author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Adam ROSENFELT and Element Studios, LLC v. MISSISSIPPI DEVELOPMENT AUTHORITY and Glenn McCullough, Jr., in His Official Capacity as Executive Director of the Mississippi Development Authority
    NO. 2017-CA-01120-SCT
    Supreme Court of Mississippi.
    December 6, 2018 Rehearing Denied February 7, 2019
    ATTORNEYS FOR APPELLANTS: MICHAEL B. WALLACE, JACKSON, JANE WALLACE MEYNARDIE, THORNTON RUSSELL NOBILE
    ATTORNEYS FOR APPELLEES: MICHAEL O. GWIN, J. COLLINS WOHNER, JR., WAVERLY ALMON HARKINS, LEE DAVIS THAMES, JR., JACKSON.
    BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. This is a contract dispute between Adam Rosenfelt, a film producer, and the Mississippi Development Authority (MDA). Rosenfelt claims the MDA promised loan guarantees so he could make movies in Mississippi. He made one film, which was not financially successful, and the MDA refused to guarantee the loan for his next project. Rosenfelt now claims the MDA breached a contract with him, personally. We conclude that the actual documents show that any agreement was between the MDA and one or more LLCs, not Rosenfelt personally, and Rosenfelt cannot contradict the written documents with parol evidence. See Epperson v. SOUTHBank , 93 So.3d 10, 17 (Miss. 2012). Rosenfelt therefore has no standing to pursue the claims because any obligations under the alleged contracts are to the LLCs, not Rosenfelt personally. Bruno v. Se. Servs. Inc. , 385 So.2d 620, 622 (Miss. 1980). Furthermore, no error has been shown as to the dismissal of Element Studios, LLC, for want of standing.

¶ 2. This case also potentially presents a question of first impression regarding the authority of the executive director of the MDA and his agents to bind the MDA in contract without spreading the contract's terms on the MDA's minutes. But because we find that no error has been shown in the circuit court's dismissal of the suit on the basis of standing, that issue is moot and will not be addressed.

FACTS AND PROCEDURAL HISTORY

¶ 3. Through "government affairs professionals," Rosenfelt reached out to Mississippi officials to propose his company's plan for the state to "invest" in a new production studio. The name of that studio was to be Mississippix or Mississip-pix, and it was to be located in Mississippi. Rosenfelt testified that after pitching the idea to various officials in the MDA, he met briefly with Governor Phil Bryant. Rosenfelt testified the governor expressed enthusiasm for the plan and that the governor's intent was to "put [the plan] in the 2013 special session." But that never happened, and Rosenfelt testified that he planned to shop the plan to other states.

¶ 4. The MDA, however, continued to try to find a way to bring Rosenfelt's business to the State. In various emails, Kathy Gelston, MDA's chief financial officer, explained, "The governor wants a commitment, but doesn't want to add anything to the Medicaid special session .... We have to think of some kind of contract or something." She forwarded a draft letter to Rosenfelt's representatives containing terms "agreed to by Governor Bryant." On June 27, 2013, Gelston signed the letter. The letter was addressed to Rosenfelt as "President of Element Pictures." It stated,

Mississippi will commit to your Mississippi Production Investment Plan (attached hereto) for an initial investment of ten million dollars ... proposed legislation notwithstanding, the initial ten million dollar commitment will be firmly committed by Mississippi and will not be contingent upon proposed legislation being passed by the legislature at any time in the future.

¶ 5. Rosenfelt claims he relied on this letter in his decision to "not show elsewhere" and to move his family and company to Mississippi. But it turned out that MDA did not have the money. It tried to get it during the 2014 regular session, but that legislation also failed to pass. In an email sent on March 4, 2014, Gelston told Rosenfelt, "I cannot express how sorry I am that you were misled. I will continue to work with you within our current program to try and mitigate the damage."

¶ 6. Rosenfelt sought assurances that any new agreement would be enforceable. And so MDA's lawyer sent an email to Rosenfelt's lawyer, attached to which was an attorney general opinion that stated "the Executive Director of the MDA is authorized to execute an agreement to guarantee the Loan pursuant to the [small business loan guarantee program] on behalf of the State." Then, on April 7, 2014, MDA Executive Director Brent Christensen drafted a letter to Rosenfelt, again as "President of Element Pictures." The letter stated,

Mississippi will commit to a revolving loan guarantee of ten million dollars for five years. This guaranty can be utilized on any film over $5 million and under $20 million with a minimum of 50% of the production expenses occurring in Mississippi, and can be used to guarantee up to 80% of the cost of the film.

¶ 7. During the summer of 2014, Regions Bank agreed to extend a $10 million revolving loan to a company formed by Rosenfelt to finance his first movie in the state-The Duel featuring Woody Harrelson. The loan was conditioned on the guaranty promised by MDA's April 7, 2014, letter. But before Rosenfelt and Regions could close on the loan, MDA issued a letter refusing to guarantee the loan. The deal fell through, and Rosenfelt secured emergency financing elsewhere. Eventually, MDA would agree to issue a guaranty for $4 million of a loan provided by Planters Bank.

¶ 8. After The Duel was completed, Rosenfelt reached out to MDA in 2015 to discuss the remainder of the originally promised $10 million guaranty. This resulted in the execution of a "term sheet" on July 1, 2015. The term sheet was signed by the new chief financial officer, Jay McCarty, on behalf of MDA, and Rosenfelt, on behalf of "Mississippix Studios, LLC and Element Studios LLC." The term sheet described MDA's terms for the release of an additional $6 million loan guarantee. Among other things, it provided that any application to MDA for another loan guarantee "will be considered by the internal loan guaranty committee in accordance with established program processes."

¶ 9. Rosenfelt applied for this money to make a second movie, but the MDA declined the application, leading to this litigation. Rosenfelt's complaint sought a declaratory judgment that MDA was bound by an enforceable contract, specific performance ordering MDA to execute a guaranty of a loan Rosenfelt had arranged, and money damages. The chancery court initially granted partial summary judgment in favor of Rosenfelt, finding that MDA's letter on April 7, 2014, "created an unconditional obligation on the MDA to a revolving loan guaranty of $10 million over five years to fund Rosenfelt's Mississippi-based film projects," and that "MDA [was] required to guarantee a loan to Rosenfelt for up to $7.5 million dollars." The chancery court further opined that the letter was "unambiguous."

¶ 10. Rosenfelt later filed another motion for summary judgment seeking specific performance of the guaranty. The MDA responded with a summary-judgment motion of its own, challenging Rosenfelt's standing to bring any of his claims. This time the chancery court agreed with the MDA; it dismissed the complaint on two grounds: the contract was not recorded in the official minutes of the MDA, and both Rosenfelt and Element Studios, LLC, lacked standing. Rosenfelt now appeals that decision.

STANDARD OF REVIEW

¶ 11. This Court reviews a grant or denial of summary judgment de novo. Hardy v. Brock , 826 So.2d 71, 74 (Miss. 2002). Standing is also a question of law which we review de novo. Brown v. Miss. Dept. of Human Servs. , 806 So.2d 1004, 1005 (Miss. 2000).

DISCUSSION

¶ 12. On appeal, Rosenfelt argues the chancery court erred when it found he did not have standing to pursue these claims. This Court has held that "standing is a jurisdictional issue which may be raised any party or the Court at any time." City of Madison v. Bryan , 763 So.2d 162, 166 (Miss. 2000). "In Mississippi, parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse affect from the defendant's conduct." Miss. Manufactured Housing Ass'n v. Bd. of Aldermen of Canton , 870 So.2d 1189, 1192 (Miss. 2004). "The individual's legal interest or entitlement to assert a claim must be grounded in some legal right recognized by law, whether by statute or by common law." Schmidt v. Catholic Diocese of Biloxi , 18 So.3d 814, 827 (Miss. 2009) (citations omitted). Put another way, standing is determined by "[w]hether the particular plaintiff had a right to judicial enforcement of a legal duty of the defendant or whether a party plaintiff in an action for legal relief can show in himself a present, existent actionable title or interest, and demonstrate that this right was complete at the time of the institution of the action." Id. (citation omitted).

¶ 13. Rosenfelt cites three documents in the record he contends evidence an agreement between him, personally, and the MDA. The first two are letters from MDA officials dated June 2013 and April 2014. They are both addressed to Rosenfelt as president of Element Pictures. The June 2013 letter states that Mississippi "will commit to your Mississippi Production Investment Plan (attached hereto) for an initial investment of ten million dollars." The investment plan mentions two entities: Element Films and Element Pictures. It says it is "designed by Element Films." It further states, in its most active and operative language, that if the plan is accepted, "Element Films will form MISSISSIP-PIX," and Mississippix will go on to do various things. The plan also includes an "executive summary" that lays out "the company's" management team; it identifies Rosenfelt as "Chairman," then says he is "president of Element Pictures " (our emphasis) and later refers to Rosenfelt as "president of Element." The plan does not say Rosenfelt will do anything in a personal capacity; it just identifies him as chairman (presumably of Element Films) and president of Element Pictures. The MDA's 2013 letter is signed by "Kathy Gelston, Chief Financial Officer."

¶ 14. The MDA's 2014 letter is also addressed to Rosenfelt as president of Element Pictures and states that Mississippi "will commit to a revolving loan guarantee of ten million dollars for five years." It is signed by Brent Christensen, the executive director of the MDA.

¶ 15. Finally, Rosenfelt cites the 2015 terms sheet, which recites terms relating to a $10 million revolving loan guarantee and notably includes that applications for loan guarantees "will be considered by the internal loan guaranty committee in accordance with established program processes." The 2015 terms sheet is signed by "Jay McCarty, Mississippi Development Authority." McCarty was at that time the MDA's chief financial officer. The term sheet was also signed by Rosenfelt as "Adam Rosenfelt, Mississippix Studios, LLC/Element Studios LLC."

¶ 16. Thus, the standing issue essentially boils down to a question of contract interpretation. This is well-suited for summary judgment: "[q]uestions of contract construction and ambiguity are questions of law that are committed to the court rather than questions of fact committed to the fact finder." Epperson v. SOUTHBank , 93 So.3d 10, 17 (Miss. 2012) (citation omitted). Only if we find "the [material] terms of the contract to be ambiguous or subject to more than one interpretation" will the case "be submitted to the trier of fact, and summary judgment ... not appropriate." Id.

¶ 17. Rosenfelt contends on appeal that the 2013/2014 letters and the 2015 terms sheet reflect an agreement between him, personally, and the MDA. He alleges that the letters are addressed to him and that he signed the 2015 terms sheet. But he offers no supporting argument or authority, and as we explained above, the letters were clearly and unambiguously addressed to Rosenfelt in his capacity as president of Element Pictures, the Louisiana LLC. The 2015 terms sheet was also signed by Rosenfelt only as an officer of the two Mississippi LLCs, not in his individual capacity.

¶ 18. All of the alleged contract documents were either addressed to Rosenfelt in his capacity as an officer of an LLC or were signed by him in the same capacity. None of the documents even suggest Rosenfelt would receive any benefit or incur any obligations except in his capacity as an officer or owner of the LLCs. While there may be some ambiguity as to which Louisiana LLC was the offering party in 2013 plan, there is no conceivable interpretation of any of these written documents that Rosenfelt, personally, was a party to any agreement. Thus, we conclude that parol evidence cannot be considered on the specific question of whether Rosenfelt, personally, was one of the contracting parties.

¶ 19. Because the alleged agreements were with the LLCs Rosenfelt was representing, he has no right to enforce the agreements personally, even if the LLCs were entirely owned and operated by him. "It is fundamental corporation and agency law that a corporation's shareholder and contracting officer has no rights and is exposed to no liability under the corporation's contracts." Domino's Pizza, Inc. v. McDonald , 546 U.S. 470, 471, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). Under Mississippi law, "an action to redress injuries to a corporation, whether arising in contract or in tort[,] cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative." Bruno v. Se. Servs. Inc. , 385 So.2d 620, 622 (Miss. 1980) (quoting Schaffer v. Universal Rundle Corp. , 397 F.2d 893 (5th Cir. 1968) ). "The rule applies even though the complaining stockholder owns all or substantially all of the stock of the corporation." Id. (citations omitted).

¶ 20. Rosenfelt "elected to conduct [his] business through a limited liability company and ... just as [he] received protection of [his] personal assets from liability in doing so .... [he] gave up standing to claim damages to the LLC, even if [he] also suffered personal damages as a consequence." Painter's Mill Grille, LLC v. Brown , 716 F.3d 342, 347-48 (4th Cir. 2013). The law takes a dim view of attempts by those using the corporate form to cast it off whenever it suits their convenience to do so. Mont. Power Co. v. Fed. Power Comm'n , 185 F.2d 491, 497 (D.C. Cir. 1950). Rosenfelt thus has no standing to sue in contract or in tort unless a duty was owed to him, personally. See Bruno , 385 So.2d at 622.

¶ 21. Rosenfelt also seeks to show he was a party to the agreements by resort to extrinsic evidence. He cites his own deposition, but all three of the excerpts he quotes in his brief just offer his own interpretation of the letters' terms or speculate about MDA's motivation; and they do not even necessarily have to be read as Rosenfelt referring to himself in an individual capacity. Rosenfelt also cites various letters and quotes from officials at MDA suggesting they understood themselves to be dealing with Rosenfelt, personally, rather than the various companies he controlled. But this also is parol evidence.

¶ 22. If a written contract is unambiguous, "the intention of the contracting parties should be gleaned solely from the wording of the contract and parole evidence should not be considered." Epperson , 93 So.3d at 16. The contract need not be "fully integrated" such that it encompasses the entire agreement between the parties; if it is partially integrated, that is, if the parties "intend the writing to be the final expression of the terms it contains but not a complete expression of all the terms agreed upon-some terms remaining unwritten," then "evidence of prior or contemporaneous agreements is admissible to supplement its terms though not to contradict it." Merk v. Jewel Food Stores Div. of Jewel Cos. Inc. , 945 F.2d 889, 892-93 (7th Cir. 1991). We emphasize that what makes an agreement "integrated" or "partially integrated" is not whether the contract unambiguously settled those terms, but whether the parties intended it to be a final agreement. See id. Put another way, parol evidence is admissible only "to supplement [the contract's] terms," "not to contradict it." Id. at 892-93. As this Court said in Epperson , the parol evidence rule "provides that where a document is incomplete parol evidence is admissible to explain the terms but, in no event, to contradict them." Epperson , 93 So.3d at 17 (citation omitted).

¶ 23. The course-of-performance evidence cited by Rosenfelt is likewise not relevant unless the written agreements are materially ambiguous. Only "[i]f the intent of the parties is not yet ascertained after 'four corners' analysis" will "the court will employ any applicable canons of contract construction" such as the "practical construction which the parties have placed upon the instrument." Warren v. Derivaux , 996 So.2d 729, 735 (Miss. 2008) (citations omitted). See also 17A C.J.S. Contracts § 426 (2018) ("The language of an unambiguous contract governs, even in the face of a different interpretation the parties may have placed on the agreement themselves. The parties' construction does not change the terms of the agreement or control or vary the express unambiguous provisions of the instrument itself; thus, the fact that the parties have placed an erroneous construction on an unambiguous contract will not prevent the court from construing the contract properly.").

¶ 24. Rosenfelt also contends the letters and the terms sheet should be construed against their drafter, MDA. But this is another canon of contract construction, and it also only applies if the parties' intent cannot be derived from the contract's four corners. See, e.g. , Pursue Energy Corp. v. Perkins , 558 So.2d 349, 352-53 (Miss. 1990).

¶ 25. Next, Rosenfelt cites Vickers v. First Mississippi National Bank , 458 So.2d 1055, 1062 (Miss. 1984). But all Vickers held is that the shareholder's status as a shareholder did not preclude him from enforcing a contract remedy he would otherwise have if there was a contractual duty owed to him, personally. See id. at 1063-64.

In that case, the plaintiff was a party to the contract in his individual capacity. See id. at 1057. As discussed above, Rosenfelt was not a party to the alleged contracts.

¶ 26. Nor was Rosenfelt a third-party beneficiary by virtue of his ownership or control of the LLCs. "[A] third party beneficiary may sue for a breach of the contract only when the condition which is alleged to have been broken was placed in the contract for his direct benefit." Miss. High Sch. Activities Ass'n, Inc. v. Farris , 501 So.2d 393, 396 (Miss. 1987) (citation omitted). "A mere incidental beneficiary acquires by virtue of the contractual obligation no right against the promisor or promisee." Id. Rosenfelt's benefits and obligations under the alleged agreement were "merely derivative" of his position as an owner or officer of the LLCs and were thus incidental to any agreements involving only the LLCs. See Gerard J.W. Bos & Co., Inc. v. Harkins & Co. , 883 F.2d 379, 382 (5th Cir. 1989) (applying Mississippi law) ; see also Bruno , 385 So.2d at 622.

¶ 27. Finally, there is the question of the standing of Element Studios, LLC. Throughout this litigation, Rosenfelt and Element Studios, LLC, have been represented jointly, and their brief on appeal is almost entirely devoted to arguing that Rosenfelt personally contracted with MDA. The only argument presented as to Element Studios, LLC, is the cursory assertion that it had standing as a third-party beneficiary to an agreement either between the MDA and Rosenfelt or, failing that, between the MDA and Mississippix. As noted above, we reject the contention that an agreement existed between Rosenfelt and the MDA. As to an alleged agreement between Mississippix and the MDA, Rosenfelt and Element Studios, LLC, make no attempt to demonstrate that such an agreement existed or that Element Studios, LLC, was a third-party beneficiary to it. Nor have they briefed the question of whether Element Studios, LLC, has standing by virtue of its being a direct party to an agreement with the MDA, as might be suggested by Rosenfelt's signature as its agent on the 2015 terms sheet. We will not speculate whether this was an oversight or a strategic decision, given the Appellants' obvious preference for the terms of the 2014 letter over the 2015 terms sheet. Instead, we decline to address an issue that has not been briefed on appeal. As the Court of Appeals has stated, "Simply put, we will not act as an advocate for one party to an appeal." Jefferson v. State , 138 So.3d 263, 265 (Miss. Ct. App. 2014). "The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal." Id. ; see also M.R.A.P. 22(a)(3), (7).

¶ 28. Finally, Rosenfelt and Element Studios, LLC, argue MDA should be equitably estopped from challenging their standing. While it is true that MDA did not raise the standing issue immediately, "standing is a jurisdictional issue [that] may be raised any party or the Court at any time." City of Madison v. Bryan , 763 So.2d 162, 166 (Miss. 2000). The record here reveals that Rosenfelt not only lacks standing, he is seeking to enforce causes of action he does not own and which may actually belong to legally distinct entities that are not parties to this suit. We can find no merit to the estoppel argument.

CONCLUSION

¶ 29. We conclude that neither Rosenfelt nor Element Studios, LLC, has shown error in the trial court's dismissal of their suit for want of standing. The remaining issues presented are moot and will not be addressed.

¶ 30. AFFIRMED.

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

      The Appellant here is Element Studios, LLC, a Mississippi limited liability company. Element Films and Element Pictures are apparently LLCs organized in the State of Louisiana. They are all presumably controlled by Rosenfelt, but it is unclear what legal or contractual relationships, if any, the various LLCs have to each other.


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    Charles NORMAN, Jr., Individually and on Behalf of All Wrongful Death Beneficiaries of Charles Norman, Sr., and the Estate of Pat Norman v. ANDERSON REGIONAL MEDICAL CENTER
    NO. 2017-CA-00153-SCT
    Supreme Court of Mississippi.
    January 24, 2019
    ATTORNEYS FOR APPELLANT: CHRIS J. WALKER, H. WESLEY WILLIAMS, III, RIDGELAND
    ATTORNEYS FOR APPELLEE: ROMNEY H. ENTREKIN, P. GRAYSON LACEY, JR., SHIRLEY M. MOORE, LAUREL, BENJAMIN B. MORGAN
    EN BANC.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1. The estate and beneficiaries of Charles Norman, Sr., appeal the trial court's exclusion of Norman's medical experts and grant of summary judgment in favor of Anderson Regional Medical Center. Because the trial court properly found that Norman's experts' testimony lacked sufficient foundation in the medical literature and because no genuine issue of material fact remains, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On December 12, 2011, Charles Norman, Sr., was admitted to Anderson Regional and underwent a cardiac catheterization with stent placement, which was performed by his cardiologist, Dr. Michael Purvis. Dr. Purvis performed the procedure without significant complication, and he expected to discharge Norman two days later.

¶3. At some point during the overnight hours of December 13 to 14, 2011, Norman suffered an ischemic stroke. Norman's wife complained to nursing staff that she observed symptoms of a stroke as early as 7:00 a.m. the next morning, which the nurses documented in Norman's chart at 8:00 a.m. Neither Dr. Purvis nor any other medical doctor was notified of the stroke until much later in the day. In fact, Dr. Purvis first became aware of the stroke when he made his rounds around 2:30 that afternoon. Dr. Purvis then consulted Dr. Jimmy Wolfe, a neurologist, who performed a CT scan that confirmed Norman had suffered a stroke. By the time the doctors became aware of the stroke (at least seven and a half hours after Norman's wife first complained to the nursing staff), the time frame within which tissue plasminogen activator ("tPA")-a "clot-buster" drug used to restore blood flow to a stroke victim's brain-is to be effectively administered had passed.

¶4. Norman remained at Anderson Regional two to three days after he had his stroke. He was then transferred to a step-down unit for rehabilitation before finally being transferred to Bedford Nursing Home at Marion, Mississippi, where he remained for the rest of his life. Following the stroke, Norman could no longer care for himself, provide for his family, or enjoy the quality of life he was accustomed to.

¶5. Norman sued Anderson Regional a little more than a year before his death in the Circuit Court of Lauderdale County. Both Norman and his wife have since died. The decedents' estates were substituted as plaintiffs and real parties in interest. Norman alleges that Anderson Regional, by and through the nurses on duty when Norman suffered the stroke, was negligent in its care and treatment of Norman in December 2011.

¶6. Anderson Regional subsequently stipulated that its nurses breached the applicable standard of care by not recognizing and reporting Norman's stroke symptoms to a physician earlier. Anderson Regional further conceded that the nursing staff's delay in reporting Norman's stroke prevented the possible administration of tPA. Anderson Regional, however, denied that Norman was ever a candidate for tPA administration, noting that Norman was a "75-year-old, brittle diabetic with a relevant medical history that was positive for atrial fibrillation, hypertension, low ejection fraction, and coronary artery disease."

¶7. Anderson Regional filed motions to strike and/or exclude Norman's experts: Dr. Harmut Uschmann, Dr. Michael Winkelmann, and Dr. Daisy Marie Thomas. Dr. Uschmann and Dr. Winkelmann both opined that Norman would have had a greater than 50 percent chance of a better outcome had Anderson Regional complied with the applicable standard of care and administered tPA in a timely fashion. Dr. Thomas opined that Anderson Regional's failure to give Norman tPA prevented his recovery and contributed to his death.

¶8. Anderson Regional filed its motion for summary judgment based on the premise that Dr. Uschmann's testimony should be excluded. After hearing arguments, the trial court entered its Memorandum Opinion and Order granting summary judgment in favor of Anderson Regional. The trial court concluded that Norman's experts' opinions were neither based on nor supported by reliable data (i.e., the medical literature) regarding the probability tPA would have been effective even if it had been timely administered. As a result, Norman failed to prove by a preponderance of the evidence that he would have had a greater than 50 percent probability of a substantially better outcome had his stroke been timely diagnosed and had tPA been timely administered.

¶9. Norman now appeals.

DISCUSSION

¶10. This appeal challenges this Court's longstanding precedent adopting the loss-of-chance causation standard in medical-malpractice cases. For Norman to recover under our loss-of-chance causation standard, he must prove a greater than 50 percent chance of a substantially better outcome had Anderson Regional timely recognized and reported his stroke and administered tPA.

¶11. This Court reviews a trial court's grant of summary judgment de novo. Kilhullen v. Kan. City S. Ry. , 8 So.3d 168, 174 (Miss. 2009). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). Evidence will be viewed in the light most favorable to the nonmoving party. Kilhullen , 8 So.3d at 174-75.

I. Whether the trial court properly excluded Norman's experts and granted summary judgment on the basis that the expert opinions lacked sufficient foundation in the medical literature.

¶12. To establish a prima facie case of medical malpractice under Mississippi law, a plaintiff must prove by a preponderance of the evidence (1) the applicable standard of care; (2) a failure to conform to the required standard; and (3) an injury proximately caused by a defendant's noncompliance with the standard. Mem'l Hosp. at Gulfport v. White , 170 So.3d 506, 508 (Miss. 2015). As a rule, the plaintiff must demonstrate each of these elements through medical-expert testimony, and the expert must articulate and identify the standard of care that was breached and establish that the breach was the proximate cause or the proximate contributing cause of the alleged injuries.

Hubbard v. Wansley , 954 So.2d 951, 957 (Miss. 2007). Because Anderson Regional stipulated it breached the standard of care, this Court's analysis focuses solely on the issue of causation.

¶13. Mississippi law does not require a plaintiff to prove causation with certainty. Clayton v. Thompson , 475 So.2d 439, 445 (Miss. 1985). Mississippi law requires proof of causation to a degree of reasonable medical probability that-absent the alleged malpractice-a significantly better result was probable, or more likely than not (i.e., a greater than 50 percent chance of a substantially better outcome than was in fact obtained). Id. ; Ladner v. Campbell , 515 So.2d 882, 889 (Miss. 1987). In Mississippi, the threshold of proof required for recovery has been termed the "loss of chance." Clayton , 475 So.2d at 444.

¶14. This Court first addressed Mississippi's loss-of-chance standard in Clayton , in which we concluded that "Mississippi law does not permit the recovery of damages because of mere diminishment of the 'chance of recovery.' " Id. at 445. Clayton clearly placed Mississippi in line with those jurisdictions that require a plaintiff to show that "proper treatment would have provided the patient 'with a greater than 50 percent chance of a better result than was in fact obtained,' " and Ladner reaffirmed the notion first established in Clayton that a mere "better result absent malpractice" fails to meet the requirements of causal connection. Ladner , 515 So.2d at 889. This Court has since applied Mississippi's loss-of-chance standard consistently in cases such as Hubbard and White , adhering to our current and longstanding precedent that "[p]ossibilities will not sustain a verdict." Kramer Serv., Inc. v. Wilkins , 184 Miss. 483, 497, 186 So. 625, 627 (1939) (quoting Ill. Cent. R.R. v. Cathy , 70 Miss. 332, 338, 12 So. 253 (1893) ); Griffith v. Entergy Miss., Inc. , 203 So.3d 579, 589 (Miss. 2016) ("[V]erdicts are to be founded upon probabilities ... and not upon possibilities[.]").

¶15. In its Memorandum Opinion and Order summarily dismissing Norman's claims, the trial court cited King v. Singing River Health System -a factually analogous case involving the timely administration of tPA-as controlling authority. In King , the trial court similarly granted the defendants' motions to exclude the plaintiffs' expert testimony because the expert's opinions were not based on reliable data. King , 158 So.3d at 320. The trial court in King found that plaintiffs' expert was unable to cite any medical literature to support his opinion that the decedent would have had a greater than 50 percent chance of improvement had her stroke been treated as she claimed it should have been. Id. King's expert based his opinions on four studies measuring the efficacy of tPA on stroke patients, two of which are the subjects of dispute in the current case -the 1995 NINDS study and the 2008 ECASS-III study. Id. at 327. The Mississippi Court of Appeals affirmed and found that, because the NINDS and ECASS-III studies supported approximately 12 and 7 percent chances for improvement in stroke patients respectively, King's expert testimony lacked sufficient support in the medical literature and failed to satisfy Mississippi's loss-of-chance standard. Id. at 327-29.

¶16. Consistent with King , the trial court concluded that Norman's expert testimony lacked sufficient support within the medical literature. The trial court found that no study, not even the benchmark NINDS study, demonstrates that timely tPA treatment provides a greater than 50 percent chance of a better outcome. As this Court has stated, when an expert renders an opinion that is attacked as "not accepted within the scientific community," the party offering the expert's opinion must, at a minimum, present the trial court with some evidence indicating that the offered opinion has some degree of acceptance in the scientific community. Hill v. Mills , 26 So.3d 322, 332-33 (Miss. 2010) ; see also King , 158 So.3d at 326 ("[W]here a theory has been studied in the medical literature and an expert's opinion is challenged for being contrary to the medical literature, there must be some support in the medical literature for a medical expert's opinion or some basis for believing that the medical literature is wrong."). Norman failed to present such evidence.

¶17. Dr. Uschmann testified to a reasonable degree of medical probability based on the above peer-reviewed medical literature that, more probable than not, Norman would have been substantially better off had he timely received tPA. He also testified that "it is more probable than not that Norman suffered from a small-vessel type stroke with a cardioembolic etiology." Anderson Regional challenged Dr. Uschmann's testimony, arguing that it was contrary to the prevailing medical literature and specifically contending that no support exists in the medical literature for the opinion that tPA, or any other supportive stroke care, would have provided Norman with a greater than 50 percent chance of a substantially better outcome.

¶18. Throughout his deposition, Dr. Uschmann repeatedly acknowledged that no support exists in the relevant medical literature for his opinion that tPA would have provided Norman with a greater than 50 percent chance of a better outcome. To be clear, Dr. Uschmann subsequently stated in his amended affidavit, "I am not opining that the absolute benefit of tPA exceeds fifty percent." This clarification, however, no more advances Norman's case than establishes a foundation for Dr. Uschmann's opinion. The undisputed medical evidence demonstrates, and all the experts in this case agree, the effective rate (i.e., the absolute benefit ) of timely administered tPA is between 8 and 12 percent-a rate far below the 50 percent threshold required to prove causation. Thus, by Dr. Uschmann's own concessions, Norman's loss-of-chance claim fails as a matter of law.

¶19. The Florida Supreme Court addressed a similar issue in Cox v. St. Joseph's Hospital , 71 So.3d 795 (Fla. 2011). Cox is a stroke case involving the failure to administer tPA. The issue was whether the intermediate appellate court impermissibly reweighed legally sufficient evidence of causation from Cox's expert witness that the timely administration of tPA more likely than not would have prevented or mitigated the consequences of the stroke. Cox , 71 So.3d at 799.

¶20. In Cox , the hospital's ER staff never obtained or attempted to acquire information about the precise onset time of Cox's stroke symptoms from the responding paramedics, which ultimately deprived Cox the opportunity to receive tPA. Id. at 797. Cox's expert, Dr. Nancy Futrell, opined that "to a high degree of medical probability" she believed that if Cox had received tPA, he "would have had a very good recovery and have minimal or no neurological deficit." Id. The defendants attacked Dr. Futrell's opinion based on a general contention that the NINDS study did not establish a "more likely than not" chance of improvement from the effects of the stroke. Id. at 798.

¶21. Florida follows the same loss-of-chance causation standard that Mississippi follows; however, despite Norman's heavy reliance on Cox , we find it easily distinguishable. First, Norman mischaracterizes the issue considered by the Florida Supreme Court in Cox . Although Norman frames the issue in Cox as "whether the administration of tPA would have prevented or mitigated the ... consequences of the ischemic stroke," the issue was whether the intermediate appellate court impermissibly reweighed legally sufficient evidence of causation and substituted its own factual findings in place of those of the jury. Thus, the Cox court merely considered the sufficiency of the evidence and whether the intermediate appellate court had substituted its own factual findings for those of the jury; it neither disturbed the jury's determination nor did it call into question the trial judge's evidentiary discretion.

¶22. Second, Cox is factually distinguishable. Dr. Futrell did not summarily conclude that it was more probable than not that Cox would have been substantially better off had he timely received tPA, as did Dr. Uschmann. Dr. Futrell testified that Cox would have experienced a "very good recovery" with "minimal or no neurological deficit," and she based her testimony on her own clinical experience administering tPA, the relevant medical literature, and her knowledge of the facts and records available to her. She also explained in great detail-based on a thorough review of Cox's CT scans-why she believed that Cox was an excellent candidate for tPA. Dr. Uschmann did little more than provide summary conclusions of a general nature.

¶23. Lastly, in Cox , defense counsel attacked Dr. Futrell's testimony as contrary to the medical literature. Unlike Dr. Uschmann, Dr. Futrell neither acknowledged nor conceded that her testimony in fact lacked sufficient support in the medical literature or failed to satisfy the applicable causation standard. Instead, she distinguished the NINDS study and provided a detailed, patient-specific foundation for her opinion. Dr. Uschmann failed to provide a similarly detailed, patient-specific foundation for his opinion and even conceded that no study supports a greater than 50 percent benefit from the timely administration of tPA.

¶24. Our analysis must be guided by Mississippi Rule of Evidence 702, which addresses the admissibility of expert testimony. A witness may testify as an expert to assist "the trier of fact to understand the evidence or to determine a fact issue" if the witness is "qualified as an expert by knowledge, skill, experience, training, or education" and "if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert has reliably applied the principles and methods to the facts of the case." Miss. R. Evid. 702.

¶25. Here, Norman failed to prove by a preponderance of the evidence that he would have experienced a greater than 50 percent chance of a substantially better outcome had Anderson Regional timely recognized and reported his stroke and administered tPA. Norman put forth no evidence that Anderson Regional proximately caused or contributed to his eventual death-even had his stroke been timely recognized and reported. Thus, because Norman's expert testimony is not based on reliable data as required by Rule 702, and because it fails to satisfy this Court's loss-of-chance causation standard, no genuine issues of material fact exist. Summary judgment was proper, and we affirm.

II. Whether the trial court properly granted summary judgment on Norman's breach-of-contract claim.

¶26. Norman asserts that the trial court erred by granting summary judgment on his breach-of-contract claim. He alleges Anderson Regional breached its "Conditions of Admission" to provide "general duty nursing care" when the nursing staff failed to "carry out the instructions of [Norman's] physician" to report changes in his condition and to timely assess, recognize, report, diagnose, and treat Norman for a stroke. According to Norman, this breach and failure to provide "general duty nursing care" ultimately deprived Norman the opportunity to be considered for tPA administration and other early intervention measures and resulted in the foreseeable consequences of loss of livelihood, pain and suffering, emotional distress, and mental anguish.

¶27. Under Mississippi law, a plaintiff asserting any breach-of-contract claim has the burden to prove by a preponderance of the evidence (1) that a valid and binding contract exists; and (2) that the defendant has broken or breached it without regard to the remedy sought or the actual damage sustained. Bus. Commc'ns, Inc. v. Banks , 90 So.3d 1221, 1225 (Miss. 2012) ("Monetary damages are a remedy for, not an element of, breach of contract."), overruling Warwick v. Matheney , 603 So.2d 330 (Miss. 1992). The context in which breach of contract was raised controls.

¶28. In Murray v. University of Pennsylvania Hospital , 340 Pa.Super. 401, 490 A.2d 839, 843 (1985), the Superior Court of Pennsylvania said that a patient may bring an action in tort and also in contract if the doctor entered into a contractual relationship with the patient to produce a particular result from the course of treatment. Whether the patient brings an action in tort, in contract, or in both depends on the nature of the damages sought. Id. If the damages are for personal injuries, the action is one sounding in tort; however, if the damages are "intended to give the injured parties the benefit of their bargain," the action is one in contract. Id. The holding in Murray is consistent with this Court's holding in Hutchinson v. Smith , 417 So.2d 926 (Miss. 1982), in which this Court said that a court must look at the action as a whole to determine if it sounds in tort or in contract.

¶29. In McMichael v. Howell , a patient claimed breach of contract in addition to medical malpractice on the basis of the doctor's alleged failure "to perform the services which [the doctor had] agreed to perform" and negligence in the services and care rendered, which the patient claimed deviated from the applicable standard of care. McMichael v. Howell , 919 So.2d 18, 23 (Miss. 2005). We found that the breach-of-contract argument was "nothing more than medical malpractice" and affirmed dismissal of both claims on the same basis. Id. Thus, Mississippi law is clear that in reviewing the trial court's grant of summary judgment on Norman's breach-of-contract claim, this Court must look at the action as a whole to determine if it sounds in tort or in contract.

¶30. The record evidence indicates that Norman's breach-of-contract claim is nothing more than a medical-malpractice claim. Here, the breach-of-contract claim is very clearly a general claim for breach of medical services. First, Norman's complaint alleges that Anderson Regional breached a contract "to provide [Norman] reasonable medical services." Second, Norman argued that Anderson Regional breached the "Conditions of Admission" by failing to provide "general duty nursing care" and by failing to inform the physician of changes to Norman's medical condition-Norman used Anderson Regional's admitted breach of the standard of medical care as proof to support the breach-of-contract claim. Third, at the summary judgment hearing, the exchanges between the trial court and counsel for both Anderson Regional and Norman established that causation was the only issue before the court.

¶31. Thus, by Norman's own admission, all of his claims, including the breach-of-contract claim, require proof that Anderson Regional's failure to timely recognize and report the stroke proximately caused Norman's damages. Even under a breach-of-contract theory, Norman would have to prove causation. Leard v. Breland , 514 So.2d 778, 782 (Miss. 1987) (discussing the but-for causation standard for damages in a breach-of-contract case). Stated differently, Norman's breach-of-contract claim sounds in tort rather than in contract, and, as such, it is nothing more than a claim for medical malpractice.

¶32. The trial court did not err in granting summary judgment on the breach-of-contract claim-no genuine issue of material fact exists. Norman failed to prove that timely recognition of his stroke would have, more probably than not, produced a substantially better outcome, and his claim, whether labeled medical malpractice or breach of contract, remains inconsistent with the undisputed medical facts regarding the low efficacy rate of timely administered tPA.

III. Whether this Court should reevaluate Mississippi's loss-of-chance framework in lieu of the reduced-likelihood approach.

¶33. Lastly, Norman asserts on appeal that this Court should overrule the loss-of-chance causation standard and instead adopt the reduced-likelihood approach-which Norman contends more accurately reflects the principles of Mississippi's pure comparative-negligence framework.

¶34. Under the reduced-likelihood approach, compensation is available for negligence even if a patient's chance of improvement is below 50 percent. Guest, supra note 11, at 57. If the patient's chance of improvement is less than 50 percent, the decrease in improvement probability is calculated and then multiplied by the full value of damages, so the award is proportional to the incremental decrease in chance. Id. Thus, the reduced-likelihood approach "classifies the lost chance as the injury itself," rather than as a standard of causation. Matthew Wurdeman, Comment, Loss-of-Chance Doctrine in Washington: From Herskovits to Mohr and the Need for Clarification , 89 Wash. L. Rev. 603, 607 (2014). Norman relies primarily on Matsuyama v. Birnbaum , 452 Mass. 1, 890 N.E.2d 819 (2008), one of the leading cases on the reduced-likelihood approach, in support of his argument.

¶35. Matsuyama involved a negligent failure to diagnose gastric cancer when the patient had a less-than-even chance of surviving the cancer with a timely diagnosis. Matsuyama , 890 N.E.2d at 823. As part of its analysis, the Matsuyama court surveyed the various critiques of the all-or-nothing approach, an approach Norman equates with Mississippi's loss-of-chance causation standard. The Matsuyama court noted the following criticisms: (1) the all-or-nothing approach does not serve the basic aim of fairly allocating the cost and risks of human injuries; (2) the all-or-nothing approach fails to deter medical negligence because it immunizes whole areas of medical practice from liability; (3) the all-or-nothing approach fails to provide the proper incentives to ensure that the care patients receive does not fall below the standard of care and skill of the average member of the profession practicing the specialty; and (4) the all-or-nothing approach fails to ensure that victims who incur the real harm of losing their opportunity for a better outcome are fairly compensated for their loss. Id. at 830. In summary, the Matsuyama court chose the injury-based analytical method and viewed the damage not as the ultimate outcome, but as the lost opportunity. Id. at 832 ; see also Smith v. Providence Health & Servs.-Or. , 361 Or. 456, 393 P.3d 1106, 1119 (2017).

¶36. Norman advocates for a change in the law on the basis of fairness, because often it is the defendant's negligence that has made it impossible to determine whether a more favorable outcome would have been realized had the patient received the care required by the applicable standard of care. Matsuyama , 890 N.E.2d at 834. Norman argues that under the loss-of-chance standard currently followed, this Court immunizes medical-care providers from any negligence associated with the administration of or failure to administer tPA and allows them to hide "behind the all-or-nothing rule."

¶37. In contrast, Anderson Regional points out that "[c]omparative fault does not focus on establishing the third element of the tort-causation." We agree. Mississippi's comparative-negligence statute provides that "damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured[.]" Miss. Code Ann. § 11-7-15 (Rev. 2004) (emphasis added). As such, in order to recover damages under this statute, a plaintiff would first have to prove by a preponderance of the evidence that a defendant's negligent conduct was both the cause-in-fact and the proximate cause of the resulting injuries. Norman has failed to meet his burden of proof.

¶38. Once the threshold has been met for recovery, comparative negligence would be applied with regard to all factors that may have contributed to the injury. Consequently, we find that "consistency and definiteness in the law are the major objectives of the legal system," and "[a] former decision of this [C]ourt should not be departed from, unless the rule therein announced is not only manifestly wrong, but mischievous." Hye v. State , 162 So.3d 750, 755 (Miss. 2015) ; Caves v. Yarbrough , 991 So.2d 142, 151 (Miss. 2008) (citation omitted). Here, the law at issue is neither manifestly wrong nor is it mischievous. Rather, this Court's loss-of-chance jurisprudence is consistent with Mississippi's pure comparative-negligence framework, and, for this reason, this Court declines to overturn Mississippi's longstanding causation standard.

CONCLUSION

¶39. The trial court, in its discretion, properly excluded Norman's experts and granted summary judgment in Anderson Regional's favor. We affirm the trial court's grant of summary judgment. We also decline to overturn Mississippi's longstanding loss-of-chance framework.

¶40. AFFIRMED.

RANDOLPH, P.J., MAXWELL, BEAM AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING AND COLEMAN, JJ. CHAMBERLIN, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶41. Because the plaintiffs offered sufficient evidence to avoid the exclusion of their experts at the summary judgment phase, I would reverse the circuit court's judgment and remand for further proceedings.

¶42. As the majority correctly articulates, the loss-of-a-chance doctrine controls this appeal. Under that doctrine, the plaintiffs must show that, "but for the physician's negligence, [Charles Norman Sr.] had a reasonable probability of a substantial improvement.... Stated another way, the plaintiff[s] must offer proof of 'a greater than fifty (50) percent chance of a better result than was in fact obtained.' " Mem'l Hosp. at Gulfport v. White , 170 So.3d 506, 508-509 (¶ 11) (Miss. 2015).

¶43. Dr. Harmut Uschmann, one of the plaintiffs' experts, provided deposition testimony that Norman, who had suffered a stroke, would have had a greater than 50 percent chance of improvement had he received timely administration of tPA-a clot-buster drug used to neutralize the effects of a stroke. Anderson Regional Medical Center disputed Dr. Uschmann's testimony, arguing that greater than 50 percent improvement chances could not be supported by the relevant medical literature. The Circuit Court of Lauderdale County agreed with the hospital, excluded the plaintiffs' medical experts, and granted summary judgment.

¶44. On appeal the plaintiffs argue, inter alia , that the circuit court erred by relying on statistics that set a higher standard than what is required under the loss-of-a-chance doctrine. As an example, the circuit court examined percentages of tPA efficacy in relation to a "favorable outcome" as defined by the NINDS study. According to that study, a "favorable outcome" means a "score of 95 or 100 on the Barthel index, [less than or equal to] 1 on the NIHSS and a modified Rankin Scale, and 1 on the Glasgow outcome scale." Under the Barthel index, a score of 100 applies to a patient who is completely independent, or, in other words, a patient who achieves a perfect result. The plaintiffs correctly assert that the loss-of-a-chance doctrine "does not require that a plaintiff prove a greater than fifty percent chance of a perfect result or complete recovery ." The plaintiffs need only to show that Norman lost "a greater than fifty (50) percent chance of a better result than was in fact obtained." White , 170 So.3d at 509 (¶ 11) (emphasis added).

¶45. In light of the proper standard, the plaintiffs point to evidence contained in the record that supports the theory that Norman could have had a greater than 50 percent chance of a better result . For example, the Safe Implementation of Treatments in Stroke-International Stroke Thrombolysis Registry (SITS-ISTR) found that 58 percent of patients administered tPA in 3.0 to 4.5 hours after a stroke were functionally independent after three months. The hospital challenges the significance of these statistics, but that dispute is for resolution by a fact finder, not by this Court. Hill v. Mills , 26 So.3d 322, 330 (¶ 28) (Miss. 2010) ("[A] battle of the experts is to be decided by a jury.").

¶46. In Cox v. St. Joseph's Hospital , 71 So.3d 795, 799 (Fla. 2011), the Florida Supreme Court addressed the same issue raised in this case. After reviewing much of same medical literature that is before us, the Cox court determined that the tPA studies have created "conflicting evidence as to ... causation or the likelihood of causation." Id. at 801. Specifically, the court acknowledged that "the significance of [the] statistics from the NINDS study ... is a matter for the jury, not a matter for the appellate court to resolve as a matter of law." Id. As did the Florida Supreme Court, I find that the significance of the statistics from the tPA studies should be resolved by a fact finder rather than by a summary judgment order.

¶47. Because I would afford relief to the plaintiffs under the current state of Mississippi law, I do not reach their request for a change in our loss-of-a-chance doctrine. Analysis of that argument is unnecessary for disposition of this case and, therefore, would amount to obiter dicta and an advisory opinion. "[T]his Court does not issue advisory opinions." Tallahatchie Gen. Hosp. v. Howe , 49 So.3d 86, 93 (¶ 19) (Miss. 2010).

¶48. The circuit court abused its discretion in excluding the plaintiffs' experts and erred in granting summary judgment. Further trial court proceedings are needed to resolve the issues in this case. I respectfully dissent.

KING AND COLEMAN, JJ., JOIN THIS OPINION.

      Anderson Regional and John Does 1-10 are the only named defendants in this case.

      It was later discovered that Norman had sustained a prior, unreported stroke approximately two months earlier, but that stroke is not at issue in the current litigation.

      Norman's entire argument on appeal revolved around Dr. Uschmann's testimony alone.

      King v. Singing River Health Sys. , 158 So.3d 318 (Miss. Ct. App. 2014).

      Norman's experts also relied upon the 2008 Safe Implementation of Treatments in Stroke-Monitoring Study (the "SITS-MOST study").

      The National Institute of Neurological Disorders and Stroke rt-PA Stroke Study Group (the "NINDS study").

      The Third European Co-operative Acute Stroke Study (the "ECASS-III study").

      Even considering the effective rate of tPA for this specific type of stroke, as Dr. Uschmann suggested, Norman still fails to satisfy this Court's loss-of-chance standard. Dr. Uschmann himself testified that "[f]or a small-vessel occlusive or small-vessel type stroke, the absolute benefit of tPA is twenty-five (25) percent."

      To illustrate the inherent difficulty of using relative measures alone to discern whether a medication would more likely than not cause a patient to improve, assume that a particular medication increases the recovery rate from an illness from 10 to 16 percent. Even though the relative measure of the drug's efficacy is 60 percent (i.e., the proportional increase in efficacy attributable to the medication), the absolute efficacy of the drug is only 6 percent, thereby indicating that the administration of the medication will almost certainly not cause the patient to improve.

      It is worth noting that Dr. Uschmann testified on behalf of Memorial Hospital in White . In that case, Dr. Uschmann testified that timely administered tPA supported only a "small chance" or possibility of a substantially better outcome. White , 170 So.3d at 507.

      Norman notes that twenty-three states, including Mississippi, have adopted the all-or-nothing approach, while another twenty-three states have adopted the reduced-likelihood approach. For the state-by-state analysis cited by Norman, see Lauren Guest, David Schap & Thi Tran, The "Loss of Chance" Rule as a Special Category of Damages in Medical Malpractice: A State-By-State Analysis , 21 J. Legal Econ. 53, 59 (2015).

      Florida's loss-of-a-chance doctrine mirrors that of this Court, making Cox not only relevant but also persuasive.


text:
    William Lee WHITTAKER, II a/k/a William L. Whittaker, II a/k/a William Lee Whittaker a/k/a William Whittaker v. STATE of Mississippi
    NO. 2017-KA-01651-SCT
    Supreme Court of Mississippi.
    January 24, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶1. William Whittaker was convicted of four counts relating to the sexual abuse of his six-year-old daughter, Betty. On appeal, Whittaker claims he received constitutionally ineffective assistance of counsel because his defense attorney did not insist on certain redactions from the recording and transcript of his partial confession, in which Whittaker refused to take a polygraph test and discussed a prior sex-offense conviction. But the exhibits used at trial were redacted; it appears Whittaker's appellate counsel has confused them with the unredacted exhibits admitted at the suppression hearing. Whittaker also contends his partial confession should have been suppressed as involuntary, but his theory on appeal is entirely different from the one he advanced at trial and is therefore procedurally barred. We affirm Whittaker's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2. Betty's mother and Whittaker never married, and they separated in 2011 when Betty was about three years old. At first, Betty lived with Whittaker and his parents; she and Whittaker shared a bedroom. Betty went to live with her mother shortly before she started kindergarten in 2012. From that point, Betty stayed with Whittaker two or three weekends a month. She continued to sleep in Whittaker's bedroom when she stayed with him.

¶3. In September 2014, when Betty was six years old, she mentioned to her mother that she had been bleeding from her vagina. When Betty's mother tried to investigate, Betty screamed and resisted. Her mother saw this as very unusual behavior, which led her to ask Betty whether anyone had been touching her. Betty initially denied any sexual contact, but eventually she agreed to tell "Daddy's secret." Betty subsequently described various acts of sexual abuse to her mother and, later, to a forensic interviewer. She ultimately testified at trial to substantially the same acts.

¶4. After Whittaker was arrested, he was interviewed by police investigators. The interview lasted about an hour and a half. The circumstances surrounding Whittaker's statement will be discussed more thoroughly below, but ultimately Whittaker admitted he had, on two occasions, touched his daughter's genitals with his hands in a sexual manner. He also accused the child of having tried to initiate a sexual encounter by sitting on his face while he was sleeping and telling him to kiss her genitals.

¶5. Whittaker was charged with one count of gratification of lust and three counts of sexual battery, which alleged separately that Whittaker had penetrated his daughter's vagina with his fingers, tongue, and penis. He was convicted on all counts at trial and was sentenced to thirty years on each of the sexual battery counts, to be served day for day, and to fifteen years on the gratification of lust count. All of the sentences were ordered to be served concurrently.

DISCUSSION

1. Voluntariness of Confession

¶6. Whittaker contends on appeal that his confession was involuntary because it was induced by the investigators' promises to try to help Whittaker get treatment or therapy for what Whittaker called the "impulse" that led him to molest his daughter. This argument is entirely different from the one Whittaker made to the trial court and is unsupported by Whittaker's own testimony at the suppression hearing, where Whittaker was asked why he confessed and never mentioned promises of any sort. Because Whittaker never presented these claims to the trial court, they are procedurally barred on appeal.

¶7. Whittaker's suppression motion consisted of only three paragraphs and just one specific allegation: "The Miranda form signed by the Defendant was not understood in [its] entirety." The other claims lacked the required specificity or were not pursued at the suppression hearing-that Whittaker's confession was obtained illegally and that there had been violations of Whittaker's right to remain silent, "[his] constitutional rights under the 4th and 6th Amendment and 14th Amendment [to] the United States Constitution," and his rights under " Article 3, Section 23 of the Mississippi Constitution."

¶8. Whittaker's brief testimony at the suppression hearing was not entirely limited to the Miranda waiver, but what happened during the interview was relevant to the voluntariness of the Miranda waiver that preceded it. See Roberts v. State , 234 So.3d 1251, 1261 (Miss. 2017). Whittaker was asked why he confessed, but he never claimed he was induced by promises of treatment or therapy. Instead, he said he was exhausted because he had stayed up all night talking with his girlfriend, who lived in Australia. Whittaker claimed he was surprised by the allegations and rattled by the officers' refusal to accept his denials. He said the officers tried to confuse him and suggested he would be less embarrassed by the allegations if he pled guilty and did not go to trial. But Whittaker never mentioned promises or threats of any sort.

¶9. Whittaker's attorney also never mentioned promises; he contended only that confessing and signing the Miranda waiver were "not what [Whittaker] meant to do." His questions at the suppression hearing were mostly about the Miranda waiver. At the conclusion of the hearing, Whittaker's attorney offered no summation or closing argument.

¶10. This Court faced a nearly identical situation in Roberts v. State , 234 So.3d 1251, 1261-62 (Miss. 2017). Like Whittaker, Roberts had challenged only the validity of his Miranda waiver. See id. at 1262. This Court unanimously held that "[i]t is important to recognize that a clear distinction exists between the voluntariness of a waiver of Miranda and the voluntariness of a confession itself under both the federal Due Process Clause and Mississippi law." Id. at 1261 (quoting Keller v. State , 138 So.3d 817, 850 (Miss. 2014) ). Just as in this case, the defendant's "arguments challenging the admissibility of his confession before the trial court were limited wholly to Miranda ; he never argued that his confession was involuntary because it had been induced by threats or promises, or for any other reason." See id. at 1262 ; see also Fleming v. State , 604 So.2d 280, 292 (Miss. 1992) ("[A]n objection on one or more specific grounds constitutes a waiver of all other grounds.").

¶11. The Roberts Court went on to hold that, "[r]egarding appellate review of the admission of a confession ... asserting grounds for an objection on appeal that differ from the ground given for the objection at the trial level does not properly preserve the objection for appellate review." Roberts , 234 So.3d at 1262 (quoting Woodham v. State , 779 So.2d 158, 161 (Miss. 2001) ). "Although the trial court made a finding that Roberts's confession was voluntary, his failure to argue before the trial court that coercive promises induced his rights waiver or his confession procedurally bars this issue on appeal." Id.

¶12. Whittaker's case is solidly on all fours with Roberts , and we reach the same result-the claim that Whittaker's confession was induced by promises was never presented to the trial court, so it is procedurally barred. Whittaker has not challenged the voluntariness of his Miranda waiver as he did at trial, and so he has failed to show any error in the trial court's decision to admit his partial confession.

2. Ineffective Assistance of Counsel

¶13. In his remaining issue, Whittaker alleges his defense attorney was constitutionally ineffective for failing to object to the admission at trial of unredacted video recordings and transcripts of his interview, where the police investigators questioned Whittaker about a prior sex-offense conviction and unsuccessfully urged Whittaker to take a polygraph test to support his initial denials. Defense counsel initially sought to suppress the confession, but after the suppression motion was denied, he never raised the issue of redaction on the record. Nonetheless, it is clear from the record that the transcript and recording of the confession entered into evidence at trial were redacted.

¶14. Three sets of exhibits appear in the record-one set from the trial, one set from the suppression hearing, and one set from a second pretrial hearing. The exhibit numbers for the video and transcript were the same at both the suppression hearing and the trial, and all the exhibits from trial and the pretrial hearings were commingled in the same envelope in the record on appeal. Whittaker's appellate counsel apparently confused the exhibits or failed to recognize that one set is redacted.

¶15. At the outset, we note that in the record as it was originally sent up on appeal, black-and-white photocopies had been substituted for many of the original exhibits, including the two transcripts of Whittaker's interview. The exhibit stickers are not legible on many of the photocopied exhibits. This Court, on its own motion, directed the trial court clerk to supplement the record with the originals of all the exhibits, and that has been done. While most of the exhibits were not dated, the State's exhibits that were unambiguously used at the suppression hearing have gray-colored exhibit stickers, while those that were clearly used at the later hearing and the trial were marked with red stickers. The original unredacted interview transcript has a gray sticker (consistent with it being used at the suppression hearing), while the redacted transcript has a red sticker (consistent with it being used at trial). Furthermore, both transcripts are Bates stamped, and the Bates numbers of the unredacted transcript were referenced repeatedly during the suppression hearing. The unredacted transcript is also the only exhibit in the record which is dated-it has a date handwritten on the exhibit sticker on its first page-"7-7-16." The suppression hearing was actually held on a later date (August 8, 2016), but it was, at one point, scheduled for July 7, 2016. The trial was held much later. Nothing in the record suggests the unredacted interview transcript was introduced at trial or otherwise published to the jury.

¶16. There is no serious possibility of confusion regarding the audio/video exhibits. At the suppression hearing, two DVDs were introduced as S2-A and S2-B, each of which had a gray sticker and contained half of the unredacted video of the interrogation. At trial, two DVDs were introduced, labeled S2-ID and S2-A. Both were labeled with red exhibit stickers. S2-ID contains a redacted, audio-only recording that spans both halves of the interview, while S2-A contains both video and audio, also redacted, but again of the entire interview. It is obvious from the record which exhibits were used where and that only the redacted recordings were entered into evidence at trial.

¶17. It is presumed that Whittaker's defense attorney provided competent representation, and the burden is on Whittaker to show otherwise. See Swinney v. State , 241 So.3d 599, 613 (Miss. 2018). He has failed to do so.

¶18. "Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Johnson v. State , 235 So.3d 1404, 1413 (Miss. 2017) (citation omitted). But a claim of ineffective assistance of counsel may be raised on direct appeal "if such issues are based on facts fully apparent from the record." Miss. R. App. P. 22(b). Here, the record affirmatively shows that the transcript and recording of the interview introduced in evidence at trial were redacted. We find that Whittaker's ineffective-assistance-of-counsel claim is based on facts fully apparent from the record and without merit.

CONCLUSION

¶19. Whittaker's challenge to the voluntariness of his partial confession is procedurally barred on appeal, and his claim of ineffective assistance of counsel is based on appellate counsel's error regarding which exhibits were introduced at trial and which were only in evidence at the suppression hearing. We affirm Whittaker's convictions and sentences.

¶20. AFFIRMED.

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

      An alias is used to protect the identity of the minor victim of sexual abuse.