author: CHAISSON, J.

text:
    STATE of Louisiana v. Robert COLLINS
    NO. 18-KA-4
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, ROBERT COLLINS, Lieu T. Vo Clark
    DEFENDANT/APPELLANT, ROBERT COLLINS, In Proper Person
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   CHAISSON, J.

Defendant, Robert Collins, appeals his conviction and sentence for pornography involving juveniles. For the reasons that follow, we affirm defendant's conviction and sentence, and we further grant appellate counsel's motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On June 17, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with pornography involving juveniles, in violation of La. R.S. 14:81.1. Defendant, through counsel, pled not guilty at his arraignment.

On December 10, 2015, defendant withdrew his plea of not guilty and, after being advised of his rights, pled guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to seven years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. In addition, defendant was advised of the sex offender notification/registration requirements and was ordered to register as a sex offender for fifteen years after his release from prison.

Defendant thereafter filed pro se motions to reduce and/or modify sentence, to allow home incarceration and/or community service, and for reconsideration of sentence, all of which were denied by the trial court. On October 30, 2017, the trial court granted defendant an out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. State v. Bradford , 676 So.2d at 1110.

In this case, defendant's appellate counsel has complied with the procedures for filing an Anders brief. She sets forth the procedural history of the case and notes the limited facts in light of defendant's guilty plea. Appellate counsel asserts that before defendant changed his plea from not guilty to guilty, he was fully informed of the legal consequences of doing so by both his trial counsel and the trial court. Further, appellate counsel contends that an examination of the plea colloquy reveals that the trial court was thorough in explaining and making sure defendant understood the rights he was waiving by pleading guilty. Appellate counsel also notes that defendant was sentenced in accordance with the plea agreement, and therefore, he is restricted from appealing his sentence. Having made a conscientious and thorough review of the trial court record and finding no non-frivolous issues to raise on appeal and no rulings of the trial court that arguably support the appeal, appellate counsel requests permission to withdraw as attorney of record for defendant. In addition to appellate counsel's brief, defendant has filed a pro se supplemental brief, in which he challenges the sentence imposed.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our review supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmity or irregularity in defendant's guilty plea that would render it invalid. The transcript of the guilty plea proceeding and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. In addition, the record reflects that defendant was advised by the trial court and in the waiver of rights form of the potential sentencing range for the charged offense and of the actual sentence that would be imposed upon acceptance of his guilty plea. Defendant indicated during the guilty plea colloquy that he agreed to the registration and notification requirements for a sex offender and also acknowledged receipt of copies of the registration and notification statutes. Further, defendant advised the trial court that no one used any force, intimidation, coercion, or promise of reward in order to make him plead guilty. After a very thorough colloquy with defendant, the trial court accepted defendant's plea as knowingly, intelligently, freely, and voluntarily made. Based on the foregoing, we find that defendant's guilty plea does not present any issues for appeal.

We now turn our attention to defendant's sentence. In his pro se supplemental brief, defendant challenges the imposed sentence of seven years on the basis that the trial court failed to individualize the sentence to the circumstances of his case. In his brief, defendant asserts that when imposing sentence, the trial court only knew his age and had no knowledge about his heart condition, his chronic back condition, or the number of people he supports. In light of these factors, defendant requests that this Court vacate the imposed sentence of seven years and resentence him to the minimum sentence of five years.

In the present case, defendant was advised during the guilty plea colloquy and in the waiver of rights form that upon acceptance of his guilty plea, he would be sentenced to seven years at hard labor without benefit of parole, probation, or suspension of sentence. When questioned by the trial court, defendant indicated that he understood the sentence that would be imposed upon acceptance of his guilty plea. Defendant was thereafter sentenced in accordance with the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Carroll , 17-17 (La. App. 5 Cir. 6/29/17), 224 So.3d 1179, 1187 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Further, we note that defendant's sentence falls within the sentencing range prescribed by the statute and that his plea agreement was beneficial to him in that he received a sentence substantially less than the maximum possible penalty. See La. R.S. 14:81.1(E)(1)(a) . Thus, we find that defendant's sentence presents no issues for appeal and that defendant's pro se argument relating to his sentence has no merit.

Lastly, we have reviewed the record for errors patent and have found none that require corrective action. 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. 5th Cir. 1990).

DECREE

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record for defendant, and we affirm defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      See Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      La. R.S. 14:81.1(E)(1)(a) provides for a term of imprisonment "at hard labor for not less than five years or more than twenty years, without benefit of parole, probation, or suspension of sentence."


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    WHOLESALE AUTO GROUP, INC. v. LOUISIANA MOTOR VEHICLE COMMISSION
    NO. 17-CA-613
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, WHOLESALE AUTO GROUP, INC., Mark D. Plaisance
    COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA MOTOR VEHICLE COMMISSION, Adrian F. LaPeyronnie, III
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   WICKER, J.

Appellant, Wholesale Auto Group, Inc. ("Wholesale"), appeals the district court's August 2, 2017 judgment dismissing its "Petition for Appeal of Administrative Adjudication" for lack of jurisdiction, as the petition was impermissibly filed on its behalf by a non-lawyer corporate representative and therefore, without effect. For the reasons that follow, we affirm the district court's judgment.

Factual and Procedural History

On March 13, 2017, the Louisiana Motor Vehicle Commission ("LMVC") conducted a hearing addressing a complaint that Wholesale had engaged in both the unlicensed business of financing motor vehicles and in misleading and prohibited advertising for the period between January 27, 2015, and March 13, 2017, all in violation of Louisiana law. Following its hearing, on April 19, 2017, LMVC issued its judgment against Wholesale in both regards, finding Wholesale had violated both La. R.S. 6:969.35 and Louisiana Administrative Code 46.V.703, 713, 745 and 749. LMVC assessed a $100,000.00 fine against Wholesale as well as costs in the amount of $35,583.56, related to the LMVC proceedings, and $2,940.24, related to the Twenty-Fourth Judicial District Court proceedings. Wholesale was represented by counsel during the LMVC proceedings. Thereafter, on May 12, 2017, in response to the judgment, fine, and costs assessed, Wholesale filed a "Petition for Appeal of Administrative Adjudication and Request for Stay Order Pending Appeal" in the Twenty-Fourth Judicial District Court. Danny Alonzo, Wholesale's corporate agent and owner, filed the appellate petition in the 24th Judicial District Court on Wholesale's behalf. Alonzo is not licensed to practice law in Louisiana. Wholesale in its petition for administrative appeal sought reversal of LMVC's April 19, 2017 judgment, arguing the judgment (1) violates the Louisiana Constitution; (2) violates the Louisiana Administrative Procedure Act; (3) exceeds the statutory authority of the Motor Vehicle Sales Finance Act; and (4) is not supported by the preponderance of the evidence. On May 16, 2017, pending a hearing on the merits of the appeal, the Twenty-Fourth Judicial District Court issued an order staying the execution of the LMVC judgment.

In response to Wholesale's petition for administrative appeal, LMVC filed an "Opposition to Rule Nisi and Request for this Court's Dismissal of Appeal Ex Proprio Motu ," arguing that Wholesale's petition for appeal was null and without legal effect because Danny Alonzo, as a non-lawyer corporate agent for Wholesale, was not authorized to represent Wholesale, and had engaged in the unlawful practice of law in violation of La. R.S. 37:213. Consequently, LMVC argued that because the petition for appeal was not properly filed within thirty days of the mailing of the notice of judgment, pursuant to La. R.S. 49:964(B), the filing of the petition for appeal in the Twenty-Fourth Judicial District Court was without effect and must be dismissed.

On July 19, 2017, Wholesale filed an opposition to the request for dismissal claiming Alonzo's motion for appeal was legally valid as a corporation is entitled to tend to its own business and legal demands. Wholesale argued the filing of its petition for appeal falls within the narrow exception, set forth in La. R.S. 37:212(C), to the general rule provided in La. R.S. 37:213, precluding non-lawyers from practicing law. Wholesale argued La. R.S. 37:212 (C) generally permits a non-lawyer corporate representative to appear in court on behalf of a corporate entity, particularly in this case as the LMVC judgment issued only a fine and costs, which is distinguishable from a judgment arising out of a claim for money damages.

On July 24, 2017, the district court heard arguments on LMVC's request for dismissal and on August 2, 2017, the district court granted LMVC's motion and dismissed Wholesale's appeal. On August 15, 2017, Wholesale filed a motion for appeal, which the district court granted on August 16, 2017. This appeal follows.

Analysis

In Louisiana, as a general rule, no individual not admitted to practice law by the Louisiana Supreme Court may represent another in court. La. R.S. 37:213(A) states:

A. No natural person, who has not first been duly and regularly licensed and admitted to practice law by the supreme court of this state, no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 8 of Title 12 of the Revised Statutes, and no partnership or limited liability company except one formed for the practice of law and composed of such natural persons, corporations, voluntary associations, or limited liability companies, all of whom are duly and regularly licensed and admitted to the practice of law, shall:
(1) Practice law.

La. R.S. 37:212 defines the practice of law, stating in relevant part "[i]n a representative capacity, the appearance as an advocate, or the drawing of papers, pleadings or documents, or the performance of any act in connection with pending or prospective proceedings before any court of record in this state ...." Documents filed by a non-attorney on behalf of another individual have no legal effect. Torregano v. Imperium Builders South, LLC , 16-0644 (La. App. 4 Cir. 2/15/17), 212 So.3d 638, 642.

As a general rule, corporate entities must be represented by counsel. D.W. Thomas & Son, Inc. v. Gregory , 50,878 (La. App. 2 Cir. 11/23/16), 210 So.3d 825, 828-29.

La. R.S. 37:212 provides limited exceptions to the general rule limiting the practice of law to duly barred individuals. Specifically, La. R.S. 37:212(C) creates a narrow exception permitting non-barred individuals to act as corporate agents in a court of law for limited purposes, providing:

[n]othing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.

La. R.S. 37:212 (C).

The statutory exception allowing an authorized agent or representative-who is not a licensed lawyer-to represent a corporate entity is unartfully drafted, creating confusion regarding the exception's scope and proper application. See In re LaMartina , 16-0328 (La. 12/6/17), --- So.3d ----, 2017 WL 6031877, 2017 La. LEXIS 2881 ; First Bank & Trust v. Proctor's Cove II, LLC , 13-802 (La. App. 5 Cir. 9/24/14), 150 So.3d 418, 425 (concurring opinion), writ denied , 14-2236 (La. 1/9/15), 157 So.3d 1110.

La. R.S. 37:212(C) as currently written may be subject to at least two interpretations. Under the first interpretation, subsection (C) is read to limit non-lawyers acting as corporate agents to asserting or defending claims in an amount not exceeding $5,000.00. Under this interpretation, since the "asserting or defending any claim" language appears immediately before the clause providing for a maximum amount in dispute of $5,000.00, the statute is viewed as intending to impose this $5,000.00 cap on all claims, regardless of whether filed in a court of limited or general jurisdiction. See First Bank , 150 So.3d at 426-27 (concurring opinion). Under an alternative interpretation, that argued here by Wholesale, subsection 37:212(C) is read to limit a non-lawyer agent of a corporate entity to asserting or defending claims on the corporation's behalf in a court of limited jurisdiction not exceeding $5,000.00, but to permit an authorized partner, shareholder, officer, employee, or duly authorized agent to assert or defend a claim of any amount in a court of general jurisdiction. Id.

Wholesale argues that In re LaMartina , supra , a recent disciplinary decision rendered by the Louisiana Supreme Court, supports its proposed statutory interpretation. In LaMartina , the Supreme Court declined to discipline a suspended attorney for the unauthorized practice of law, after the suspended attorney filed documents as an agent for her family-run limited liability company. In re LaMartina , --- So.3d at ----, 2017 WL 6031877, at *1, 2017 La. LEXIS 2881, at *1. The Court found the Office of Disciplinary Counsel failed to prove by clear and convincing evidence that the attorney engaged in the unauthorized practice of law due to the ambiguity in La. R.S. 37:212 (C). Id.

Wholesale claims that the LaMartina decision supports its proposed statutory interpretation of La. R.S. 37:212(C). However, in LaMartina , the Louisiana Supreme Court rendered a per curiam opinion dismissing the LaMartina disciplinary proceedings without giving reasons and, particularly, without interpreting La. R.S. 37:212(C). Chief Justice Johnson, dissenting from the majority, wrote, "[t]he issue is whether this exception permitted the respondent to appear on behalf of the LLCs such that she did not engage in the unauthorized practice of law. In my view, rather than summarily dismissing the charges, this court should set this matter for oral argument and issue an opinion directly addressing whether Section (C)

permits a non-lawyer to represent an LLC." Id. at ---- - ----, 2017 WL 6031877, at *1, 2017 La. LEXIS 2881, at *2-3 (Johnson, C.J., dissenting opinion). In concurring in part and dissenting in part, Justice Weimer also agreed "that La. R.S. 37:212(C) is ambiguous and, thus, the respondent should not be disciplined[.] I believe this court should grant and docket this matter to bring clarity to the meaning of this statute." Id. at ----, 2017 WL 6031877, at *1, 2017 La. LEXIS 2881, at *2 (Weimer, J., concurring in part and dissenting in part).

While the Louisiana Supreme Court in the LaMartina case did not interpret the 37:212(C) exception, the Louisiana Circuit Courts of Appeal's prevailing interpretation of the statute permits a non-lawyer authorized agent to represent a corporate entity in any court only in cases in which the amount in dispute does not exceed $5,000.00. See Torregano , 212 So.3d at 641 n.2 ; Citadel Builders, L.L.C. v. Dirt Worx of La., L.L.C. , 14-495 (La. App. 5 Cir. 11/25/14), 165 So.3d 117, 123, reversed and remanded for contradictory hearing on motion to strike , 14-2700 (La. 5/1/15), 165 So.3d 908 ; see also First Bank & Trust , 150 So.3d at 426-27 (concurring opinion concluding "that in order for the exception provided in La. R.S. 37:212(C) to apply-allowing a legal entity to assert or defend a claim on its own behalf-the amount in controversy subject to the litigation may not exceed five thousand dollars.").

In a concurring opinion in First Bank & Trust, supra , the current writing judge reviewed the legislative history of the enactment of and subsequent amendments to La. R.S. 37:212, and opined that the legislative history supports the conclusion that a member or agent of a corporate entity may only appear on behalf of the entity when the amount in controversy in the litigation is under $5,000.00:

Subsection (C) was added in 1980 by Act No. 161, which provides that the enactment of Subsection (C) is to "authorize partnerships, corporations, and other legal entities to assert certain claims or enter certain defenses in courts of limited jurisdiction...." The language of Subsection (C), as added in 1980, permitted a legal entity to assert "any claim not exceeding twelve hundred dollars or defense pertaining to an open account or promissory note on its own behalf in the courts of limited jurisdiction...." In 1985, the statute was amended by Act No.783, "to increase the amount of any claim...which any partnership, corporation, or other legal entity may assert on its own behalf...." The 1985 amended language to Subsection (C) contained similar language to the pre-1985 version of the statute but raised the amount in dispute to provide that the legal entity could then assert "any claim, not exceeding two thousand dollars...."
The statute was again amended in 1992, by Act No. 673, to "raise the amount in dispute below which a partnership, corporation, or legal entity may assert claims in court through an authorized representative...." The 1992 revised version of Subsection (C) again increased the amount to five-thousand dollars. The 1992 version read as follows:
C. Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting any claim, not exceeding five thousand dollars, or defense pertaining to an open account or promissory note, or suit for eviction of tenants on its own behalf in the courts of limited jurisdiction on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.
La. R.S. 37:212(C).
Arguably, one could interpret the above version of La. R.S. 37:212(C) to limit any claim asserted by the legal entity to five thousand dollars; however, as to any "defense pertaining to an open account or promissory note, or suit for eviction of tenants[,]" the 1992 version could be read to place no limit on the amount at issue, with the exception that the litigation must be filed in a court of limited jurisdiction.
La. R.S. 37:212(C) was again amended in 2010, to delete the "defense pertaining to an open account" language and to add an "or" following "courts of limited jurisdiction[.]" The changes are reflected as follows:
Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.
I interpret the above amendment to provide that a legal entity may assert or defend any claim-not exceeding five thousand dollars-on its own behalf. The entity may assert or defend a claim on its on behalf in a court of limited jurisdiction or in any court through a duly authorized representative. The legislature, in the 2010 amended version-in effect at the time the trial court ruled on First Bank's Motion to Disqualify Keith Paul Gagnon-placed the language "asserting or defending any claim" before the language imposing the "five thousand dollar" limitation to the amount in controversy. I interpret the amended language to impose a five thousand dollar limitation to any claim or defense asserted by a legal entity on its own behalf, whether filed in a court of limited jurisdiction or in any other court. Therefore, it is my opinion that in order for the exception provided in La. R.S. 37:212(C) to apply-allowing a legal entity to assert or defend a claim on its own behalf-the amount in controversy subject to the litigation may not exceed five thousand dollars.

Frist Bank & Trust, supra, at 425-27 (Emphasis original).

This Court, in Citadel Builders, L.L.C. , supra, adopted the First Bank concurring opinion analysis interpreting La. R.S. 37:212(C). In Citadel , we found that a limited liability company could not represent itself through a corporate representative in a court of general jurisdiction as the claim, for more than one million dollars, exceeded the $5,000.00 statutory limitation provided in La. R.S. 37:212(C). Citadel Builders , 165 So.3d at 123.

Finally, we find that Wholesale's interpretation of La. R.S. 37:212(C) to limit a non-lawyer corporate representative's ability to appear on behalf of the corporation to matters in which the amount in controversy does not exceed $5,000.000 in courts of limited jurisdiction but to give such non-lawyer representatives unrestricted access in courts of general jurisdiction renders the La. R.S. 37:213 restriction prohibiting non-lawyer corporations from practicing law meaningless. This interpretation would cause the exception to overcome the general rule and would further render the first sentence of La. R.S. 37:212(C), creating the partial $5,000.00 limitation in courts of limited jurisdiction, relatively superfluous.

In this case, the disputed amount exceeds the $5,000.00 restriction. The judgment against Wholesale including fines and costs totaled $138.523.80. Therefore, because Wholesale's May 12, 2017 "Petition for Appeal of Administrative Adjudication and Request for Stay Order Pending Appeal" was filed by Danny Alonzo, who is not licensed to practice law in Louisiana, the filing is without effect and the district court properly dismissed Wholesale's appeal. See Torregano , 212 So.3d at 642 (citing La. C.C.P. arts. 2088, 2121) ; Brennan's Inc. v. Colbert , 13-0943 (La. App. 4 Cir. 9/25/13), 125 So.3d 537, 539 ; see also Senior's Club ADHC v. State through Dep't of Health & Hosps. , 15-1165 (La. App. 1 Cir. 12/22/16), 2016 WL 7439328, at *2, 2016 La. App. Unpub. LEXIS 500, at *5 (finding that a member of a limited liability company is not permitted by law to perfect an appeal; the appellate court lacks jurisdiction to hear the appeal, and the appeal must be dismissed).

Decree

For the reasons discussed above, we affirm the district court's dismissal of Wholesale's "Petition for Appeal of Administrative Adjudication."

AFFIRMED

      The judgment also stayed the collection of the assessed $100,000.00 fine, legal costs of $35,583.56 and appellate costs in the 24th Judicial District Court of $2,940.24 pending Wholesale's appeal of the LMVC's judgment.

      Pursuant to the judgment, the fine would be reduced to $25,000.00 upon Wholesale's obtaining a motor vehicle sales license for 2015, 2016, and 2017 within thirty days of judgment.

      Wholesale was represented at the administrative hearing before the LMVC by Victor R. Loraso III. At the conclusion of the hearing before the LMVC, the representation terminated. On April 24, 2017, Loraso, in correspondence to Wholesale, advised Wholesale that it had thirty days from the mailing of the judgment to appeal to the 24th Judicial District Court, and that it should retain Loraso or engage another attorney.

      This rule extends even to corporate entities with only one shareholder. Torregano , 212 So.3d at 642 n.5 ; D.W.Thomas , 210 So.3d at 829.

      In Citadel , the district court failed to hold a hearing on plaintiff's motion to strike an answer filed by defendant's non-lawyer corporate agent. Citadel Builders , 165 So.3d at 123. On appeal, this Court found the district court's failure to hold a hearing on the motion to strike was harmless error, because the failure to hold a hearing did not affect the outcome of the case as the answer was filed by an individual not licensed to practice law in Louisiana. Id. at 123. The Louisiana Supreme Court granted certiorari to determine whether the district court's failure to conduct a contradictory hearing on plaintiff's motion to strike was harmless error. Citadel Builders v. Dirt Worx of La., L.L.C. , 14-2700 (La. 5/1/15), 165 So.3d 908, 909. The Supreme Court determined that a contradictory hearing was necessary, because "plaintiff's motion to strike was based, in part, on the allegation that the answer filed on behalf of defendant was filed by an individual who is not licensed to practice law, an allegation that clearly requires supporting proof, yet a review of the record reveals no proof was offered or received." Id. at 910-11. This error was prejudicial as defendant should have had the opportunity to claim the benefit of its answer. Id. at 911. In this case, Wholesale had the opportunity to claim the benefit of Alonzo's petition for appeal at the July 24, 2017 hearing.


author: GRAVOIS, J.

text:
    STATE of Louisiana v. Keithen D. NELSON
    NO. 17-KA-634
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Andrew Decoste
    COUNSEL FOR DEFENDANT/APPELLANT, KEITHEN D. NELSON, Bruce G. Whittaker
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   GRAVOIS, J.

Defendant, Keithen D. Nelson, appeals his conviction of possession of cocaine, in violation of La. R.S. 40:967(C). For the reasons that follow, we affirm defendant's conviction and sentence, but remand the matter for correction of the commitment in accordance with this opinion.

PROCEDURAL HISTORY

On January 28, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Keithen D. Nelson, with possession of cocaine, in violation of La. R.S. 40:967(C). On March 4, 2015, defendant pled not guilty at his arraignment. On March 5 and 26, 2015, defendant filed omnibus motions, including motions to suppress statements, evidence, and identification. On June 22, 2017, the trial court heard and denied only defendant's motion to suppress evidence.

On August 14, 2017, defendant withdrew his plea of not guilty and pled guilty as charged to possession of cocaine. In accordance with the plea agreement, defendant was sentenced to two years imprisonment at hard labor; his sentence was ordered to be served concurrently with his sentences in district court case numbers 15-570 and 15-462.

Nearly one month later, on September 12, 2017, defendant filed a "Motion for Reconsideration of Sentence" under La. C.Cr.P. art. 881.1, advising the trial court that he had intended to enter his plea under State v. Crosby , 338 So.2d 584 (La. 1976). On September 15, 2017, following a hearing, the trial court advised defense counsel that it would grant the motion for reconsideration of sentence.

On September 16, 2017, defendant filed a "Motion and Order for Appeal Pursuant to State vs. Crosby ," noting his right to appeal the denial of the motions to suppress evidence, statement, and identification. On September 18, 2017, the trial court issued an "Order Amending Commitment and Sentence," wherein it granted defendant's motion for reconsideration of sentence and ordered that the sentence and commitment be amended solely to reflect that defendant's right to timely appeal under Crosby be "reserved unto him commencing on the date of this order." Also, on September 18, 2017, defendant's motion for appeal pursuant to Crosby was granted. Defendant's appeal followed.

FACTS

As defendant pled guilty, the facts were not fully developed at trial. However, the bill of information alleged that on or about January 9, 2015, defendant violated La. R.S. 40:967(C) by knowingly or intentionally possessing cocaine in Jefferson Parish.

ANALYSIS

Defendant seeks this Court's review of the denial of his motion to suppress pursuant to State v. Crosby , supra . The State argues in response that the present appeal is untimely and defendant's assigned error is procedurally barred from review.

La. C.Cr.P. art. 881.1(A)(1) provides, in pertinent part: "In felony cases, within thirty days following the imposition of sentence ... the defendant may make or file a motion to reconsider sentence." La. C.Cr.P. art. 914(B)(2) provides that a motion for appeal must be made no later than thirty days from a ruling on a motion to reconsider sentence. On the other hand, when a motion to reconsider is not filed, La. C.Cr.P. art. 914(B)(1) provides that the motion for appeal must be made no later than thirty days after the rendition of the judgment or ruling from which an appeal is taken.

Here, defendant was sentenced on August 14, 2017. He filed a motion for reconsideration of sentence on September 12, 2017, which was within thirty days of the imposition of his sentence. Defendant's motion and order for appeal pursuant to Crosby was filed on September 16, 2017. After defendant's motion to reconsider was granted orally on September 15, 2017, his motion for appeal was granted on September 18, 2017.

In the motion for reconsideration of sentence, defense counsel asserted that on the morning of the guilty plea proceeding, defendant informed him in court that he wanted to enter a "Bill Cosby Plea." When further questioned by defense counsel, defendant indicated that he wanted to "deny [his] guilt." Defense counsel informed defendant that no such plea existed, but defendant could deny his factual guilt pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defense counsel averred that upon further reflection, he believed defendant had been referring to a Crosby plea and sought to reserve his right to seek review of any adverse pretrial rulings. Therefore, defense counsel requested that the trial court "strike" defendant's sentence and "resentence him solely as to the reservation of his right to appeal any adverse rulings by the District Court pursuant to the provisions of State Louisiana [sic] v. Crosby."

Following a hearing, on September 18, 2017, the trial court issued an "Order Amending Commitment and Sentence," wherein it granted defendant's motion for reconsideration of sentence and ordered that defendant's sentence and commitment be amended solely to reflect defendant's right to appeal to this Court pursuant to Crosby and such right was "reserved unto him commencing on the date of this order."

Upon review, we find that defendant's motion for reconsideration did not actually challenge the term or nature of his sentence. Further, no term of defendant's sentence was amended, and his original sentence remained intact. The caption, or heading, of a pleading does not control, and the Court is obligated to ascertain the substance of the pleading. State ex rel. Wright v. State , 15-2328 (La. 3/24/16), 188 So.3d 1019, 1021 (per curiam ). Thus, in reviewing the substance of the pleading, rather than the caption, we find that defendant's motion was not a properly filed motion for reconsideration, and therefore, the time period provided in La. C.Cr.P. art. 914(B)(1) should apply. Accordingly, defendant's motion for appeal was untimely filed more than thirty days from imposition of his sentence.

Nevertheless, in the interest of judicial economy and to avoid useless delay, we will entertain the appeal, noting that defendant could be entitled to reinstatement of his appellate rights pursuant to State v. Counterman , 475 So.2d 336 (La. 1985).

ASSIGNMENT OF ERROR NUMBER ONE

In his only assignment of error, defendant asserts that the trial court erred by denying the motion to suppress, "as the evidence showed that appellant was too intoxicated to intelligently waive his right to remain silent." Upon review, we find that defendant did not expressly reserve his right to appeal the motion to suppress evidence at the time he entered his plea and thus has waived his right to appeal any defects in this ruling.

A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Raines , 00-1942 (La. App. 5 Cir. 5/30/01), 788 So.2d 630, 632. However, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Crosby , supra ; State v. King , 99-1348 (La. App. 5 Cir. 5/17/00), 761 So.2d 791, 793, writ denied , 00-1824 (La. 6/29/01), 794 So.2d 822. Under Crosby , a defendant may reserve his right to appeal a prior adverse ruling of the trial court. State v. Richardson , 09-714 (La. App. 5 Cir. 2/9/10), 33 So.3d 903, 906, writ denied , 10-0526 (La. 10/15/10), 45 So.3d 1109.

In the present case, both the State and defendant erroneously maintain that defendant's plea was tendered pursuant to North Carolina v. Alford . At the beginning of the guilty plea proceeding, defense counsel stated that defendant sought to withdraw his plea of not guilty and tender a plea of guilty as charged to one count of possession of cocaine. Both the executed waiver of rights form and the original minute entry/commitment fail to reflect that defendant entered an Alford plea. After the colloquy with defendant, the trial court accepted defendant's plea to possession of cocaine and imposed defendant's sentence. The guilty plea proceeding was concluded. As shown below, the record supports that defendant entered an unqualified plea of guilty as charged to possession of cocaine.

At the beginning of the guilty plea proceeding for all three district court cases, defendant indicated that he had a question for the trial court. The following exchange occurred:

Defendant: "I would like to ask, dealing with the-the situation with the-with the Bill Cosby (phonetically spelled) Act, how would that go as far as dealing with the guilty plea?"
The Court: "What, the Alford Plea?"
Defendant: "Yeah; yes, sir."
The Court: "Well it's-you're just-you're not going to admit your guilt."
Defendant: "Right."
The Court: "Okay? You're going to maintain all of your rights; it's just going to be a plea under an Alford Plea."
Defendant: "Alright. Then, also with the-me and Somoza [defense counsel] had come to some type of agreement in forms and fashion of a-a drug program in-"
Defense counsel: "I-I was going to ask for that at the-after sentencing, Your Honor. We were going to ask for the-that Your Honor recommend Mr. Nelson for the Steve Hoyle Substance Abuse Program at the Bossier Parish Correctional Facility, which I believe he does qualify for. And any and [sic] other self-help, or self-improvement programs for which he would be qualified.
The Court: Okay. I always do the self-help. And we'll go over that when we go through the plea.

According to the record, defendant subsequently entered an Alford plea to the charge of armed robbery with a firearm in district court case number 15-570, but not as to the charge of possession of cocaine.

The signed waiver of rights form and colloquy with the trial court are void of any suggestion that the guilty plea was made subject to the reservation of appellate review of the trial court's denial of defendant's motion to suppress evidence. Although defendant inquired about the "Bill Cosby Act" during the colloquy and defense counsel urged that this indicated defendant's intention to reserve review of the motion to suppress, under the particular facts and circumstances of this case, we find that the singular mention of a "Bill Cosby Act" was not sufficient to reserve defendant's right to seek review of the ruling. Upon review, we find that defendant's failure to reserve the right to appeal the denial of the motion to suppress under Crosby , supra , at the time he entered his guilty plea has precluded his right to appeal the trial court's ruling on the motion to suppress evidence and he has waived his right to appellate review of his arguments. See State v. Runnels, 15-172 (La. App. 5 Cir. 12/23/15), 182 So.3d 1245, 1251-52. Accordingly, because defendant entered an unqualified plea of guilty, we decline to address the merits of this assignment of error.

ERRORS PATENT REVIEW

The record was reviewed 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. 5th Cir. 1990).

Following the granting of the motion for reconsideration, the trial court issued an amended hard labor commitment containing the notation that it was adding defendant's right to appeal pursuant to Crosby . In light of the above findings, we find that this is inconsistent with the transcript, which reflects that defendant entered an unqualified plea of guilty to possession of cocaine. Accordingly, to ensure accuracy of the record, we remand the matter to the trial court to correct the hard labor commitment to reflect the proper nature of defendant's guilty plea, i.e. , to reflect that defendant entered an unqualified plea of guilty to possession of cocaine. We further direct the Clerk of Court to transmit the original of the corrected hard labor commitment to the appropriate authorities to which defendant had been sentenced and to the Department of Corrections' Legal Department. See La. C.Cr.P. art. 892(B)(2) ; State ex rel. Roland v. State , 06-0244 (La. 9/15/06), 937 So.2d 846 (per curiam ); State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are affirmed. The matter is remanded for correction of the commitment in accordance with this opinion.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT

      The present appeal, 17-634, is a companion to appeal number 17-650. Both appeals involve defendant, but for different convictions stemming from the same incident. The present appeal pertains to district court case number 15-461, while 17-650 pertains to district court case number 15-570.

      Defendant simultaneously pled guilty to the charge of armed robbery with a firearm in district court case number 15-570. He also pled guilty to misdemeanor possession of marijuana, first offense, in district court case number 15-462. Defendant does not seek this Court's review of the possession of marijuana conviction and sentence.

      The trial court also recommended any and all self-help programs to defendant, specifically the Steven Hoyle's Substance Abuse Center at Bossier City Correctional.

      Although a motion to suppress identification was filed as part of defendant's omnibus motions, such a motion was never argued during the suppression hearing. Importantly, a motion to suppress statement also was not heard. When the trial court does not hear or rule on a pretrial motion, and the defendant does not object prior to pleading guilty, the motion is considered waived. State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      It is noted that the motion references both the conviction of armed robbery with a firearm and possession of cocaine, but does not distinguish that one was pursuant to Alford and one was not.

      After the time for appealing has elapsed, the conviction and sentence are no longer subject to review under the ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. The appropriate procedural vehicle for a defendant to exercise his right to appeal, after the delay provided by Article 914 has expired, is an application for post-conviction relief. State v. Counterman , 475 So.2d at 338-39. La. C.Cr.P. art. 930.8 provides time limitations for filing an application for post-conviction relief, including applications which seek an out-of-time appeal. Such applications shall not be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922 (finality of judgment on appeal), unless certain exceptions apply. See La. C.Cr.P. art. 930.8(A).

      The "best interest" or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. In Alford , the United States Supreme Court ruled that a defendant may plead guilty, without foregoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." Alford , 400 U.S. at 31, 91 S.Ct. at 164.

      The trial court amended the Uniform Commitment Order (UCO) after it granted the motion for reconsideration. However, the amended UCO maintains that defendant entered an unqualified plea of guilty; thus, it requires no correction.


author: BEAM, JUSTICE, FOR THE COURT:

text:
    Doretha THOMPSON v. BAPTIST MEMORIAL HOSPITAL-DESOTO, INC. and James E. Fortune, M.D.
    NO. 2016-CA-00063-SCT
    Supreme Court of Mississippi.
    April 26, 2018 Rehearing Denied July 19, 2018
    ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY
    ATTORNEYS FOR APPELLEES: WALTER ALAN DAVIS, KEVIN O'NEAL BASKETTE, ALBERT C. HARVEY
    BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. Doretha Thompson appeals from the DeSoto County Circuit Court's judgment on a jury verdict in favor of the defendants, Baptist Memorial Hospital DeSoto, Inc. (BMH-D), and James Fortune, M.D., in a medical malpractice case. A surgical sponge inadvertently was left inside Thompson's abdomen during an operation performed by Dr. Fortune to remove Thompson's gallbladder in 2004. The sponge was not discovered until 2011, when Thompson presented to the emergency room in Bolivar County complaining of stomach pains.

¶ 2. Dr. Fortune admitted at trial that the sponge inadvertently had been left in Thompson's abdomen during the 2004 operation. And he admitted the sponge was the cause of Thompson's 2011 injury and complications. But Dr. Fortune claimed he did not deviate from the applicable standard of care, which he contended did not require him to count or keep track of the number of surgical sponges used in the operation, but which allowed him to rely on an accurate sponge count conducted by a nurse and scrub technician assisting in the 2004 procedure, both of whom were employed by BMH-D. All parties provided expert testimony in support of their respective cases.

¶ 3. This appeal followed, with numerous issues raised by Thompson. The only one we find that has merit is Thompson's claim the jury was not properly instructed on the law in this case. As will be explained, this constituted reversible error, and Thompson is entitled to a new trial against both defendants.

FACTS

¶ 4. In June 2004, Dr. Fortune performed a cholecystectomy on Thompson at BMH-D, to remove her gallbladder. Dr. Fortune had intended to perform a less-invasive laparoscopic procedure, but the inflamation around Thompson's gallbladder was too great. So Dr. Fortune converted the procedure to an open operation, having informed Thompson beforehand this might be necessary. The surgery lasted approximately ninety-five minutes, and Dr. Fortune successfully removed Thompson's gallbladder. But a four-by-four-inch "ray-tec" surgical sponge was left in Thompson's abdomen by mistake.

¶ 5. Shortly after surgery, Thompson developed an abscess, along with fluid collection in her abdomen. She displayed an elevated white blood cell count and a decreased hematocrit level. Dr. Fortune became concerned, so he ordered a CT scan of the abdomen. He said that, while such a scenario is not uncommon, he wanted to ensure there was nothing that he needed to attend to in the abdomen or in the surgical field, "[and] to see if there's any infection, any fluid, whether that be a hematoma with bleeding or whether that be inflammatory fluid or whether inflammatory fluid has become infected or forming an abscess or whether there's any fluid there from a bile leak."

¶ 6. Dr. Fortune asked Mid-South Imaging and Therapeutics (MSIT) to perform a CT scan of Thompson's abdomen. A scan was conducted, and MSIT made a report to Dr. Fortune. Dr. Fortune said the report noted "fluid collection in the gallbladder fossa." Dr. Fortune indicated that he did not review the CT scan (s).

¶ 7. Dr. Fortune then consulted with a "interventional radiologist" employed by MSIT to drain the fluid. The radiologist performed a "fluid gallbladder fossa" by placing a drain inside Thompson's abdomen by "CT guidance," which drained and cultured the fluid.

¶ 8. Dr. Fortune was asked on direct examination whether he had been there for the procedure. Dr. Fortune stated: "No, sir. Basically, [the interventional radiologist] doesn't come into surgery with my expertise, and I don't go into his expertise there because I'm not qualified to do so. That's his expertise."

¶ 9. After MSIT performed the procedure, Dr. Fortune read the report, which said the area was drained successfully and indicated no other problems in Thompson's abdomen other than the fluid. Thompson's white blood cell count returned to normal, and Thompson continued "a more usual postoperative course ...." Dr. Fortune discharged Thompson from the hospital on July 6, 2004.

¶ 10. Thompson testified that for years afterward, she experienced intermittent abdominal pain, which she treated herself with over-the-counter medications. In November 2011, Thompson went to the emergency room at Bolivar County Medical Center complaining of abdominal pain on the right side of her abdomen. An abdominal scan detected a "foreign body" inside Thompson's abdomen. Doctors suspected it was a surgical sponge from the 2004 gallbladder surgery. Bolivar County Medical Center transferred Thompson to BMH-D for further care.

¶ 11. On November 21, 2011, Dr. Fortune performed another open operation on Thompson to retrieve and remove the sponge. After locating and removing the sponge, Dr. Fortune found a "pin-size communication of fistula to the first portion of the duodenum[, along] with associated abscess." Dr. Fortune said this injury was caused by the sponge. In his opinion, the "hole" created by the sponge most likely developed shortly before Thompson reported to the emergency room in Bolivar County in 2011. Dr. Fortune explained that when a "hole" like that is established, "acid that accumulates in the stomach and duodenum, leak[s through causing] immediate and severe symptoms, burning symptoms or symptoms related to the acid like if you drop acid on your skin or anything, it hurts."

¶ 12. Dr. Fortune irrigated the area with saline and antibiotic solution. He treated the "fistula" caused by the sponge with medication used to treat ulcers, gastritis, or duodenitis. In Dr. Fortune's opinion, this treatment successfully healed Thompson's injury.

¶ 13. Evidence was presented that, after removal of the sponge, Thompson reported to the emergency room at Bolivar County Medical Center on at least eight occasions between 2012 and 2014. An April 2014 medical report stated: "Subjectively, the patient has a long history of abdominal pain, intermittent abdominal pain since the removal of the foreign body. Comes in this time diarrhea, nausea, vomiting, abdominal pain localized to the right upper quadrant."

¶ 14. In July 2014, Thompson was evaluated at Bolivar County Medical Center and transferred to the University of Mississippi Medical Center (UMMC) in Jackson, Mississippi, for further evaluation, where she was diagnosed with duodenitis. Thompson returned to UMMC in September 2014 for a follow-up examination, at which point the "duodenitis ha[d] resolved." Thompson was instructed to continue taking "antiacid medications and [to] come back if her symptoms returned."

Thompson's Expert Witness

¶ 15. At trial, Thompson presented expert testimony from Kenneth Larson, M.D., a general surgeon on staff at JFK Medical Center in West Palm Beach, Florida. Dr. Larson testified that Dr. Fortune had deviated from the applicable standard of care and was responsible for the surgical sponge being left in Thompson's abdomen. Dr. Larson said that if a surgeon is being careful and prudent during surgery, he or she will know what he or she is putting into the abdomen: "which instruments you're using, and when you're no longer in need of those instruments or those sponges, you're going to remove exactly as many sponges in this case as you put in." Dr. Larson said a surgeon has to have "situational awareness of that during the surgery."

¶ 16. Speaking to this particular case, Dr. Larson said Dr. Fortune properly converted the laparoscopic procedure to open surgery given the amount of inflammation surrounding the gallbladder. This allowed Dr. Fortune to push more tissue apart and to see more of the anatomy in order to complete the operation successfully. Dr. Larson opined that a surgeon such as Dr. Fortune is not expected to write down the number of sponges used, "like the nurse might," but the surgeon has a responsibility to be aware of how many sponges he is using, as he is the one ultimately in control of the equipment used, including the sponges.

¶ 17. When asked what Dr. Fortune was supposed to do once told by the nurse the sponge count was correct, Dr. Larson replied: "Well, this is getting off onto the issue that you raised. I mean there's more than one person responsible here. Ultimately, the surgeon is the one who has the ultimate responsibility for making sure that they don't leave their own surgical equipment that they put into the abdomen."

¶ 18. Dr. Larson said, "[t]he surgeon is not allowed to solely rely on the count provided by the nurses. That would be below the standard of care." Dr. Larson further testified that in his opinion, the retained sponge not only caused the 2011 injury, but it likely contributed to Thompson's subsequent presentations to Bolivar County Medical Center and UMMC in 2012, 2013, and 2014.

Surgical Report from the 2004 Procedure

¶ 19. A surgical report presented at trial shows that the 2004 procedure began at 5:05 p.m. and concluded at 6:30 p.m. Those present in the operating room during the surgery were Dr. Fortune; nurse anesthetist Larry Reed, C.R.N.A.; circulating nurse Andrea Johnson, R.N.; scrub technician Chris Lee, R.N.; and scrub technician/surgical assistant Marritta Polk. Also present in the operating room was circulating nurse Theresa Buckhalter, R.N., who entered the operating room at 6:10 p.m. to relieve Johnson. All those assisting Dr. Fortune were BMH-D employees.

¶ 20. According to the 2004 surgical report, Dr. Fortune arrived in the operating room at 5:00 p.m and left at 6:35 p.m.; Reed, 4:34 p.m. to 6:40 p.m.; Lee, 4:00 p.m. to 6:40 p.m.; Johnson, 4:34 p.m. to 6:10 p.m.; Polk, 4:30 p.m. to 6:40 p.m.; and Buckhalter, 6:10 p.m. to 6:45 p.m.

Johnson's Testimony

¶ 21. At trial, Johnson was called by Thompson to testify. Johnson was the only person, besides Dr. Fortune, present at the 2004 operation who provided testimony in this case.

¶ 22. Johnson testified to the general responsibilities of a circulating nurse for surgical procedures. She said a circulating nurse is responsible for all nonsterile aspects of a surgery, such as prepping the surgical instruments and supplies, helping with all the documentation in the case, and assisting with the patient before and after surgery. This includes bringing the surgical instruments and supplies into the operating room and getting them to the scrub technician in a sterile fashion. Johnson said they do an instrument count and a sponge count as necessary for each particular case. She said not all surgeries require sponge counts, but open operations involving the abdominal cavity always do because you are "entering into a large cavity."

¶ 23. Johnson said in a case such as this one, which initially was scheduled as a laparoscopic procedure, sponges would have been prepared for use beforehand because such procedures tend to convert to open operations. Johnson said both she and the scrub technician would have been responsible for the sponge count, which would have been conducted prior to surgery.

¶ 24. Johnson could not recall offhand the specifics of Thompson's 2004 surgery nor how many surgical sponges were used for that surgery. She said the sponge count sheet used to keep track of the sponge count was not retained with Thompson's medical records, since that was "not our standard practice to keep the actual sponge count sheets on the record."

¶ 25. Reading from the 2004 surgical report during her testimony, Johnson acknowledged a particular field contained in the report that read: "Initial count by[;] Relief count by[;] Closing count by[;] Final count by[.]" The field contained two sets of initials, Johnson's and Lee's, for each category, with the exception of the relief-count of the category, which was left blank. Johnson said this indicates to her that the sponge count was completed before she was relieved by Buckhalter, and it was unnecessary to do a relief count.

¶ 26. Johnson said if there is a discrepancy in the count, an x-ray is taken. Each sponge contains blue strips with "x-ray filaments in them" so they can be seen on x-ray. Johnson said if an x-ray was taken, she would speak to the radiologist who would inform her whether a sponge was detected. If anything was detected, she would inform the surgeon. If nothing was detected, she also would inform the surgeon, who would then continue to close the procedure.

¶ 27. Johnson said if the sponge count(s) show a discrepancy, they "addressograph those count sheets" and fill out a risk-management form which goes to risk management. According to Johnson, such information still would not go into the patient's chart.

Dr. Fortune's Testimony

¶ 28. In reference to the 2004 procedure, Dr. Fortune testified that Polk would have been on the opposite side of the surgical table facing and assisting him. The scrub technician handling the surgical tools and sponges would have been standing immediately to either Dr. Fortune's right or left side. Dr. Fortune said an assistant, such as Polk, may from "time to time" place and remove sponges during an operation, but the surgeon places and removes the sponges the majority of the time. Dr. Fortune could not recall whether Polk inserted any surgical sponges inside Thompson's abdomen.

¶ 29. Dr. Fortune said he would not, "except for extreme situations leave sponges in the abdomen." He would, however, purposely leave items such as surgical clips and "Surgicels" inside a patient, and did so for Thompson's 2004 surgery. Dr. Fortune explained that in a gallbladder removal, surgical clips are used "after you dissect out and isolate the cystic duct, ... where it joins the common duct, [and] the cystic artery, ... where it joins the hepatic artery[;] you put clips on those two structures, two usually, two to three [on] the retained side, one on the gallbladder side, and then cut those, and then dissect the gallbladder out of the gallbladder bed."

¶ 30. He said metal surgical clips were used in the 2004 surgery. Dr. Fortune explained that the body has an inflammatory reaction to a foreign object left in the body, such as a surgical clip, which should taper off in the months following an operation. He said the body "winds up isolating and walling off that object to a varied degree."

¶ 31. Dr. Fortune said that after he removed Thompson's gallbladder, he first visually inspected the surgical field for sponges. Next, he felt around the area with his hands and relied upon the circulating nurse and the surgical technician to tell him verbally there was "a correct sponge count, lap count, needle count, and instrument count."

¶ 32. Dr. Fortune said if a sponge count is not correct, he immediately stops the procedure and does not continue until the missing object is discovered. He first visually inspects the area. Then he feels around some more, careful not to do any harm in that exercise. At the same time, the surgical team looks around areas on and around the surgical table, and around the room. Dr. Fortune said, "If it's not found by that search, then I do an x-ray."

¶ 33. When asked if he agreed with Dr. Larson's testimony that a physician should be able to recall every sponge that is placed in a patient, Dr. Fortune said he disagreed. He stated: "I can't do that. I'm focused on the operation, what I need to do to successfully complete the operation, and I can't keep in my head the issue of sponges and laps. I have to depend upon the ... surgical team in the room to do that."

¶ 34. Following the 2004 procedure, after Thompson was discharged from the hospital, Dr. Fortune said he saw Thompson a couple of times in July 2004 for follow-up examinations, at which point he removed her staples. He found that Thompson was progressing well, and he sent a report to Thompson's primary-care physician.

¶ 35. Dr. Fortune did not see or hear from Thompson again until November 2011, when a physician at Bolivar County Medical Center called Dr. Fortune to advise that a foreign body had been detected on an x-ray taken of Thompson's abdomen. Dr. Fortune had Thompson transferred to BMH-D, where another CT scan was performed by MSIT.

¶ 36. Dr. Fortune said the MSIT radiologist called him afterward and said they had found a foreign body inside Thompson's abdomen, and their impression was that it probably was a sponge. According to Dr. Fortune, the radiologist also told him they had reviewed the interventional films from 2004, and a sponge was visible on those films as well. Neither the radiologist nor the 2004 films were presented at trial in the instant matter. And Dr. Fortune testified he never saw the 2004 films himself.

¶ 37. In the 2011 operation, Dr. Fortune reopened Thompson's 2004 incision and exposed the same operative field seen in 2004. Unable to see the sponge inside the surgical field, Dr. Fortune then used an "image intensifier," which projects an x-ray image unto a television monitor. While viewing the sponge on the monitor, Dr. Thompson used a "sponge stick" to probe for the sponge, but still could not pinpoint its location. He then probed an area known as the "lesser sac" and found the sponge.

¶ 38. Dr. Fortune told the jury the lesser sac is a "blind sac or pouch, ... that is formed by the lesser omentum, which is a fatty veil between the liver and the stomach ...." He said, "[w]hen you're looking down on it, it[ ] just looks like a veil. You can't see into it." There is only "one opening to that pouch, which is directly behind the common duct."

¶ 39. In Dr. Fortune's opinion, the sponge likely got to that location during the 2004 operation, when they were trying to "expose [another] area and move the sponges and laps around that were helping to expose that area and the retractors with it." And the sponge inadvertently was pushed "into the lesser sac through the foramen of Winslow, which is the opening [of] that lesser sac, which is right below the common duct."

Dr. Fortune's and BMH-D's Experts

¶ 40. Dr. Fortune presented testimony from two surgical experts, Dr. Martin Fleming and Dr. Scott Berry, both general surgeons. BMH-D presented expert testimony from Dr. Guy Russell Voeller, a general surgeon who practices in Memphis, Tennessee, and in Mississippi.

¶ 41. Drs. Fleming and Berry both testified that the standard of care practiced by members of the medical profession allows for the operating surgeon to rely on accurate sponge counts from others assisting in the operation. They both explained why that is necessary. Dr. Voeller provided similar testimony.

¶ 42. Additional facts will be related in the analysis as necessary.

ANALYSIS

Whether the trial court erred in refusing Thompson's jury instructions: P-1 and P-2.

¶ 43. Thompson contends the trial court erred in refusing the following jury instructions:

JURY INSTRUCTION P-1
If you find from a preponderance of the evidence that a sponge was left inside of the abdomen of the Plaintiff ... by [Dr. Fortune,] then a presumption of negligence is raised that must be rebutted by [Dr. Fortune.] If you find that [Dr. Fortune] fails to rebut the presumption, and that the failure to remove the sponge was the sole proximate cause or proximate contributing cause of [Thompson's] injury, then you shall find in favor of [Thompson].
JURY INSTRUCTION P-2
If you find from the preponderance of the evidence that the explanation offered by Dr. Fortune regarding how the sponge was retained inside of the abdomen of [Thompson] was not reasonable, and that the failure to remove the sponge was the sole proximate cause or proximate contributing cause of [Thompson's] injury then you shall find for [Thompson].

¶ 44. The trial court refused these jury instructions based on arguments from Dr. Fortune and BMH-D that both constituted, or were related to, res ipsa loquitur instructions and thus were improper pursuant to Winters v. Wright , 869 So.2d 357 (Miss. 2003). Relying on Winters , the defendants argued that, since Thompson had established a prima facie case for negligence, primarily through expert testimony evidence, any jury instruction as to res ipsa loquitur was inappropriate. The defendants further contended that res ipsa doctrine merely allows for a inference of negligence; it does not require such an inference or a finding of negligence, and it does not shift the burden of proof from the plaintiff to the defendant.

¶ 45. We disagree with the defendants that these instruction were improper. Each correctly states the law that governs in this case, and the trial court erred in refusing them.

¶ 46. More than a century ago, this Court held that: "Unexplained, the leaving of a [surgical apparatus] in a patient's body by a physician is negligence[.]" Saucier v. Ross , 112 Miss. 306, 73 So. 49, 50 (1916). This is long-settled substantive law in Mississippi, and Thompson was entitled to have the jury instructed accordingly based on the facts of the case. We explain.

¶ 47. At the outset, Dr. Fortune and BMH-D are correct that under Mississippi's traditional res ipsa loquitur doctrine, a defendant may avoid a judgment even if he chooses to present no evidence to rebut the plaintiff's claim, given that, under traditional, common law res ipsa , the jury is allowed to infer negligence but it is not bound to make the inference of negligence. See Read v. Southern Pine Elec. Power Ass'n , 515 So. 2d 916 (Miss. 1987).

¶ 48. This is because res ipsa generally is regarded as an evidentiary rule, not a rule of substantive law. Johnson v. Foster , 202 So.2d 520, 524-25 (Miss. 1967). The Johnson Court noted that in applying the rule, courts sometimes fail to make or recognize a distinction between "a presumption and a permissible inference." Id. at 524 (citing as example Alabama & Vicksburg Ry. Co. v. Groome , 97 Miss. 201, 52 So. 703 (1910) ). Johnson said:

A true presumption is a rule of substantive law which compels a certain conclusion, usually a judgment, absent rebutting evidence. See 9 Wigmore, Evidence § 2491 (3d ed. 1940). On the other hand, res ipsa loquitur is a rule of circumstantial evidence from which the jury is entitled to draw an inference of the defendant's negligence. This is usually a permissible inference, however, and the jury is not bound to infer negligence even where there is no rebutting evidence.

Id.

¶ 49. Winters (a four-justice plurality opinion), relied upon here by the defendants, applied this precept to the facts of that case. In Winters , the plaintiff sued for injuries to her lower extremities she claimed resulted from a heating blanket used during surgery to repair injuries to her abdomen resulting from a gunshot accident. Id. at 359-60. Prior to trial, the plaintiff settled her claim against the blanket's manufacturer and thereafter proceeded to trial against the remaining defendants: the surgeon who repaired the plaintiff's gunshot wounds, the surgeon's clinic, and the hospital where the surgery was performed. Id. at 360. The jury returned a verdict in favor of all the defendants. Id. The plaintiff appealed claiming, inter alia , the trial court erred in denying her request for a res ipsa instruction. Id. at 362.

¶ 50. The Winters plurality held that the trial court did not err in denying a res ipsa instruction. Id. at 365. The plurality found that two alternate theories for the cause of the plaintiff's injury were presented to the jury at trial. Id. The plaintiff put forth evidence that the injury to her leg was a burn that had resulted from the heating pad used during surgery. Id. The defendants, however, put forth evidence that the injury was not a burn, but was dead tissue resulting from loss of blood circulation from the surgeon's clamping the plaintiff's aorta during surgery to stop blood loss. Id. Construing the doctrine of res ipsa with the facts of the case, the Winters plurality summarily stated, "When both sides to a dispute have put forth evidence, we find that the issue is a fact question for the jury, and thus a res ipsa loquitur instruction is inappropriate." Id. at 364.

¶ 51. In reaching its conclusion, the Winters plurality quoted extensively from DeLaughter v. Womack , 250 Miss. 190, 164 So.2d 762 (1964), overruled on other grounds by Hall v. Hilbun , 466 So.2d 856 (Miss. 1985).

¶ 52. In DeLaughter , a nurse administered a penicillin shot to a young child, as instructed by the doctor.

DeLaughter , 164 So.2d at 764. Over the next few days, the child reported back with various problems, which the doctors were unable to diagnose. Ultimately, the child lost his toes and skin off his foot, as a result of gangrene. Id. The child, through his mother, filed suit claiming the nurse was negligent in giving the injection, and that the doctors were negligent in diagnosing and treating the problem. Id. The doctors and the nurse contended at trial that the child suffered from an unusual allergic reaction to the penicillin, which resulted in the loss of his toes and part of his foot. Id. at 766. The case was submitted to a jury, resulting in a verdict in favor of the defendants. Id. at 764. The plaintiffs appealed to this Court, which reversed the judgment and remanded the case for a new trial based on a number of jury instructions this Court found were granted erroneously by the trial court on behalf of the defendants.

¶ 53. The plaintiffs also claimed on appeal in DeLaughter that the trial court had erred in not allowing a res ipsa instruction. The DeLaughter Court disagreed with the plaintiffs on that issue, and explained as follows:

In the case now before us, all of the facts have been presented in evidence. The plaintiff made out a prima facie case of negligence. The cause of the injury is shown to have been an injection of penicillin. The results and circumstances are such as would warrant a jury in finding that the penicillin injection was negligently administered intravenously. On the other hand the defendants have shown that the nurse was competent and skilled, and the child was suffering with a peculiar allergy. Both questions are for the jury's determination .... All the facts are before the jury. There is no room for presumptions. All of the inferences are swallowed up in the known facts and circumstances, making up the issue for the determination of the jury. The doctrine of res ipsa loquitur should be applied cautiously, and in this case we have reached the conclusion that the doctrine should not have been applied. There is no necessity to apply the doctrine in the instant case, because the plaintiff made out a prima facie case of negligence, which, in any case, required the defendants to go forward with the evidence. 38 Am. Jur., Negligence, § 289, p. 981. The doctrine does not apply where there is direct evidence as to the precise cause. 38 Am. Jur. § 296, p. 992, supra .

Id. at 771 (emphasis added). The Winters plurality quoted this same language from DeLaughter in reaching its conclusion that a res ipsa instruction was inappropriate in the case because evidence had been presented from both sides on the question of negligence.

¶ 54. The case here though is different from Winters and DeLaughter . As Thompson correctly points out, the rule first announced in Saucier, supra , and reaffirmed by this Court in Long v. Sledge , 209 So.2d 814 (Miss. 1968), and in Coleman v. Rice , 706 So.2d 696 (Miss. 1997), governs.

¶ 55. In Saucier , the plaintiff sued a surgeon claiming the surgeon had negligently left a four-inch rubber tube in her body following an operation. Saucier , 73 So. at 50. At trial, the trial court excluded the plaintiff's evidence and directed a judgment for the defendant surgeon. Id. This Court reversed the trial court, holding as follows:

This was error. Unexplained, the leaving of a four-inch rubber tube in a patient's body by a physician is negligence, and it occurs to us that it would be very difficult for a physician to explain how he could leave a rubber tube in a patient's body, until the wound healed over same, and not be guilty of negligence in the treatment of his patient.
It is no answer to plaintiff's suit that the rubber tube may have been left in her wound by an attendant nurse or another physician in the hospital. She testified that Dr. Ross was her physician and operated on her and attended her while in the hospital, and that the other physicians were acting under his directions in the treatment of her, and that he discharged her from the hospital at the time she left.

Id. Saucier remanded the case to the trial court.

¶ 56. In Long , the plaintiff sued a hospital and two surgeons for leaving an eight-inch, scissors-shaped hemostat inside the plaintiff during a hernia operation. Long , 209 So.2d at 815-16. The case went to trial, during which a nonsuit was taken by the plaintiff as to the hospital. Id. at 816. At the conclusion of testimony, the plaintiff requested a peremptory instruction on the question of liability, which the trial court denied. Id. The case went to the jury, which returned a verdict in favor of the doctors. Id.

¶ 57. The plaintiff thereafter filed a motion for a judgment notwithstanding the verdict (JNOV), and a motion for a new trial. Id. The trial judge granted the plaintiff a JNOV, stating for the record that it was the judge's opinion that he had erred in failing to grant a peremptory instruction against the defendants on the question of liability. Id. Another trial was had on the question of damages, and the jury returned a damages award in favor of the plaintiff. Id.

¶ 58. The defendants appealed, claiming the trial court had erred in granting a JNOV in favor of the plaintiff. Id. at 819. This Court affirmed the trial court's decision.

¶ 59. Long first noted the general standard of malpractice liability in Mississippi: "Malpractice liability may result either through lack of skill or neglect to apply it, if possessed. The two are separate, distinct basis [sic] of liability." Id. at 817 (quoting Newport v. Hyde , 244 Miss. 870, 875, 147 So.2d 113, 115 (1962) ).

¶ 60. Long then stated: "However, in cases where the alleged malpractice involves the leaving of a foreign object ... in the patient's body by a surgeon, ... the rule first announced by this Court in Saucier [applies]."

Unexplained, the leaving of a four-inch rubber tube in a patient's body by a physician is negligence, and it occurs to us that it would be very difficult for a physician to explain how he could leave a rubber tube in a patient's body, until the wound healed over same, and not be guilty of negligence in the treatment of his patient.

Id. at 817-18 (quoting Saucier , 112 Miss. at 314, 73 So. at 50 ).

¶ 61. Applying the Saucier rule to the facts of the case, Long found that the defendants had admitted leaving the hemostat in the plaintiff's body, but they sought to avoid liability "by what amounts to a plea of confession and avoidance in that they were confronted with a sudden emergency during the course of the operation, which emergency caused them to leave the hemostat in [the patient's] body." Id. at 818. Long explained that "[u]nder this plea, appellants assumed the burden of proof of the sudden emergency and that it was of such nature to exculpate them from negligence." Id.

¶ 62. Construing the evidence, Long said "there is a serious question whether the sudden emergency doctrine has any application under the facts of this case." Id. Long found that the "only effect that the emergency had was to divert [the surgeon's ] attention from what [he] was doing at the moment and while in the process of overcoming the emergency, the hemostat was pushed out of his sight." Id. at 819. But the surgeon ordinarily would return to that part of the operation being performed at the time, and the surgeon here forgot he was previously in the process "of tying off the blood vessel and that he still had the upper end of the vessel clamped." Id. Therefore, "[w]e are of the opinion that his failure to remember constitutes negligence." Id.

¶ 63. Long stated further, "it is apparent that if [the surgeon] had made a proper exploration of [the patient's] abdomen after the operation, he certainly should have discovered an object as large as this hemostat." Id. Long noted that, when in the opinion of the surgeon, the life of the patient is being jeopardized by the operation, "he has in some courts been exculpated from negligence in failing to make a thorough exploration before closing the incision." Id. But the surgeons "were not faced with such an emergency nor did they so contend." Id. Accordingly, "[w]e are of the opinion that [the surgeon's] own testimony shows that he was guilty of negligence in leaving the instrument" in the patient's body, and "the trial court should have granted a peremptory instruction requested by [the plaintiff] instructing the jury that as a matter of law [the surgeon] was guilty of negligence." Id.

¶ 64. Coleman is the latest case from this Court dealing with a surgical apparatus unintentionally left in the body. There, a patient sued two surgeons and a hospital, claiming they were negligent by leaving a laparotomy sponge in her body following a hysterectomy operation. Coleman , 706 So.2d at 697. Both doctors filed a motion for summary judgment, claiming the plaintiff had failed to support, with expert testimony, her allegations that the doctors had failed to exercise the requisite degree of care, skill, and diligence ordinarily possessed by physicians. Id. at 697. The trial court agreed and granted summary judgment in favor of the defendants.

¶ 65. The plaintiff appealed, and the case was assigned to the Court of Appeals, which reversed and rendered judgment in favor of the plaintiff on liability against both doctors, finding, inter alia : (1) there was no need for an expert to establish that a surgeon was negligent if the surgeon inadvertently left a "foreign object" in the patient's body; and (2) both doctors were negligent per se for leaving a sponge inside the patient. Id.

¶ 66. This Court granted certiorari. The Coleman Court agreed with the Court of Appeals that the plaintiff was not required to establish her case with expert testimony, reiterating: "medical negligence may be established without expert testimony in cases where a layman can observe and understand the negligence as a matter of common sense and practical experience." Id. at 698 (quoting Erby v. N. Miss. Med. Ctr. , 654 So.2d 495, 500 (Miss. 1995) ). Coleman however, reversed the Court of Appeals' "finding of liability" in favor of the plaintiff, stating that "we decline, on this scant record, to direct a finding of liability in favor of any of the parties." Id. at 699.

¶ 67. In reaching its decision, Coleman first expressed that the case was suitable for the application of the doctrine of res ipsa loquitur, based on the facts of the case. Id. at 698. Citing Read , supra , which did not involve a medical-malpractice claim, Coleman provided the doctrine's elements and said that, when they are met, "a rebuttable presumption of negligence is raised." Id. Coleman then reiterated the doctrine's "requirement of 'exclusive control' of the damaging instrumentality does not limit res ipsa loquitur to a single defendant; the doctrine may be applicable where authority is shared concerning the instrumentality in question."

¶ 68. Here, we must point out that, in Coleman, one of the surgeons had claimed via affidavit for summary judgment that he was not liable because he only partially assisted in the operation and had left the operating room before the chief surgeon had closed the patient's incision. Coleman commented that whether an assisting surgeon's liability is equal to that of a chief surgeon was a case of first impression in Mississippi. Coleman , however, declined to address the issue further, saying the "question will require a factual determination in the circuit court." Id. at 699.

¶ 69. After agreeing with the Court of Appeals that, based on res ipsa loquitur , the plaintiff was not required to support her claim with expert testimony, Coleman noted that both defendants had "relied in their answers and ... motion[s] for summary judgment on the assertion that nurses were responsible for keeping the sponge count during the patient's surgery, and further that this is common practice." Id. Coleman replied: "This defense is negated by our decision in Saucier [,]" and quoted the same language/rule from Saucier that Long quoted:

Unexplained, the leaving of a four-inch rubber tube in a patient's body by a physician is negligence, and it occurs to us that it would be very difficult for a physician to explain how he could leave a rubber tube in a patient's body, until the wound healed over same, and not be guilty of negligence in the treatment of his patient.

Id. (quoting Saucier , 112 Miss. at 314, 73 So. at 50 ).

¶ 70. Coleman said, "Though decided in 1916, Saucier has never been overruled and remains the law in this jurisdiction[,]" and "[i]t comports with case law from other jurisdictions which hold that while responsibility for sponge counts may be delegated to support staff, liability cannot be." Id. Coleman then provided: "A surgeon leaving a sponge inside a patient is not negligent per se, but a presumption of negligence is raised, which the surgeon may attempt to rebut or explain." Id. (citing Ravi v. Coates , 662 So.2d 218 (Ala. 1995) ; Tice v. Hall , 310 N.C. 589, 313 S.E.2d 565 (1984) ).

¶ 71. Coleman , Long , and Saucier are the only published decisions we know of from this Court dealing with surgical devices unintentionally left inside a patient's body. There are myriad such cases from other jurisdictions, along with treatises and articles on the subject, but with varying views. To assist this Court, we requested supplemental briefing from the parties, asking for additional authority and argument to answer certain questions we had regarding this case, which the parties helpfully provided.

¶ 72. Having reviewed and considered the matter further, we find that Coleman 's statement that, "while responsibility for sponge counts may be delegated to support staff, liability cannot be[,]" needs clarification. We note an early Kentucky case that expresses quite well what is meant by a surgeon's nondelegable duty in such cases.

In performing an operation, it is the duty of a surgeon to exercise reasonable care and skill. The operation begins when the incision is made and ends when the opening has been closed in the proper way, after all the appliances necessary to a successful operation have been removed from the body. Throughout the operation the law imposes on the surgeon the duty of exercising such care and skill. The removal of the sponges or pads is a part of the operation, and an operation cannot be said to be concluded until such removal takes place. For this reason, it is generally held that a surgeon cannot relieve himself from liability for injury to a patient by leaving a sponge in the wound after the operation, by any custom or rule requiring the attending nurse to count the sponges used and removed, accompanied by the statement of the nurse that the sponges were all properly accounted for, and his reliance on such statements. ... On the contrary, surgeons are generally held liable for injuries resulting from their leaving a gauze sponge in the abdominal cavity of the patient. ...

Barnett's Adm'r v. Brand , 165 Ky. 616, 177 S.W. 461, 464 (1915) (citations omitted).

¶ 73. Notably, the Brand court's explanation was in response to a complained-of jury instruction allowed by the trial court on behalf of the doctor, which the Kentucky Supreme Court held was reversible error. The instruction stated in part: "[if the] defendant was assured by said nurse that all sponges or pads were accounted for, and relied on such assurance, then the jury cannot find the defendant negligent by reason of the leaving of a sponge or pad in the body ...." In reversing for a new trial, the Brand court provided:

We are of the opinion, however, that the custom in question and the defendant's reliance on the nurse's count are proper circumstances to be considered by the jury, in connection with the other facts attending the operation, in determining whether or not the defendant exercised reasonable care and skill in the performance of the operation.

Id. We do not disagree with Brand on this view.

¶ 74. Here, we must point out a jury instruction that was granted to BMH-D over Dr. Fortune's objection, Jury Instruction DB-6. It reads:

The Court instructs the jury that Doretha Thompson was a patient of Dr. James Fortune. Dr. Fortune, as the admitting and treating physician of Ms. Thompson, had a non-delegable duty to Ms. Thompson. Here, that means while responsibility for sponge counts may be delegated to the nursing staff, liability cannot be.

¶ 75. Dr. Fortune argued to the trial court that the language, "while responsibility for sponge counts may be delegated to the nursing staff, liability cannot be" would confuse the jury. The trial court overruled the objection because this language is contained in Coleman .

¶ 76. We agree that this language is confusing, if taken out of context. And it most likely confused the jury in this case.

¶ 77. It must be pointed out that, given the questions as presented on appeal in Coleman , Long , and Saucier , no discussion was had in those cases as to the hospital's role or responsibility in such situations. In surveying the law in this area, we noticed a number of cases that were decided when the "captain of the ship" doctrine was prevalent throughout the country. This judicial doctrine came into use when most hospitals enjoyed charitable immunity. Willis v. Bender , 596 F.3d 1244 (10th Cir. 2010). "Patients injured by a hospital employee's negligence were often left without a form of redress." Id. (citing Lewis v. Physicians Ins. Co. of Wisconsin , 243 Wis.2d 648, 627 N.W.2d 484 (2001) ). And "[i]n an attempt to fill this gap, courts began using the 'borrowed servant' doctrine to impose liability on the surgeon for negligence that occurred in the operating room." Id. The "borrowed servant" is an exception to the doctrine of "respondeat superior," which imposes vicarious liability on employers for the negligent acts or omissions of an employee if committed within the scope of employment. Id. Under the borrowed servant doctrine, vicarious liability is transferred from the lending employer to a borrowing employer. Gorton v. Rance , 52 So.3d 351, 359 (Miss. 2011). Under the "captain of the ship doctrine" for surgeons, "[t]he notion was that the surgeon acted as special employer who borrowed nurses and other attendants from their general employer-the [charitable] hospital-and thus became liable for their negligence." Willis , 596 F.3d at 1262. The doctrine essentially imposed liability on a surgeon by virtue of his status rather than on the basis of his control. Thomas v. Raleigh Gen. Hosp. , 178 W.Va. 138, 358 S.E.2d 222, 224 (1987).

¶ 78. This Court abolished Mississippi's judicially created charitable-immunity doctrine in Mississippi Baptist Hospital v. Holmes , 214 Miss. 906, 55 So.2d 142, 152 (1951), explaining:

In response to what appeared good as a matter of public policy at an early date, many of the courts have created an immunity, which, under all legal theories, is basically unsound, and especially so, when the reasons upon which it was founded no longer exists. Moreover, the function of creating a public policy is primarily one to be exercised by the Legislature and not by the courts. It is equally true that when the reason for the existence of a declared public policy no longer obtains, the court should, without hesitation, declare that such policy no longer exists, and especially where the same has been created by the courts instead of by the Legislature.

¶ 79. Notably, prior to Holmes , this Court in Palmer v. Clarksdale Hospital , 206 Miss. 680, 698, 40 So.2d 582, 586 (1949), reiterated: "It has been repeatedly held in this state that the owner or proprietor of a private hospital, operated for profit, is liable in damages for the negligence of his employees."

¶ 80. A California court addressed the "captain of the ship" doctrine in Truhitte v. French Hospital , 128 Cal. App. 3d 332, 180 Cal.Rptr. 152 (Cal. Ct. App. 5th Dist. 1982). In Truhitte , a jury found a surgeon and a hospital liable for injuries to a patient as a result of a surgical sponge left in the patient's abdomen during surgery. The trial court granted a JNOV in favor of the hospital on the theory that the surgeon was solely liable for the negligence of the operating room nurses under the borrowed-servant doctrine. Id. at 343, 180 Cal.Rptr. 152.

¶ 81. In reversing the JNOV, the Truhitte court first questioned whether the "captain of the ship" doctrine had "any remaining independent existence" in California. Id. at 348, 180 Cal.Rptr. 152. The court said: "A theory that the surgeon directly controls all activities of whatever nature in the operating room certainly is not realistic in present day medical care. Today's hospitals hire, fire, train and provide day-to-day supervision of their nurse-employees." Id. at 348, 180 Cal.Rptr. 152. Truhitte observed that under modern-day conditions:

The patient enters the hospital, which is specially equipped with its operating room, modern surgical appliances and trained nurses for the purpose of rendering this precise service, and a charge therefor is made directly to the patient. The nurse in performing her duties in the operating room is acting for her employer, the hospital, and not for the operating surgeon, who cannot be held responsible for her negligent acts unless performed under conditions where, in the exercise of ordinary care, he could have or should have been able to prevent their injurious effects and did not.

Id. at 347-48, 180 Cal.Rptr. 152. Truhitte opined: "Fortunately, hospitals can and do implement standards and regulations governing good surgery practices and techniques and are in the best position to enforce compliance; hospitals also are in a position to insure against the risk and pass cost to consumers." Id. at 348-49, 180 Cal.Rptr. 152.

¶ 82. Truhitte also pointed out that other jurisdictions "draw a distinction between acts performed by a nurse in the operating room which require medical skill and judgment, and those which are 'administrative' or 'clerical.' " Id. When "performing 'medical' duties, the nurse is generally held to be a borrowed servant of the surgeon; [but,] as to 'administrative' functions, the nurse is considered the servant of the hospital."

¶ 83. In construing the evidence in the case, Truhitte found that the hospital's rules required hospital nurses to conduct sponge counts. Id. at 339, 180 Cal.Rptr. 152. "Under hospital rules, the scrub nurse counts the sponges, watched by the circulating nurse, who verifies the count and notes the number of each type of sponge count on a piece of paper." Id. at 340, 180 Cal.Rptr. 152. "This notation is the basis for the second and third counts which are made prior to closing the incision and after the completion of the surgery." Id. Similar to BMH-D's stated practice in this case, the hospital in Truhitte did not require that sponge counts be recorded on the surgical form or that the piece of paper denoting the count be "kept as a record after surgery." Id.

¶ 84. Truhitte found that, based on the evidence in the case, "the jury could find that the nurses negligently performed the initial inventory of the sponges, a procedure required by the hospital to be completed as a routine function before the arrival of the surgeon." Id. at 350, 180 Cal.Rptr. 152. And the jury could also find that the "informality" of the hospital's procedure or record-keeping with regard to sponge counts fell below the standard of care required of the hospital. Id. "For example, use of a printed checklist might [have] prevent[ed] the type of omission which occurred" in the case. Id.

¶ 85. Lastly, Truhitte iterated as follows:

It is the law of California that the surgeon's duty to remove all sponges and other [unintended] foreign objects from the patient's body is nondelegable. However, it does not follow that the hospital may escape liability for its independent negligence in failing to devise adequate sponge-accounting procedures or in negligently carrying out such procedures through its employee-nurses.

Id. at 349, 180 Cal.Rptr. 152.

¶ 86. This is the law in Mississippi as well. Here, Dr. Fortune had a nondelegable duty to remove all the sponges from Thompson's abdomen. Coleman , 706 So.2d at 699. And based on the facts of the case, BMH-D had an independent (or concurrent) duty, apart from Dr. Fortune's, to account for the sponges.

¶ 87. Consistent with Saucier : Unexplained, the failure of either entity to carry out its respective duties is negligence. Although neither is negligent per se (consistent with Coleman ), a presumption of negligence is raised as to each, which both entities are required to rebut or explain.

¶ 88. For all of these reasons, we reverse the final judgment entered in favor of Dr. Fortune and BMH-D, and remand for a new trial with proper instructions to the jury consistent with this opinion.

CONCLUSION

¶ 89. The judgment of the DeSoto County Circuit Court is reversed and remanded for a new trial.

¶ 90. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL AND ISHEE, JJ., CONCUR. CHAMBERLIN, J., NOT PARTICIPATING.

      A bioabsorbable mesh.

      Presiding Justice Smith authored the plurality opinion. He was joined by Justices Waller, Cobb, and Carlson. Justice Easley dissented without opinion. Chief Justice Pittman dissented with separate opinion joined by Justice Graves, joined in part by Presiding Justice McRae. Justice McRae also dissented with separate opinion. Justice Diaz did not participate. Winters , 869 So.2d at 370-71.

      We point out that Coleman is silent with regard to the hospital in that case; Coleman related only that the trial court had granted summary judgment in favor of the doctors because they were not "vicariously liable for the actions of any other persons," and "certified the matter as a final judgment pursuant to Miss. R. Civ. P. 54(b)." Id.

      The law in Mississippi provides:
      The routine acts of treatment of which an attending physician may reasonably assume may be performed in his absence by nurses of a modern hospital as part of their usual and customary duties and execution of which does not require specialized medical knowledge, are administrative acts for which negligence in their performance is imputable to the hospital.
      Winters , 869 So.2d at 367 (quoting Hunnicutt v. Wright , 986 F.2d 119, 123 (5th Cir. 1993) ).

      Jury instructions P-1 and P-2, supra , correctly stated the law in this case with regard to Dr. Fortune. To be clear, though, neither properly ascribe(d) for BMH-D.