author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Christopher Joseph CUMMINS v. Leah Jordan GOOLSBY
    NO. 2017-CA-00890-SCT
    Supreme Court of Mississippi.
    October 18, 2018
    ATTORNEY FOR APPELLANT: WALTER ALAN DAVIS, Oxford
    ATTORNEY FOR APPELLEE: JOHN A. FERRELL, Booneville
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Dr. Christopher Cummins-a married man who was separated but not divorced from his wife-began a romantic relationship with one of his employees, Leah Jordan Goolsby (Jordan). The two began living together, had a child, and became engaged to one another. But Dr. Cummins never divorced his wife. And he and Jordan never married. Jordan eventually ended their relationship and kept the engagement ring and wedding ring he gave her. When Jordan filed a paternity suit for child-support payments for their child, Dr. Cummins counterclaimed for the rings, which together were worth $11,435. Alternatively, he argued that if Jordan was awarded the rings, their value should be deducted from any child-support obligation.

¶ 2. The chancellor found Dr. Cummins had made a completed inter vivos gift. So she awarded the rings to Jordan. The chancellor found that the rings were not a conditional gift, because the condition of marriage was not met, since Dr. Cummins had remained married to his wife. The chancellor certified the ruling on the ring issue as a final judgment, and Dr. Cummins appealed.

¶ 3. After review, we agree the fatal fact to Dr. Cummins's claim was his marriage to another woman. Because Dr. Cummins could not legally marry at the time he gave the engagement rings, he cannot argue to a court of equity that he is entitled to get the rings back, since the condition of marriage never took place. Because Dr. Cummins has no right to recover the rings due to his unclean hands, we affirm.

Background Facts and Procedural History

¶ 4. Jordan started working at Dr. Cummins's medical practice in July 2013. In August, although he was married but separated from his wife, he and Jordan became romantically involved and moved in together. The couple then had a child on June 29, 2015. All during this time, Dr. Cummins's divorce was supposedly pending but never was finalized. Still, he had given Jordan an engagement ring and a wedding ring allegedly worth $11,435.

¶ 5. But Dr. Cummins remained married to his wife and failed to get a divorce. So Jordan broke off the engagement in September 2016. Jordan also claimed that she no longer wished to marry Dr. Cummins "based upon his erratic and abusive conduct and the decision to break off the engagement was mutual."

¶ 6. On March 1, 2017, Jordan filed a petition to establish paternity, among other relief, for her and Dr. Cummins's child. On April 21, 2017, Dr. Cummins responded and filed a counterclaim for return of the rings. Alternatively, he asserted he was entitled to a credit for the rings' value against any financial obligation he might be ordered to pay. The Prentiss County Chancery Court heard arguments on Dr. Cummins's counterclaim on May 15, 2017. Dr. Cummins argued that, under Cooley v. Tucker , the rings were a conditional gift, and the condition-marriage-was never met. See Cooley v. Tucker , 200 So.3d 474 (Miss. Ct. App. 2016). Thus, Dr. Cummins argued the gift was incomplete and the rings should be returned to him. Jordan countered that when Dr. Cummins gave her the rings, the condition could not be met because he was still married to his wife. In fact, he was still married at the May 15, 2017 hearing.

¶ 7. The chancellor ruled that when Dr. Cummins gave the rings to Jordan, the condition to marry could not be completed because he remained married to his wife. Therefore, Jordan was awarded the rings as a completed inter vivos gift. The trial court entered its Rule 54(b) Final Judgment on Limited Issue the next day. Dr. Cummins filed his Notice of Appeal on June 23, 2017. The single issue on appeal is whether the chancellor erred by awarding the rings to Jordan.

Discussion

¶ 8. We will not disturb a chancellor's findings unless they are manifestly wrong, clearly erroneous, or applied the wrong legal standard. McNeil v. Hester , 753 So.2d 1057, 1063 (Miss. 2000) (citing Bank of Miss. v. Hollingsworth , 609 So.2d 422, 424 (Miss. 1992) ). But questions of law are reviewed de novo. Id. (citing Consol. Pipe & Supply Co. v. Colter , 735 So.2d 958, 961 (Miss. 1999) ). As part of this de novo review, this Court may affirm the chancellor's judgment if the right result was reached, even if the chancellor reached the result for the wrong reason. Davis v. City of Jackson , 240 So.3d 381, 384 (Miss. 2018) (citing Methodist Hosp. of Hattiesburg, Inc. v. Richardson , 909 So.2d 1066, 1070 (Miss. 2005) ). Because Dr. Cummins was already married when he gave Jordan the rings, the chancellor reached the right result when she denied his claim that the rings had to be returned.

¶ 9. Dr. Cummins argues that the chancellor failed to follow the Cooley v. Tucker decision. In that case, the Court of Appeals applied the following test to determine whether an engagement ring was a completed inter vivos gift: "(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.' " Cooley , 200 So.3d at 476 (quoting Johnson v. Collins , 419 So.2d 1029, 1030 (Miss. 1982) ). Looking specifically at the third factor, the Cooley Court held that the engagement ring was an inter vivos gift, but it was conditioned upon the parties' getting married. Id. And because the parties did not get married, the condition was unfulfilled and the gift was incomplete. Id. Thus, the former boyfriend was entitled to the return of the ring. Id. Dr. Cummins argues that, because he and Jordan did not get married, he is in the same position as the boyfriend in Cooley . He claims the third element of a completed inter vivos gift-that the gift was complete and nothing was left to be done-had not been met. So, he was entitled to the return of the rings.

¶ 10. But this case is not like Cooley .

¶ 11. First, we would note that the context is different. Cooley involved a replevin action filed by the former boyfriend after the dating relationship had ended. In this case, it was only after Jordan sued Dr. Cummins to establish paternity and to receive financial support for their child that Dr. Cummins asserted his counterclaim to the rings and specifically plead that the value of the rings should be credited against any financial obligation he owed to Jordan as their child's father. Although the child-support issue is not before this Court on appeal, we find it worth noting that child-support benefits belong to the child, not to the custodial parent who receives the benefits under a fiduciary duty to use them for the benefit and protection of the child. Edmonds v. Edmonds , 935 So.2d 980, 986 (Miss. 2006) (citing Caldwell v. Caldwell , 579 So.2d 543, 549 (Miss. 1991) ). So, even if Dr. Cummins had a right to the rings or to the rings' value, by no means is he entitled to the ultimate remedy he seeks-a reduction in child support based on the broken engagement.

¶ 12. Second, and more importantly, unlike the boyfriend in Cooley , Dr. Cummins was married when he gave Jordan the rings. In fact, he was still married when he asked the chancery court to order Jordan to give them back. As the chancellor recognized, Dr. Cummins's marriage is significant because he conditioned his gift on something he legally could not do-marry Jordan. See Miss. Code Ann. § 97-29-13 (Rev. 2014). And now he argues this very condition-or the failure thereof-is what entitles him to the rings.

¶ 13. "[O]ne of the maxims of equity is, 'He who comes into equity must come with clean hands.' " Thigpen v. Kennedy , 238 So.2d 744, 746 (Miss. 1970). And conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands. See, e.g. , Morgan v. Wright , 219 Ga. 385, 133 S.E.2d 341, 343 (1963) (holding that an action to recover an engagement ring given to a married woman was barred by the doctrine of unclean hands). Dr. Cummins could not legally marry Jordan at the time he gave her the rings. So, he cannot now bring an action for the rings to be returned because the condition of marriage never occurred. See Lipschutz v. Kiderman , 76 A.D.3d 178, 184, 905 N.Y.S.2d 247 (2010) ("[W]here a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the condition of marriage did not take place.").

¶ 14. Because, unlike the boyfriend in Cooley , Dr. Cummins had no right to have the rings returned as part of his paternity dispute with Jordan, the chancellor did not err when she awarded the rings to Jordan. We affirm the chancellor's judgment.

¶ 15. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE, J.; RANDOLPH, P.J., AND BEAM, J., JOIN IN PART.

¶ 16. The act of giving an engagement ring, wedding band, or the like defies easy categorization. Because the parties in the instant case stipulate that Cummins intended the rings as a conditional gift rather than consideration given in return for a promise to marry, I agree with the majority opinion. However, I write to point out that under still-controlling Mississippi law, civil actions for the breach of the promise to marry continue to be governed by contract law rather than the law of gifts.

¶ 17. The acceptance of a promise to marry forms a contract, and for decades Mississippi law has treated the breach of such a promise under contract law. In Cooley v. Tucker , 200 So.3d 474 (Miss. Ct. App. 2016), a sharply divided Mississippi Court of Appeals, however, analyzed the case under the law of conditional and inter vivos gifts rather than under the law of contracts. In Cooley , the trial court based its decision on the law of conditional gifts, and the parties argued the law of conditional gifts in their briefs to the Court of Appeals, so the resulting opinion is not surprising. However, Judge Carlton, who wrote a dissent, raised still-viable precedent from the Mississippi Supreme Court in which it had held that questions arising from the breach of a promise to marry are analyzed pursuant to contract law.

¶ 18. The opening sentence of the Court's opinion in Carney v. McGilvray , 152 Miss. 87, 119 So. 157 (1928), reads, "Mrs. Cordelia Carney sued Duncan McGilvray in the circuit court of Forrest county on a breach of contract-his failure to carry out a promise of marriage." The defenses raised in the trial court included the absence of good faith on the part of the plaintiff and an allegation that the contract was never formed because there was no offer and acceptance. Id. at 158-159.

¶ 19. More factually apt is Ashley v. Dalton , 119 Miss. 672, 81 So. 488 (1919). There, a breach of an engagement occurred because a man who, at the time of entering the engagement and at the time of the action, was a married man; the man's betrothed had been unaware of his marriage. Id. at 488. The Court held that the woman could recover from the man because "[t]he fact that the promisor was already married at the time of making the promises furnishes no defense to an action for a breach of promise, where this fact was unknown to the promisee ." Id. (emphasis added). The Court continued that a woman may maintain an action for breach of promise, "notwithstanding the fact that he was married to another woman at the time the contract was made, if such fact was unknown to the woman at the time of the engagement ." Id. (emphasis added).

¶ 20. Although the Court of Appeals in Cooley chose not to follow Carney and Ashley in that it did not analyze the issue presented under contract law, we never have overruled those cases and, in a case lacking the stipulations found in the record here, they might have well controlled.

ISHEE, J., JOINS THIS OPINION. RANDOLPH, P.J., AND BEAM, J., JOIN THIS OPINION IN PART.

      Nothing in this record indicates the status of Dr. Cummins's divorce.


source: Caselaw Access Project

author: COLEMAN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    BOARD OF SUPERVISORS OF CLARKE COUNTY, MISSISSIPPI v. BTH QUITMAN HICKORY, LLC
    NO. 2017-IA-00149-SCT
    Supreme Court of Mississippi.
    October 18, 2018
    ATTORNEYS FOR APPELLANT: RICHARD G. NORRIS, II, RIDGELAND, GREG SNOWDEN, MERIDIAN
    ATTORNEYS FOR APPELLEE: NONE
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. BTH Quitman Hickory, LLC, challenged the amount of the ad valorem taxes assessed by the Clarke County Board of Supervisors by appealing the assessments to the Clarke County Circuit Court. However, BTH Quitman did not submit a bond with its appeals; therefore, the Board of Supervisors moved to dismiss the appeals. The circuit court found in favor of BTH Quitman, and the Board filed the instant interlocutory appeal. Because the Court has squarely addressed a similar issue in its opinion in Natchez Hospital Co., LLC v. Adams County Board of Supervisors , 238 So.3d 1162 (Miss. 2018), we reverse the circuit court's judgment and remand the case for the circuit court to dismiss BTH Quitman's case for lack of subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2. BTH Quitman owns a torrefaction and wood-pellet facility located in Quitman County, Mississippi. According to the Board,

In order to induce BTH [Quitman] to build its facility in Clarke County, the Board entered an Inducement Agreement with BTH [Quitman], exempting BTH [Quitman] from all ad valorem taxes that would otherwise be due .... As a result of the agreement, BTH [Quitman] made significant investment in equipment ... but has only had to pay approximately [four percent] of the equipment's assessed value each year in ad valorem taxes.

In 2016, the Board's appraisal estimates for BTH Quitman's four pieces of equipment totaled $62,273,746. Unhappy with the valuation, BTH Quitman requested a reduction from $62,273,746 to $10,000,414. The Board did reduce the assessment from $62,273,746 to $48,068,654. After the Mississippi Department of Revenue approved the Board-submitted tax rolls, the Board then gave its final approval of the tax rolls.

¶ 3. BTH Quitman filed four complaints in the circuit court challenging the assessment. However, BTH Quitman did not file a bond with its complaints, so the Board moved to dismiss the appeals for lack of jurisdiction. The circuit court found in favor of BTH Quitman, holding that Mississippi Code Section 27-35-119(2) did not include a bond requirement in order to appeal the assessments. The Board petitioned the Court for interlocutory review, which the Court granted in March 2017.

¶ 4. On appeal, the Board framed the issue as follows:

The question at issue in this appeal is one of statutory interpretation which affects the limited appellate jurisdiction of the Circuit Court. Specifically, [ Section] 27-35-119(2) states: "Any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessments shall have the right of appeal to the circuit court in the manner provided by law, within twenty (20) days after the date the notice is mailed as provided for in subsection (1) of this section." The issue can be stated very simply: What is "the manner provided by law" governing the procedures by which the taxpayer must file its appeal under [ Section] 27-35-119(2) ? Or rephrased: "Do the procedural requirements of Mississippi Code [Section] 11-51-77, which deal specifically with the procedure for appeals from the assessment of taxes rendered by a county board of supervisors, provide the 'manner by law' by which a taxpayer must appeal under Mississippi Code [Section] 27-35-119(2) ?"

ANALYSIS

¶ 5. The Court reviews jurisdictional issues utilizing the de novo standard of review. Miss. Transp. Comm'n v. Eng'g Assocs. , 39 So.3d 1, 2 (¶ 3) (Miss. 2010). Additionally, statutory interpretation is a question of law subject to de novo review. Tellus Operating Grp., LLC v. Texas Petroleum Inv. Co. , 105 So.3d 274, 278 (¶ 9) (Miss. 2012).

¶ 6. The statutes at issue in the present appeal are, first, Section 27-35-119(2), which provides,

Any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessments shall have the right of appeal to the circuit court in the manner provided by law, within twenty (20) days after the date the notice is mailed as provided for in subsection (1) of this section.

Miss. Code Ann. § 27-35-119(2) (Rev. 2017). Second, Section 11-51-77 provides, in pertinent part,

Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may, within ten days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with said bond, in the office of the clerk of the circuit court, on or before its next term.

Miss. Code Ann. § 11-51-77 (Rev. 2012). According to the Board, the circuit court erred in finding in favor of BTH Quitman by concluding that Section 27-35-119(2) does not include the bond requirement found in Section 11-51-77 when the Legislature included the language "in the manner provided by law" in the statute. The circuit court thought it "incongruous to pull a bond requirement from [ Section] 11-51-77" when Section 27-35-119 itself contained no such requirement. The Board argues that, because Section 11-51-77 sets forth the general process of appealing a board of supervisors' tax assessment, it follows that Section 11-51-77, specifically the bond requirement, also is applicable to the instant tax appeal of a decision made by a board of supervisors.

¶ 7. In support of its position, the Board cites the case of Lenoir v. Madison County , 641 So.2d 1124 (Miss. 1994). Though Lenoir involved a bill of exceptions issue, the Court held that Section 11-51-77"governs appeals to the circuit court from decisions of the county board of supervisors regarding tax matters[.]" Id. at 1125. Additionally, the Board heavily relies upon Moller-Vonderboom Lumber Co. v. Board of Supervisors of Attala County , 138 Miss. 289, 103 So. 81 (1925), which the Court recently cited, thoroughly discussed, and applied in Natchez Hospital , 238 So.3d at 1165-6 (¶¶ 10-12, 14).

¶ 8. The Board did not have the benefit of the Court's opinion in Natchez Hospital as it had not handed down at the time the briefs in the instant case were submitted; however, our analysis and holding in Natchez Hospital are directly on point and controlling. Though the facts of Natchez Hospital are slightly different, the Court's opinion analyzes the interaction of Section 11-51-77 and Section 27-35-119(2) ; and the Court made clear in its holding that "[a] taxpayer who chooses to appeal a tax assessment, or equalization of his tax assessment [pursuant to Section 27-35-119 ], must comply with Section 11-51-77." Id. at 1166 (¶ 14). Thus, BTH Quitman was required to post a bond in order to appeal the tax assessments, and BTH Quitman's failure to post a bond deprives the circuit court of jurisdiction to hear the appeal.

CONCLUSION

¶ 9. As the Court held in Natchez Hospital , in construing Sections 27-35-119(2) and 11-51-77, a party appealing an assessment of taxes is required to post a bond, and the failure to do so divests the circuit court of subject matter jurisdiction over the appeal. Therefore, because the circuit court lacked subject matter jurisdiction, we reverse the circuit court's judgment in favor of BTH Quitman and remand the case for the circuit court to dismiss BTH Quitman's appeals.

¶ 10. REVERSED AND REMANDED .

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Each of the complaints dealt with an individual piece of property subject to the assessment because each piece had separate Personal Property Identification Numbers issued. The complaints were consolidated later.

      According to the Court, "[t]he issue on appeal poses a question of law-whether filing a complaint with the Circuit Court of Madison County vested that court with subject matter jurisdiction over issues regarding tax assessments, or whether a bill of exceptions was required to be filed with the circuit court as a prerequisite to acquisition of subject matter jurisdiction." Lenoir , 641 So.2d at 1126.


author: KING, JUSTICE, FOR THE COURT:

text:
    Julian HAWKINS a/k/a Julian Michael Hawkins v. STATE of Mississippi
    NO. 2017-KA-00883-SCT
    Supreme Court of Mississippi.
    October 25, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE KITCHENS, P.J., KING AND BEAM, JJ.
   KING, JUSTICE, FOR THE COURT:

¶ 1. Julian Hawkins was transferred from the Forrest General Hospital Emergency Room, where he was acting erratically and unusually, to Pine Grove Behavioral Health Center. At Pine Grove, Hawkins attacked a nurse and struggled against those who were thereafter holding him down. He was charged with two counts of simple assault on "medical personnel." The jury convicted him on one of those charges, and acquitted him on the second. Hawkins appeals, centering his argument around alleged ineffective assistance of trial counsel. Because this issue cannot be determined from only the facts contained in the record before this Court, this Court affirms Hawkins's conviction, and we allow him the opportunity, if he wishes, to raise the issue in a petition for post-conviction relief. However, because Hawkins was not properly indicted for the crime for which he was sentenced, we vacate his sentence and remand for resentencing under the proper statute.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the fall of 2016, Julian Hawkins traveled from Ann Arbor, Michigan, to Lumberton, Mississippi, to visit his father, Calvin Hart. Hawkins is a Navy veteran, and his youngest brother had recently been killed; Hawkins was "going through issues." During his stay with Hart, Hawkins would talk to himself, knock on the wall, and "act out." On November 15, 2016, Hawkins went to spend the night with his grandfather. Hawkins's grandfather called Hart early in the morning of November 16, 2016, and reported that Hawkins was at the neighbors' house in his underwear banging on their door. Hart called an ambulance, and the ambulance took Hawkins to Forrest General Hospital (Forrest General) in Hattiesburg, where he was admitted to the Emergency Room (ER) at 6:53 a.m.

¶ 3. While in the ER, Hawkins displayed erratic and violent behavior. The ER performed a comprehensive drug test, and the only drug that came back positive was cannabinoids, or marijuana. Hawkins tried to leave several times; he attempted to drive away in an ambulance and he attempted to obtain the keys to a police vehicle. When asked why he left, Hawkins responded that "I was going to find the police. Its [sic] a code red situation and yall [sic] needed blood." The licensed professional counselor (LPC) who saw Hawkins at approximately 9:30 a.m. noted that he was confused, had delusions, and was paranoid, stating that Hawkins "was just talking randomly and making no sense, believes that the government is coming to get his father and him." She also noted that he was disoriented and that he was "Psychotic/Paranoid." The LPC noted the positive marijuana test, but ultimately gave a provisional diagnosis of "unspecified mood disorder." The ER ultimately gave Hawkins the drugs Geodon and Ativan via injection to sedate him and then put Hawkins on a psychiatric hold. For some time after receiving the medicine, Hawkins was resting comfortably. However, at approximately 4:15 p.m., Hawkins attempted to leave again, but was brought back by "public safety" since he was under a psychiatric hold. Later, he threatened to throw a cup of urine on an ER tech if the ER tech came in Hawkins's room. The ER doctor ultimately diagnosed Hawkins with "substance induced psychosis" and sent him to Pine Grove Behavioral Health Center (Pine Grove) at approximately 5:30 p.m. on November 16, 2016.

¶ 4. Hawkins arrived at Pine Grove, and at around 6:20 p.m., he jumped over a barrier to the nurse's station, wrapped a towel around the neck of nurse Holly Bounds, and began choking her. Bounds testified that she believed that Hawkins was trying to kill her. Several Pine Grove employees quickly tackled Hawkins to the ground and held him there for approximately ten minutes until police arrived. Hawkins continued to struggle, despite the fact that, at some point, about eight employees were on top of him holding him down. During this struggle, Hawkins twice bit nurse Illa Mills as she was attempting to prevent him from biting the employee who was the primary person holding Hawkins down. Mills testified that she was concerned about the transmission of diseases from the bites.

¶ 5. Hawkins was indicted for two counts of simple assault on "medical personnel" under Mississippi Code Section 97-3-7(1)(a)(iii) (Rev. 2014). It charged that Hawkins did "unlawfully, feloniously and willfully attempt by physical menace to put" each of the nurses "in fear of serious bodily harm" while each was a nurse acting within the scope of her duty and office.

¶ 6. At trial, the defense attempted to argue that the State could not prove the intent element because the defendant was not in his right mind and/or because his state of mind was caused by the drugs given to him involuntarily in the ER. The defense did not utilize any expert opinion, but did elicit from one of the nurses that the drugs Hawkins was given may cause confusion. The State repeatedly emphasized that the defendant had not raised an insanity defense, stating in its cross-examination of Hawkins that "Your attorney didn't think that was justified in your circumstances given your medical history that you have any significant medical history with psychosis. That's not what they diagnosed you with, okay, so let's leave that to your attorney 'cause that's not an issue. He didn't file it. Okay?" In closing arguments, the State argued

Now, the other argument that the Defense has made is some type of mental condition, some type of diminished capacity, so he didn't really know what he was doing. Well, here's the problem of that. That's the old insanity defense. That's an affirmative defense. And if they were going to pursue that defense, they would have had to declare it way before we got to where we are now. I think you have seen how strenuously they argued. If there was any real question as to his mental capacity, don't you believe that they would have demanded a psychological evaluation? Then there would have been an expert here to testify about, you know, whether he was hearing things or seeing things. Well, you don't have any evidence to that, because they didn't pursue that defense. They just simply kind of alluded to it throughout the trial. You know, the medicine made him crazy or, you know, some trauma in his life made him go through a downtime. It's not a defense that's before you. There's no evidence to support it, so it doesn't go into the deliberations room. You deliberate the evidence, and there is no evidence to that, so it can't be deliberated.

Yet, when addressing why Hawkins was being held involuntarily, the State insinuated that Hawkins was "crazy," stating,

Why in the world would a medical facility have someone be brought in by a family member who is having some issues and they let them walk out the door? If they walk out the door and cause injuries to anybody, who's gonna get sued? If they walk out the door when he's having these - - as he said, he's seeing these visions. When he sees this vision on somebody on the street, he goes and kills them. If the hospital actually lets him out the door when a family member said he needed some assistance, if a doctor actually does that, what do you think happens? ... Why did you let this crazy person go when you know he's crazy? So what could they do? Send him to what his father wanted - - help.

The State also emphasized its belief that, due to the positive cannabinoids test, Hawkins assaulted the nurses because he was voluntarily intoxicated, even going so far as to essentially testify about the biochemical effects of marijuana while cross-examining Hawkins. The prosecutor asked Hawkins if he had smoked marijuana, and he stated that he had when he had been in Michigan but that he had not during his time in Mississippi. The prosecutor asked the question again, and upon Hawkins's denial that he had smoked marijuana while in Mississippi, the prosecutor stated "Cause it - - it was pretty strong in your system and you had been out of Michigan for, like, two weeks." The prosecutor went on to testify that "[t]he lower [verbatim] that you stay away from marijuana, the lower the levels are." The prosecutor then opined, "The levels are pretty high." The State gave no medical basis for these statements, and the defense did not object to them. In closing argument, the State emphasized that, after Hawkins had been in the hospital for twelve hours before the attack, he was still intoxicated from the marijuana in his system, and the much more recent drugs given him by the ER had no effect. The State maintained that "even if he was acting out because of some type of drug that he took, that doesn't get him off the hook for what he did .... even if he was hearing things and seeing things, it was because he took something voluntarily that made him see and hear things." The State further argued,

So what this issue - - what this was caused by why he was here - - got hold of some marijuana that THC, got a hold of some spice, and did something he shouldn't have done. He was freaking out, smoking.... But guess what? That's not a defense. That's voluntary intoxication. The law says you can't claim.

The State claimed, without producing medical expert testimony about the effects of these drugs, that

The only evidence you have before you is what the doctor says is drugs. Marijuana is there. THC. Whether it comes from marijuana or comes from spice, the results are the same. That's why people say you've got to know where your marijuana comes from. You've got to know where you're getting it. 'Cause if you get some that's got spice in it, you're gonna go crazy. That's reality.... This case that this defendant voluntarily intoxicated himself.

¶ 7. A jury instruction was given that voluntary intoxication was not a defense to the crimes. The jury returned a verdict of guilty for Count I for the attack on Holly Bounds and not guilty for Count II for the attack on Illa Mills. The court sentenced Hawkins, apparently under Section 97-3-7(1)(b) (Rev. 2014), a subsection not mentioned in Hawkins's indictment, to five years in custody and to a fine of $2500. Hawkins appeals, arguing that his trial counsel was ineffective. He argues that trial counsel should have requested expert assistance, specifically an expert psychiatrist, to assist with the defense, because substantial evidence had supported the defenses of insanity and involuntary intoxication.

ANALYSIS

1. Indictment and Sentence

¶ 8. Hawkins does not challenge his indictment or sentence on appeal. However, this Court may address plain errors it identifies. Miss. R. App. P. 28(a)(3) ; Thomas v. State , 126 So.3d 877, 879 (Miss. 2013). The right to notice of criminal charges is embedded in both our state and federal constitutions. U.S. Const. amend. VI ; Miss. Const. art. 3, § 26 ; Miss. Const. art. 3, § 27. "An indictment which fails to allege all essential elements of a crime runs afoul of our constitutions and is void." Thomas , 126 So.3d at 879. If the facts alleged in the indictment "do not constitute [ ] an offense within the terms and meaning of the law or laws on which the accusation is based ... the indictment is insufficient." Id. Hawkins was indicted under nonexistent Section "97-3-7(C)" and sentenced under Section 97-3-7(1)(b).

¶ 9. Hawkins was on notice that the indictment charged him under Section 97-3-7(1)(a)(iii), because the indictment properly and thoroughly tracked the language in this subsection. The punishment for a conviction under Section 97-3-7(1)(a)(iii) is "a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both." Miss. Code Ann. § 97-3-7(1)(a)(iii). Section 97-3-7(1)(b), the language of which the indictment did not track, provides that "a person convicted of simple assault upon any of the persons listed in subsection (14) of this section under the circumstances enumerated ... shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both." Miss. Code Ann. § 97-3-7(1)(b). Subsection 14 provides that "[a]ssault upon any of the following listed persons is an aggravating circumstance for charging under subsections (1)(b) and (2)(b) ... : "emergency medical personnel ...." Miss. Code Ann. § 97-3-7(14) (Supp. 2016) (emphases added). Notably, Hawkins's indictment did not point specifically to Section 97-3-7(1)(b), nor did it charge him with simple assault on emergency medical personnel; it used the more general term "medical personnel."

¶ 10. In Thomas , a unanimous Court noted that the charged crime, felon in possession of a prohibited weapon, is a statutory crime; thus, an indictment must charge a defendant with all essential elements of that crime. Thomas , 126 So.3d at 879. The statute criminalized felons possessing only four specific types of knife, yet Thomas's indictment charged him only with possessing "a knife." Id. at 878-80. Thomas could have legally possessed "vast varieties" of knives. Id. at 879. Thus, the Court found that the failure to specify the type of knife Thomas was in possession of amounted to a failure to charge Thomas with an essential element of the crime. Id. at 880.

¶ 11. Under Section 97-3-7(1)(a), the Legislature criminalized simple assault against any person. Under Sections 97-3-7(1)(b) and (14), the Legislature specified that attacking certain specified categories of persons was an aggravating circumstance that was punishable by a greater sentence. Among those categories of persons designated by the Legislature is "emergency medical personnel." Had the Legislature desired to expand this aggravating circumstance to all medical personnel, it certainly could have, but the Legislature specifically restricted the aggravating circumstance to only emergency medical personnel. A simple assault on non-emergency medical personnel has not been designated by the Legislature as necessitating the greater sentence. Non-emergency medical personnel are not a category of persons for which assault requires an aggravating circumstance and an increased sentence. Hawkins's indictment did not track the language of Sections 97-3-7(1)(b) or (14), impermissibly broadening the scope of what the Legislature statutorily deemed an aggravating circumstance. Nor did the indictment specifically cite Section 97-3-7(1)(b) or (14). As such, Hawkins was not on notice that he would be convicted and sentenced under Section 97-3-7(1)(b), and the sentence under that provision is improper. Hawkins was on notice, however, that he was being tried for simple assault under Section 97-3-7(1)(a)(iii). We consequently vacate Hawkins's sentence and remand the case for resentencing under Section 97-3-7(1)(a).

2. Ineffective Assistance of Counsel

¶ 12. Hawkins argues that without an expert the defense was unable to even determine whether the insanity defense was viable. Both parties argue that the record is sufficient for a determination of whether counsel was ineffective. "In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial." Dartez v. State , 177 So.3d 420, 423 (Miss. 2015) (citing Strickland v. Washington , 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Thus, the defendant must prove that counsel's performance was both deficient and prejudicial. Dartez , 177 So.3d at 423. Normally, ineffective assistance of counsel claims should be brought during post-conviction proceedings. Id. at 422-23. If insufficient evidence and/or information exists in the trial record for the appellate court to adequately address the claim, this Court should deny relief while preserving the defendant's right to argue ineffective assistance of counsel through a petition for post conviction relief (PCR). Id. at 423. We may address an ineffective assistance of counsel claim on direct appeal only if the "issues are based on facts fully apparent from the record." Id.

¶ 13. It is clear from the record that Hawkins's mental state and/or involuntary intoxication were at issue. But without any expert opinions in the record, it is impossible to determine deficiency and/or prejudice. This Court cannot know whether an expert would pronounce Hawkins insane or sane at the time of the offense. Thus, it is impossible to ascertain whether counsel was deficient for not consulting such an expert, and it is impossible to know if the failure to consult an expert prejudiced Hawkins. Similarly, without expert opinion regarding drugs, it is impossible to ascertain whether any drugs taken or given could have caused Hawkins's mental state to be altered. The State argued heavily that Hawkins was voluntarily intoxicated, and the defense did not put on an expert to counter the State's argument about what Hawkins's positive marijuana test could mean, what the half-life is for cannabinoid intoxication, and what side effects, if any, might be experienced by a marijuana user. No expert testified about the drugs Hawkins was given involuntarily. Nothing in the record illustrates the side effects of those drugs, the likelihood of any adverse side effects, the interaction, if any, between those drugs and marijuana, or the half-life of those drugs and how long they remain in the system. An expert may have testified that those drugs would have been completely out of Hawkins's system at the time of the attack, or an expert may have testified that those drugs have a chance of causing mental issues and were likely to have done so in this case. Without any expert opinion either way on these issues, it is impossible to determine either deficiency or prejudice.

¶ 14. In Dartez , this Court faced a similar issue: the defendant had argued that counsel was ineffective for failing to raise an insanity defense. Dartez , 177 So.3d at 422. This Court found that the issue involved facts not fully apparent from the record. Id. at 423. Similarly, the issue before this Court in the case at hand cannot be resolved either way without facts that are not fully apparent from the trial record, namely expert opinions one way or the other. This issue is therefore inappropriate to address on direct appeal. This Court affirms Hawkins's conviction. We preserve his ability to raise ineffective assistance of counsel through a petition for post-conviction relief.

CONCLUSION

¶ 15. Because Hawkins's ineffective assistance of counsel claim cannot be determined without facts outside the record before this Court, we affirm Hawkins's simple assault conviction, and we allow him to assert this claim through a petition for post-conviction relief. However, because Hawkins was improperly sentenced under a subsection not properly charged in his indictment, we vacate his sentence and remand the case for resentencing under Section 97-3-7(1)(a).

¶ 16. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      The indictment incorrectly charges Hawkins under Section "97-3-7(1)(C)." Section 97-3-7 was reorganized in 2012, and Section 97-3-7(1)(c) has not existed since that time. The corresponding reorganized sections somewhat confusingly encompass Sections 97-3-7(1)(a)(iii), 97-3-7(1)(b), and 97-3-7(14). Sections 97-3-7(1)(a)(iii) and 97-3-7(1)(b) carry different sentences.

      It is also of note that the nurse Hawkins assaulted was working at a Behavioral Health Center and was not in any sort of Emergency Room, Emergency Department, or ambulance.

      Unquestionably, he received these drugs well after any alleged cannabinoid usage.

      Hawkins also argues on appeal that his conviction is against the overwhelming weight of the evidence because he was clearly either insane and/or involuntarily intoxicated. As discussed, no expert testified regarding these issues, and whether Hawkins was insane and/or involuntarily intoxicated is not readily apparent from the record. Thus, this claim is without merit.


text:
    John MORGAN v. XLK INTERNATIONAL, LLC
    NO. 2016-CA-01477-SCT
    Supreme Court of Mississippi.
    October 25, 2018
    ATTORNEYS FOR APPELLANT: GENE W. GARDNER, ROBERT MOAK, BOGUE CHITTO
    ATTORNEYS FOR APPELLEE: JOHN DAVID SANFORD, JACKSON, BRETT R. KOEHN
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. John Morgan submitted a public records request to the Mississippi State Hospital ("MSH") after it had awarded a contract for insurance plan administration to XLK International, LLC (XLK). Morgan, whose bid for the insurance plan administration contract had been unsuccessful, demanded access to all documents XLK had submitted in response to the state hospital's request for proposal (RFP). XLK sought and obtained a protective order in the Chancery Court of the First Judicial District of Hinds County. The chancery court allowed Morgan to intervene and held a hearing on his Motion to Set Aside Protective Order. The chancery court ruled that the documents XLK had submitted in response to MSH's RFP were not subject to disclosure under the Mississippi Public Records Act, with the exception of the contract between MSH and XLK. Because the chancery court correctly applied the Mississippi Public Records Act, this Court affirms its judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Mississippi Department of Mental Health at the Mississippi State Hospital published an RFP under Mississippi Code Section 25-15-301 (Rev. 2010), in which it sought proposals for administration of group insurance plans for state employees. On July 24, 2014, XLK responded to the RFP by submitting its proposal to MSH. Ultimately, MSH awarded the contract for insurance plan administration to XLK.

¶ 3. On October 23, 2015, MSH notified XLK that a public records request had been submitted by John Morgan. Morgan sought a copy of the successful proposal. MSH informed XLK that, without a protective order, it would turn over XLK's proposal to Morgan. In response, on October 28, 2015, XLK filed its Petition for a Protective Order in the Chancery Court of the First Judicial District of Hinds County. XLK argued that, "[w]ithin the Proposal and all other submitted documents including, but not limited to, quotes, complimentary product packages, and presentation handouts, XLK included trade secrets and confidential commercial and financial information of a proprietary nature." According to XLK, "[i]f any of this information is divulged to its competitors, XLK will lose its competitive edge in an extremely competitive business." Attached to the Petition for a Protective Order was an affidavit from James M. Knox, XLK's president, attesting that disclosure of the proprietary information belonging to XLK contained in the documents submitted in response to the RFP "would harm XLK International, LLC's ability to compete in the insurance administration business."

¶ 4. On October 28, 2015, the chancery court entered a protective order, holding that "[t]he Proposal and all other documents submitted to the Mississippi State Hospital and Department of Mental Health, State of Mississippi, contain trade secrets and financial information of a proprietary nature, which are exempt from the Mississippi Public Records Act" under Mississippi Code Section 25-61-9.

¶ 5. On January 13, 2016, Morgan filed a Motion to Intervene under Mississippi Rule of Civil Procedure 24, arguing that he had a right to examine what he claimed to be public records and that the protective order deprived him of that right. Morgan attached to his Motion to Intervene a Motion to Set Aside Protective Order, in which he argued that "[r]outine insurance quotes and a recitation of services to be provided by an insurance agency are not confidential, nor proprietary, and[,] therefore, should be accessible [to] the public at large."

¶ 6. Following a hearing on February 24, 2016, the chancery court, on February 29, 2016, entered an order granting Morgan's Motion to Intervene. The chancery court continued "Morgan's Motion to Set Aside Protective Order is ordered filed and the parties are directed to set this matter for full hearing on Morgan's Motion."

¶ 7. A hearing was held before the chancery court on August 9, 2016, on Morgan's Motion to Set Aside Protective Order. The court entered a final order on September 15, 2016, in which it held, on the basis of Mississippi Code Section 25-61-9(1), that documents submitted by XLK in response to the RFP "contain trade secrets or confidential commercial or financial information ...." The chancery court recognized, however, the "exception set forth in Miss. Code Ann. § 25-61-9(7)," and, accordingly, amended the October 28, 2015, protective order "to allow disclosure of the 'Agreement Between Mississippi State Hospital of Whitfield Mississippi (MSH) and XLK International, LLC[,]' a seven (7) page document signed by XLK on September 25, 2016." The court held that "[t]his 'Agreement' constitutes a 'contract which contain[s] the commodities purchased or the personal or professional services provided, the price to be paid, and the term of the contract.' " Accordingly, while "MSH and/or the Mississippi Department of Mental Health shall be permitted to disclose said 'Agreement' in its entirety of Morgan in response to his Public Records Request,' " the "other documents submitted by XLK shall remain protected and exempt from disclosure under the October 28, 2015[,] Protective Order." Morgan filed a notice of appeal on October 14, 2016.

XLK's Motion to Docket and Dismiss Appeal

¶ 8. XLK filed, on May 18, 2017, a Motion to Docket and Dismiss Appeal and Motion to Stay Briefing Schedule Pending Ruling on Instant Motion. XLK argued that, because Morgan's Motion to Set Aside Protective Order had been filed only as an attachment to his Motion to Intervene, XLK was deprived of the opportunity to respond to the Motion to Set Aside Protective Order. XLK acknowledges that it "is not representing that it did not have notice of the underlying Motion to Set Aside Protective Order." XLK also represented that "the only issue on appeal, whether or not Appellant is entitled to the pricing component of a procurement contract pursuant to Miss. Code Ann. 25-61-9(7), is moot since there was no price paid by the State of Mississippi to Appellee."

¶ 9. Morgan responded that the trial court had ordered the Motion to Set Aside Protective Order filed, so no reason existed for his refiling "the Motion which had already been ordered filed by the Chancellor." Moreover, Morgan averred that XLK, following the February 29, 2016, order permitting Morgan to intervene and ordering filed his Motion to Set Aside Protective Order, had waived any procedural objection by not raising the issue before the trial court. With regard to XLK's mootness argument, Morgan responds that XLK "conducts its own evidentiary hearing and offers its own evidentiary ruling" in its Motion to Docket and Dismiss Appeal.

¶ 10. On January 11, 2018, this Court passed for consideration with the merits of the case XLK's Motion to Docket and Dismiss Appeal and dismissed as moot XLK's Motion to Stay Briefing Schedule Pending Ruling on Instant Motion.

Issues on Appeal

¶ 11. Two issues are before the Court on appeal:

1. Whether the appeal should be dismissed because Morgan failed, in accordance with Mississippi Rule of Civil Procedure 24(c), to refile his Motion to Set Aside Protective Order after the chancery court had granted his Motion to Intervene.
2. Whether the chancery court correctly held that documents submitted by XLK in response to the RFP to the Mississippi State Hospital were exempt from disclosure under Mississippi Code Sections 25-61-9(1) and 25-61-9(7).

The part of the Motion to Docket and Dismiss Appeal relating to the Mississippi Rule of Civil Procedure 24(c) issue will be discussed first. The issue of mootness raised by XLK in the Motion to Docket and Dismiss Appeal will be discussed, along with the merits, second.

STANDARD OF REVIEW

¶ 12. "In regard to matters relating to discovery, the chancellor has considerable discretion. This Court will not disturb discovery orders unless there has been an abuse of discretion." Electr. Data Sys. Corp. v. Miss. Div. of Medicaid , 853 So.2d 1192, 1209 (Miss. 2003).

DISCUSSION

1. Whether the appeal should be dismissed because Morgan failed, in accordance with Mississippi Rule of Civil Procedure 24(c), to refile his Motion to Set Aside Protective Order after the chancery court had granted his Motion to Intervene.

¶ 13. XLK argues, both in its brief and in its Motion to Docket and Dismiss Appeal, that the appeal should be dismissed because Morgan filed the Motion to Set Aside Protective Order as an attachment to his Motion to Intervene. XLK acknowledges that the chancery court's order granting Morgan's Motion to Intervene stated that "Morgan's Motion to Set Aside Protective Order is Ordered filed ...." XLK argues, however, that "the Order did not specify who was to file the Order, and regardless, the Motion to Set Aside Protective Order was never filed by the clerk or the Appellant herein." Morgan responds that, while hearings had been held on the Motion to Set Aside Protective Order, XLK failed to raise this objection; therefore, "any objection now raised by XLK is waived due to its failure to timely raise the issue at the trial level."

¶ 14. XLK references Mississippi Rule of Civil Procedure 24(c), which states, "A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." Miss. R. Civ. P. 24(c). XLK relies on language from this Court: "Once the motion to intervene is granted, the complaint in intervention must be filed, even if that act is accomplished merely by detaching the complaint in intervention from the motion to which it had been exhibited and handing it back to the clerk for filing." Breland v. Smith-Johnson, Inc. , 501 So.2d 389, 393 (Miss. 1987).

¶ 15. But the Breland Court had before it the following question: "Once a trial court has appropriately entered an order granting a motion for leave to intervene, by what procedure must the intervenor serve his pleading upon the other parties to the action?" Id. at 390. The question was, in the Court's words, "a narrow but not insignificant procedural question concerning intervention practice under Rule 5, not Rule 24, Mississippi Rules of Civil Procedure." Id. The Court held that, following the grant of a motion to intervene, the complaint in intervention must be detached from the motion to intervene and separately filed and that once "this new filing be done it is subject to the service requirement of Rule 5(a) and the service methodology of Rule 5(b)." Id. at 393.

¶ 16. Here, XLK is not complaining of a defect in service of process of the Motion to Set Aside Protective Order. In fact, XLK concedes that it "is not representing that it did not have notice of the underlying Motion to Set Aside Protective Order." Breland , which answered a narrow procedural question about proper service of process under Mississippi Rule of Civil Procedure 5, is inapposite. The Breland Court did not hold, as XLK would have us do, that "the failure to file any pleadings after a Motion to Intervene is granted is grounds for this appeal to be dismissed." Accordingly, this Court denies that portion of XLK's Motion to Docket and Dismiss Appeal. Likewise, the identical issue XLK raises on appeal is without merit.

2. Whether the chancery court correctly held that documents submitted by XLK in response to the RFP to the Mississippi State Hospital were exempt from disclosure under Mississippi Code Sections 25-61-9(1) and 25-61-9(7).

Mississippi Code Section 25-61-9(1)

¶ 17. Mississippi Code Section 25-61-9(1), at the time, provided,

Records furnished to public bodies by third parties which contain trade secrets or confidential commercial or financial information shall not be subject to inspection, examination, copying or reproduction under this chapter until notice to third parties has been given, but the records shall be released within a reasonable period of time unless the said third parties shall have obtained a court order protecting such records as confidential.

Miss. Code Ann. § 25-61-9(1) (Rev. 2010). In Mississippi State University v. People for the Ethical Treatment of Animals, Inc. (PETA), PETA had sought all records relating to "research projects, tests, and/or experiments that initially received funding and/or sponsorship and any and all installments thereof, in whole or in part, from The Iams Company ... or an affiliate and for which in vivo animal research was conducted at MSU from 1999 to date." Miss. State Univ. v. People for the Ethical Treatment of Animals, Inc. , 992 So.2d 595, 595-96 (Miss. 2008). This Court held that data and information requested by PETA had been exempted from the provisions of the Mississippi Public Records Act because PETA failed to rebut an affidavit submitted by MSU stating "that the data and information requested in the subject records constituted trade secrets and/or confidential commercial and financial information developed by MSU under contract with Iams." Id. at 610.

¶ 18. Here, in support of the Petition for Protective Order, XLK submitted an affidavit from its president, Knox, attesting that "disclosure of the documents requested from the Mississippi State Hospital would reveal trade secrets, confidential commercial and financial information of a proprietary nature wh[ic]h belong to XLK ... and were developed by XLK ...." Knox continued that "divulgence of this information to the public and XLK['s] ... competitors would harm XLK['s] ... ability to compete in the insurance administration business."

¶ 19. Morgan argues,

Taxpayers have a right to know if the government is spending taxpayer funds wisely and prudently. Are government agencies spending far more for services that private citizens? Is government agency awarding a contract to a friend at an elevated price in order to assist that friend? Are state funds being used to purchase insurance which could be purchased at far less expensive rates? Is an entity agreeing to provide services to a state agency in a manner which violates the rules and regulations of a state department? These are questions which should be easily answered by the disclosure of agency contracts together with the pricing component surrounding the contract.

But apart from speculation about the contents of XLK's RFP response, Morgan offered nothing at the trial court level to contradict Knox's affidavit, in which Knox attested that the contents of the RFP response contained "trade secrets or confidential commercial or financial information."

¶ 20. More importantly, this Court has reviewed the documents submitted by XLK in response to MSH's RFP. Nothing contained in XLK's RFP response provides Morgan a resolution to the problem he identifies: "the taxpayers of Mississippi do not know if MSH is using tax dollars wisely or foolishly." Apart from the Agreement, which XLK concedes is subject to disclosure under Section 25-61-9(1), XLK's RFP response contains trade secrets and confidential commercial and financial information, including insurance quotes, charts showing employee cost savings, and other marketing materials designed solely to entice MSH to award XLK the contract. The chancellor correctly ruled that only the Agreement between MSH and XLK dated September 25, 2015, was subject to disclosure under Mississippi Code Section 25-61-9(1).

Mississippi Code Section 25-61-9(7) and Mootness

Mississippi Code Section 25-61-9(7) states, in pertinent part,

For all procurement contracts awarded by state agencies, the provisions of the contract which contain the commodities purchased or the personal or professional services provided, the unit prices contained within the procurement contracts, the overall price to be paid, and the term of the contract shall not be deemed to be a trade secret or confidential commercial or financial information under this section, and shall be available for examination, copying or reproduction as provided for in this chapter.

Miss. Code Ann. § 25-61-9(7) (Supp. 2017). Morgan argues that, "[p]ursuant to Miss. Code Ann. [§] 25-61-9(7), [he] is entitled to access to XLK's contract with MSH, including the pricing component: the costs of the various insurance coverages and the fees being charged by XLK, if any."

¶ 21. XLK argues in its Motion to Docket and Dismiss Appeal that the question of Morgan's entitlement to the pricing component of a procurement contract under Mississippi Code Section 25-61-9(7) is moot because "there was no price paid by the State of Mississippi to" XLK. This Court has held that

"A case is moot if 'a judgment on the merits ... would be of no practical benefit to the plaintiff or detriment to the defendant.' " In re City of Biloxi , 113 So.3d 565, 572 (Miss. 2013) (quoting Gartrell v. Gartrell , 936 So.2d 915, 916 (Miss. 2006) ). "We repeatedly have held that '[c]ases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot.' " In re City of Biloxi , 113 So.3d at 572. As such, "standing must exist when litigation is commenced and must continue through all subsequent stages of litigation, or the case will become moot." Id. "Cases that have become moot will be dismissed, because the Court does not adjudicate moot questions." Id. (citing City of Madison v. Bryan , 763 So.2d 162, 166 (Miss. 2000) ). " 'We have held that the review procedure should not be allowed for the purpose of settling abstract or academic questions, and that we have no power to issue advisory opinions.' " Fails v. Jefferson Davis Cty. Pub. Sch. Bd. , 95 So.3d 1223, 1225 (Miss. 2012) (quoting Allred v. Webb , 641 So.2d 1218, 1220 (Miss. 1994) ).

In re Validation of Tax Anticipation Note , 187 So.3d 1025, 1032 (Miss. 2016).

¶ 22. Here, the documents Morgan seeks to inspect are sealed. This Court has undertaken an in camera review, as did the chancery court, to ascertain whether, as Morgan claims, the documents he seeks are subject to disclosure under Mississippi Code Section 25-61-9(7). As such, an actual controversy was presented to this Court, and XLK's motion, with respect to its mootness argument, is denied as well.

¶ 23. XLK argues in its brief that Mississippi Code Section 25-61-9(7) applies only to allow disclosure of the "Agreement Between Mississippi State Hospital of Whitfield Mississippi (MSH) and XLK International, LLC," and that "[n]one of the other documents are remotely contractual in nature and are designed solely to entice the State Hospital into entering into business with XLK by revealing to the State Hospital how XLK's business model can save state employees money and make their insurance enrollment experience less complicated."

¶ 24. In his reply brief, Morgan asserts several concerns about what he believes is-contrary to XLK's assertions-contained in the RFP. But what Morgan conjectures he might discover in a review of XLK's RFP is of no moment, since the only question with regard to Mississippi Code Section 25-61-9(7) is whether the contract between XLK and MSH is a "procurement contract[ ] awarded by" a state agency and whether the contract contains "the commodities purchased or the personal or professional services provided, the unit prices contained within the procurement contracts, the overall price to be paid, and the term of the contract." Miss. Code. Ann. § 25-61-9(7). Only then would the documents be subject to disclosure under Mississippi Code Section 25-61-9(7).

¶ 25. Assuming, arguendo , the documents submitted by XLK in response to MSH's RFP constitute a procurement contract for purposes of Mississippi Code Section 25-61-9(7), the chancery court did not abuse its discretion in holding that, excepting the Agreement between MSH and XLK dated September 25, 2015, the remaining documents were not subject to disclosure to Morgan under Mississippi Code Section 25-61-9(7). The documents in the RFP response contain insurance quotes, charts showing employee cost savings, and other marketing materials designed for the purpose of persuading MSH to award XLK the contract. Accordingly, the judgment of the chancery court is affirmed, and, excepting the Agreement between MSH and XLK dated September 25, 2015, the protective order entered on October 28, 2015, remains in effect.

CONCLUSION

¶ 26. Morgan is not entitled to the entirety of XLK's response to MSH's RFP under Mississippi Code Sections 25-61-9(1) and (7). Because Morgan is entitled only to the Agreement between MSH and XLK dated September 25, 2015, the chancellor did not abuse his discretion in ordering the Agreement's disclosure alone. Accordingly, this Court affirms the judgment of the Chancery Court of the First Judicial District of Hinds County. The Motion to Docket and Dismiss Appeal filed by XLK is denied.

¶ 27. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ, CONCUR.

      Mississippi Code Section 25-61-9(1) was revised effective July 1, 2016.

      Mississippi Code Section 25-61-9(7), which was added during the 2015 legislative session, became effective on July 1, 2015. See Miss. Code Ann. § 25-61-9(7) (Supp. 2015).

      XLK suggests that the contract is not a procurement contract: "In this instance, the State Hospital has contracted with XLK in order for XLK to provide a service to State Employees. The State is not directly procuring a good or service with government funds, but it is selecting the administrator for its employee's insurance benefits."


text:
    Charles FAIRLEY, as Conservator of the Estate of James D. Owens v. TOTAL TRANSPORTATION OF MISSISSIPPI, LLC, a Corporation; and Will Gates, an Individual
    NO. 2016-CA-01293-SCT
    Supreme Court of Mississippi.
    October 25, 2018
    ATTORNEYS FOR APPELLANT: HENRY COOPER ELLENBERG, II, THOMAS S. MOORE, EDWARD BLACKMON, JR., OBY THOMAS ROGERS
    ATTORNEYS FOR APPELLEES: CHARLES CORBETT WIMBERLY, III, ROBERT L. GIBBS, GUY D. PERRIER
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. James Owens had been experiencing drug-withdrawal symptoms when he wandered off his work shift onto a dark Louisiana highway. Around this time, Will Gates was driving his employer's truck, which struck Owens. Gates did not see Owens, and the truck never left its lane of travel. Owens filed a negligence suit in Humphreys County, Mississippi, against Gates and his employer. The case proceeded to trial, and the jury returned a verdict in favor of Gates and his employer. After review, we find the evidence supported the jury's verdict that Will Gates had not been negligent.

¶ 2. We also find no merit to Owens's claim that the judge wrongly denied his request for a mistrial based on Gates's cousin Abraham Gates, a justice court judge, acting as a jury consultant in his case. This case was a civil jury trial in circuit court, not justice court, and all Owens can show is that Judge Gates sat in the courtroom during trial. Like the circuit-court judge, we fail to see any grounds for a mistrial. Had Judge Gates been an attorney, he could have tried the case for the defense. So his serving as a jury consultant-a role that involved no direct contact or interaction with the jury-was not prohibited.

¶ 3. Moreover, the circuit-court judge allowed Owens's counsel to address the issue of Judge Gates's attendance during voir dire. And the entire venire assured the court that any knowledge of Judge Gates would not impact its ability to be impartial. So the circuit-court judge did not abuse her discretion when she denied Owens's motion for a mistrial.

¶ 4. Therefore, we affirm.

Background Facts and Procedural History

I. The Accident

¶ 5. On September 23, 2013, Will Gates was driving an eighteen-wheeler for his employer, Total Transportation of Mississippi, LLC. Around 8:25 p.m., he pulled out of the Folgers Distribution Center in St. Tammany Parrish, Louisiana, onto Highway 434 where his truck struck Owens.

¶ 6. Owens was a temporary worker at Folgers who had walked off his shift without clocking out. Owens testified he left because he was not feeling well. But he had an admitted history of illegal drug use. And his live-in girlfriend, Aleisha Mills, testified that Owens had left because he was experiencing heroin withdrawal. Owens had called Mills multiple times from work. Mills testified Owens asked her to bring him some heroin so he could make it through his shift that did not end until midnight. When she finally arrived at Folgers with the drugs, Owens had left his shift, exited the Folgers facility, and walked onto the narrow, almost nonexistent shoulder of Highway 434.

¶ 7. Gates's truck had only traveled a quarter to a third of a mile from Folgers when it hit Owens. Gates testified that, when he pulled out, no one was on the highway. Gates did not see Owens before impact and figured he must have stepped out in front of him. The accident report admitted into evidence similarly concluded that Owens had stepped into the highway, because Gates's truck never left its lane of travel.

¶ 8. Gates was traveling at twenty miles per hour when he struck Owens. Owens presented an accident reconstructionist who opined that, at that speed with proper headlamps, Gates should have been able to see Owens for several seconds before impact. Owens's theory was that Gates must have been distracted. Owens's counsel questioned Gates about his cell phone records, which indicated he had made a call within a minute or so of calling 911 to report hitting Owens. But Gates insisted he was not on the phone and had not been distracted when the accident occurred. Instead, he had tried to call a family member before he left the Folgers facility. And only after she did not answer did he pull out onto Highway 434.

¶ 9. According to the accident report, that stretch of Highway 434 was dark. And Owens was wearing dark clothing. But several witnesses-including Owens-said he had been wearing a non-reflective, orange mesh work vest.

¶ 10. Owens survived but sustained a head injury. After initial hospitalization, he was transferred to a neurological rehabilitation living center. Through his conservator Charles Fairley, Owens sued Gates and Total Transportation for negligence, alleging the collision caused permanent injuries, including brain damage. Though Owens had a poor work history before the accident, he claimed the accident rendered him unable to work. His doctors also testified his injury impeded his ability to fight his drug addiction.

II. Trial

¶ 11. While Owens was injured in Louisiana, he decided to file his negligence complaint in Humphreys County, Mississippi, where Gates resided. Trial began in Humphreys County on July 27, 2016.

¶ 12. Sitting in the courtroom during trial was Gates's cousin, Justice Court Judge Abraham Gates. Defense counsel retained Judge Gates to consult on jury selection. At first, Judge Gates sat at defense counsel's table. But Owens's counsel objected. Because Judge Gates was not an attorney, the trial court directed him to sit outside the well. But the court found no issue with his serving as a jury consultant, since Judge Gates was a part-time judge who was allowed to perform other jobs.

¶ 13. At this point, voir dire had not been completed. And the trial court decided the best way to handle Owens's counsel's concern about Judge Gates was to give counsel the opportunity, which he took, to ask the venire if Will Gates's relationship to Judge Gates and Judge Gates's presence at trial would impact their impartiality. The potential jurors collectively responded that they either knew or knew of Judge Gates. But they all assured Owens's counsel and the court that they could still be impartial.

¶ 14. Only after the first day of trial testimony, which included Will Gates's being called adversely, did Owens's counsel move for a mistrial based on Judge Gates's "participation" in the trial. The trial judge denied the motion, finding Judge Gates's introduction to the jury panel as the defendant's cousin and mere attendance at trial did not warrant a mistrial.

¶ 15. Trial testimony lasted about a week. The jury heard from Gates, Owens, Mills, Owens's coworkers, the first responders and eyewitnesses to the accident, accident reconstructionists, and medical experts. Because the accident occurred in Louisiana, the parties submitted-and the trial court gave-jury instructions based on Louisiana substantive law. Following deliberation, the unanimous jury found Will Gates had not been negligent in the operation of his truck the night he hit Owens. Based on the jury's verdict, the trial court entered a judgment for the defendants. Owens filed a notice of appeal, but his notice was not effective until his Rule 59 motion to alter the judgment or, alternatively, for a new trial was denied almost a year following trial. Miss. R. Civ. P. 59(e), (a) ; Miss. R. App. P. 4(d).

Discussion

¶ 16. On appeal, Owens takes aim at the jury's verdict. He claims the defense verdict contradicted the evidence and Louisiana law. He further asserts the jury was biased by evidence of Owens's drug use and improperly influenced by Judge Gates. But Owens's claims miss their mark. And what Owens is not arguing is almost as important in resolving this appeal as what he is arguing. Instead of pinpointing specific trial court rulings that were reversible error, Owens provides several variations on a broad argument that the jury simply got it wrong. But our well-established law "requires [this Court] to give great deference to the jury's verdict and the trial judge's refusal via post-trial motions to set aside the jury verdict or award a new trial." Patterson v. Liberty Assocs., L.P. , 910 So.2d 1014, 1020 (Miss. 2004). Because Owens fails to show any abuse of discretion in the circuit court's denial of the motion to alter the judgment or a new trial, we affirm the judgment in favor of Gates and Total Transportation.

I. The Law and the Evidence

¶ 17. Owens first argues the jury's verdict was contrary to Louisiana substantive law and the overwhelming weight of the evidence.

A. Louisiana Law

¶ 18. Importantly, Owens does not argue the circuit court improperly instructed the jury on the law. Both parties agreed Louisiana substantive law would control, because the accident occurred in Louisiana. But see Ford v. State Farm Ins. Co. , 625 So.2d 792, 794 (Miss. 1993) (citing Boardman v. United Servs. Auto. Ass'n , 470 So.2d 1024 (Miss. 1985) ) (applying the "center of gravity" test-of which the location of the accident is but one factor to consider-to determine whether the substantive law of Mississippi or Louisiana applied). And Owens makes no claim that any of the standard-of-care instructions were erroneously given or erroneously denied based on Louisiana law.

¶ 19. Still, Owens insists the jury's finding that Gates had not operated his truck negligently contradicted Louisiana law. Owens cites Turner v. New Orleans Public Service Inc. , 476 So.2d 800, 805 (La. 1985), for the principle that a motorist bears greater responsibility than a pedestrian to prevent a collision between them. But Turner dealt with how to assess fault when both the motorist and pedestrian struck by the vehicle were found to be negligent. In that case, a city bus ran over Musette Turner's foot. Though the trial court awarded her full damages, the Louisiana Supreme Court reduced her award by ten percent to account for her own negligence, which contributed to her injury. Id. at 805. "Turner's fault was that she walked almost into the path of an approaching bus, slipped and fell when she tried to save herself." Id. However, "Turner's fault was slight" when "[c]ompared to the [bus] driver's fault[.]" Id. "The driver failed to see a pedestrian on a collision course with his bus, at an intersection where he knew passengers transferred from one bus to another." Id. Further, there was no reason why the driver could not see her. A passenger sitting near the driver saw her. Id. at 802. And if the driver had only "seen her in the crosswalk too he could easily have avoided the accident." Id. at 805. The Louisiana Supreme Court assessed the driver ninety percent of the fault, concluding: "The greater the risk of harm to others, the greater is the fault." Id.

¶ 20. By contrast, here, the jury found Gates had not been negligent at all. Thus, he did not share any fault for the accident-let alone the lion's share like the bus driver in Turner . While Owens argues assessing zero fault to a motorist contradicts Louisiana law, Louisiana does "not impose absolute liability on a driver of an automobile simply when there is a collision between a car and a person." Aetna Cas. & Sur. Co. v. Nero , 425 So.2d 730, 733 (La. 1983). Instead, "[t]he operator of a motor vehicle must ... be at fault in order to be held liable." Id.

¶ 21. For example, in Johnson v. Safeway Insurance Co. , 741 So.2d 32, 34 (La. Ct. App. 1999), the Louisiana Court of Appeals reversed a judgment assessing a motorist fifty percent fault and entered a judgment in his favor. Significantly, the appellate court recognized the principle that Owens relies on in this appeal-that, while both motorist and pedestrian owe a duty of care, "a far greater duty and responsibility to avoid the accident is placed upon the motorist, who is 'insulated' inside his machine and has the greater chance of avoiding the accident[.]" Id. at 33. Even so, based on the facts, the court held that the pedestrian in Johnson was the only one who breached her duty of care. The pedestrian had been walking with two friends "down the middle of an unlit highway with their backs to any traffic in their lane"-leaving "no doubt" she had been negligent. Id. at 33. By contrast, the motorist was driving below the speed limit, had to contend with the headlights of oncoming vehicles, and did not see the teenager walking in the street until the cars passed. At that point, there was no evidence that it would have been physically possible for him to avoid the accident. Id. at 34. Because the motorist was not proven negligent, the appellate court reversed the judgment assessing him fifty percent fault and entered judgment in his favor. Id.

¶ 22. Likewise in Bink v. Blackwell , 429 So.2d 228 (La. Ct. App. 1983), the Louisiana Court of Appeals affirmed a trial court's finding that a pickup truck driver who hit a woman walking alongside the road at night was not at fault. Like Owens, the pedestrian in Bink argued the truck driver could have avoided the accident and, thus, was at fault. The appellate court disagreed, finding it was "by no means clear that the [driver]," who was traveling at a safe speed, "should have seen the [pedestrian]," who had been wearing dark clothing and walking on the side of the road in the same direction as oncoming traffic. Id. at 231.

¶ 23. Here, the evidence supports the jury's conclusion that Owens, and only Owens, breached his duty of care. Like the motorist in Johnson , Gates was traveling slowly and did not see Owens in time to avoid the accident. By contrast, like the pedestrian in Bink , Owens was walking in the lane of travel of an unlit highway, with his back to oncoming traffic and wearing dark clothing. So the jury's verdict is consistent with factually similar cases applying Louisiana law.

B. Weight of the Evidence

¶ 24. The jury's verdict is also supported by the evidence. On appeal, Owens argues the overwhelming weight of the evidence showed Gates had been distracted "almost certainly from using his cell phone while driving." But this argument dismisses both the evidence that Gates had not been distracted and the evidence Owens was struck in the lane of travel as simply not credible. However, credibility determinations are made by the jury, not an appellate court.

¶ 25. This Court has been clear that, "[w]hen testimony is contradicted"-as it was here-"this Court will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial." Venton v. Beckham , 845 So.2d 676, 684 (Miss. 2003) (quoting Odom v. Roberts , 606 So.2d 114, 118 (Miss. 1992) ). Indeed, this Court "will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee's favor." Id. The jury heard conflicting evidence about Gates's cell-phone usage and alertness at the time of the accident. There was also conflicting evidence about whether Owens had been wearing an orange vest over his dark clothing and about where he was standing when he was struck. When these conflicts are resolved in Gates's favor, the jury's verdict is supported by the record and is not against the overwhelming weight of the evidence. Therefore, the trial court did not abuse its discretion when it denied Owens's motion to alter the verdict or, alternatively, for a new trial.

II. Owens's Drug Use

¶ 26. Owens also claims the jury's verdict was "improperly influenced by something other than the admitted evidence."

¶ 27. The first supposed "improper influence" is Owens's history of drug use. Owens claims the defense emphasized his substance abuse "to deliberately appeal to the biases and prejudices of the jury." Owens concedes his history of drug use was relevant to the question of Owens's own negligence and the extent and causation of his injuries. Yet he argues the defense improperly used this relevant evidence to inflame the jury against him. He points to Mississippi Rule of Evidence 403, arguing "[e]ven where relevant, this type of evidence should be excluded if its probative value is outweighed by the danger of unfair prejudice." But he fails to cite anywhere in the record where he asked the trial judge to exclude certain evidence of his drug abuse under Rule 403.

¶ 28. Owens broadly asserts that two defense witnesses, Mills and Dr. Mark Webb, "served virtually no other purpose than to inundate the jury with inflammatory, cumulative, and improper evidence." However, Mills's testimony that Owens now claims was particularly offensive-her testimony "about completely irrelevant domestic incidents and criminal charges"-was given without objection . And while Owens did lodge a Daubert challenge to Dr. Webb's expert testimony, his objection was that Dr. Webb, a forensic psychiatrist, should not be allowed to rebut his experts, a neurologist and neuropsychologist. He did not object at trial to the portion of Dr. Webb's testimony concerning Owens's drug use as unfairly prejudicial under Rule 403. So he cannot now raise this issue for the first time on appeal. Miss. Dep't of Human Servs. v. Moore , 632 So.2d 929, 933 (Miss. 1994) (citing Miss. R. Evid. 103(a)(1) ; Anderson v. Jaeger , 317 So.2d 902, 907 (Miss. 1975) ; Johnson v. Fargo , 604 So.2d 306 (Miss. 1992) ). This issue was simply not preserved.

¶ 29. The only specific objection Owens cites in his brief was his objection to Dr. Webb's testifying about one of Owens's medical reports. This report had been prepared by another psychiatrist, Dr. Peter Camp. And he insists that report was unreliable to form the basis of Dr. Webb's expert opinion. But the trial court sustained this objection. And Dr. Webb was prohibited from testifying about Dr. Camp's report.

¶ 30. While Dr. Camp's report later was admitted into evidence, the trial court ruled it was admissible as part of Owens's medical records, which Owens himself had authenticated. We discern no reversible error in the admission of Dr. Camp's report or any other evidence of Owens's substance abuse. Both Owens and his team of experts corroborated his history of drug addiction. And Owens does not deny this evidence was relevant. Therefore, it was admissible. See Miss. R. Evid. 402.

III. Justice Court Judge Abraham Gates

¶ 31. Owens also takes issue with Judge Gates's serving as a jury consultant for the defense. Owens argues Judge Gates not only served as a jury consultant, but also his role as a part-time judge improperly benefitted his cousin, in violation of the Mississippi Code of Judicial Conduct. In fact, the only law Owens cites are Canons 1 and 2B of the Code of Judicial Conduct. But the Code of Judicial Conduct "is designed to provide guidance to judges ... and to provide a structure for regulating conduct through disciplinary agencies." Miss. Code of Judicial Conduct Preamble (2018). This is not a judicial-discipline proceeding against Judge Gates. It is an appeal of a jury verdict in a civil trial. And as the Code itself cautions, its designated purpose "would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding." Id. Instead of articulating how the judge who presided over his trial reversibly erred, it appears Owens is trying to invoke the Code-against a non-presiding judge outside of that judge's court-as a means to gain a new trial where he otherwise is not entitled to one.

¶ 32. For example, Owens claims the circuit judge, the Honorable Jannie Lewis, should never have allowed Judge Gates to "participate" in the trial. But as Judge Lewis recognized, Judge Gates was allowed as a part-time judge "to practice law or any other profession or occupation." Miss. Code of Judicial Conduct Terminology (2018). Had Judge Gates been an attorney, he could have tried the case for the defense. So we fail to see why his position as justice court judge precluded him from attending trial.

¶ 33. Owens also, without citing any authority, claims Judge Lewis should have granted his motion for a mistrial. Uniform Rule of Circuit and County Court Practice 3.12 does permit the trial court to grant a motion for mistrial if a party, a party's attorney, or someone acting at the behest of the other party or party's attorney engages in misconduct, inside or outside of the courtroom, that substantially and irreparably prejudices the movant's case. URCCC 3.12. In reviewing Owens's mistrial claim, the question is not, as Owens's frames it, whether Judge Gates engaged in "misconduct" that would subject him to judicial discipline. Instead, the question is did the trial judge abuse her discretion when she found no mistrial was warranted based on the jurors' responses to voir dire as to Will Gates's relationship to Judge Gates and any impact Judge Gates's presence would have on their impartiality.

¶ 34. Owens's complaint that his case was substantially and irreparably prejudiced by Judge Gate's "physical presence in the courtroom" has no support in the record. The trial judge addressed the issue of Judge Gates's presence during voir dire the day before Owens moved for mistrial. See Ross v. State , 954 So.2d 968, 988 (Miss. 2007) ("In general, a voir dire is presumed sufficient to ensure a fair and impartial jury."). During voir dire, all venire members responded affirmatively when asked if they knew or knew of Judge Gates. But as this Court has observed, in rural counties like Humphreys County, Mississippi, "it [is] not unusual for potential jurors to know parties and witnesses in trials" and "finding jurors with no knowledge of the case or the parties [can be] difficult." Payton v. State , 897 So.2d 921, 953-54 (Miss. 2003). Moreover, counsel followed up by asking if Judge Gates's presence would influence the jurors' decision. The group collectively answered that Judge Gates would not influence their decision "one way whatsoever." And "[t]his Court will treat with deference a venire person's assertions of impartiality." Ross , 954 So.2d at 988 (citing Holland v. State , 705 So.2d 307, 336, 399-40 (Miss. 1997) ) ("This Court has held that a defendant fails to show the necessary prejudice where ... the venire members have made general declarations that they could set aside their prejudices and reach a decision based on the evidence.").

¶ 35. However, the overarching principle is that this Court defers to the trial judge's ruling on a motion for a mistrial. Because a "trial judge is in a better position to assess the effect of incidents which may require a mistrial than is this Court on appeal, ... this Court will not reverse on the failure to grant a mistrial unless the judge abused [her] discretion in overruling the motion for a mistrial." Cavett v. State , 717 So.2d 722, 729 (Miss. 1998) (quoting Bredemeier v. Jackson , 689 So.2d 770, 774 (Miss. 1997) ). Because the venire indicated that they could be fair and impartial, Judge Lewis did not abuse her discretion when she denied Owens's motion for a mistrial, premised solely on Judge Gates's attendance at trial. See Payton , 897 So.2d at 953-54 (finding no abuse of discretion when "jurors assured the court and the attorneys that their familiarity with witnesses would not influence their ability to be fair and impartial").

¶ 36. Therefore, we affirm.

¶ 37. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., COLEMAN AND ISHEE, JJ.

¶ 38. I agree that the trial judge committed no error. Whether Justice Court Judge Abraham Gates's conduct violated the Code of Judicial Conduct as claimed by Owens is for determination by the Mississippi Commission on Judicial Performance. See Miss. Const. art. 6, § 177A.

WALLER, C.J., COLEMAN AND ISHEE, JJ., JOIN THIS OPINION.

      The actual plaintiff was Owens's conservator, Charles Fairley, who is now the appellant. But to avoid confusion, this opinion refers to the plaintiff / appellant as "Owens."

      As "part-time" judges, justice court judges are allowed to practice law or any other profession or occupation. See Miss. Code of Judicial Conduct Terminology (2018).

      The state trooper who responded to accident said he never saw a vest. And Gates described to the 911 operator that the man he hit was putting on an orange vest. But Owens's coworker testified Owens was wearing the vest when he walked off his shift-though he described the vest as green with black trim. And the paramedic who worked on Owens at the scene testified Owens had been wearing an orange vest with yellow stripes on the front.

      Indisputably, Gates was acting within the course and scope of his employment at the time of the collision, so Owens sought to hold Total Transportation vicariously liable.

      Turner actually was a consolidated appeal of two cases involving two separate motorist-pedestrian accidents. Turner , 476 So.2d at 801. But Owens cites Turner 's discussion of the bus wreck only.

      The Johnson court noted that, under Louisiana statute, "Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction." Johnson , 741 So.2d at 33-34 (quoting La. Stat. Ann. § 32:216(B) ).

      Bink predates Turner by two years. At that time, contributory negligence was a complete defense-except in motorist-pedestrian accidents. Bink , 429 So.2d at 230 (discussing Baumgartner v. State Farm Mut. Ins. Co. , 356 So.2d 400, 405 (La. 1978) ). Under the Baumgartner ruling, a motorist could not simply point to the pedestrian's negligence to excuse him from any fault. Id. Instead, Baumgartner held that a motorist should anticipate situations where a pedestrian may not act prudently and, thus, bears the burden to avoid the accident when the exercise of due care provides the opportunity to do so. Id. By the time of Turner , Louisiana had abolished by statute the contributory-negligence defense and adopted comparative negligence instead. So Baumgartner was "no longer needed." Turner , 476 So.2d at 804-05.

      While Owens also claims the jury's verdict was improperly influenced by "hearsay," Owens neither specifies what evidence he claims was hearsay nor points to any objection to its admission. As this Court has held, "unobjected-to hearsay evidence, once received by the court and presented to the jury, becomes competent evidence and may aid in supporting a verdict the same as any other competent evidence." Veal v. State , 585 So.2d 693, 697 (Miss. 1991).

      On appeal, Owens is not arguing that the trial court reversibly erred when it overruled his Daubert objection and allowed Dr. Webb to testify as an expert. See Miss. Transp. Comm'n v. McLemore , 863 So.2d 31, 35 (Miss. 2003) (adopting the test for determining the admissibility of expert witness testimony set forth in Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as modified in Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ).

      In particular, he asserts Judge Gates's actions are akin to the example given in the comment to Canon 2B: "A judge must avoid lending the prestige of judicial office for the advancement of the private interest of others. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member of the judge's family." Miss. Code of Judicial Conduct Canon 2B cmt. (2018).

      While Owens repeatedly claims Judge Gates "participated" in the trial, it appears from the record that Judge Gates's only participation in his role as a jury consultant was attending trial. Judge Gates, a non-lawyer, did not ask the venire questions or otherwise interact with the jury on behalf of the defense. Before the jury was selected, as soon as Owens's counsel alerted Judge Lewis to his presence, Judge Lewis asked Judge Gates to leave counsel table, because he was not a licensed attorney. The only thing Judge Lewis did not do that Owens insists she should have is forbid Judge Gates from coming to court.

      We note it was Owens who chose to proceed in Humphreys County where Will Gates resided, even though other venues were available, such as Rankin County, Mississippi, St. Tammany Parish, Louisiana, and federal courts in either state, as there was complete diversity jurisdiction. See 28 U.S.C. § 1332.


text:
    THE MISSISSIPPI BAR, Appellant v. Ivon JOHNSON, Appellee
    No. 2016-BD-01383-SCT
    Supreme Court of Mississippi.
    April 3, 2017
    ORDER
   ¶ 1. The instant matter is before the Court en banc on the Mississippi Bar's Motion to Accept the Irrevocable Resignation of Ivon Johnson. After consideration, the Court finds as follows:

¶ 2. In September 2016, the Mississippi Bar filed a formal complaint seeking the disbarment of Ivon Johnson after Johnson pleaded guilty to a felony charge in the United States District Court for the Southern District of Mississippi on July 29, 2016. On December 1, 2016, Mr. Johnson executed a Notice of Irrevocable Resignation pursuant to Rule 10.5 of the Rules of Discipline for the Mississippi State Bar. Johnson currently has two outstanding disciplinary matters and has indicated that he has no desire to defend the disciplinary matters; therefore, he has requested permission to resign irrevocably and with prejudice from the Mississippi Bar. Johnson's notice complies with Rule 10.5 in all respects

¶ 3. Rule 10.5 provides that, upon the tender of an irrevocable resignation from an attorney, the Court shall enter an order accepting the resignation, revoking the attorney's license, and barring the attorney's right to seek reinstatement in the future. Having considered the circumstances in light of Rule 10.5, the Court finds that the Mississippi Bar's Motion to Accept the Irrevocable Resignation of Ivon Johnson is well-taken and shall be granted.

¶ 4. IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

1. The Court hereby accepts Ivon Johnson's resignation with prejudice from the Mississippi Bar, and such resignation is tantamount to proof of guilt on the matter charged;
2. The Court hereby revokes Ivon Johnson's license to practice law in the State of Mississippi;
3. The Court hereby bars Ivon Johnson from seeking reinstatement to the privilege of practicing law in the State of Mississippi in the future;
4. The Clerk of the Court shall forward an attested copy of the instant order to Ivon Johnson and the Executive Director of the Mississippi Bar;
5. Ivon Johnson shall, within thirty days following entry of the instant order, notify clients and affected courts, if any, of his resignation from the Mississippi Bar, properly disburse all funds he may hold in trust, and comply with all other requirements applicable under Rule 11 of the Mississippi Rules of Discipline ;
6. Ivon Johnson shall, within forty-five days following the entry of the instant order, file an affidavit with the Court stating that all of his clients have been notified of his resignation from the Mississippi Bar and his consequent inability to practice law in Mississippi, and that he has fully complied with all applicable requirements set forth in Rule 11 of the Mississippi Rules of Discipline, as well as the requirements of the instant order;
7. Failure to comply with the instant order may be punished as contempt and may constitute a separate ground for disciplinary action;
8. The Clerk of the Court shall immediately forward an attested copy of the instant order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States; and
9. Costs of the formal complaint shall be, and are hereby, assessed to Ivon Johnson.

¶ 5. SO ORDERED, this the 3rd day of April, 2017.