author: BARNES, J., FOR THE COURT:

text:
    James Douglas WILLIE, Sr. a/k/a James Douglas Willie a/k/a South Memphis, Appellant
    v.
    STATE of Mississippi, Appellee
    NO. 2016-KA-01416-COA
    Court of Appeals of Mississippi.
    November 6, 2018 Rehearing Denied February 26, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JACKSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. James Willie Sr. was convicted of murder, possession of a firearm by a felon, and possession of a stolen firearm. For the murder conviction, the Tunica County Circuit Court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). He was sentenced to ten years for possession of a firearm by a felon, with the sentence to run consecutively to his life sentence. For possession of a stolen firearm, the court sentenced Willie to five years, which was to run consecutively to the other sentences.

¶ 2. Willie filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, alleging that the court erred in "allowing the State['s] witness Bryon McIntire to be qualified and testify as an expert witness in the area of firearms and toolmark identification." The court denied his motion. On appeal, Willie renews his claim concerning McIntire's expert testimony. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On May 11, 2012, Lori Ann Carswell was found dead near her car on Highway 713 in Tunica County. The cause of death was a distant gunshot wound to the head. Law enforcement recovered a shell casing a few feet from her vehicle. On May 15, the Tunica County Sheriff's Department received information linking Willie to Carswell's murder. It obtained a search warrant for Willie's apartment and a maroon Equinox SUV belonging to Willie's girlfriend, Latoya Lewis. A 9-millimeter handgun was found in the SUV's glove compartment, and a loaded magazine with nine rounds was located above the sun visor. It was later determined that the gun was stolen a month previously from a home in Coahoma County. The gun was sent to the Mississippi Crime Laboratory for ballistics testing.

¶ 4. Law enforcement officers interviewed Willie on May 15. He told them he had bought the gun in Memphis on May 9 for protection and had taken it to Arkansas with him. His girlfriend, Lewis, initially told the sheriff's department that she, Willie, and their children had been in Arkansas that weekend and were in Memphis at the time of the murder. Several hours later, she changed her story, saying they had returned to Tunica from Arkansas late on May 10. She had been asleep in the SUV but awoke to see Willie flagging down a vehicle. The woman driving the car pulled over, and Willie pulled a gun on the woman. Lewis then heard a "pow." When Willie returned to the SUV, he told her not to say anything or he would kill her.

¶ 5. On August 13, 2012, a Tunica County grand jury indicted Willie of Count I, deliberate-design murder; Count II, possession of a firearm by a felon; Count III, aggravated assault; Count IV, kidnapping; Count V, rape; and Count VI, possession of a stolen firearm. Willie moved to sever Counts III-V as those counts involved a separate set of circumstances, and the trial court granted the motion. A jury trial was held September 6-8, 2016, on Counts I, II, and VI. The State offered McIntire "as an expert in the field of toolmarking and firearm examination." Although defense counsel objected to his testimony, claiming it failed to meet the Daubert standard, the trial court ruled that McIntire was qualified as an expert in firearm and toolmark identification and allowed his testimony. McIntire testified that based on a "reasonable degree of scientific certainty," the shell casing found at the murder scene was fired from the 9-millimeter found in Lewis's SUV.

¶ 6. Lewis testified, reiterating that she had seen Willie flag down a car, get out of the car to speak to a woman, and she heard a "pow." On cross-examination, Lewis admitted that she gave inconsistent statements, but she said Willie had asked her to lie for him. Although he had originally told investigators he bought the gun on May 9, Willie testified at trial that he bought the gun "off the streets" in Memphis on May 13. Willie admitted that he had a prior conviction for house burglary and knew he was not allowed to possess a firearm, but he denied killing Carswell. When asked about Lewis's testimony, Willie stated that she was mad at him for sleeping with her coworkers.

¶ 7. Willie was convicted on all three counts. The trial court sentenced him to life imprisonment in the custody of the MDOC for Count I; ten years for Count II, to run consecutively to his life sentence in Count I; and five years for Count VI, to run consecutively to the other sentences. Willie filed a motion for a JNOV or, in the alternative, for a new trial, which the trial court denied.

¶ 8. Willie argues on appeal that the court abused its discretion in qualifying McIntire as an expert and in admitting his testimony.

DISCUSSION

¶ 9. At trial, defense counsel objected to the qualification of McIntire as an expert. The trial court overruled the objection, finding: "[B]ased on the witness's experience and training, which was adequate and standard, I think, across the state, with regard to our forensic scientists with the sub[-]specialty of toolmark identification and firearm examination, I also find he has ... utilized reliable methods that are standard in practice." On appeal, Willie argues that the trial court erred in qualifying McIntire as an expert witness and in allowing him to testify that the casing found at the murder scene matched the gun recovered in Willie's possession. He claims McIntire's testimony was conclusory, and the scientific methods used by the expert were "questionable," particularly noting McIntire's failure to provide a margin-of-error rate regarding the science of firearm identification and to take any photographs. He also contends any error in the admissibility of McIntire's testimony "cannot be deemed harmless."

¶ 10. Willie raised this issue in another case, Willie v. State , 204 So.3d 1268 (Miss. 2016), which involved his conviction for a murder in Panola County. However, because defense counsel in that case failed to make any objections to the expert's testimony, the Mississippi Supreme Court found the issue was procedurally barred and made no findings as to the merits of the claim. However, the supreme court did determine that counsel's failure to object was not ineffective assistance because it fell "within the scope of trial strategy." Id. at 1275 (¶ 19).

¶ 11. In a recent case, Parker v. State , 2016-KA-1502-COA, 277 So.3d 1, 2018 WL 1602585 (Miss. Ct. App. April 3, 2018), reh 'g denied (Sept. 4, 2018), this Court considered Shannon Parker's claim that the trial court erred in allowing the testimony of a forensic expert on firearm and toolmark identification. Parker filed a pretrial motion to exclude the expert's testimony, asserting it was unreliable and attaching a 2008 National Academy of Science (NAS) report. Id. at ----, 2018 WL 1602585, at *3 (¶ 13). The trial court deferred ruling on the motion until after counsel had an opportunity to question the expert during voir dire; however, defense counsel subsequently stated at trial that he had no objection to the expert's testimony. Id. On cross-examination, the expert was questioned about the 2008 NAS report, and he acknowledged that an examiner "should not testify in 'absolute' terms but rather should testify to a 'reasonable degree of scientific certainty.' " Id. Citing Willie , 204 So.3d 1268, this Court found the claim was procedurally barred due to defense counsel's failure to object to the testimony. Parker , 277 So.3d at ----, 2018 WL 1602585 at *3 (¶ 14).

¶ 12. Here, however, defense counsel made strenuous objections to McIntire's testimony for the reasons cited by Willie on appeal. Therefore, we will address the merits of Willie's claims. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony, allowing a witness qualified as an expert to testify in the form of an opinion if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

M.R.E. 702. Being "mindful that 'the admission of expert testimony is within the discretion of the trial court[, w]e will not reverse [a] trial court's decision to admit expert testimony unless the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion.' " Gray v. State , 202 So.3d 243, 256 (¶ 46) (Miss. Ct. App. 2015) (quoting Bateman v. State , 125 So.3d 616, 625 (¶ 28) (Miss. 2013) ). In Mississippi Transportation Commission v. McLemore , 863 So.2d 31 (Miss. 2003), the Mississippi Supreme Court adopted the Daubert standard for determining the admissibility of expert witness testimony, stating:

The [United States Supreme] Court in Daubert adopted a non-exhaustive, illustrative list of reliability factors for determining the admissibility of expert witness testimony. The focus of this analysis "must be solely on principles and methodology, not on the conclusions they generate." These factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community. The applicability of these factors depends on the nature of the issue, the expert's particular expertise, and the subject of the testimony. The Daubert Court emphasized that the reliability inquiry contemplated by Rule 702 "is a flexible one."

Id. at 36-37 (¶ 13) (citations omitted).

¶ 13. Willie argues McIntire was not qualified under Daubert and Rule 702. Specifically, he claims the validity of McIntire's testimony has been called into question by "recent developments in the scientific community," citing a 2008 NAS report (as discussed in Parker ), a 2009 NAS report of forensic science, as well as a 2016 report from the President's Council of Advisors on Science and Technology. The 2008 report cautioned:

Conclusions drawn in firearms identification should not be made to imply the presence of a firm statistical basis when none has been demonstrated. Specifically, ... examiners tend to cast their assessments in bold absolutes, commonly asserting that a match can be made to the exclusion of all other firearms in the world." Such comments cloak an inherently subjective assessment of a match with extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.

The 2016 report stated:

Whether firearms analysis should be deemed admissible based on current evidence is a decision that belongs to the courts. If firearms analysis is allowed in courts, the scientific criteria for validity as applied should be understood to require clearly reporting the error rates seen in one appropriately designed black-box study. Claims of higher accuracy are not scientifically justified.

Willie contends that the State treated McIntire's opinion "as merely a conclusion" and "did not cache [his] conclusion in terms of a 'reasonable degree of certainty.' " Willie cites United States v. Glynn , 578 F.Supp.2d 567 (S.D.N.Y. 2008), in which the district court considered whether to admit testimony of a ballistics expert.

The district court reasoned that "ballistic examination ... lacks the rigor of science [and] suffers from greater uncertainty than many other kinds of forensic evidence." Id. at 574. But the court also acknowledged that such testimony had "garnered sufficient empirical support as to warrant its admissibility." Id. Therefore, it ruled that the expert would be allowed to testify only that the "firearms match was 'more likely than not,' " which would satisfy Federal Rule of Evidence 401 "without overstating the capacity of the methodology to ascertain matches." Id. at 574-75.

¶ 14. During direct examination of McIntire, the State asked:

Q. Okay. And what determination did you reach, to a reasonable degree of scientific certainty , as to the class characteristics of the particular gun as it relates to the casing? So 7A to State's Exhibit 8, what conclusion or opinion did you reach, to a reasonable degree of scientific certainty , as it relates to that?
[Defense]: For the record, we'll renew our objection.
A. The class characteristics that Mr. Williams described, they are the same. The firearm in State's Exhibit 7A is a 9-millimeter Ruger caliber, and the cartridge case that's in State's Exhibit 8 is a 9-millimeter Ruger caliber cartridge casing.
Q. And to a reasonable degree of scientific certainty , did you reach a conclusion as to the individual characteristics as it relates to the casing in State's Exhibit 8, as well as the gun in State's Exhibit 7A?
A. Yes, I did.
Q. And what was that conclusion, to a reasonable degree of scientific certainty , that you reached?
[Defense]: We will renew our objection.
[COURT]: Overruled.
A. That the cartridge case that's in State's Exhibit 8 was fired in the gun that's in State's Exhibit 7A.

(Emphasis added). Thus, it is evident that McIntire determined that the casing and gun matched to a "reasonable degree of scientific certainty."

¶ 15. Willie further argues, however, that if such science "is inherently unreliable, what does a reasonable degree of scientific certainty even mean?" Willie particularly takes issue with McIntire's failure to provide a margin-of-error rate related to the method he utilized. When asked by defense counsel about the margin of error, McIntire replied: "I understand what you're talking about with 'margin of error,' but we do not have a reporting procedure for a margin of error." But McIntire also clarified that he was not saying "there was not a margin of error in the field."

¶ 16. We do not find McIntire's failure to cite any margin of error warrants reversible error as asserted by Willie. The United States Supreme Court noted in Daubert :

The inquiry envisioned by [Federal] Rule [of Evidence] 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Daubert , 509 U.S. at 594-95, 113 S.Ct. 2786. Since Glynn , other courts have supported the admissibility of such testimony and upheld an examiner's determination that a bullet or casing came from the defendant's gun to within a "reasonable degree of scientific certainty." In United States v. Otero , 849 F.Supp.2d 425, 435 (D.N.J. 2012), the district court denied a defendant's motion to exclude a firearms and toolmark expert's testimony, finding it both relevant and reliable under Rule 702. The court noted: "Even courts which have criticized the bases and standards of toolmark identification have nevertheless concluded that [The Association of Firearm and ToolMark Examiners (AFTE) ] theory and its identification methodology is widely accepted among examiners as reliable and have held the expert identification evidence to be admissible, albeit with limitations." Otero , 849 F.Supp.2d at 435 ; see also United States v. Ashburn , 88 F.Supp.3d 239, 247 (E.D.N.Y. 2015) ("Although some commentators have questioned the assumptions and subjectivity inherent in toolmark and firearms identification, ... the AFTE methodology remains a primary approach in the field, and even after the publication of the NAS Report, courts have viewed the methodology as accepted by the field."); People v. Rodriguez , 413 Ill.Dec. 996, 79 N.E.3d 345, 356-57 (Ill. Ct. App. 2017) (stating the 2009 NAS report did not "so undermine[ ] the reliability of ballistics evidence that it has ceased to be 'generally accepted' in the scientific community").

¶ 17. The Louisiana Court of Appeals recently considered this issue in State v. Lee , 217 So.3d 1266 (La. Ct. App. 2017). Like McIntire, the expert witness had years of experience, was certified by the AFTE, and had routinely passed proficiency tests. Id. at 1273. The expert witness also testified that he "was not aware of any error rate with respect to the type of testing he performed." Id. at 1274. Addressing Daubert and Rule 702, the appellate court found the testimony offered by the expert to be "relevant" and "reliable," stating:

Based on the foregoing, it cannot be said that the jurisprudence supports Defendant's assertion that the scientific community has rejected the methodology and theory of firearms identification. To the contrary, even after publication of the [2009] NAS Report, courts have addressed, in detail, the reliability of such testimony and ruled it admissible, although to varying degrees of specificity.

Id. at 1275-78.

¶ 18. We conclude that the trial court did not err in qualifying McIntire as an expert and allowing his testimony. Consequently, Willie's harmless-error argument is moot. We affirm Willie's convictions and sentences.

¶ 19. AFFIRMED.

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

      A jury trial on Counts I, II, and VI was previously held on March 31, 2014, but it resulted in a mistrial when Willie became belligerent and had to be detained by law enforcement in front of the jury. The trial court subsequently granted Willie's motion to change venue to Bolivar County.

      Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      We note that although the trial court granted Willie's motion for funds to hire his own firearm and toolmark expert, no expert witness testified for the defense.

      McIntire was also the forensic expert witness at Willie's other trial.

      Although Parker was a 5-5 opinion, the dissent in Parker objected to the case's disposition on grounds unrelated to the expert-testimony issue.


source: Caselaw Access Project

license: Public Domain

text:
    Victor D. JONES a/k/a Victor Dewayne Jones a/k/a Victor Jones, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01167-COA
    Court of Appeals of Mississippi.
    November 27, 2018 Rehearing Denied April 16, 2019
    ATTORNEY FOR APPELLANT: VICTOR D. JONES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. This appeal relates to Victor Jones's fourth pro-se motion for post-conviction relief (PCR), challenging his 2004 guilty plea on two counts of sexual battery. The Circuit Court of Pike County dismissed Jones's motion with prejudice, finding it time barred and barred as a successive writ. Additionally, the circuit court ruled that it lacked jurisdiction because the underlying criminal action had been directly appealed to the Mississippi Supreme Court. We affirm the circuit court's dismissal for the same reasons set out in Jones III . However, we reverse as to the jurisdictional issue for the reasons set out by the supreme court in Jones II-MSC .

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 29, 2004, Jones pleaded guilty in the Pike County Circuit Court to two counts of sexual battery. The State recommended a sentence of twenty years, with ten years to serve, ten years suspended, and five years of probation for each count, to be served concurrently. The circuit-court judge, however, did not accept the State's recommendation and sentenced Jones to serve twenty years on each count to run consecutively. Jones filed a direct appeal which was dismissed for failure to pay the costs of appeal. See Jones II-COA , 119 So.3d at 351 (¶ 3).

¶ 3. Jones filed his first PCR motion at the end of 2004, including claims of a faulty indictment, an involuntary guilty plea, and ineffective assistance of counsel. Jones I , 962 So.2d at 572 (¶ 2). This Court affirmed the circuit court's dismissal of his PCR motion, agreeing that Jones's guilty pleas were voluntary and his counsel effective. Id. at 572-73 (¶¶ 3, 6).

¶ 4. Jones filed his second PCR motion in April 2011, and again, it was summarily dismissed. The circuit court found that it lacked jurisdiction, and the PCR motion was time barred and barred as a successive writ. Jones II-COA , 119 So.3d at 351 (¶ 5). On appeal, Jones argued the dismissal was error because his sentence was illegal. Also, Jones claimed he should have had a mental-health evaluation before he was allowed to enter his plea. Id. at 351 (¶ 2). However, we noted he had not raised his mental health in his previous PCR motion, where his guilty plea had been found voluntary. Id. at 352 (¶ 10). This Court affirmed, finding the issues without merit, and also agreeing that the circuit court lacked jurisdiction because Jones failed to seek permission from the Mississippi Supreme Court to file his PCR motion. Id. at (¶¶ 12-13).

¶ 5. The Mississippi Supreme Court granted certiorari review and reversed as to the jurisdictional issue. The supreme court explained that Mississippi Code Annotated section 99-39-7 (Supp. 2012) requires a petitioner to seek leave of the supreme court to file a motion for PCR only "where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed." Jones II-MSC , 119 So.3d at 325 (¶ 5) (emphasis added by the supreme court) (quoting Miss. Code Ann. § 99-39-7 (Supp. 2012) ). And because Jones was only allowed to appeal the sentence from his guilty plea under Trotter v. State , 554 So.2d 313, 315 (Miss. 1989), abrogated on other grounds by Betterman v. Montana , --- U.S. ----, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016), this statute was not applicable. Jones II-MSC , 119 So.3d at 325 (¶ 5). The supreme court affirmed that the PCR was time barred and barred by res judicata. Id. at 326 (¶ 9). The supreme court also found Jones's argument that he was "legally incompetent" to plead guilty without merit. The supreme court stated that in the order denying the first PCR motion, the circuit court found it had "personally observed the defendant's demeanor, appearance and manner in answering the court's questions and it appeared to the court that the defendant was competent to understand and did understand the circumstances surrounding his guilty plea." Id. at (¶ 7). The supreme court also noted: "In support of his second PCR filing, Jones submitted some of his medical records, but none appears responsive to his mental competency, in general, or at the time of his plea." Id.

¶ 6. On August 30, 2013, fifteen days after the supreme court handed down Jones II-MSC , Jones filed his third PCR motion. He again argued that he received ineffective assistance of counsel, his guilty plea was involuntary, he should have received a competency hearing, and he was incompetent when he was coerced into pleading guilty. Jones III , 174 So.3d at 904 (¶ 6). He again filed numerous mental-health records with his PCR motion, and again, none of them related to his competency at the time of his guilty plea in 2004. Id. at 908 (¶ 15). Further, he complained that the circuit court did not honor the plea agreement. Id. at 904 (¶ 6). The circuit court summarily dismissed Jones's motion, finding it procedurally barred as a successive writ and time barred, noting: "The motion is substantively identical to three previously filed motions which have all been denied." Id. at 904-05 (¶ 6).

¶ 7. Jones appealed, focusing solely on his lack of competency to enter a guilty plea-again arguing that his attorney was ineffective and his plea was involuntary. This Court noted these two issues had been raised before in his prior PCR motions and typically would be procedurally barred by time and successive. Id. at 906-07 (¶ 10). However, because Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010), excepts from the procedural bars errors affecting fundamental constitutional rights, this Court found Jones's claims of mental incompetency were not subject to procedural bars. Nonetheless, we found the issue without merit because it had already been determined in Jones II-MSC . Id. at 907 (¶¶ 11, 13). There, the supreme court found no evidence that Jones was incompetent at the time he submitted his guilty plea. Id. at 907-08 (¶ 13). Accordingly, this Court affirmed the dismissal of the third PCR motion, and the supreme court denied certiorari review. Id. at 908 (¶ 15).

¶ 8. In January 2016, Jones filed his fourth PCR motion-the subject of the instant case. He attached numerous documents, including general articles about mental-health disorders, the prior opinions on his appeals, his defense counsel's response to a bar complaint in 2010, a letter from the Pike County district attorney in 2005 explaining that the judge is not under an obligation to follow their sentence recommendation, mental-health records from a stay at the Whitfield State Hospital (Whitfield) from January 20, 1993 until February 12, 1993, and records from prison. He also included an affidavit from his mother executed in 2005 related to his guilty plea. Approximately one week later, he filed a motion to amend his PCR motion, which was substantively similar to his PCR motion.

¶ 9. In February 2016, the circuit court dismissed Jones's fourth PCR motion and motion to amend. The court ruled that the motion was "substantively identical" to the previous motions he had filed and was therefore successive, as well as time barred. Additionally, the circuit court again found it lacked jurisdiction to hear the PCR motion because Jones had failed to ask permission from the supreme court.

¶ 10. After refiling his motions with the circuit court, in June 2017, Jones's "ghost counsel" submitted a "new document," which he claimed had "surfaced" concerning Jones's mental competency in 1993. The document allegedly "show[s] Jones was not capable of submitting a voluntary guilty plea then or now" because he was being treated with drugs for his mental problems that could have impaired his ability to understand his plea.

¶ 11. On July 13, 2017, the circuit court dismissed Jones's PCR motion and motion to amend because the PCR motion was procedurally barred as a successive writ and time barred. The court found the notice of continued hospitalization could not be considered "newly" discovered evidence because it was dated from 1993. Further, the court noted that Jones's Whitfield discharge notes in 1993 stated he is "not psychotic, he is in control of his behavior." The circuit court also ruled that the motion was "substantively identical" to the multiple previous motions he had filed. However, the circuit court again ruled that the underlying criminal action had been appealed to the supreme court; therefore, the circuit court lacked jurisdiction to hear the claim without leave from the supreme court. Jones timely appealed, yet again raising issues of jurisdiction and competency as it relates to his guilty plea and assistance of counsel.

STANDARD OF REVIEW

¶ 12. This Court reviews a circuit court's denial or dismissal of a PCR motion for an abuse of discretion. Purvis v. State , 240 So.3d 468, 470 (¶ 7) (Miss. Ct. App. 2017). We "will not disturb the trial court's factual findings unless they are clearly erroneous." Id. Questions of law, however, are reviewed de novo. Id.

ANALYSIS

I. Jurisdiction

¶ 13. The trial court claimed it lacked jurisdiction to hear Jones's claims because he did not seek leave from the supreme court to file his PCR motion. We do not find this issue "moot," as the State suggests, but error, as the supreme court did in Jones II-MSC , and accordingly reverse as to this issue.

¶ 14. Mississippi Code Section 99-39-7 requires a petitioner to seek leave from the supreme court to file a motion for PCR "[w]here the conviction and sentence have been affirmed on appeal or the appeal has been dismissed ...." (Emphasis added). Because he pleaded guilty, Jones was not allowed to file a direct appeal of his conviction under the version of Mississippi Code Annotated section 99-35-101 (Rev. 2007) in effect at that time. See Trotter , 554 So.2d at 315. In Jones II-MSC , the supreme court held the statute requiring permission was not applicable where Jones was not allowed to appeal both conviction and sentence. Jones II-MSC , 119 So.3d at 325 (¶ 5). We reverse the circuit court's denial of jurisdiction under Jones II-MSC .

II. Procedural Bars

¶ 15. The trial court found Jones's PCR motion procedurally barred as a successive writ and time barred. Any order denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Additionally, a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Here, Jones filed his fourth PCR motion over twelve years after he pleaded guilty. Moreover, as the trial court noted, this latest PCR motion raises substantially similar issues of competency to his second and third PCR motions.

¶ 16. However, errors affecting fundamental constitutional rights are excepted from the post-conviction procedural bars under Rowland . Our supreme court has held that "[i]t is a violation of due process to try or convict a criminal defendant who is legally incompetent." Pitchford v. State , 240 So.3d 1061, 1067 (¶ 30) (Miss. 2017) (citing Pate v. Robinson , 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ). Here, since Jones raises issues of competency, we shall address the merit of his claims as we did in Jones III .

III. Mental Competency

¶ 17. As in Jones III , Jones's claims of ineffective assistance of counsel and an involuntary guilty plea center around his competency. Specifically, Jones argues that his counsel failed to investigate his prior mental health history and request a competency hearing before he pleaded guilty. He also argues the trial court should have sua sponte ordered a competency hearing prior to accepting his guilty plea.

¶ 18. Uniform Rule of Circuit and County Court 9.06 states in part: "If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination ...." The defendant "bears the burden of proof to show by substantial evidence that his competency to stand trial is in question." Higginbotham v. State , 122 So.3d 1205, 1210 (¶ 14) (Miss. Ct. App. 2013). Jones fails to meet his burden.

¶ 19. This Court and the supreme court have affirmed the circuit court three prior times that there is no merit to Jones's incompetency arguments. Here, however, Jones attempts to overcome procedural bars by claiming to have "newly discovered evidence" under section 99-39-23(6) of his mental incompetency during his guilty plea in 2004-the medical records from his 1993 treatment at Whitfield. However, this and other documents were not "new"-as the July 2017 trial-court order states, these records have been filed numerous times before with the Pike County Circuit Court. They do not relate to the 2004 guilty plea, and Jones confuses their applicability with his 1994 guilty plea on other charges. Further, even if they did relate to the instant plea, his Whitfield discharge records concluded Jones was "not psychotic" and was "in control of his actions."

¶ 20. The mental-health records Jones repeatedly provide show a three-week stay at Whitfield in 1993 for treatment of psychiatric problems-over ten years before he pleaded guilty in this action. Just because Jones was admitted to a psychiatric hospital does not mean he is automatically incompetent to plead guilty to criminal charges ten years later. Jones also provides records about psychiatric treatment while imprisoned in 2006 and 2007-two years after his guilty plea. There is no evidence presented that he was incompetent during his plea hearing, that he was on medication that would impair his judgment, or that his various diagnoses ten years prior would have made his guilty plea involuntary.

¶ 21. Undoubtedly, Jones has a long history of mental illness-prison medical records show he is on medication for several psychiatric disorders and being treated while imprisoned. Jones even states in his brief he is in "remission due to medication." However, the voluminous records show he was quite competent to plead guilty in 2004. This Court was provided a transcript of the plea hearing, and we reviewed it carefully. Jones affirmed that he was not under the influence of any medicine during the hearing, he was satisfied with his legal representation, he understood the maximum sentence that could be imposed, he understood his rights and was waiving certain rights, and he could be sentenced by the trial court to the maximum sentence and not what the State recommended. Additionally, as the supreme court noted in Jones II-MSC , the circuit-court judge "personally observed the defendant's demeanor, appearance and manner in answering the court's questions and it appeared to the court that the defendant was competent to understand and did understand the circumstances surrounding his guilty plea." Jones II-MSC , 119 So.3d at 326 (¶ 7).

¶ 22. We have reviewed Jones's alleged newly discovered evidence and, in accordance with our analysis in Jones III , have found his claims of mental incompetency without merit.

CONCLUSION

¶ 23. We reverse the judgment of the circuit court that it lacked jurisdiction. However, we affirm the circuit court's dismissal of the PCR.

¶ 24. AFFIRMED IN PART; REVERSED IN PART.

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

      This Court's opinions on Jones's prior PCR motions are: Jones v. State (Jones I ), 962 So.2d 571 (Miss. Ct. App. 2006) ; Jones v. State (Jones II-COA ), 119 So.3d 350 (Miss. Ct. App. 2012), rev'd in part , 119 So.3d 323 (Miss. 2013) ; Jones v. State (Jones II-MSC ), 119 So.3d 323 (Miss. 2013) ; Jones v. State (Jones III ), 174 So.3d 902 (Miss. Ct. App. 2015).

      We noted that the res-judicata principle identified in Jones II-MSC appears to have been modified in Smith v. State , 149 So.3d 1027, 1032 (¶ 13) (Miss. 2014), overruled on other grounds by Pitchford v. State , 240 So.3d 1061 (Miss. 2017). Jones III , 174 So.3d at 906 (¶ 9).

      Accordingly to the mental-health records Jones attached, he was committed to Whitfield for "violent behavior." He was diagnosed with "adjustment disorder with mixed emotional features" and "personality disorder not otherwise specified." The records include his psychological evaluation, a notice of continuing hospitalization, his diagnostic summary and discharge notes, and his certificate of discharge. After release from Whitfield, in March 1993 he was arraigned on burglary, burglary of a dwelling, and larceny charges. A year later, he pleaded guilty to the charges and was sentenced to seven years.

      Jones included two forms from prison: psychiatric progress notes dated from October 2006 stating Jones was on medication for complaints of hallucinations attributed to schizo-affective disorder, and a "master problems list" dated September 2007 showing his "major problems" were bipolar, panic, and schizo-affective disorders.

      This ruling unfortunately led to procedural confusion and delay. Jones filed with the supreme court an application to proceed with his PCR motion. The supreme court dismissed Jones's application because he had already been instructed not to file such application in Jones II-MSC . Due to this ruling, Jones again filed his PCR motion and motion to amend with the circuit court. All of the motions and attachments were substantively identical to previous ones.

      Jones claims in his brief he is so incompetent he has to rely on a "ghost-counsel" for assistance because he "does not understand what is going on."

      The document was a "Notice of Continuing Hospitalization" for Jones at Whitfield in 1993, as noted above, for "medication monitoring and dosage adjustment" after having been committed for twenty days. It was file-stamped February12, 1993 by the Pike County Chancery Clerk. Jones's "ghost-counsel" appears to be referring to Jones's 1994 guilty plea, rather than the 2004 one currently at issue.

      Jones attached over sixty-five pages of exhibits to his appellate brief from various sources including multiple copies of articles and other documents on mental health. Most of the exhibits had been previously filed with the circuit court and related to his competency. However, we note that documents attached to Jones's brief that were not first presented to the circuit court and certified as part of the appellate record cannot be considered on appeal. Davis v. State , 243 So.3d 222, 239 (¶ 76) (Miss. Ct. App. 2018). In an apparent attempt to circumvent this rule, after filing his notice of appeal, Jones also filed these documents in the circuit court. Additionally, Jones filed a motion to amend his brief, and a motion to attach the plea transcript to his brief, which this Court granted. He attached the same mental-health documents to these motions, complaining that he was never given a competency hearing. This Court denied Jones's motion to enter certain middle-school documents into the record because they were not a part of the record before the circuit court.

      Trotter held that while a conviction resulting from a guilty plea could not be directly appealed, a sentence from a guilty plea could, under Mississippi Code Annotated section 99-35-101 (Rev. 2007). Trotter , 554 So.2d at 315. However, in July 2008 an amendment to section 99-35-101 (Supp. 2011) became effective and superseded Trotter . Now under that statute a defendant who enters a guilty plea is not allowed to directly appeal his conviction or sentence from the circuit court. See Chapell v. State , 107 So.3d 1003, 1007 (¶ 12) (Miss. Ct. App. 2013).

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect at the time of Jones's guilty plea, Rule 9.06 is applicable to his case.

      Jones attached to his appellate brief an unsworn typed "summary of court appearances" describing his alleged poor mental health before his 2004 guilty plea, where he claims he was given medication by the jail nurse for audible hallucinations and delusions. He does not attach any jail records at the time corroborating his statement. Even if he had, this document is not a certified part of the record before the trial court; so we cannot consider it. Davis , 243 So.3d at 239 (¶ 76).

      Jones also attaches prison medical records from 2010 documenting psychiatric visits and medication administration.


author: LEE, C.J., FOR THE COURT:

text:
    WC BAKER COMPANY LLC, Appellant v. Philden STOCKTON and Leigh Anne Stockton, Appellees
    NO. 2017-CA-01710-COA
    Court of Appeals of Mississippi.
    December 4, 2018 Rehearing Denied March 26, 2019
    ATTORNEYS FOR APPELLANT: PATRICK VANCE DALY, Hernando, BRETT CLANTON PICKLE
    ATTORNEY FOR APPELLEES: MICHAEL PAUL MILLS JR., Nashville
    BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶1. In this appeal we must determine whether the circuit court erred when it held that Mississippi Code Annotated Section 73-59-9(3) (Rev. 2017) barred WC Baker Company LLC's suit against Philden and Leigh Anne Stockton for breach of contract. Finding the circuit court erred in its application of section 73-59-9(3), we reverse the circuit court's judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. In April 2014, the Stocktons hired WC Baker Company, an Alabama limited-liability company, to build their residence in Itawamba County, Mississippi. The parties had an oral agreement that they did not formalize in writing. WC Baker did not have a residential builder's license at the time it contracted with the Stocktons or during the construction of the Stocktons' home.

¶3. On April 12, 2016, WC Baker filed suit against the Stocktons for breach of contract, claiming that pursuant to the terms of the contract, the Stocktons were to pay the invoices as billed by WC Baker until the project was paid in full and that the Stocktons failed to fully pay WC Baker for all work performed. WC Baker's complaint alleged the Stocktons owed $57,638.83 in outstanding, unpaid invoices. The Stocktons filed their answer, defenses, and counterclaims against WC Baker on June 10, 2016, and WC Baker filed its answer to the counterclaim on July 19, 2016.

¶4. Importantly, on July 21, 2017, the Stocktons filed a Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss all claims, arguing that section 73-59-9(3) barred WC Baker from bringing suit because it did not have a residential builder's license when it constructed the Stocktons' home. WC Baker filed its response, acknowledging that it did not have a builder's license at the time it constructed the home but that it had a builder's license at the time it filed suit, which is all that is required under section 73-59-9(3). Following a hearing, the circuit court granted the Stocktons' motion, thereby dismissing WC Baker's claims. WC Baker now appeals.

STANDARD OF REVIEW

¶5. "When reviewing a trial court's grant or denial of a motion to dismiss, this Court employs a de novo standard of review." Standifer v. Boren ex rel. Graham , 111 So.3d 1267, 1268 (¶ 5) (Miss. Ct. App. 2013).

DISCUSSION

¶6. The Stocktons argued and the circuit court found that WC Baker was barred from bringing suit under section 73-59-9(3) because it did not have a Mississippi residential builder's license at the time of construction. On appeal, WC Baker argues that section 73-59-9(3) only requires a residential builder to obtain a license prior to filing suit and that the circuit court erred in dismissing its claims.

¶7. The Mississippi Supreme Court in Lutz Homes Inc. v. Weston , 19 So.3d 60, 63 (¶ 14) (Miss. 2009), directly addressed the very question now before us-that is, whether section 73-59-9(3) prohibits a builder's breach-of-contract claim where the builder was not licensed during construction but obtained a license before filing suit. In short, the supreme court held that it does not.

¶8. Section 73-59-9(3) states, "A residential builder or remodeler who does not have the license provided by this chapter may not bring any action, either at law or in equity, to enforce any contract for residential building or remodeling or to enforce a sales contract." As noted in Lutz , "[t]he term 'residential builder' encompasses corporations, partnerships, and individuals alike." Lutz Homes Inc. , 19 So.3d at 62 (¶ 10) (citing Miss. Code Ann. § 73-59-1(b) (Rev. 2008) ). The supreme court explicitly held that "[t]he plain language of Section 73-59-9(3) requires only that a residential builder obtain a license prior to bringing an action." Id. at 63 (¶ 15). " Section 73-59-9(3) does not require that a residential builder be licensed at the time of performance or at the time the cause of action accrued" in order to bring suit. Id. "Once a license has been obtained, the disqualification is removed and an action may be brought to enforce a residential building or sales contract, regardless of whether the contract was made before or after the license was acquired." Id. at 64 (¶ 15).

¶9. In Lutz , the Westons entered into a contract with Lutz Homes Inc. for the construction of their home. Id. at 61 (¶ 3). At some point, a dispute arose between the Westons and Lutz Homes, and the Westons terminated Lutz Homes and refused payment. Id. at (¶ 4). They filed suit against Lutz Homes, and Lutz Homes responded by filing a construction lien and a counterclaim. Id. at 61-62 (¶¶ 4, 6). The Westons argued before the circuit court that section 73-59-9(3) prohibited Lutz Homes' lien and counterclaim because Lutz Homes was not licensed at the time of contracting or construction and only obtained a license two months before litigation began. Id. at 61 (¶¶ 5-6). The circuit court found that Lutz Homes was, in fact, not a licensed builder at the time of contracting or construction and ordered that its lien be released and that its counterclaim was barred by section 73-59-9(3). Id. at 62 (¶ 7). On appeal, the supreme court reversed. Id. at 61 (¶ 1). Although the supreme court "agree[d] that Lutz Homes ... was unlicensed at the time it entered into the construction contract with the Westons[,]" it held that, "[n]evertheless, Section 73-59-9(3) does not bar its counterclaim or lien." Id. at 63 (¶ 14). The supreme court found that "Lutz Homes ... became licensed ... two months prior to the start of this litigation, and four months before its counterclaim was filed. Its counterclaim and lien, therefore, are not barred under Section 73-59-9(3)." Id. at 64 (¶ 16). It follows that if a counterclaim for breach of contract is not barred by section 73-59-9(3), neither is a claim for breach of contract.

¶10. Here, WC Baker became licensed two months before it filed suit against the Stocktons. Therefore, according to Lutz , WC Baker's claim is not barred by section 73-59-9(3), and the circuit court erred in dismissing its claims.

¶11. The Stocktons argue that the present case is distinguishable from Lutz because here, the builder did not have a license of any sort-as either a corporation or an individual-whereas in Lutz , the Lutz Homes corporation was not licensed, but Barry Lutz, the individual builder, was personally licensed. Id. at 61 (¶ 3). The Westons' contract, however, was with Lutz Homes, the corporation, not Barry Lutz the individual. Id. And the supreme court has already rejected this argument, stating in Lutz that the Mississippi's builder's licensing statutes "indicate that a corporation operating as a residential builder should maintain a license distinct from its individual incorporator(s), officer(s), member(s), or shareholder(s)." Id. at 62-63 (¶ 10). The Westons' contract was with Lutz Homes; as such, Lutz Homes' counterclaim for breach of contract was through its corporation, not through Lutz individually. Thus, the supreme court's decision that Lutz Homes, as a corporation, could file suit once it obtained a license was not predicated whatsoever on the fact that Lutz individually held a license, but based upon the supreme court's statutory interpretation of section 73-59-9(3). Just as in Lutz , here, the Stocktons' contract was with WC Baker, a corporation that was unlicensed but became licensed before filing suit. In Lutz , the supreme court did not rely on the fact that the individual builder was licensed in determining that Lutz Homes' could file suit once it held a license. This is made even more apparent in the separate concurring opinions in Lutz . Accordingly, we do not rely on the fact that the individual builder in this case was not licensed to distinguish the present case from Lutz . Lutz applies.

¶12. Additionally, since the Lutz decision in 2009, the Legislature reenacted section 73-59-9 in 2011 and again reenacted and also amended the statute in 2015; but neither time did the Legislature amend subsection 73-59-9(3). "[U]pon finding the Legislature amended or reenacted the statute without correcting the prior interpretation," this Court will "continue to apply the previous statutory interpretation, pursuant to the doctrine of stare decisis...." Rankin Cty. Bd. of Supervisors v. Lakeland Income Properties LLC , 241 So.3d 1279, 1283 (¶ 13) (Miss. 2018).

¶13. We must also address the Stocktons' argument on appeal that this Court should follow its decision in Puckett v. Gordon , 16 So.3d 764, 770 (¶ 20) (Miss. Ct. App. 2009), in which we held that the general contractor was barred from recovery by section 73-59-9(3) because he acted as a remodeler without a license. Notably, although the builder in Puckett did not have a license at the time of construction-like Lutz , there is no indication or discussion in the Puckett decision that the general contractor obtained a license prior to filing suit -unlike Lutz . In further response to the Stocktons' argument, we acknowledge that "[t]he ultimate authority and responsibility to interpret the law, including statutes, rests with [the supreme court]." Queen City Nursing Ctr. Inc. v. Miss. State Dep't of Health , 80 So.3d 73, 84 (¶ 28) (Miss. 2011). "This Court, sitting as an intermediate appellate court, is bound by established precedent as set out by the Mississippi Supreme Court[,] and we do not have the authority to overrule the decisions of that court." Bevis v. Linkous Const. Co. , 856 So.2d 535, 541 (¶ 18) (Miss. Ct. App. 2003). At the time Puckett was decided, this Court did not have the benefit of the supreme court's decision in Lutz , because the Lutz case handed down a mere two days after Puckett . What is concerning is that the circuit court in this case, fully aware of the supreme court's decision in Lutz , opined in its bench ruling that "the majority's interpretation of the Section 73-59-9(3) was erroneous" and so declined to follow it. Just as this Court is bound by the supreme court's established precedent, so is the circuit court. Trial courts may not elect, as did the circuit court in this case, to follow separate or dissenting opinions that hold no precedential value.

¶14. Here, WC Baker Company acknowledges that it did not have a license during the contracting or construction of the Stocktons' home. It did, however, obtain a license prior to filing its suit against the Stocktons. Thus, because-as directly explained in Lutz -" Section 73-59-9(3) does not require that a residential builder be licensed at the time of performance or at the time the cause of action accrued" and "only that a residential builder obtain a license prior to bringing an action," the circuit court erred in dismissing WC Baker's claims for breach of contract. Lutz Homes Inc. , 19 So.3d at 63 (¶ 15). Accordingly, we reverse the circuit court's judgment and remand this case for further proceedings.

¶15. REVERSED AND REMANDED.

GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: BARNES, P.J., FOR THE COURT:

text:
    Linda ROBINSON, Appellant v. ROBINSON PROPERTY GROUP CORPORATION D/B/A Horseshoe Casino and Hotel, Appellee
    NO. 2013-CA-01838-COA
    Court of Appeals of Mississippi.
    January 8, 2019 Rehearing Denied May 7, 2019
    ATTORNEY FOR APPELLANT: DRAYTON D. BERKLEY, Memphis.
    ATTORNEY FOR APPELLEE: POPE SHANNON MALLETTE, Oxford.
    EN BANC.
   BARNES, P.J., FOR THE COURT:

¶ 1. On August 6, 2008, Linda Robinson was at the Horseshoe Casino in Tunica, Mississippi, when another patron at the casino, Arthur Johnson, stumbled and knocked a free-standing casino sign onto Linda. She was immediately attended to by the casino's emergency medical technician (EMT) after the accident, but she required no serious medical attention, and she left the casino. On August 5, 2011, Linda filed a complaint against Robinson Property Group d/b/a Horseshoe Casino (Casino) in Tunica County Circuit Court, alleging that the Casino's sign was "negligently and improperly stowed," constituted a "dangerous condition of the property," and caused her injury. She claimed the sign was heavy, pinning her against a brick-enclosed garbage can, and two security guards had to help her sister remove the sign. Linda also contended that the Casino was liable under the Dram Shop Act, see Mississippi Code Annotated section 67-3-73(4) (Rev. 2005), for serving Johnson alcohol, because he was visibly intoxicated. Linda said that, as a result of the incident, she required rotator-cuff surgery and suffered from panic attacks.

¶ 2. On August 24, 2011, the circuit court entered an order setting deadlines for discovery, stating that all discovery should be completed 120 days after service of an answer by the defendants, including "all depositions which may be of evidentiary nature as well as for discovery." The order also stated that expert witnesses were to be designated no later than forty-five days before the deadline. The Casino filed its answer to the complaint on September 12, 2011, denying the allegations and requesting dismissal of the action. On December 7, 2011, Robinson requested a motion for extension of time (120 days), citing difficulty in locating Johnson for service of process.

¶ 3. The Casino filed a notice of service of interrogatories, requests for production of documents, and requests for admissions on April 30, 2012. Linda did not respond to the request for admissions until June 18, 2012, and subsequently filed a motion to amend her responses and to withdraw any admissions on August 13, 2012. The Casino argued that it was prejudiced by the delay and that the requests for admission were deemed admitted under Mississippi Rule of Civil Procedure 36(a), which states:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request , or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter....

(Emphasis added).

¶ 4. On December 6, 2012, the Casino took Linda's deposition. The Casino filed a motion for summary judgment on May 20, 2013, and a hearing was scheduled for August 15, 2013. Three days before the motion hearing, Linda responded to the Casino's motion for summary judgment and filed a motion for a continuance. Linda's counsel noted that his mother had been terminally ill and had died on September 2, 2012, and that Linda desired to take the depositions of the Casino's employees present at the incident. The Casino replied that Linda's response was untimely and procedurally improper and requested that its summary-judgment motion be granted. At the August 15 hearing, Linda's counsel conceded the claim under the Dram Shop Act, acknowledging that there was "no proof that [Johnson] was served and he was visibly intoxicated."

¶ 5. The circuit court denied Linda's motion for a continuance and granted the Casino's motion for summary judgment, concluding that Linda failed to show a breach of duty for the premises-liability claim. After the circuit court denied Linda's motion for reconsideration, she filed a notice of appeal. Finding no error, we affirm.

DISCUSSION

I. Whether the circuit court's denial of Linda's Mississippi Rule of Civil Procedure 56(f) motion for a continuance was an abuse of discretion.

¶ 6. Linda filed a motion for a continuance under Mississippi Rule of Civil Procedure 56(f) on August 12, 2013. The circuit court denied the motion, finding that the motion was untimely and lacked a legal basis. Linda argues that her Rule 56(f) motion for a continuance should have been granted. Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as it just.

Linda claims that she had wished to take the deposition of the security guard who was present at the incident but the Casino told her the employee was unavailable. She also alleges that the Casino said it would make an exemplar of the sign available to her, but failed to do so.

¶ 7. "The [circuit] court has sound discretion to grant or deny a continuance under Rule 56(f) ... [and our Court] will only reverse a [circuit] court where its decision can be characterized as an abuse of discretion." Davis v. Hindman , 138 So.3d 214, 217 (¶ 9) (Miss. Ct. App. 2014) (quoting Stallworth v. Sanford , 921 So.2d 340, 342-43 (¶ 9) (Miss. 2006) ). We agree that Linda's motion was untimely. Rule 4.03(2) of the Uniform Rules of Circuit and County Court Practice required that Linda file a reply to the Casino's motion for summary judgment within ten days. However, Linda did not file her motion for a continuance until three days before the summary-judgment hearing, almost three months after the Casino filed its motion.

¶ 8. Furthermore, " Rule 56(f) is not designed to protect litigants who are lazy or dilatory." Stallworth , 921 So.2d at 343 (¶ 11). In Stallworth , the Mississippi Supreme Court affirmed a circuit court's denial of the plaintiff's Rule 56(f) request for a continuance because the plaintiff had notice of her claim two years prior to the summary-judgment proceedings, had filed unsworn answers to interrogatories, and had failed to submit an expert's affidavit to support her claim against the defendant physicians. Id. at 342-43 (¶¶ 7-11) ; see also Hill v. Warden , 796 So.2d 276, 279 (¶ 9) (Miss. Ct. App. 2001) (finding no abuse of discretion in circuit court's grant of summary judgment due to plaintiff's nineteen-month delay before requesting to take deposition of physician).

¶ 9. Here, Linda had two years to conduct discovery but never issued a notice of a Mississippi Rule of Civil Procedure 30(b)(6) deposition, and her claim that the casino employee was not made available is not supported by the record. Responding to an e-mail regarding Linda's deposition, the Casino's attorney replied:

I'm checking with my client to determine the likely availability of witnesses on expected topics, though I can't be sure of the topics until I get your [ Rule 30(b)(6) ] notice . I'm checking on the availability of Security Manager, Luke Owens, and Kelly Bland and Arthur Logan (EMT and Supervisor related to incident).

(Emphasis added). Additionally, although Linda's counsel had been dealing with personal issues (the illness and death of his mother), he failed to inform the Casino or the circuit court of these issues until well after discovery responses were due. A litigant who desires to present additional evidentiary material "has an affirmative duty" to raise the issue in a timely manner "with the [circuit] court or be deemed to have waived objection to the court proceeding on the motion." Koestler v. Miss. College , 749 So.2d 1122, 1125 (¶ 10) (Miss. Ct. App. 1999) (quoting MST Inc. v. Miss. Chem. Corp. , 610 So.2d 299, 305 (Miss. 1992) ).

¶ 10. In light of the preceding facts, we find nothing to support Linda's claim that the circuit court's denial of her motion for continuance was an abuse of discretion.

II. Whether the circuit court erred in granting the Casino's motion for summary judgment.

¶ 11. This Court's standard of review of a circuit court's grant of summary judgment is de novo. Freeman v. CLC of Biloxi LLC , 119 So.3d 1164, 1168 (¶ 11) (Miss. Ct. App. 2013) (quoting Haggard v. Wal-Mart Stores Inc. , 75 So.3d 1120, 1124 (¶ 8) (Miss. Ct. App. 2011) ). "Summary judgment is appropriate and 'shall be rendered' if the 'pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 10) (Miss. 2013) (quoting M.R.C.P. 56(c) ).

¶ 12. The circuit court noted that Linda had provided "no medical expert to testify to proximate causation." Linda argues that her testimony and medical bills were sufficient proof of causation and that she is not required to provide expert testimony to prove the Casino's breach of the standard of care. Linda is correct in one respect-"[t]he general rule in Mississippi is that expert testimony is not required where the facts surrounding the alleged negligence are easily comprehensible to a jury." Wal-Mart Stores Inc. v. Johnson , 807 So.2d 382, 388 (¶ 15) (Miss. 2001) (citing Hammond v. Grissom , 470 So.2d 1049, 1052 (Miss. 1985) ). However, in Downs v. Ackerman , 115 So.3d 785, 790-91 (¶ 18) (Miss. 2013), the Mississippi Supreme Court determined that although "[a plaintiff's] medical bills established a presumption that those bills were reasonable and necessary for the treatment of her injuries, her medical bills were not prima facie evidence that the accident was the proximate cause of [her ] injuries. " (Emphasis added). Regardless, the circuit court only referenced the lack of medical-expert testimony as "further justification for granting summary judgment," finding the breach issue dispositive.

¶ 13. "[T]o prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury." Lee v. G & K Servs. Co. , 98 So.3d 489, 493 (¶ 12) (Miss. Ct. App. 2012) (quoting Paz v. Brush Engineered Materials Inc. , 949 So.2d 1, 3 (¶ 5) (Miss. 2007) ). Because Linda was a patron of the Casino, she was considered an invitee.

"[A]n invitee is owed the highest duty. The landowner must provide property that is 'reasonably safe, and when not reasonably safe the landowner must warn only where there is hidden danger or peril that is not plain and open view.' " Banks v. Brinker Miss. Inc. , 146 So.3d 388, 391 (¶ 9) (Miss. Ct. App. 2014) (quoting Daulton v. Miller , 815 So.2d 1237, 1239 (¶ 7) (Miss. Ct. App. 2001) ).

¶ 14. The Casino's sign was located along the edge of a walkway. An allegedly intoxicated patron, Johnson, fell into the sign, causing this sign to fall on Linda for a few seconds until it was pulled off of her. The circuit court observed: "Other than hearsay statements-Linda's claim that the security guards said the sign was heavy-Linda shows nothing regarding negligent placement or the inherent danger of the sign." Furthermore, as discussed, Linda did not depose any Casino employees during discovery and did not provide any exemplar of the sign or expert testimony as to proximate causation. Accordingly, we agree with the circuit court's finding that Linda failed to provide any evidence the Casino breached a duty to her as an invitee and that the sign constituted a "dangerous condition."

¶ 15. Linda further argues that an intoxicated guest should be considered a "dangerous condition of the premises." She cites D'Amico v. Christie , 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896, 899-901 (1987), which states that a landowner may be liable for injuries caused by an intoxicated guest under its control. However, although Linda claimed that a Casino employee told her Johnson had been drinking all morning, she provided no proof that Johnson was, in fact, intoxicated or that the Casino was aware that Johnson was intoxicated. In her deposition, she acknowledged:

Q. Okay. Did you ever speak to anyone who noticed [Johnson] was inebriated before this incident?
A. No.
Q. Okay. And I think you've testified, but do you have any idea how long [Johnson] had been at [the] casino, the elderly gentleman had been at Horseshoe Casino?
A. No. Other than what they said that he'd been drinking all morning. I don't know if - you know, what constitutes morning.
Q. Or do you know what constitutes drinking? Do you know how much he had [consumed]?
A. No, I don't.
Q. Do you know if, in fact, [Johnson] was legally intoxicated or intoxicated at any particular level?
A. No.

Furthermore, Linda's counsel stipulated to dropping the Dram Shop Act claim at the summary-judgment hearing, noting there was no proof Johnson "was visibly intoxicated."

¶ 16. "[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Karpinsky , 109 So.3d at 89 (¶ 10-11) (internal quotation marks omitted) (quoting Buckel v. Chaney , 47 So.3d 148, 153 (¶ 10) (Miss. 2010) ). We find Linda has not provided sufficient evidence to establish that a dangerous condition existed on the premises and that the Casino breached any duty owed to her as an invitee. Accordingly, we affirm the circuit court's grant of the Casino's motion for summary judgment.

¶ 17. AFFIRMED.

GRIFFIS, C.J., CARLTON, P.J., WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT PARTICIPATING.

      Because the parties have the same name "Robinson," we will address the Appellant by her first name to avoid confusion.

      The complaint was also filed against Johnson, the casino patron who knocked the sign onto Linda. However, Linda later conceded any claims against Johnson, and he is not a party to this appeal.

      After the Casino's parent company and its subsidiaries filed a voluntary petition for bankruptcy on January 15, 2015, the appeal was stayed. From 2015 to 2018, the Casino provided this Court with status updates on the bankruptcy proceedings. On May 30, 2018, a copy of an agreed order by the bankruptcy court was filed with this Court, which allowed Linda to proceed with her appeal against the Casino "so [Linda] may establish liability against [the Casino] for the sole purpose of recovering from either (a) any non-[r]eorganized [d]ebtor defendants, (b) any proceeds of available insurance policies issued in the name of or for the benefit of the [Casino,] ... or (c) any third-party insurance policies that may apply[.]" The Casino moved to reinstate the appeal on September 25, 2018.

      Rule 4.03(2) was amended and renumbered as Rule 4.02(2) effective July 1, 2017.

      Regarding Linda's other motion to amend her responses to the request for admissions, the circuit court found the issue moot based on its holding.

      A video of the incident, which purportedly refutes Linda's claims concerning the details of the incident, was viewed by the trial court. Linda moved to strike the evidence. Linda contends the video was incomplete, even though the Casino's video-surveillance operator authenticated the video, stating it had not been edited or altered. The Casino claims this video is part of the record on appeal, but this Court did not discover any video evidence in the record. Nevertheless, the circuit court stated that it did not rely on the video evidence in making its determination to grant summary judgment, finding Linda's motion to strike moot; so we find the video irrelevant to our disposition.


author: SELLERS, Acting Chief Justice.

text:
    EX PARTE Roy S. MOORE and Judge Roy Moore for US Senate
    (In re: Leigh Corfman v. Roy S. Moore and Judge Roy Moore for US Senate)
    1170638
    Supreme Court of Alabama.
    August 17, 2018 Rehearing Denied September 28, 2018
    Kenneth Shinbaum and Julian L. McPhillips, Jr., of McPhillips Shinbaum, LLP, Montgomery, for petitioners.
    Harlan I. Prater IV, Melody H. Eagan, and Jeffrey P. Doss of Lightfoot, Franklin & White LLC, Birmingham; and Neil K. Roman and Megan L. Rodgers of Covington & Burling LLP, New York City, New York, for respondent.
   SELLERS, Acting Chief Justice.

Roy S. Moore and his campaign committee, "Judge Roy Moore for US Senate" ("the Committee"), have petitioned this Court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") to transfer an action filed by Leigh Corfman alleging defamation against Moore and the Committee to the Etowah Circuit Court. We deny the petition.

The materials before the Court indicate that, in the fall of 2017, while Moore was a candidate for the United States Senate, reporters working for the Washington Post newspaper approached Corfman and questioned her about Moore. Corfman told the reporters that Moore had abused her in 1979 when she was 14 years old and Moore was 32 years old. Corfman's allegations appeared in a Washington Post article published on November 9, 2017. Moore has denied the allegations.

In January 2018, Corfman filed in the Montgomery Circuit Court the defamation action underlying this mandamus petition. She averred in her complaint that, after publication of the Washington Post article, Moore and alleged representatives of the Committee asserted at campaign-related events, in public statements, and during media interviews that Corfman's allegations of abuse were false, malicious, and politically motivated. According to Corfman, Moore and the Committee "defamed [her] repeatedly and in all forms of media [by] calling her a liar and questioning her motivation for publicly disclosing [the alleged abuse]." Corfman's complaint also points to an affidavit Moore submitted to the Montgomery Circuit Court in an election contest he filed challenging the results of the election for the United States Senate seat. In the affidavit, Moore described Corfman's abuse allegations as "false" and "malicious" and averred that the results of a polygraph test showed that he had never had any contact with her.

Moore and the Committee filed a motion for a change of venue of Corfman's defamation action to the Etowah Circuit Court based on the doctrine of forum non conveniens. The trial court denied that motion, and Moore and the Committee filed this mandamus petition.

"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court. Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'A petition for the writ of mandamus is a proper method for presenting a venue challenge based on the doctrine of forum non conveniens.' Id. (citations omitted). We apply the abuse-of-discretion standard when considering a mandamus petition challenging a venue ruling, and we will not issue the writ unless the trial court exercised its discretion in an arbitrary and capricious manner. Id."

Ex parte Brookwood Health Servs., Inc., 781 So.2d 954, 956-57 (Ala. 2000). Moore and the Committee bore the burden of persuasion in the trial court, Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003), and they bear a heavy burden in this Court. Ex parte East Alabama Mental Health-Mental Retardation Bd., Inc., 939 So.2d 1, 5 (Ala. 2006). In reviewing the trial court's judgment, we are limited to the facts that were presented to that court. Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008).

Alabama's forum non conveniens statute provides:

"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

§ 6-3-21.1, Ala. Code 1975. Moore and the Committee rely primarily on the interest-of-justice prong of the forum non conveniens statute, although they also address the convenience-of-the-parties-and-witnesses prong.

"The 'interest of justice' prong of § 6-3-21.1 requires 'the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.' Ex parte National Sec. Ins. Co., 727 So.2d [788] at 790 [ (Ala. 1998) ]. Therefore, 'in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the "nexus" or "connection" between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 911 (Ala. 2008)."

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008).

As Moore and the Committee point out in their mandamus petition, both Corfman and Moore live in Etowah County, and Corfman has alleged that the abuse occurred there. Moore and the Committee also point out that, although the registered address of the Committee was in Montgomery County during the campaign and the election, a few days after Corfman filed her defamation complaint the Committee changed its address to an address in Etowah County. They assert that the Committee has stopped conducting any activity in Montgomery County and has vacated its office there. They do not, however, deny that the Committee was headquartered in Montgomery County when the alleged defamation occurred.

For her part, Corfman relies on an allegation that, during a November 21, 2017, press conference in Montgomery County, Ben DuPré, who Corfman claims spoke on behalf of the Committee, made allegedly defamatory remarks. DuPré, a likely witness in the underlying action, lives in Montgomery County. Likewise, Rich Hobson, who served as the Committee's treasurer during the campaign, lives in Montgomery County. Corfman asserts that Hobson also made defamatory statements on behalf of the Committee. The affidavit Moore submitted in conjunction with his election contest, upon which Corfman also relies, was filed in Montgomery County. Finally, Corfman points out that, when the alleged defamatory statements were made, the Committee's headquarters were located in Montgomery County. Thus, the underlying action has connections to both Etowah County and Montgomery County.

As this Court has acknowledged more than once,

" '[o]ur forum non conveniens analysis has never involved a simple balancing test weighing each county's connection to an action. Rather, to compel a change of venue under the "interest of justice" prong of § 6-3-21.1, the county to which the transfer is sought must have a "strong" nexus or connection to the lawsuit, while the county from which the transfer is sought must have a "weak" or "little" connection to the action.' "

Ex parte Elliott, 254 So. 3d 882, 886 (Ala. 2017) (quoting Ex parte J & W Enters., LLC, 150 So.3d 190, 196 (Ala. 2014) ).

We note here that the location of the injury is "often assigned considerable weight in an interest-of-justice analysis." Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573-74 (Ala. 2011). Corfman asserts that, for purposes of venue and of forum non conveniens, her claimed injuries occurred where the allegedly defamatory statements were made, and Moore and the Committee do not persuasively argue otherwise. Cf. Ex parte Wilson, 408 So.2d 94, 96 (Ala. 1981) (indicating that, for purposes of venue of an action alleging libel, the injury occurred where the libelous statement was originally published). See also Ex parte Windom, 840 So.2d 885, 889 n.2 (Ala. 2002) ("[I]n venue cases, the word injury commonly refers not to the damage allegedly suffered by the plaintiff, but to the wrongful act or omission allegedly committed by the defendant ...."); Ex parte Kane, 989 So.2d at 513 (indicating that the location of the alleged wrongful acts and omissions is highly relevant for forum non conveniens purposes). Although most of the allegedly defamatory statements were made in places other than Montgomery County or Etowah County, some of the statements were, as noted above, made in Montgomery County. Apparently none were made in Etowah County.

"When venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference." Ex parte Perfection Siding, Inc., 882 So.2d at 312. Whether the doctrine of forum non conveniens calls for a transfer of an action is an issue "addressed to the sound discretion of the trial judge." Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala. 1990). This proceeding, therefore, does not call for a de novo review, and we cannot simply substitute our judgment for the trial court's. Based on the materials before us, we cannot say that the trial court acted arbitrarily and capriciously in determining that this action has more than a "little" or "weak" connection to Montgomery County. Thus, we cannot say the trial court erred in determining that the interest of justice does not require the transfer of this action to Etowah County.

Moore and the Committee also assert that the trial court should have transferred the action based on the convenience of the parties and the witnesses. However, this Court has stated that "[t]he transferee forum must be significantly more convenient than the forum in which the action was brought ... to justify a transfer." Ex parte Swift Loan & Fin. Co., 667 So.2d 706, 708 (Ala. 1995) (emphasis added). Moore and the Committee rely on the fact that Moore lives in Etowah County and that, after this action was filed, the Committee changed its mailing address to an address in Etowah County. They do not, however, demonstrate that it would be significantly more convenient for those parties to litigate the underlying action in Etowah County than in Montgomery County. Moore and the Committee also rely on the fact that Corfman lives in Etowah County, but they have not demonstrated that Corfman's residence should be taken into account in analyzing convenience, considering that she chose to file her complaint in Montgomery County. Although DuPré, Hobson, and a third alleged representative of the Committee, William Armistead, have indicated that they are willing to testify in Etowah County, we fail to see how that makes litigation there significantly more convenient. Finally, Moore and the Committee have not demonstrated that it will be significantly more convenient for other potential nonparty witnesses to participate in litigation in Etowah County rather than in Montgomery County.

Considering a mandamus petitioner's heavy burden and all the materials before us, we conclude that the trial court did not exceed its discretion in denying the motion for a change of venue based on the interest of justice or on the convenience of the parties and the witnesses. Accordingly, we deny the petition.

PETITION DENIED.

Mendheim, J., and Christopher F. Abel, Hewitt L. Conwill, Jenifer Collins Holt, Claud Dent Neilson, and James Harold Roberts, Jr., Special Justices, concur.

      Seven members of the Supreme Court of Alabama, including the Chief Justice, recused themselves from consideration of all matters related to this mandamus petition pursuant to Canon 3.C of the Alabama Canons of Judicial Ethics, which requires a Justice to disqualify himself or herself in any proceeding in which the Justice's impartiality might reasonably be questioned. Their recusal left Associate Justices William B. Sellers and Brady Mendheim, Jr., to hear the petition. In an order dated May 9, 2018, Justice William B. Sellers, as Acting Chief Justice, notified the parties that an additional five justices would be selected by random drawing from a pool of retired justices and judges and active circuit judges. The drawing took place on May 11, 2018. On May 15, 2018, Acting Chief Justice Sellers appointed the following five judges to serve as Special Associate Justices: Christopher F. Abel, Hewitt L. Conwill, Jenifer Collins Holt, Claud Dent Neilson, and James Harold Roberts, Jr. The Special Supreme Court consists of those five Special Associate Justices, Associate Justice Brady Mendheim, Jr., and Acting Chief Justice Sellers.

      In addition to the motion for a change of venue based on the doctrine of forum non conveniens, Moore and the Committee also filed a motion to dismiss Corfman's action or to transfer the action based on their assertion that venue in Montgomery County is statutorily improper. The trial court denied that motion, and this Court declined to order answers and briefs as to that issue. Accordingly, we consider only the issue whether the trial court erred in refusing to transfer the action based on the doctrine of forum non conveniens.

      The Court notes that DuPré and Hobson have indicated that they are willing to travel to Etowah County to testify should the action be transferred there.

      Corfman asserts that the Committee's change of address after the action was filed is irrelevant and should not be considered. In support, she points to precedent standing for the proposition that venue is assessed at the time an action is filed. Moore and the Committee, who bear a heavy burden as petitioners for the writ of mandamus, do not squarely address that legal argument in their reply brief. In any event, assuming the Committee's current address should be considered a connection to Etowah County for purposes of the doctrine of forum non conveniens, we maintain our conclusion that the trial court did not exceed its discretion in denying the motion for a change of venue.

      Moore and the Committee argue that Corfman's defamation claim based on statements made in the affidavit Moore submitted in the election contest in Montgomery County lacks merit because, they assert, those statements are entitled to a "litigation privilege," they represent Moore's opinion, and they were made in "self defense." Likewise, Moore and the Committee attack the merits of Corfman's claims that are based on allegedly defamatory statements of individuals who Corfman asserts spoke on behalf of the Committee, including DuPré's statements at the referenced press conference in Montgomery County. Moore and the Committee assert that "individuals identified in the complaint who defended ... Moore during the campaign did not speak as agents of the Committee." Moore and the Committee, however, have not presented a persuasive argument or legal authority supporting their suggestion that this Court should resolve the merits of Corfman's claims and disregard some of those claims in determining whether the trial court exceeded its discretion in denying the motion for a change of venue based on the doctrine of forum non conveniens. It is not this Court's role to perform a party's legal research or to craft legal arguments supporting a party's position. Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994). The Court expresses no opinion on the merits of any of Corfman's claims.

      See note 4, supra.

      Moore and the Committee speculate that, because Corfman claims she took a leave of absence from her employment in Etowah County as a result of the alleged defamation, "individuals with [Corfman's] employer in Etowah County may be witnesses." Moore and the Committee do not identify any particular witness associated with Corfman's employer, explain how such an individual would have to participate in the underlying action, or persuasively argue that the potential existence of such a witness necessitates a transfer of the action to Etowah County.