippi Department of Human Services (MDHS) in response to an allegation that Vandevort had been physically neglecting Smith and planning to acquire her assets. The report, which was filed in support of Fitzmaurice's contempt petitions, states that when Robinson died in October 2009, she and Vandevort had been dating and cohabiting for approximately a decade. Thus, Vandevort's connection to Smith was through Smith's daughter, Robinson, who was Fitzmaurice's mother.

¶ 3. In November 2009, Vandevort filed a conservatorship petition alleging that Smith "suffer[ed] from dementia and other medical conditions." The petition only said that he was Smith's unrelated caregiver. Vandevort's petition further said that Smith's only living relative was an unnamed granddaughter, but "[n]either the deceased mother or father have heard from her" for fifteen years, and Vandevort did not know where she lived. Vandevort did not file supporting affidavits from two physicians with the petition. Instead, he said that after he was appointed as Smith's conservator, he would provide the court with an affidavit from Smith's physician. The chancellor entered an order granting Vandevort's conservatorship petition on the same day that it was filed. The order said that Smith was eighty-six years old and that she suffered from dementia. The order also directed Vandevort to file a statement from Smith's treating physician regarding her physical and mental health. There is a subsequent docket entry labeled "Affidavit of Physician," but the affidavit is not included in the appellate record.

¶ 4. On January 13, 2010, Vandevort and Smith went to a BancorpSouth branch and opened a joint checking account with rights of survivorship without first obtaining the chancellor's permission. The bank employee who assisted them selected a box listed as "cash" regarding the source of the initial $30,000 deposit. The next day, the chancellor appointed a guardian ad litem (GAL) to accept service of process, prepare an inventory of Smith's estate, and produce an accounting.

¶ 5. On January 19, 2010, Vandevort filed an amended conservatorship petition. Contrary to Vandevort's first petition, his amended conservatorship petition said that Smith had "no descendant." The amended petition did not disclose the existence of the joint checking account that Vandevort had opened less than a week earlier. The clerk's docket entries indicate that the chancellor subsequently conducted a hearing during February 2010, but the record does not contain a transcript of the hearing.

¶ 6. The next docket entry is the GAL's March 5, 2010 motion to approve his inventory and accounting, all of which are omitted from the record. The chancellor granted the GAL's motion on the same day that it was filed. The chancellor noted that Smith had approximately $87,000 in "cash on hand," and Smith's income was nearly $1,500 per month. Stating that Smith's accounts with Bank of America were "exceedingly hard for [Vandevort] to deal with," the chancellor ordered Vandevort "to have the accounts consolidated at" BancorpSouth. There is no indication that the chancellor was aware that Vandevort and Smith had opened the joint account with rights of survivorship. In a handwritten notation, the chancellor directed Vandevort to post a $100,000 bond.

¶ 7. Smith had a checking account and a savings account at Bank of America, where she had been banking since 1972. Her and Robinson's names were on both accounts. The record contains one "Combined Account Statement" related to Smith's accounts at Bank of America. As of April 15, 2010, Smith had approximately $43,000 in her checking account, and $19,000 in her savings account. On April 27, 2010, Vandevort transferred $30,000 from Smith's accounts. He transferred another $31,000 on June 4, 2010.

¶ 8. On June 21, 2010, Smith executed a will. Prepared by the same lawyer who represented Vandevort throughout the conservatorship proceedings, the will named Vandevort as the sole beneficiary of Smith's estate. The will also nominated Vandevort as the executor of Smith's estate. Smith died on November 29, 2010.

¶ 9. In December 2010, Vandevort filed a petition to probate Smith's will. He also submitted an affidavit stating that he had diligently tried to find anyone who might have a claim against Smith's estate. On January 6, 2011, Chancellor Dewayne Thomas entered an order admitting the will to probate, appointing Vandevort as the executor of Smith's estate, and granting Vandevort's request for permission to have Smith cremated.

¶ 10. On January 18, 2011, Vandevort withdrew $90,000 from the joint checking account at BancorpSouth. According to counsel for Fitzmaurice, on February 11, 2011, Vandevort used the money to buy a house in Tacoma, Washington.

¶ 11. Although not borne out by the record or the chancery clerk's docket entries, the parties and the chancellor all represent that on July 14, 2011, Fitzmaurice filed a complaint to set aside Smith's will. The record is silent regarding how or when Fitzmaurice became aware of the estate or conservatorship proceedings. Five days later, Vandevort filed a petition to approve his final conservatorship accounting and release him from any further responsibilities as Smith's conservator. Vandevort's final accounting did not include any financial statements beyond November 2010. Thus, the final accounting represented that Smith had nearly $100,000 in the BancorpSouth account, and it omitted the fact that Vandevort had withdrawn $90,000 on his own initiative during January 2011.

¶ 12. Again, the chancellor granted Vandevort's petition on the same day that it was filed. The chancellor's order was prepared by Vandevort's attorney. It approved Vandevort's final accounting and discharged Vandevort from any further duties as Smith's conservator. The order further said that all of the conservatorship's assets "are hereby transferred" to Smith's estate. Notwithstanding his representation that there was nearly $100,000 in Smith's checking account, Vandevort did not transfer that figure to Smith's estate.

¶ 13. On October 13, 2013, Fitzmaurice filed a contempt petition in Smith's conservatorship proceeding. She also filed a separate but identical contempt petition in Smith's estate proceeding. Fitzmaurice alleged that Vandevort should be held in civil contempt for breaching his fiduciary duties to Smith, and he failed to comply with the chancellor's orders. Among other exhibits, Fitzmaurice attached a copy of the MDHS report mentioned above.

¶ 14. The report was prompted by Vandevort's ex-wife, Joyce, who contacted MDHS shortly after she visited Smith and Vandevort during January 2010. Joyce alleged that Vandevort was physically neglecting Smith, screaming at her, and giving her Prozac that had been prescribed for Robinson. Joyce also reported that Vandevort wanted all of Smith's money through inheritance or otherwise, and that Vandevort had shown her $80,000 of Robinson's money that he had "stashed" in Smith's house. Finally, Joyce claimed that Vandevort knew that Fitzmaurice lived in California, but he intentionally said otherwise.

¶ 15. The report also indicates that approximately a month before Smith executed the will naming Vandevort as the sole beneficiary of her estate, an MDHS investigator visited with Smith and attempted to interview her. According to the report, Smith "did not have the mental capacity to answer [the] allegations when asked ...." The MDHS investigator further reported that Smith "could not answer questions on the Mini Mental Stat[e] Examination" and that she "was not oriented to day, date, season, etc."

¶ 16. Vandevort subsequently moved to dismiss both of Fitzmaurice's contempt petitions. According to Vandevort, the contempt petition that Fitzmaurice filed in the conservatorship proceeding was untimely per the two-year statute of limitations set forth in Mississippi Code Annotated section 91-7-309 (Rev. 2013). Fitzmaurice responded that she was not attempting to reopen Vandevort's accounting, so the two-year statute of limitations did not apply. The chancellor ultimately agreed with Vandevort. Consequently, the chancellor dismissed the contempt petition that Fitzmaurice filed in the conservatorship proceeding. However, the chancellor stayed Fitzmaurice's other contempt petition until he ruled on her complaint to set aside Smith's will. Fitzmaurice appeals both the denial of the contempt motion in the conservatorship matter and the stay of the contempt motion filed in the will contest. Before assigning the appeals to this Court, the Mississippi Supreme Court granted Fitzmaurice's motion to consolidate her two appeals.

DISCUSSION

I. The chancellor erred by dismissing the contempt petition that Fitzmaurice filed in the conservatorship proceeding.

¶ 17. The chancellor dismissed Fitzmaurice's contempt petition after finding that it was untimely under the two-year statute of limitations. Alternatively, the chancellor held that even if Fitzmaurice's claims were not untimely, "dismissal would still be appropriate" because even if Vandevort had violated the chancellor's orders, "the same resulted in no harm to [Smith] and no frustration to the [chancery court's] purposes ...." We construe this to mean that the chancellor would have dismissed Fitzmaurice's claims under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure.

¶ 18. Statute-of-limitations issues are questions of law that an appellate court reviews de novo. In re Guardianship of McClinton , 157 So.3d 862, 872 (¶ 28) (Miss. Ct. App. 2015). Dismissal under Rule 12(b)(6) is also a question of law requiring a de novo review. Covington Cty. Bank v. Magee , 177 So.3d 826, 828 (¶ 5) (Miss. 2015). "[T]he allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Id . A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, so Rule 12(b)(6) motions are decided solely on the face of the pleadings. Id . at 830 (¶ 15).

¶ 19. Mississippi Code Annotated section 91-7-309 (Rev. 2013) provides that "[a]ny person interested may, at any time within two years after final settlement, by bill or petition, open the account of any executor, administrator, or guardian and surcharge and falsify the same, and not after ...." Fitzmaurice claimed that Vandevort was in civil contempt because he breached the fiduciary duties that he owed Smith, disregarded the chancellor's order to post a bond, and ignored the chancellor's order to transfer the figure represented in the final accounting to Smith's estate. None of those claims were premised on reopening or falsifying Vandevort's final accounting. Fitzmaurice's claim that Smith's estate was entitled to the figure represented in the final accounting is not a claim to reopen or falsify the final accounting. In his answer, Vandevort recognized that Fitzmaurice had not attacked the final accounting. Vandevort's attorney made a similar statement during the hearing on Vandevort's motion to dismiss. Based on the foregoing, we conclude that the chancellor erred when he held that Fitzmaurice's claims were governed by the two-year statute of limitations set forth in section 91-7-309.

¶ 20. Fitzmaurice argues that she had seven years to file her contempt petition because it was founded on a judgment or decree. See Miss. Code Ann. § 15-1-43 (Rev. 2012). Fitzmaurice is correct that section 15-1-43 governs her claim that Vandevort should be held in contempt for disregarding the order to transfer the balance of Smith's account to Smith's estate. That order was essentially a judgment or decree contemplated by section 15-1-43. But Fitzmaurice's other claims that Vandevort was in contempt because he disregarded the order to post a $100,000 bond and that he breached his fiduciary duties to Smith are not governed by section 15-1-43. See In re Guardianship of Duckett , 991 So.2d 1165, 1174-75 (¶ 19) (Miss. 2008). In Duckett , 991 So.2d at 1168-69 (¶ 3), a chancellor issued a decree prohibiting the distribution of guardianship funds without court approval. The wards later sued the bank that had allowed the guardian to withdraw from the guardianship account without the court's permission. Id . at 1171 (¶ 10). The Mississippi Supreme Court held that the wards' lawsuit was governed by the three-year "catch-all" statute of limitations, rather than the seven-year statute of limitations applicable to actions founded on a judgment or decree. Id . at 1174-75 (¶¶ 19-20).

¶ 21. Fitzmaurice clearly cannot rely on the current executor of Smith's estate to pursue the money that the chancellor told Smith's former conservator to transfer. But an interested party can request that a chancellor find a fiduciary in contempt for neglecting "the performance of any duty required of him ...." Miss. Code Ann. § 91-7-285 (Rev. 2013). Whether someone qualifies as an "interested party" depends "on the type of fiduciary that has been appointed." In re Conservatorship of Davis , 954 So.2d 521, 523 (¶ 9) (Miss. Ct. App. 2007). An interested party "has a legitimate [present or prospective] interest ... in [an] estate ...." Id . at 525 (¶ 14). "Prospective" means "anticipated or expected; likely to come about." Id . Fitzmaurice has a legitimate prospective interest in Smith's estate; especially considering that she is Smith's sole legal heir and she had filed a complaint to set aside Smith's will.

¶ 22. Even if section 15-1-43 did not govern Fitzmaurice's claim that Vandevort was in contempt for failing to transfer Smith's assets to her estate, like Fitzmaurice's remaining claims, it would fall under the three-year "catch-all" statute of limitations. See Miss. Code Ann. § 15-1-49(1) (Rev. 2012). On July 19, 2011, the chancellor ordered Vandevort to transfer Smith's assets to her estate. Fitzmaurice filed her contempt petition on October 13, 2013, which was well within the seven-year or three-year statutes of limitations. Fitzmaurice's claim that Vandevort breached his fiduciary duty to Smith when he withdrew $90,000 from the joint account on January 18, 2011, was also well within the three-year statute of limitations. Fitzmaurice's other claims were related to opening the joint account on January 13, 2010, the March 5, 2010 order to post a $100,000 bond, and the execution of Smith's June 21, 2010 will. Whether those claims were timely depends on when Fitzmaurice knew or should have known about them. See Miss. Code Ann. § 15-1-49(2).

Neither the chancellor nor either of the parties discussed the application of the three-year "catch-all" statute of limitations or the time that Fitzmaurice knew or should have known about her remaining claims. Accordingly, it was improper to find that they were untimely.

¶ 23. That does not end the analysis. As mentioned above, the chancellor also held that Fitzmaurice's contempt petition should be dismissed because even if Vandevort had failed to comply with the court's orders, "the same resulted in no harm to [Smith] and no frustration to the [chancery court's] purposes ...." We construe this to be the chancellor's conclusion that Fitzmaurice failed to state a claim upon which relief can be granted. And we disagree with such a conclusion.

¶ 24. On the face of her contempt petition, Fitzmaurice raised viable claims that Vandevort breached his fiduciary duty of loyalty to Smith. She also raised viable claims that Vandevort disregarded the chancellor's orders to post a bond and transfer the balance represented in his accounting to Smith's estate. "No person bound to act for another can act for himself." George D. Warner Jr., Warner's Griffith Mississippi Chancery Practice § 47 (1991). Without question, "[a] conservator stands in the position as a trustee and owes a fiduciary duty of loyalty to the ward." Ravenstein , 167 So.3d at 222 (¶ 25) (citing Bryan , 589 So.2d at 657 ). A conservator has the "same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator." Miss. Code Ann. § 93-13-259 (Rev. 2013). "A guardian has [a] duty to keep a ward's money ... separate from his ... own." 39 Am. Jur. 2d Guardian and Ward § 132 (2008).

¶ 25. Any time a conservator places his ward's money in a jointly held account with rights of survivorship that did not exist before the conservatorship, this should be a red flag for problematic behavior; particularly when, as here, the conservatorship was established based on the ward's diminished mental capacity. Joint accounts created when a ward is mentally incompetent are void. Conservatorship of Kendrick v. Hancock Bank , 537 So.2d 888, 891 (Miss. 1989). It is undisputed that while he was acting as Smith's conservator, Vandevort opened a joint account in his and Smith's names without first obtaining the chancellor's permission. Vandevort also deposited Smith's money into that account, in effect using his authority as Smith's conservator to bequeath her money to himself. Fiduciaries acting under a chancery court's authority are prohibited from directly or indirectly borrowing or using estate money for their own benefit. Miss. Code Ann. § 91-7-253 (Rev. 2013). More than a century ago, our Supreme Court examined a case in which a guardian had obtained the title to his wards' real property during the course of the guardianship. Brandau v. Greer , 95 Miss. 100, 102-03, 48 So. 519, 520 (1909). The Supreme Court unequivocally held that "[n]o transaction of this sort can or ought to be allowed to stand. It contravenes every rule of law applying to a person in a fiduciary character." Id ."A trustee can be allowed under the law to have no inducement to neglect the interest of his ward." Id . By opening the joint account with rights of survivorship, Vandevort created an inducement to refrain from spending money on Smith's care. For our present purposes, the issue is the existence of the inducement-not whether Vandevort actually neglected Smith's needs. "[A] person with a conflict of interest cannot serve as conservator of the estate." In re Conservatorship of Cole , 958 So.2d 276, 280 (¶ 12) (Miss. Ct. App. 2007). "[I]f a conflict exists, the fiduciary has a duty to refuse the trust, resign, or remove the conflicting personal interest." Jackson v. Jackson , 732 So.2d 916, 921 (¶ 7) (Miss 1999). It is true that "ownership of a joint tenancy is not necessarily inconsistent with trusteeship." Estate of Bodman v. Bodman , 674 So.2d 1245, 1250 (Miss. 1996). But Bodman involved a joint tenancy that the ward had created before his daughter successfully requested to be appointed as his conservator. Id . at 1246-47. Here, Vandevort created the joint tenancy after being appointed as Smith's conservator, and he did so without obtaining the chancellor's advance permission.

¶ 26. Vandevort also takes the position that he was not required to transfer the represented balance of Smith's checking account to her estate because the entire balance had already "vested in him immediately." This position relies on the incorrect premises that he could open an unapproved joint account with rights of survivorship, neglect his obligation to report his clear conflict of interest, withdraw Smith's money from her account without the chancellor's leave, file a misleading final accounting of Smith's assets that was inaccurate on the date that it was presented to the chancellor, and neglect the clear language in the chancellor's order. "The closing of an estate ... is not a license for a [fiduciary] to rob the coffers of the dead." Carter , 912 So.2d at 147 (¶ 29).

¶ 27. More significantly, the chancellor unequivocally ordered Vandevort to transfer Smith's assets to her estate. "[T]he chancellor ... has the power and the duty, both inherent and by statute, to coerce obedience to [his] orders[.]" Dewitt v. De Baun , 172 Miss. 113, 117, 159 So. 552, 553 (1935). In Dewitt , a chancellor ordered the administrator of an estate to pay money to settle a claim against the estate. Id . at 115, 159 So. at 552. "[I]t was [the administrator's] duty either to obey [the order] or ... petition to set it aside .... But instead of doing this, the administrator simply ignored [it]." Id . at 117-18, 159 So. at 553. Our Supreme Court held:

[W]hen a party to any chancery cause ... has been required to pay money under an order of the ... chancellor, ... and the party has legal or equitable reasons [that] ... would excuse compliance with the order, ... these facts and reasons should with reasonable promptitude be made known to the court by the party so ordered, and not wait until he has been cited for contempt. And if he does not take the reasonable course first mentioned, he will be required to make a particularly clear case in defense of [a contempt] petition ....

Id .

¶ 28. Vandevort also prematurely concludes that his status as the sole beneficiary of Smith's estate is a given. Fitzmaurice's will contest is still pending. "Mere anticipation does not guarantee that [Vandevort] will be able to maintain [his] interest." Davis , 954 So.2d at 525 (¶ 17). The orderly progression of Smith's assets from her conservatorship through her estate is not an empty ritual; nor can it be circumvented by her conservator's unapproved financial maneuvering. Taken as true, Fitzmaurice's allegations are viable causes of action. The chancellor erred when he dismissed Fitzmaurice's contempt petition as untimely and on the basis that she failed to state a claim upon which relief can be granted. Consequently, we reverse the chancellor's judgment and remand the case to the chancery court.

II. The order staying the contempt petition that Fitzmaurice filed in Smith's estate is not a final judgment.

¶ 29. Fitzmaurice argues that the chancellor should not have stayed this contempt petition until after resolving her claim that Smith's will was invalid. "As a general rule, only final judgments are appealable." In re Estate of Lewis , 135 So.3d 202, 205 (¶ 14) (Miss. Ct. App. 2014). "A final, appealable judgment is one that adjudicates the merits of the controversy and settles all issues as to all the parties and requires no further action by the trial court." Id ."When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken." Id . The chancellor did not certify the judgment as final, and Fitzmaurice did not obtain the Supreme Court's permission to file an interlocutory appeal. See M.R.C.P. 54(b) ; M.R.A.P. 5. As a result, we must dismiss this portion of the consolidated appeal for lack of jurisdiction. Lewis , 135 So.3d at 206 (¶ 16). Therefore we do not comment on Smith's ability to execute a will while possibly suffering from dementia, or the allegation that Vandevort, the sole beneficiary of the will drafted by the attorney for the conservatorship and the estate, possibly overreached in violation of the fiduciary duties that he owed Smith as her conservator.

CONCLUSION

¶ 30. The chancellor erred when he found that the contempt petition that Fitzmaurice filed in Smith's conservatorship was barred by the statute of limitations applicable to actions to reopen an accounting. The chancellor also erred when he granted Vandevort's motion to dismiss that contempt petition on the basis that Fitzmaurice failed to state a claim upon which relief may be granted when it was undisputed that Vandevort disregarded the chancellor's order to transfer all of Smith's assets no matter how they were titled, including the balance of Smith's checking account as represented in the final conservatorship accounting, to Smith's estate. We reverse the chancellor's judgment in case number 2015-CA-01798-COA and remand that case for further proceedings. However, the chancellor's order staying the contempt petition that Fitzmaurice filed in Smith's estate in case number 2016-CA-00504-COA is not a final judgment. As a result, we must dismiss that appeal for lack of jurisdiction.

¶ 31. REVERSED AND REMANDED IN PART; APPEAL DISMISSED IN PART.

LEE, C.J., IRVING, P.J., ISHEE, CARLTON AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND FAIR, J.

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 32. I concur in Part II of the majority opinion, which holds that we lack jurisdiction of Constance Fitzmaurice's appeal from a non-final order in the estate case. However, I dissent as to Part I of the majority opinion, as I would affirm the chancellor's ruling that Fitzmaurice's petition for contempt in the conservatorship case was barred by Mississippi Code Annotated section 91-7-309.

¶ 33. The essential facts relevant to this appeal are not especially complicated. Charles Vandevort was appointed as Margarette Smith's conservator. Smith died in November 2010, and in July 2011 the chancery court entered an order approving Vandevort's final accounting, discharging Vandevort as conservator, and closing the conservatorship. The order directed that Smith's remaining assets be transferred to her estate.

¶ 34. Vandevort is also the sole beneficiary and executor under Smith's will. In January 2011, Smith's will was admitted to probate, and letters testamentary were issued to Vandevort. In July 2011, Fitzmaurice filed a complaint to set aside the will, although, as the majority notes, the complaint is not included in the record.

¶ 35. In October 2013, Fitzmaurice filed a "Petition for Citation of Contempt" in the conservatorship case. She alleged that Vandevort violated his fiduciary duty to Smith by, inter alia, placing Smith's funds in a joint account that he co-owned with survivorship rights and then by withdrawing and keeping the funds for himself after Smith died. The record on appeal does not indicate why Fitzmaurice filed a complaint to set aside Smith's will in 2011 but waited another two-plus years to file her contempt petition.

¶ 36. The chancellor dismissed Fitzmaurice's contempt petition as untimely. The chancellor's ruling was correct and should be affirmed because a petition to reopen a conservatorship to "surcharge and falsify" the conservator's final account must be filed within two years of final settlement of the conservatorship. Miss. Code Ann. § 91-7-309. Fitzmaurice's petition was filed after this two-year period had expired.

¶ 37. Fitzmaurice's argument as to why the two-year limitation period of section 91-7-309 does not apply to her petition has two general themes: (1) her contempt petition is actually a claim "founded on a judgment," which is subject to a seven-year statute of limitations, see Miss. Code Ann. § 15-1-43 ; and (2) she has "never challenged an account or accounting" and "is not attempting to reopen any ... conservatorship or any accounting thereof. Neither contention has merit.

¶ 38. With respect to the first point, Fitzmaurice contends that her petition is really a suit on a "judgment"-namely, the order closing the conservatorship and directing the transfer of its assets to the estate. In her opening brief on appeal, Fitzmaurice repeatedly asserts that "as the current executor/administrator [of Smith's estate] ," she "is a judgment creditor" and, as such, is "owed" funds that should have been transferred to the estate. Appellant's Br. 12 (emphasis added); see also id. at 18 & 24 (repeating the same argument).

¶ 39. However, at least according to the record on appeal, this argument is simply wrong on the facts. Fitzmaurice is not the "current executor/administrator" of Smith's estate. The chancery court issued letters testamentary to Vandevort , and there is nothing in our record to indicate that he has ever been removed as executor. Fitzmaurice is not a beneficiary under Smith's will, and at present her only connection to Smith's estate is that she is contesting Smith's will. As such, Fitzmaurice clearly is not a "judgment creditor" with respect to the final order closing the conservatorship and directing a transfer of assets to the estate.

¶ 40. In her reply brief, Fitzmaurice seems to recognize her error and shifts her focus to Mississippi Code Annotated section 91-7-285, which provides that if a conservator fails to perform any duty required by law or court order, the court may, "on the application of any interested party," punish the conservator for contempt, remove the conservator, or both. Fitzmaurice contends that she is an "interested party" because she is Smith's heir at law.

¶ 41. However, assuming that Fitzmaurice is an "interested party," that does not mean that her contempt petition was timely. Section 91-7-285 authorizes an interested party to file a contempt petition, but it does not override section 91-7-309 and permit the filing of such a petition more than two years after the final accounting and termination of the conservatorship. Stated differently, section 91-7-285 does not give anyone a perpetual right to file contempt petitions. Rather, "[a]ny person interested may" file such a petition "within two years after final settlement." Miss. Code Ann. § 91-7-309.

¶ 42. At its core, Fitzmaurice's argument is that her contempt petition is like a chameleon, and (1) we must accept it as a contempt petition so that she can claim standing under section 91-7-285, but then (2) we must pivot and treat it as an independent "action[ ] founded on a judgment" so that she may benefit from the seven-year statute of limitations found in section 15-1-43. However, because Fitzmaurice is not the executor of the estate, she lacks standing to bring an action founded on a judgment in favor of the estate. Therefore, her contempt petition is just that-a contempt petition. And it is untimely under section 91-7-309.

¶ 43. As noted above, a second theme of Fitzmaurice's argument is that she "never challenged any account or accounting" and "is not attempting to reopen any ... conservatorship or any accounting thereof." Appellant's Br. 7, 9, 16, 50. Her argument seems to be that section 91-7-309 does not apply at all unless a party's claim is specifically and narrowly limited to allegations of accounting errors. Fitzmaurice contends that her petition only seeks compliance with court orders and alleges that the conservator breached his fiduciary duties, so section 91-7-309"is wholly inapplicable." Appellant's Br. 14, 50. This argument both ignores the substance of Fitzmaurice's petition and interprets section 91-7-309 far too narrowly.

¶ 44. As to the substance of Fitzmaurice's claim, in her motion for reconsideration in the chancery court, she clearly argued that Vandevort "procured an order" closing the conservatorship by presenting a "final accounting" that knowingly "[mis]represented [that] converted funds were still in the conservatorship." This is exactly the sort of claim that section 91-7-309 describes: "Any person interested may, at any time within two years after final settlement, by bill or petition, open the account of any executor, administrator, or guardian and surcharge and falsify the same, and not after ...." The basic premise of Fitzmaurice's claim is that Vandevort's final accounting was false because he had already wrongfully converted funds that he continued to show as assets of the conservatorship.

¶ 45. Moreover, the plain language of section 91-7-309 is not limited to narrow allegations of accounting errors or inaccuracies. The most relevant definition of "surcharge" is "to impose a fine on a fiduciary for breach of a fiduciary duty." Black's Law Dictionary 1579 (9th ed. 2009). This is the gravamen of Fitzmaurice's contempt petition-that Vandevort should be found in contempt based on alleged breaches of his fiduciary duties to Smith.

¶ 46. Finally, although Fitzmaurice claims that she is "not attempting to reopen any ... conservatorship" (Appellant's Br. 16), she fails to explain how she can obtain relief in a case that remains closed. She filed her contempt petition in a conservatorship proceeding that had been closed for more than two years. As a logical matter, the court cannot grant relief on Fitzmaurice's petition without first reopening the conservatorship. Section 91-7-309 provides a mechanism for reopening a conservatorship, but it is unavailable more than two years after the conservatorship was terminated.

¶ 47. In summary, Fitzmaurice does not have standing to sue on behalf of the estate. She is not the executor of the estate, and at present her only connection to the estate is as a contestant to the deceased's will. Therefore, she clearly lacks standing to bring an action "founded on a judgment" in favor of the estate. The petition for contempt that she filed in the conservatorship proceeding was just that-a petition for contempt. And it was untimely because it was filed more than two years after the final accounting and termination of the conservatorship. Miss. Code Ann. § 91-7-309. The chancellor correctly dismissed the petition for this reason, and his ruling should be affirmed.

GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION.

      This ruling applies to case number 2015-CA-01798-COA.

      This ruling applies to case number 2016-CA-00504-COA.

      Along with the GAL's appointment to accept service of process, the amended petition and the hearing that followed were intended to cure the deficiencies surrounding Vandevort's initial appointment as Smith's conservator. See Miss. Code Ann. §§ 3-13-253 & -255 (Rev. 2013).

      Until May 2010, Smith's monthly income through Social Security benefits and her deceased husband's pension had been deposited in her checking account at Bank of America. After that time, it was deposited in the joint account at BancorpSouth.

      Vandevort's final accounting should have remained on file for thirty days so any interested party could have an opportunity to inspect it and contest it. See Miss. Code Ann. § 1-7-295 (Rev. 2013).

      In her contempt petitions, Fitzmaurice's listed mailing address was a post-office box in Fawnskin, California. When confronted by MDHS, Vandevort denied that he knew where Fitzmaurice lived.

      More specifically, Fitzmaurice alleged that Vandevort breached his fiduciary duties to Smith when he (1) opened the joint account that gave him rights of survivorship; (2) did not resign as Smith's conservator when he created the conflict of interest stemming from the joint account; (3) did not resign when Smith executed the will naming him as the sole beneficiary of her estate; and (4) withdrew $90,000 from Smith's account.

      Fitzmaurice did not seek relief in the form of a constructive trust, which would be governed by a ten-year statute of limitations. See Miss. Code Ann. § 15-1-39 (Rev. 2012); Winters v. AmSouth Bank , 964 So.2d 595, 599 (¶ 17) (Miss. Ct. App. 2007).

      It was Vandevort, not Fitzmaurice, who relied on a position that would require reopening the conservatorship accounting. Vandevort argued that he did not have to transfer the money to Smith's estate, because despite what he had represented to the chancellor in the June 2011 petition, Smith did not have approximately $100,000 in her account after January 2011, and the balance of her account had transferred to him.

      It is true that "an agent is not liable to third parties for breaches of the duties that he owes to his principal." In re Estate of Hemphill , 186 So.3d 920, 933 (¶ 49) (Miss. Ct. App. 2016). Similarly, Smith's estate has standing to challenge Vandevort's conduct while acting as her conservator. See id . at 934 (¶ 54). That does not necessarily mean that Fitzmaurice lacked standing to raise her contempt claims in the conservatorship. See In re Allen , 962 So.2d 737, 744-46 (¶¶ 27-37) (Miss. Ct. App. 2007) ; Miss. Code Ann. § 91-7-285 ; UCCR 6.02. "Parties may sue or intervene where they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant." City of Belmont v. Miss. State Tax Comm'n , 860 So.2d 289, 296 (¶ 13) (Miss. 2003). Smith's conservator was ordered to pay money to Smith's estate. For obvious conflicting self-serving reasons, Smith's executor has not marshalled that money. Under the peculiar circumstances of these cases, we find that Fitzmaurice's standing in the conservatorship and the estate is not mutually exclusive to the extent that she could only raise her claims in the estate proceeding.

      A conservator must generally post a bond payable to the state before obtaining authority to act on a ward's behalf. Ravenstein v. Ravenstein , 167 So.3d 210, 222 (¶ 25) (Miss. 2014) (citing Miss. Code Ann. § 93-13-17 (Rev. 2013)). The bond would have allowed Fitzmaurice to pursue a lawsuit against the surety in the event that Vandevort is found liable for misappropriating money from Smith during the course of the conservatorship. See Bryan v. Holzer , 589 So.2d 648, 660 (Miss. 1991).

      It was not improper for Fitzmaurice to attack this transaction in the context of the conservatorship, rather than Smith's estate. Vandevort effectuated the transaction while acting as Smith's conservator. Additionally, "survivorship property becomes the property of the survivor, and the joint tenant's estate has no interest in these funds." Will of McCaffrey v. Fortenberry , 592 So.2d 52, 64 (Miss. 1991). However, that does not necessarily mean that Fitzmaurice could not have sought to set aside Vandevort's creation of the joint account through the complaint that she filed in Smith's estate. It simply means that one case centers on Vandevort's obligation to steward Smith's money and pay it to her estate, and the other case focuses on his obligation to collect it. "[W]hen indicia of fraudulent activity are present, there is no legal barrier preventing a chancellor, clothed with the powers of equity, from reopening a closed estate and demanding a fiduciary to produce evidence in an effort to disprove maladministration." In re Estate of Carter , 912 So.2d 138, 147 (¶ 29) (Miss. 2005).

      Until discharged by the court, a guardian has a continuing duty to account for the ward's assets. U.S. Fid. & Guar. Co. v. Conservatorship of Melson , 809 So.2d 647, 654 (¶ 31) (Miss. 2002).

      The complaint is not in the record because Fitzmaurice's designation of the record on appeal excluded any pleadings, transcripts, or other papers filed prior to her October 2013 contempt petitions. In addition, the chancery clerk did not include docket entries in the estate case that predate the chancery court's conversion to electronic filing in 2013.

      Our Supreme Court has held that an "interested party" is "a person who has a legitimate interest present or prospective in that estate, or who has some personal responsibility as regards the estate." In re Conservatorship of Davis , 954 So.2d 521, 525 (¶ 14) (Miss. Ct. App. 2007) (quoting In re Conservatorship of Harris v. King , 480 So.2d 1131, 1132 (Miss. 1985) ; Barney v. Barney , 203 Miss. 228, 230, 33 So.2d 823, 824 (1948) ). In Davis , this Court reasoned that a "prospective" interest is an interest that is "anticipated or expected" or "likely to come about." Davis , 954 So.2d at 525 (¶ 14) (quoting Black's Law Dictionary 1238 (7th ed. 1999)). This Court then held that the petitioner was "interested" in the conservatorship because his minor daughters were the sole beneficiaries in the ward's will and thus had an "anticipated or expected interest" in the estate. Id. at (¶¶ 15-16). Here, in contrast, the ward is already deceased, and Fitzmaurice is not a beneficiary under her will and has no interest in the estate unless she first prevails in her will contest. Therefore, at this stage of the proceedings, it is speculative to say that Fitzmaurice's interest in the estate is "anticipated or expected" or "likely to come about." Nonetheless, I assume for purposes of this opinion that Fitzmaurice is as an interested party under the statute.

      The majority also concludes that Fitzmaurice's claim may be treated like an independent claim for breach of fiduciary duty, which is subject to the three-year statute of limitations. See ante at (¶ 22). The majority raises this issue, although it notes that "[n]either the chancellor nor either of the parties discussed the application of the three-year 'catch-all' statute of limitations." Id. The three-year statute of limitations is inapplicable for essentially the same reasons that section 15-1-43 does not apply: Fitzmaurice lacks standing to bring an independent breach of fiduciary duty claim on behalf of the estate. Therefore, her claim can only be treated as a contempt petition, not an independent tort claim. And her contempt petition is untimely under section 91-7-309.

      To the extent that it is a cause for concern, affirmance of the chancellor's order dismissing Fitzmaurice's contempt petition would not prevent recourse against Vandevort for any provable wrongdoing. Although the record on appeal is limited, Fitzmaurice appears to be Smith's sole heir at law. Thus, if Fitzmaurice prevails on her pending complaint to set aside Smith's will, she presumably would be appointed as the administrator of Smith's estate, at which point she would be a proper party to pursue whatever claims the estate may have against Vandevort. See Miss. Code Ann. §§ 91-7-63 & -233 (Rev. 2013).


author: BOLIN, Justice.

text:
    Betty COLLINS v. HERRING CHIROPRACTIC CENTER, LLC, and Ricardo Herring, D.C.
    1151173
    Supreme Court of Alabama.
    February 17, 2017
    James M. Sims, Anniston, for appellant.
    Robert E. Cooper and Katherine Rogers Brown, Birmingham, for appellees.
   BOLIN, Justice.

Betty Collins appeals from a summary judgment in favor of Ricardo Herring, D.C., and Herring Chiropractic Center, LLC, the defendants in her action seeking damages for alleged medical malpractice.

Facts and Procedural History

The evidence, viewed, as we are required to do, in a light most favorable to Collins as the nonmovant shows the following. Beginning in June 2012, Collins was being treated by Dr. Herring for injuries to her knee, shoulder, and lower back. The treatment for her knee injury included applying a "cold pack" to her knee. Collins received treatment from Dr. Herring on several occasions during June 2012.

On July 9, 2012, Collins sought treatment from Dr. Herring for her knee injury. During that appointment, Dr. Herring's assistant retrieved a cold pack from the refrigerator and placed it directly on Collins's knee. On Collins's previous appointments, the cold pack had been sitting out on a table when she arrived and was later placed on her knee. Collins noticed that the cold pack applied on July 9 was harder than the cold packs that had been applied to her knee during previous appointments. Collins's appointment that day was in the morning, and the chiropractic center had been closed the previous seven days. Collins felt heat when the cold pack was removed from her knee; during her previous treatments her knee felt cold when the cold pack was removed. A few hours later, Collins developed blisters on her knee where the cold pack had been. Subsequently, scars developed on Collins's knee where the cold pack had been.

On July 7, 2014, Collins sued the defendants alleging medical malpractice arising out of the application of the cold pack to her knee. The defendants timely filed an answer. Subsequently, the defendants filed a motion for a summary judgment. They supported their summary-judgment motion with an affidavit from Dr. Herring. In the affidavit, Dr. Herring stated in pertinent part:

"At all time when I provided care and treatment to Ms. Collins I did so in keeping with the standard of care that applied to me and to other similarly situated chiropractors.
"....
"As a part of the care and treatment of Ms. Collins a cold pack was used. There were two types that are used in my practice. ... The manner and method that these types of packs are used in my office did not cause any injury and the area claimed to have been affected by Ms. Collins exceeds the area over which the cold pack would have been place[d]. The use of a cold pack in the care and treatment of Ms. Collins's condition is a recognized and standard treatment by chiropractors. It was not a deviation from the appropriate standard of care to use a cold pack.
"I provided appropriate chiropractic care and treatment when treating Ms. Collins. I did not fall below the standard of care in providing care or treatment to Ms. Collins in any respect. I did not cause any injury to Ms. Collins."

In their summary-judgment motion, the defendants argued that Collins had not produced any evidence demonstrating that Dr. Herring's treatment fell below the applicable standard of care. The defendants argued that Collins failed to present testimony from a similarly situated expert witness because Collins had not designated an expert witness as required under the Alabama Medical Liability Act ("the AMLA"), § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, to testify that Dr. Herring breached his duty of care in treating Collins. They also argued that Dr. Herring's affidavit affirmed that he did not breach the required standard of care in treating Collins and that his treatment was not the cause of Collins's injuries.

In response to their motion, Collins argued that it was not necessary for her to present expert testimony in opposition to the summary-judgment motion because Collins's claims fell within an exception to the AMLA, i.e., Collins's claims could be readily understood by a layperson. Collins further argued that her deposition testimony provided substantial evidence of her claims and that it was up to a jury to determine whether the application of the cold pack on July 9, 2012, was the cause of her injuries.

On June 24, 2016, the trial court entered a summary judgment in favor of the defendants. Collins timely filed an appeal. We reverse and remand.

Standard of Review

"We review a summary judgment de novo. Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala. 2002) (citing American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala. 2002) ).
" 'We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." 844 So.2d at 545 (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000) ) (citations omitted).'
"Summary judgment is appropriate only when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P."

Hooper v. Columbus Reg'l Healthcare Sys., Inc., 956 So.2d 1135, 1139 (Ala. 2006).

Discussion

Collins argues that the trial court erred in entering a summary judgment for the defendants on the basis that she had not designated an expert witness. Specifically, she contends that expert testimony is not required in this case to establish either the standard of care or the causal connection between the defendants' acts and her injuries.

"To maintain a medical-malpractice action, the plaintiff ordinarily must present expert testimony from a 'similarly situated health-care provider' as to (1) 'the appropriate standard of care,' (2) a 'deviation from that standard [of care],' and (3) 'a proximate causal connection between the [defendant's] act or omission constituting the breach and the injury sustained by the plaintiff.' Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala. 1991) (quoting Bradford v. McGee, 534 So.2d 1076, 1079 (Ala. 1988) ). The reason for the rule that proximate causation must be established through expert testimony is that the issue of causation in a medical-malpractice case is ordinarily 'beyond "the ken of the average layman." ' Golden v. Stein, 670 So.2d 904, 907 (Ala. 1995), quoting Charles W. Gamble, McElroy's Alabama Evidence, § 127.01(5)(c), p. 333 (4th ed. 1991). The plaintiff must prove through expert testimony 'that the alleged negligence "probably caused the injury." ' McAfee v. Baptist Med. Ctr., 641 So.2d 265, 267 (Ala. 1994)."

Lyons v. Walker Reg'l Med. Ctr., 791 So.2d 937, 942 (Ala. 2000). It is well settled that there is an exception to the rule requiring expert testimony " 'in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.' " Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala. 1984) (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala. 1983) ); see also Anderson v. Alabama Reference Labs., 778 So.2d 806 (Ala. 2000).

The following situations have been recognized as exceptions to the general rule that the plaintiff in a medical-malpractice action must proffer independent expert medical testimony:

" '(1) where a foreign instrumentality is found in the plaintiff's body following surgery; 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment; 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor's allegedly negligent conduct.' "

Allred v. Shirley, 598 So.2d 1347, 1350 (Ala. 1992) (quoting Holt v. Godsil, 447 So.2d 191, 192-93 (Ala. 1984) (citations omitted in Allred )); see also Anderson v. Alabama Reference Labs., supra.

In Ex parte HealthSouth Corp., 851 So.2d 33 (Ala. 2002), this Court explained that the list of exceptions in Allred to the general rule requiring expert testimony was illustrative and not exclusive. The Court went on to explain that the first two examples were related to those categories of cases in which the lack of skill is so apparent as to be understood by a layperson and required only common knowledge and experience to understand it. The Court noted that the third and fourth examples set out in the list of exceptions had nothing to do with evidence within the common knowledge of the jury, because those exceptions to the rule requiring the proffer of expert testimony are where an authoritative treatise is offered or the plaintiff is a medical expert qualified to evaluate the health-care provider's allegedly negligent conduct.

The HealthSouth Court went on to "reformulate" the exceptions to the general rule requiring expert testimony in medical-malpractice actions as follows:

"[T]o recognize first, a class of cases ' "where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it," ' [ Tuscaloosa Orthopedic Appliance Co. v.] Wyatt, 460 So.2d [156] at 161 [ (Ala. 1984) ](quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala. 1983) ), such as when a sponge is left in, where, for example, the wrong leg is operated on, or, as here, where a call for assistance is completely ignored for an unreasonable period of time. A second exception to the rule requiring expert testimony applies when a plaintiff relies on ' " 'a recognized standard or authoritative medical text or treatise,' " ' Anderson [v. Alabama Reference Labs., 778 So.2d [806] at 811 [ (Ala. 2000) ], or is himself or herself a qualified medical expert."

851 So.2d at 39. The Court's reformulation of categories in HealthSouth essentially clarifies the exceptions to the general rule requiring expert testimony in medical-malpractice actions by emphasizing in the first exception as reformulated that there are situations where the lack of skill is so apparent as to be understood by a layperson, thereby requiring only common knowledge and experience to understand it, and that further the list of examples of such situations was not exhaustive but merely set out examples of possible situations. In the second exception as reformulated, the Court simply combines the use of an authoritative treatise and the plaintiff's own testimony as a medical expert as the second exception to the general rule.

As stated earlier, we view the evidence at the summary-judgment stage in a light most favorable to Collins as the nonmovant for summary judgment. Harris v. Health Care Auth. of Huntsville, 6 So.3d 468 (Ala. 2008). In the instant case, Collins's knee was treated with a cold pack. The evidence, when viewed in a light most favorable to Collins, indicates that the cold pack had been in the refrigerator for seven days, that it had not been thawed when Collins arrived for her appointment, and that it was hard on the day of her treatment in contrast to her treatment on other visits. Collins felt heat when the cold pack was removed from her knee. Collins developed blisters on her knee following the treatment and later scarring. It was not necessary for Collins to present independent expert testimony where her medical-malpractice case requires only common knowledge and experience to understand what is akin to frostbite. See, e.g., McGathey v. Brookwood Health Servs., Inc., 143 So.3d 95 (Ala. 2013) (expert testimony was not required in medical-malpractice action to establish a breach of the standard of care by a hospital employee in failing to ensure that a metal bar used to keep the plaintiff's arm in place was sufficiently cool following a 270-degree sterilization process before it was attached to the plaintiff's arm); Walker v. Southeast Alabama Med. Ctr., 545 So.2d 769 (Ala. 1989) (holding that expert testimony not necessary in medical-malpractice action where plaintiff was injured when bed rail was left in the down position contrary to doctor's orders); Therrell v. Fonde, 495 So.2d 1046 (Ala. 1986) (holding that expert testimony was not necessary to withstand summary judgment in medical-malpractice action where the company refused to allow speedier transport of the injured worker to the hospital and company doctor did nothing to prevent the delay in transporting the worker and did not look at the worker's hand, which had been crushed); Lloyd Noland Found., Inc. v. Harris, 295 Ala. 63, 322 So.2d 709 (1975) (holding that expert testimony was not necessary in medical-malpractice action where plaintiff's leg was burned after the application of hot plaster cast that had not been properly cooled); and Ford v. Stringfellow Mem'l Hosp., 39 So.3d 184, 192-93 (Ala. Civ. App. 2009) (holding that patient was not required to provide expert testimony on claims against hospital because "[w]hether a hospital's employees are under a duty to properly and sufficiently cool surgical equipment and instruments before their use in surgery, whether the wrist traction tower was not sufficiently cooled after it was sterilized, and whether the heat from the wrist traction tower caused a third-degree burn to Ford's upper arm are all matters that can be easily understood and determined by the average person without the aid of a medical expert. Simply put, the present case fits within the 'class of cases " 'where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it....' " ' Ex parte HealthSouth Corp., 851 So.2d at 39. See also Lloyd Noland Found., Inc. v. Harris, 295 Ala. 63, 66, 322 So.2d 709, 711-12 (1975) (expert medical testimony not necessary in case involving burn to leg of patient caused by application of cast that had not been properly cooled).").

Collins further argues that it was also not necessary for her to present expert testimony establishing the additional issue of causation. In Sorrell v. King, 946 So.2d 854, 862-63 (Ala. 2006), this Court stated:

"A plaintiff in a medical-malpractice action must also present expert testimony establishing a causal connection between the defendant's act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala. 1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala. 2003) ; University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala. 1994) ; and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala. 1988). To prove causation in a medical-malpractice case, the plaintiff must demonstrate ' "that the alleged negligence probably caused, rather than only possibly caused, the plaintiff's injury." ' Bradley, 878 So.2d at 266 (quoting University of Alabama Health Servs., 638 So.2d at 802 ). See also DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala. 2003) (' "There must be more than the mere possibility that the negligence complained of caused the injury; rather, there must be evidence that the negligence complained of probably caused the injury." ' (quoting Parker v. Collins, 605 So.2d 824, 826 (Ala. 1992) )); and Pendarvis v. Pennington, 521 So.2d 969, 970 (Ala. 1988) (' "The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury." ' (quoting Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala. 1985), and citing Baker v. Chastain, 389 So.2d 932 (Ala. 1980) )). In Cain v. Howorth, 877 So.2d 566 (Ala. 2003), this Court stated:
" ' " 'To present a jury question, the plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have "selective application" to one theory of causation.' " '
" 877 So.2d at 576 (quoting Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala. 2002) ). However, the plaintiff in a medical-malpractice case is not required to present expert testimony to establish the element of proximate causation in cases where 'the issue of proximate cause is not ... "beyond the ken of the average layman." ' Golden v. Stein, 670 So.2d 904, 908 (Ala. 1995). Therefore, '[u]nless "the cause and effect relationship between the breach of the standard of care and the subsequent complication or injury is so readily understood that a layperson can reliably determine the issue of causation," causation in a medical-malpractice case must be established through expert testimony.' DCH Healthcare Auth., 883 So.2d at 1217-18 (quoting Cain, 877 So.2d at 576 )."

In the instant case, the procuring and application of the cold pack was within the exclusive control of the defendants, and no evidence was presented indicating that Collins contributed to her injuries. Blistering and subsequent scarring does not ordinarily occur following the application of a cold pack, absent negligence. The causative relationship between Collins's injury and the defendants' acts are such that it can be readily understood, to the extent that a layperson can reliably determine the issue of causation without independent expert testimony to assist in that determination.

Based on the foregoing, we reverse the summary judgment in favor of the defendants, and we remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Parker, Murdock, Shaw, Main, and Wise, JJ., concur.

Bryan, J., concurs in the result.

      Apparently, the cold packs were filled with gel or some similar material.

      We note that it is not necessary for a plaintiff to produce an independent expert to establish a requisite element of a medical-malpractice claim where the testimony of the defendant establishes that element. Timmerman v. Fitts, 514 So.2d 907 (Ala. 1987) ; see also Ford v. Stringfellow Mem'l Hosp., 39 So.3d 184, 191 (Ala. Civ. App. 2009) ("Even when expert testimony is required to establish certain elements of a plaintiff's medical-malpractice claim, the plaintiff need not produce an independent expert witness to provide that testimony; instead, the plaintiff may rely on the testimony of the defendant to establish the elements of the claim for which expert testimony is required. See Timmerman, 514 So.2d at 913 ; Wilson v. Manning, 880 So.2d 1101, 1110-11 (Ala. 2003) ; and Dansby v. Hagood, 719 So.2d 839, 842 (Ala. Civ. App. 1998).").