author: GRIFFIS, J.,

text:
    In the Matter of CONSERVATORSHIP OF Helen Neal SIMPSON: Audrey S. McGee, Appellant, v. Willie Neal Simpson and Kathryn Simpson MacFarland, Appellees.
    No. 2007-CA-02048-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.

      J. Ward Conville, attorney for appellant.
    Margaret Williams Holmes, Michael C. Barefield, Long Beach, attorneys for ap-pellees.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Audrey S. McGee appeals the chancellor’s order that set aside the beneficiary changes made by her mother, Helen Neal Simpson, to her payable on death accounts (POD). On appeal, Audrey argues that: (1) she did not have a fiduciary relationship with Simpson, and (2) she never exercised undue influence over her. We find no error and affirm the chancellor’s findings.

FACTS

¶ 2. Simpson had five children: Alfred, Audrey, Kathryn, Olivia, and Willie. She died on March 5, 2005, at the age of eighty-six. On February 9, 2004, Simpson changed the beneficiaries on her accounts at Trustmark National Bank to heavily favor Audrey so that, at Simpson’s death, the beneficiaries of her four accounts at Trustmark were as follows: a Personal Money Market Account and two Certificates of Deposit payable on death to Audrey, and a Prime of Life Preferred Account payable on death to all five children. Prior to these changes, all five of her children were beneficiaries.

¶ 3. Simpson’s late husband allegedly fathered a daughter, Louise, twelve years before their marriage. In December 2003, the Simpson family learned that Louise was dying of cancer. Alfred, Kathryn, and Olivia went to visit her in the hospital. Louise’s daughter asked if they would agree to have their names listed in Louise’s obituary as her half siblings. Alfred, Kathryn, Olivia, and Willie agreed to be listed in Louise’s obituary. Due to past friction between Simpson and Louise, Olivia talked to her mother about her decision to be listed as Louise’s family in the obituary. Simpson said that was all before her time and made no objection. The next day, Simpson even went with two of her children to visit Louise in the hospital, and by all accounts, they had a very pleasant visit. Audrey was not asked to appear in the obituary. During this time, early to mid-December 2003, the record indicates no animosity between Simpson and Louise or Simpson and any of her children.

¶ 4. The overall testimony of Alfred, Kathryn, Olivia, and Willie was that until late December 2003, the Simpson family was a loving and committed family. Each also testified about Audrey’s tumultuous relationship with their mother. Money was a common issue between Audrey and Simpson; at times, then’ arguments resulted in physical violence between the two. Even though the children lived out of state for most of their adult lives, they visited often and spent holidays with their mother. Kathryn had moved back to Hattiesburg after her husband’s death to be closer to her mother. She testified that her mother often spent the night at her house, and they would spend the day together. Each of her children described Simpson as a loving and tender mother.

¶ 5. The dynamics of the Simpson family abruptly changed in late December 2003. The family was planning to celebrate the new year at Olivia’s house in New Orleans. A few days before the celebration, Audrey confronted Alfred about the plan to be listed in Louise’s obituary and was very belligerent. The following day, Alfred went out for the day, and when he returned to his mother’s house, his mother’s attitude about Louise had changed dramatically. Audrey also called Olivia and was irate that Olivia had agreed to have her name in the obituary. Thirty minutes after Audrey called, Olivia got a call from her mother who was a “totally different person,” and Simpson told Olivia not to visit Louise or have anything to do with her. Simpson did not go to Olivia’s house as planned. Alfred tried to make amends with his mother a few days later, but he was unable to do so.

¶ 6. Louise died in January 2004. Willie attended her funeral, and Alfred, Kathryn, Olivia, and Willie were listed as her half siblings in her obituary. A few days after the funeral, Willie contacted his mother to let her know he was returning home to Ohio. During their conversation, the call was disconnected. When Willie called his mother back, Audrey got on the phone and at cursed at him. Willie and Kathryn decided to go to their mother’s home to talk to her. Audrey and her husband were at Simpson’s home. Audrey’s husband would not answer the door for Willie, but eventually, Audrey and Simpson did open the door. After a brief exchange at the door, Simpson went inside and returned with a gun. She pointed the gun at Willie’s head and pulled the trigger, but fortunately, the gun did not fire. There is testimony that Simpson followed Willie to his car and pointed the gun at him again. By her own testimony, Audrey did not try to defuse the situation.

¶ 7. A few days after this altercation, Alfred wrote his mother a letter detailing his disappointment and outrage concerning her behavior. The language of the letter was brutally honest and likely caused Simpson to have a strong emotional reaction. During this same time period, Simpson was driven by Audrey to Trust-mark to change her beneficiaries. According to Audrey, her mother had called her and asked her to come to Hattiesburg to take her to the bank. Audrey lived in New Orleans.

¶8. Simpson’s relationship with Alfred, Kathryn, Olivia, and Willie was very strained after these events, and their interactions were limited. Simpson threatened to call the police and charge Olivia with trespassing if she tried to visit her at her home. However, Simpson had moments where she acted as though nothing was wrong between her and her children, but all of these instances were when Audrey was not present. Prior to January 2004, Alfred, Kathryn, Olivia, and Willie played active roles in Simpson’s life. They helped her access her prescription insurance, helped her with bills, handled her lawn care, and had almost daily interactions with her. From January 2004 to September 2004, there was very little interaction between Simpson and Alfred, Kathryn, Olivia, and Willie.

¶ 9. Simpson fell in September 2004, and her health declined until her death in March 2005. Audrey took control of her mother’s care and finances in September 2004. After their mother became ill, there was a constant power struggle between Audrey and her siblings, which resulted in Simpson being transferred multiple times between hospitals in Hattiesburg and New Orleans, even being checked in under a false name. There was no testimony that Simpson was belligerent toward Alfred, Kathryn, Olivia, or Willie from the time she fell until her death. Simpson called Olivia from the hospital and invited her and her siblings to visit. Olivia testified that her mother was her “old self’ during their conversation.

¶ 10. In February 2005, Kathryn and Willie became conservators for their mother and froze her bank accounts. After Simpson’s death, Audrey filed a petition to disburse the funds at Trustmark, and Trustmark filed a complaint for interpleader which placed the funds into the court. The chancellor found that Audrey had a fiduciary relationship with her mother and that she exercised undue influence over her mother. The chancellor set aside Simpson’s changes and ordered the accounts be paid according to the previous designation of beneficiaries.

STANDARD OF REVIEW

¶ 11. A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss. 2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8).

ANALYSIS

1. Did Audrey have a fiduciary relationship with her mother, Simpson?

¶ 12. Audrey argues there was no evidence or testimony that she and Simpson had a confidential relationship in February 2004 when Simpson changed the beneficiaries on her accounts. The siblings respond that the relationship between Audrey and Simpson meets the definition of a confidential relationship given by the supreme court.

¶ 13. The supreme court defines a confidential relationship as:

Whenever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of [the] mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character.

Madden v. Rhodes, 626 So.2d 608, 617 (Miss.1993) (citation omitted). “[T]he relationship must reflect ‘a dominant, overmastering influence [which] controls over a dependent person or trust justifiably reposed.’ ” Taylor v. Welch, 609 So.2d 1225, 1231-32 (Miss.1992) (quoting Mullins v. Ratcliff, 515 So.2d 1183, 1191-92 (Miss. 1987)). Factors to be considered in determining the existence of a confidential relationship are:

(1) [w]hether one person has to be taken care of by others, (2) [w]hether one person maintains a close relationship with another, (3) [w]hether one person is provided transportation and has [her] medical care provided for by another, (4) [w]hether one person maintains joint accounts with another, (5) [w]hether one is physically or mentally weak, (6) [whether one is of advanced age or poor health, and (7) [w]hether there exists a power of attorney between the one and another.

In re Estate of Sandlin v. Sandlin, 790 So.2d 850, 853(¶ 7) (Miss.Ct.App.2001).

¶ 14. After considering the seven factors, we find the chancellor did not abuse his discretion and was not manifestly wrong. Although the evidence presented was circumstantial, “[i]t follows, from the very nature of the thing, that evidence to show undue influence must be largely, in effect, circumstantial.” Griffin v. Anna-na, 687 So.2d 1188,1194 (Miss.1996).

¶ 15. There is evidence that Simpson was taken care of by others, satisfying factor one. Prior to late December 2003, Alfred handled Simpson’s lawn care and helped with her prescription insurance and her bills. But in January 2004, all the children stopped supporting their mother, with the exception of Audrey. A logical conclusion is that Audrey took care of Simpson once Simpson stopped receiving this help from her other children.

¶ 16. There is also evidence of factors two and three. By Audrey’s testimony, she and her mother had a close relationship and talked every day. Audrey also drove Simpson to the bank to make the changes on her POD accounts in February 2004. Factor six is also satisfied. Simpson was of advanced age, eighty-six years old. She also pointed a gun at her son and pulled the trigger. According to all her children, this behavior was atypical.

¶ 17. The evidence shows that Simpson was in a confidential relationship with Audrey from September 2004 until her death. She was her mother’s primary care giver during her illness, managed her finances, and was the hospital’s only contact person for the majority of this time. There was substantial credible evidence that Audrey was in a position to exercise dominant control over Simpson due to her relationship, or lack there of, with her other children. The chancellor did not err by concluding that the relationship began nine months earlier when Simpson’s relationship with Alfred, Kathryn, Olivia, and Willie deteriorated and prior to Simpson changing her beneficiaries.

2. Did Audrey exercise undue influence over her mother, Simpson?

¶18. Audrey argues there was no evidence or testimony that she unduly influenced Simpson. In response, the siblings contend that their mother’s drastic change in behavior was due to Audrey’s presence, influence, and conduct.

¶ 19. A presumption of undue influence “extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side, and the resulting superiority influence on the other.” In re Launius, 507 So.2d 27, 30 (Miss.1987) (overruled in part on other grounds) (citation omitted). The finding of a confidential relationship raised a rebuttable presumption of undue influence.

¶ 20. The supreme court has said that once “the circumstances give rise to a presumption of undue influence, then the burden of going forward with the proof shifts to the grantee/beneficiary.” Murray v. Laird, 446 So.2d 575, 578 (Miss.1984). The beneficiary must prove by clear and convincing evidence: “(l)[g]ood faith on the part of the grantee/beneficiary; (2)[g]rantor’s full knowledge and deliberation of his actions and their consequences; and (3)[a]dvice of (a) [a] competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator’s interest.” Id. (citations omitted).

¶21. In her brief, Audrey states that “there is no reason ... to discuss this issue” because her siblings failed to establish a confidential relationship. However, because we affirm the chancellor’s finding that a confidential relationship did exist, we look to the record for evidence that rebuts the presumption of undue influence. The only evidence that supports Audrey is her testimony that it was Simpson’s idea to change her beneficiaries and that she did not pressure her mother to do so. This evidence alone does not rebut the presumption of undue influence.

¶22. Having reviewed the record, we find there was sufficient evidence to support the chancellor’s finding that Audrey was acting in a fiduciary relationship with Simpson and that Audrey exercised undue influence over her mother. Our standard of review requires that we affirm the chancellor in the absence of manifest error, abuse of discretion, or error of law. Finding none here, we affirm the chancellor’s finding of undue influence and that the four accounts should be paid as Simpson had directed prior to the change.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J, LEE AND MYERS, P.JJ, IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Belevia POTTS, Appellant, v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2008-CA-00092-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.

      Yancy B. Burns, Jackson, attorney for appellant.
    G. Todd Burwell, Julie P. Ratliff, Ridge-land, attorneys for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Belevia Potts (Potts) filed suit against the Mississippi Department of Transportation (MDOT) alleging that a MDOT employee caused a severe injury to her knee. At the conclusion of a bench trial, the Attala County Circuit Court awarded Potts compensation for her medical expenses and for her pain and suffering. However, Potts now appeals that judgment arguing that: (1) the trial court erred by not awarding her future medical expenses; (2) the trial judge erred in not awarding her loss of wages; (3) the trial court’s assessment of non-pecuniary damages was unreasonable; and (4) her case was prejudiced by the trial court not granting her motion for a continuance. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Potts and her mother, Innie Carter, were traveling on Mississippi State Highway 12 when Carter’s automobile was struck by a rock that was thrown from a MDOT employee bushhogging along the highway. Upon impact, Carter slammed on her brakes causing Potts to strike her right knee on the dashboard of Carter’s vehicle.

¶ 3. Potts claims this event caused a severe injury to her right knee. For over three years, Potts visited various doctors and medical facilities regarding her right knee. The diagnoses ranged from arthritis to obesity to anemia. Finally, Dr. Todd Smith agreed to perform surgery on Potts’s right knee to relieve the pain. The post-operative diagnosis was chondromala-cia behind the kneecap, a medial meniscus tear, and replacement of her deficient anterior cruciate ligament. As part of her post-operation rehabilitation, Dr. Smith referred Potts to physical therapy, which she did for the next three months. Approximately four months after her surgery, Dr. Smith discharged Potts, placing no work restrictions on her.

¶ 4. About one year post-surgery, Potts returned to Dr. Smith for an examination. He noted that her knee was stable, but recommended Potts receive a series of fluid injections in her knee to counter the pain Potts was experiencing. The injected fluid acts as a replacement for the normal knee joint fluid and lubricates the knee joint. Potts had her fifth, and final injection, some three weeks prior to trial.

¶ 5. At trial, the only issue presented was to determine whether Potts’s knee injury was caused by the rock being thrown by the MDOT employee as well as the subsequent damages. The parties had already stipulated that the MDOT was liable for the rock that struck Carter’s vehicle. The court conducted a bench trial that consisted of only three witnesses: Potts, Dr. Smith, and Carter. At the conclusion of the trial, the trial judge found that Potts was entitled to $28,502.82 in medical expenses and $5,000 in pain and suffering. The trial court concluded that Potts’s evidence regarding her future medical expenses and lost earnings were “totally speculative”; thus, the court did not award her any monies for them.

¶ 6. Potts appeals the trial court’s refusal to award her future medical expenses and lost earnings. She argues that the evidence presented at trial sufficiently proved her need for a future knee replacement as a result of the accident. Potts also claims she experienced a loss of earn-tag capacity because of the change in her employment opportunities due to the pain she now experiences in her right knee. She also argues that the trial court erred by not granting her motion for a continuance, which resulted in her not being able to fully develop her case for damages, thus prejudicing her case.

STANDARD OF REVIEW

¶ 7. “In a bench trial the trial judge sits as the trier of fact and is accorded the same deference in regard to his findings as that of a chancellor, and the reviewing court must consider the entire record and is obligated to affirm where there is substantial evidence in the record to support the trial court’s findings.” Barnett v. Lauderdale County Bd. of Supervisors, 880 So.2d 1085, 1088(¶7) (Miss.Ct.App. 2004). “The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN NOT AWARDING POTTS DAMAGES FOR FUTURE MEDICAL EXPENSES.

¶ 8. Under Mississippi law, plaintiffs bear the burden of going forward with sufficient evidence to prove their damages by a preponderance of the evidence. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1016(1184) (Miss.1997). “Damages cannot be based on mere speculation but must be proved to a reasonable certainty.” Courtney v. Glenn, 782 So.2d 162, 166(¶ 16) (Miss.Ct.App.2000).

¶ 9. Potts contends that Dr. Smith’s testimony proved, to a reasonable certainty, that the accident accelerated her need for a total knee replacement. The trial court did not agree, finding that Dr. Smith’s testimony only rose to the level of speculation, not to the level of reasonable certainty.

¶ 10. We find the trial court did not err in its finding. Dr. Smith never unequivocally stated that the accident accelerated Potts’s need to have a total knee replacement. At his deposition, Dr. Smith testified that Potts’s need for a total knee replacement is “more than 50 percent.” On direct examination, when asked whether the accident accelerated the need for a total knee replacement, Dr. Smith responded only that it was “certainly reasonable to think that.” Potts never provided any evidence that she would definitively need a knee replacement in her lifetime, much less any evidence drawing a direct connection between the accident and an accelerated need for the procedure. Moreover, Potts testified that, prior to the accident, she was obese, anemic, and arthritic, all of which factor into her knee ailments, but none of which were caused by the accident. Potts’s evidence regarding the relationship between the accident and the future need for a total knee replacement never advanced beyond the realm of speculation. Therefore, Potts’s contention that she sufficiently proved the accident accelerated her need for a future total knee replacement is without merit.

II. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING POTTS DAMAGES FOR LOSS OF EARNING CAPACITY.

¶ 11. “A claim for damages for a lost or diminished earning capacity must be supported by satisfactory proof of the fact of such impairment, the extent thereof, and, in the case of a claim for permanent impairment of earning power, by satisfactory evidence of the permanency of the injury; and the proof should be made by the best evidence available.” Casey v. Texgas Corp., 361 So.2d 498, 499 (Miss. 1978) (quoting 25A C.J.S. Damages § 162 (1966)). “Proof with certainty or mathematical exactness is not required, nor need the proof be clear and indubitable; but such damages must be established by substantial evidence and cannot be left to mere conjecture.” Id.

¶ 12. Potts argued the trial court imposed a “mathematical certainty” standard on her in proving loss of earning capacity rather than a reasonable certainty standard. Potts contends that she proved, to a reasonable certainty, that the surgery and its effects prevented her from obtaining employment similar to a job she had prior to the accident. However, the trial court found that Potts’s evidence regarding loss of earning was, like the future medical expenses, speculative.

¶ 13. The trial court did not abuse its discretion in finding that Potts did not provide sufficient evidence to award loss of earning capacity. Potts never presented any concrete evidence regarding her loss of earning capacity. Potts claims that due to the accident, she is unable to sit or stand for a long period of time; therefore, she is precluded from a number of jobs that would have been available to her before the accident.

¶ 14. However, Dr. Smith testified that he did not place any work restrictions on Potts after her surgery. When asked directly whether Potts had any proof that she had been turned down from jobs due to her knee, she answered in the negative. Moreover, Potts was not even employed at the time of the accident. We find that the trial judge correctly ruled that Potts’s evidence regarding her loss of earning capacity was only speculative. Therefore, this issue is without merit.

III. WHETHER THE TRIAL COURT’S ASSESSMENT OF NON-PECUNIARY DAMAGES WAS REASONABLE.

¶ 15. Mississippi Code Annotated section 11-1-55 (Rev.2002) gives the trial court the authority to grant an addi-tur. We review a trial court’s denial of an additur under an abuse of discretion standard of review. Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1020(¶ 19) (Miss.2004). The burden of proof lies with the party seeking the additur, who must prove his injuries, loss of income, and other damages. Id. “Additurs - should never be employed without great caution.” Gibbs v. Banks, 527 So.2d 658, 659 (Miss. 1988).

¶ 16. Potts claims the trial judge failed to apply the appropriate standard of causation in granting non-pecuniary damages. Potts argues the $5,000 granted to her in pain and suffering is insufficient to fully compensate her for the long-term effects to her right knee. Without repeating the evidence and testimony already discussed in this opinion, Potts’s evidence regarding the future medical expenses and loss of earning capacity were insufficient to support awarding additional compensation for them. Dr. Smith testified that Potts’s obesity and anemia could have an equal or greater contribution for the need to have a total knee replacement in the future. He did not testify that the accident directly caused the need to have a future knee replacement. Furthermore, Potts did not provide any substantive evidence that the accident caused a loss in her earning capacity. Therefore, the trial judge did not abuse his discretion in not granting more than $5,000 in non-pecuniary damages. This issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING POTTS’S MOTION FOR CONTINUANCE.

¶ 17. “The granting of a continuance is largely a matter within the sound discretion of the trial court [,] and unless manifest injustice appears to have resulted from a denial, this Court should not reverse.” Peden v. City of Gautier, 870 So.2d 1185, 1188(¶ 10) (Miss.2004). “This Court has further held that the trial court may exercise ‘reasonable latitude’ in the setting and continuance of cases.” Id.

¶ 18. Potts requested a continuance in order to better determine the proximate cause of her injury. Potts stated that Dr. Smith was unable to determine in his deposition whether the collision aggravated a pre-existing condition resulting in the surgery. Potts claimed that if the motion was granted, the remaining issue of proximate causation could be resolved.

¶ 19. However, in her brief, Potts claims that, by denying her motion, she was unable to fully develop her case regarding her need for a future knee replacement and her loss of earning capacity, thereby prejudicing her case. The arguments on appeal are not the same argument considered by the trial court. “[The appellate court] ‘does not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the brief.’ ” Canadian Nat’l/Ill. Cent. R.R. v. Hall, 953 So.2d 1084, 1098(¶ 47) (Miss.2007) (quoting Chantey Music Publ’g, Inc. v. Malaco, Inc., 915 So.2d 1052, 1060(¶ 28) (Miss.2005)). Accordingly, this issue is not properly before this Court.

¶ 20. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Chondromalacia is defined as the softening of any cartilage. Stedman's Medical Dictionary 322 (26th ed.1995).

      . Carter's claim against the MDOT was resolved through mediation.


author: LEE, P.J.,

text:
    Frank SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00494-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.

      Leslie S. Lee, Jackson, for appellant.
    Office of the Attorney General by Deirdre McCrory, for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Frank Smith was found guilty by a jury in the Circuit Court of Pike County of possession of at least one tenth but less than two grams of cocaine with intent to distribute. Smith was sentenced as a habitual offender to life without eligibility for parole or early release. Smith made a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied by the trial court.

¶ 2. Smith now appeals, asserting the following issue: the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 3. According to Katrina Lyons’s testimony, Daphne Patterson, also known as Penny, and Patterson’s stepfather, Smith, came to her house and tried to sell her cocaine, but she refused to buy it. Lyons testified that she told Patterson and Smith, “Y’all need to leave; the law is watching my house.” Lyons called the police after Patterson and Smith left and reported the illegal activity on her property. Deputy Kennis Montgomery responded to the call. While Deputy Montgomery was talking to Lyons at her house, a black truck pulled into the yard, backed out, and drove back down the road. Lyons told Deputy Montgomery that the black truck was the one Patterson and Smith came to her house in earlier that day.

¶ 4. Deputy Montgomery followed the truck and performed a traffic stop after observing the vehicle swerve off the road onto the edge of a ditch and then back onto the road. Patterson was driving the truck. She informed Deputy Montgomery that she did not have a driver’s license. As Deputy Montgomery was standing next to the truck, he noticed two open beer cans on the floor of the truck. Patterson and Smith admitted that they had been drinking. Patterson also admitted that she and Smith were “high.”

¶ 5. Deputy Montgomery asked Patterson and Smith for their consent to search the vehicle. Patterson and Smith consented to the search. Deputy Montgomery found a pill bottle wrapped in electrical tape inside a brown paper bag under the passenger seat where Smith was sitting. The pill bottle contained what appeared to be cocaine. Both Smith and Patterson denied that the pill bottle belonged to them. Deputy Montgomery placed Patterson and Smith in custody. The substance tested positive for cocaine.

STANDARD OF REVIEW

¶ 6. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 7. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees with the jury’s resolution of the conflicting testimony. Id.

DISCUSSION

¶ 8. Smith argues that the jury verdict was against the overwhelming weight of the evidence because it was based on the testimony of two admitted cocaine users, and without them testimony, there was no evidence to link Smith to the pill bottle besides his proximity to it.

¶ 9. To establish possession, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Hamm v. State, 735 So.2d 1025, 1028(¶ 11) (Miss. 1999) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). In the absence of actual physical possession, the State must show constructive possession. Williams v. State, 971 So.2d 581, 587(¶ 16) (Miss.2007). “Constructive possession is established by showing that the contraband was under the dominion and control of the defendant.” Id. (quoting Roberson v. State, 595 So.2d 1310, 1319 (Miss.1992)). “[Tjhere must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular [contraband] and was intentionally and consciously in possession of it.” Id. (quoting Cumj, 249 So.2d at 416).

¶ 10. Since Smith was not in physical possession of the pill bottle, the State presented the testimony of Patterson and Lyons to show that Smith was guilty of constructive possession. Patterson, an admitted drug user, testified that she and Smith went to Lyons’s house on the day of the arrest “[t]o sell her some dope.” However, Patterson could not remember certain events of the day. She explained her lack of memory by saying, “Well, I had been smoking dope! I was on drugs!” Patterson testified that she saw Smith with the pill bottle in his hand that day, and she had seen him with it on previous occasions. Patterson told the jury that when Deputy Montgomery came up behind the truck, she told Smith to give her the pill bottle so she could hide it, but Smith refused. At trial, Patterson was shown the pill bottle and asked to identify it. Patterson identified the bottle as “Daddy Frank’s pill bottle with his dope in it.”

¶ 11. Lyons testified that she had a drug problem and had bought cocaine from Smith and Patterson in the past, but she had stopped using drugs. Lyons testified that when Smith and Patterson came to her house, Smith pulled out the pill bottle and poured the cocaine into his hand to show it to her. She claimed that Patterson never had control of the pill bottle.

¶ 12. Smith contends that Lyons and Patterson are friends and that Lyons was lying to protect Patterson. Also, Smith argues that earlier on the day of the arrest, Patterson had been sitting in the passenger seat, and he had been driving. Smith also takes issue with the fact that the pill bottle was not checked for fingerprints. When asked if he attempted to recover fingerprints from the bottle, Deputy Montgomery answered, “No, sir, I didn’t. Anytime you’ve got something that slick, it’s like glass, it’s hard to take fingerprints off of something like that.” He also testified that it was not usual practice in this type of situation to take fingerprints on a piece of evidence as was found in the truck. When questioned further about what evidence he had and why no fingerprints were needed, Deputy Montgomery responded:

Being that the drugs was [sic] found on his side of the vehicle where he was sitting under the seat where he was sitting, under the edge of the seat, she [Lyons] I.D.’d that it was going to be in a brown paper bag, pill bottle with black electric tape on it, and that’s where I would find the crack cocaine. And I did find that in the vehicle ... just as she had described to me.

¶ 13. Sitting as the “thirteenth juror” in this case and viewing the evidence in the light most favorable to the verdict, we find that the jury’s verdict was not against the overwhelming weight of the evidence. As for Smith’s argument that Patterson’s and Lyons’s testimony was not credible, “[t]he jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425(¶ 8) (Miss.Ct.App.1999). The jury was aware that Patterson and Lyons were admitted drug users and was able to consider that in weighing the testimony. We find that the trial court did not err in denying Smith’s motion for a new trial.

¶ 14. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF AT LEAST ONE TENTH BUT LESS THAN TWO GRAMS OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: LYONS, Justice.

text:
    Ex parte Sylvester James ABRAMS. (In re Sylvester James Abrams v. State of Alabama).
    1070385.
    Supreme Court of Alabama.
    May 2, 2008.
    Jackson B. Harrison of The Harrison Firm, LLC, Montgomery, for petitioner.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for respondent.
   LYONS, Justice.

Sylvester James Abrams petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Montgomery Circuit Court’s revocation of his probation on the basis that Abrams’s sufficiency-of-the-evidence argument had not been preserved for appellate review. We granted certiora-ri review to consider whether Abrams’s argument that the evidence on which his probation was revoked was insufficient to support the revocation is precluded from appellate review. For the reasons discussed below, we reverse the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

Sylvester James Abrams pleaded guilty to first-degree sexual abuse. On March 7, 2007, the Montgomery Circuit Court sentenced him, as an habitual offender, to 15 years’ imprisonment. The trial court split Abrams’s sentence and ordered him to serve three years in prison, with the balance suspended upon the completion of five years’ probation and when all other conditions were met. The trial court further stated that the sentence would be a “reverse split,” ie., that the probationary period would be served first.

At the time of the sentencing hearing on the sexual-abuse conviction Abrams was already serving a probationary period for at least one other charge. Two days after the hearing, Abrams’s probation officer filed a report declaring Abrams delinquent for: (1) failing to pay court-ordered moneys, (2) failing to avoid injurious habits, and (3) failing to comply with court orders to complete the CAP (Chemical Addiction Program) for drug and alcohol abuse. According to the State, this delinquency report was “filed on two other cases on which Abrams was on probation.” State’s brief at p. 3 (emphasis added).

As a result of the delinquency report, the trial court held a hearing on March 15, 2007, to determine whether Abrams’s probation should be revoked. The record reflects the following exchange occurred at the hearing:

“THE COURT: ... They charged you with a new violation. They allege you were read and explained the conditions of your probation, that you acknowledged by signing the conditions of probation, that you reported to the probation officer and [were] ordered to report for the month of March 2007. And you began paperwork on the probation. They had a drug test or some sort of test. Is that what it was? You came back positive on the drug test. Is that what it was?
“[ABRAMS]: Yes, sir.
“THE COURT: ... [Failure to pay all fines, costs, restitution ordered by the Court. Then ... failure to pay court
costs, failure to avoid injurious habits, failure to comply with court orders. How does he plead to those charges? “[DEFENSE COUNSEL]: Judge, there are some issues on the court costs. I think he didn’t pay after November 2006, however—
“[ABRAMS]: I think my balance is zero. “THE COURT: Go ahead.
“[DEFENSE COUNSEL]: He lost his job. He does have the ability to pay at this point. I think the primary thing we would ask the Court is to consider the fact that these are violations of the possession of marijuana in the second degree. [Abrams] was not placed on probation at the time that he admitted to using the marijuana and cocaine. That happened the day before he was sentenced [on the sexual-abuse conviction] in this court. So these are actually violations of the possession of marijuana in the second degree. He was enrolled in CAP. I think he provided paperwork to the probation officer the day he was locked up to prove that he had enrolled in CAP. So we would just ask the Court to take all of that into consideration and reinstate him, allow him to continue with his progress in the CAP program.”

(Emphasis added.)

The trial court then asked the probation officer for his position on Abrams’s conduct. The probation officer testified that Abrams came to him on March 6, 2007, the day before the trial court sentenced Abrams on the sexual-abuse conviction, and said that he wanted to sign up for the program for alcohol abuse but not for drug abuse, because, he said, he did not have a drug problem. The probation officer then asked Abrams to take a drug test. The probation officer testified that Abrams told him that he had “partied” with friends because of his looming sentencing hearing on the sexual-abuse conviction and that he would likely test positive for drug use if he submitted to a drug test.

After the hearing, the trial court revoked Abrams’s probation, not only on the cases in which Abrams was already serving probation when he was sentenced on the sexual-abuse conviction, but also on the sexual-abuse case in which he had been given probation eight days earlier. Specifically, the trial court stated:

“So I am going to revoke your probation, and I am going to revoke it in all these cases, including sexual abuse in the first degree, and sentence you to 15 years in the penitentiary on that case.”

The trial court thus placed the original 15-year sentence on the sexual-abuse conviction into effect with instructions that Abrams receive the “maximum” treatment for drug and alcohol abuse while he was incarcerated. The trial court’s March 15, 2007, revocation order stated that Abrams

“was advised of charged violations of probation of:
“1. Failure to pay court-ordered monies.
“2. Admitted use of marijuana and cocaine in lieu of drug test.
“3. Failure to complete drug/alcohol treatment program.
“... Based on his admission of charged violations, the Court finds he has violated conditions of probation by failing to refrain from illegal activity.”

Abrams then appealed to the Court of Criminal Appeals, arguing that the trial court had erred in revoking his probation on the sexual-abuse conviction because, he said, it erroneously based that revocation on evidence indicating that Abrams had used illegal drugs before he was placed on probation for the sexual-abuse conviction.

The Court of Criminal Appeals affirmed the judgment of the trial court without an opinion. Abrams v. State (No. CR-06-1288, Oct. 26, 2007), — So.3d-(Ala. Crim.App.2007) (table). In an unpublished memorandum that court held:

“Where a probationer does not object to the sufficiency of the State’s evidence before, during, or after the revocation hearing, this issue is not preserved for review on appeal. Holden v. State, 820 So.2d 158 (Ala.Crim.App.2001). In order to preserve the sufficiency of the evidence as an appellate issue, the question must first be raised and ruled upon in the trial court. Reed v. State, 717 So.2d 862 (Ala.Crim.App.1997). The record reflects that after the defense counsel made her argument, the trial court completed the revocation proceeding without responding to or ruling on the counsel’s argument. Without a ruling by the trial court, nothing was preserved for appellate review.”

We granted certiorari review to consider whether Abrams’s argument as to the sufficiency of the evidence is precluded from appellate review.

II. Standard of Review

“ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala. 2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

III. Analysis

During the probation-revocation hearing, defense counsel argued that the trial court, in determining whether Abrams had violated his probation, should not consider evidence indicating that Abrams had used illegal drugs before he was placed on probation for the sexual-abuse conviction. Abrams refers to this argument as an “objection,” although defense counsel did not use the phrase “I object” or the word “objection” in his argument to the trial court. Defense counsel stated “we would ask the Court ... to consider” that Abrams “was not placed on probation at the time that he admitted to using the marijuana and cocaine.” Defense counsel then asked the trial court to “reinstate him.” To this Court Abrams argues that the Court of Criminal Appeals erred in holding that his argument as to the insufficiency of the evidence to support the revocation of his probation on the sexual-abuse conviction was not properly preserved for appellate review.

Abrams contends that the holding of the Court of Criminal Appeals conflicts with that court’s holding in Ryans v. State, 629 So.2d 799 (Ala.Crim.App.1993). In Ryans, the appellant argued that the evidence was insufficient to convict him of vehicular homicide. The Court of Criminal Appeals affirmed the judgment of the trial court, holding:

“This issue has not been preserved for appellate review because the question of the sufficiency of the evidence was never presented to the trial court. There was no motion for a judgment of acquittal and there was no other motion, objection, or request seeking similar relief.”

629 So.2d at 799 (emphasis added). Abrams argues that under Ryans he properly preserved his argument as to the sufficiency of the evidence because defense counsel presented the issue to the trial court. Abrams further argues that the trial court implicitly overruled his “objection” by subsequently revoking his probation solely because he admitted, one day before he was placed on probation on the sexual-abuse conviction, that he had used illegal drugs and that the results of any drug test would be positive.

The State contends that the Court of Criminal Appeals’ finding that Abrams’s argument as to the sufficiency of the evidence was precluded from appellate review was correct because Abrams failed to make a specific objection on this ground. The State asserts that the Court of Criminal Appeals properly noted in its unpublished memorandum its holding in Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App. 2001), that a probationer’s argument as to the sufficiency of the evidence was not preserved for review because the probationer “did not object to the sufficiency of the State’s evidence before, during, or after the revocation hearing.” (Emphasis added.) Accordingly, the State argues that defense counsel’s general argument did not preserve the issue of the sufficiency of the evidence in a probation-revocation proceeding as required by Alabama law. The State notes that in McIntosh v. State, 762 So.2d 388, 390 (Ala.Crim.App. 1999), the Court of Criminal Appeals held that “the general rules of preservation apply to revocation hearings.”

The State further argues that the trial court’s revocation of Abrams’s probation does not constitute an adequate ruling on his sufficiency-of-the-evidence argument to support appellate review. The State asserts that the trial court’s revocation of Abrams’s probation evidences only that the trial court was reasonably satisfied from the evidence presented that Abrams had violated the terms of his probation. The State does not cite any caselaw to support this argument; rather, it cites Rule 27.6(d)(1), Ala. R.Crim. P., which provides that in order to revoke probation “[t]he judge must be reasonably satisfied from the evidence that a violation of the conditions or regulations of probation or the instructions occurred.”

“This Court has always looked to substance over form,” Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 971 (Ala.1994). To hold that Abrams’s argument as to the sufficiency of evidence was not preserved for appellate review because it was not raised as a specific “objection” or because the trial court did not expressly rule on it would be to elevate form over substance. In Ryans, the Court of Criminal Appeals countenanced a “request seeking similar relief’ as an alternative to a motion for a judgment of acquittal, another motion, or an objection. 629 So.2d at 799 (“[T]he evidence was never presented to the trial court. There was no motion for a judgment of acquittal and there was no other motion, objection, or request seeking similar relief.”).

At the outset of the brief probation-revocation hearing in the instant case, defense counsel pointed out that the charges related to violations of a previous probation order and that Abrams had not been placed on probation in the sexual-abuse case at the time he admitted using illegal drugs, and he requested that the trial court not consider evidence indicating Abrams’s prior drug use so that Abrams’s probation in the sexual-abuse case could be reinstated. This argument was clearly made to apprise the trial court of the insufficiency of the evidence to revoke Abrams’s probation in the sexual-abuse ease and constitutes a request seeking relief similar to that sought by an objection. See Ryans, 629 So.2d at 799. This Court has stated: “The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.” Ex parte Parks, 923 So.2d 330, 333 (Ala.2005). We are not dealing with a jury case in which a trial court is being asked to take the case from the jury. A probation-revocation hearing is a bench trial and the trial court is the sole fact-finder. Nor, in the instant case, are we dealing with a question concerning the admissibility of a specific item of evidence in a scenario where the judge is left to speculate as to the position of a party and the party’s grounds for concern.

We further conclude that Abrams’s argument as to the sufficiency of the evidence received an adverse ruling from the trial court. The probation officer’s delinquency report charged Abrams with: (1) failure to pay court-ordered moneys, (2) failure to avoid injurious habits, and (3) failure to comply with court orders to complete the drug- and alcohol-treatment program. The trial court’s order revoked Abrams’s probation because “[Abrams] has violated the conditions of probation by failing to refrain from illegal activity.” Because failure to pay court-ordered moneys and failure to comply with a court directive to complete a substance-abuse program do not equate with “failing to refrain from illegal activities,” we must conclude that the trial court revoked Abrams’s probation solely because it found that Abrams had engaged in the use of illegal drugs. Yet there was no evidence presented to the trial court indicating that Abrams had tested positive for drug use after he was placed on probation for the sexual-abuse conviction. The trial court’s revocation of Abrams’s probation on the sexual-abuse conviction embraced exclusively the precise evidence that Abrams asked the court not to consider. Although “ ‘it is familiar law that an adverse ruling below is a prerequisite to appellate review,’ ” Ex parte Borden, [Ms. 1050042, August 17, 2007] — So.3d -, — — (Ala.2007) (quoting CSX Transp., Inc. v. Day, 613 So.2d 883, 884 (Ala.1993)), the trial court’s revocation of Abrams’s probation constitutes an adverse ruling, coming as it did on the heels of Abrams’s statement as to the insufficiency of the evidence just a few minutes earlier in the revocation proceeding.

It is obvious that the trial court and the State knew precisely of what Abrams complained and the relief he wanted; it is equally obvious that the trial court, in re-yoking Abrams’s probation on the sexual-abuse conviction, refused Abrams’s request that it disregard evidence of conduct that predated his probation in the sexual-abuse case. As previously noted, the State acknowledges that the delinquency report was “filed on two other cases on which Abrams was on probation” and not on the conviction for sexual abuse. This Court in Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994), quoted with approval a dissenting opinion in Works v. State, 640 So.2d 1056, 1056 (Ala.Crim.App.1993) (Taylor, J., dissenting), that is also applicable to this proceeding: “Defense counsel should not have to direct his opponent’s mind to the correct law the way one would thrust a beagle’s nose on a rabbit trail.” See also Ex parte Purser, 607 So.2d 301, 302 (Ala. 1992) (“ ‘Specific objection or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court’s failure to act constitutes prejudicial error.”’ (quoting Lawrence v. State, 409 So.2d 987, 989 (Ala.Crim.App.1982))).

The State, while acknowledging that “Abrams’s criminal acts occurred the night before he appeared before the court and was placed on probation in this case,” contends, without citation to authority, that the trial court’s revocation of Abrams’s probation as to the conviction for sexual abuse can be upheld. State’s brief at p. 20. The State reasons that “[Abrams’s] inability to comply with the initial requirement of probation — that he successfully pass a drug screen — was noncompliance that occurred after the court imposed the probationary split sentence” in the sexual-abuse case. State’s brief at p. 20. We decline to view the subsequent generation of a laboratory report by a third party dealing with activity that clearly predated Abrams’s sentence of probation on the sexual-abuse conviction as an act attributable to Abrams occurring after the sentencing that constitutes a violation of his probation as to that conviction. Nothing before us suggests that the trial court’s granting of probation on the sexual-abuse conviction was conditioned upon a negative drug test. Indeed, the record reflects that the State knew at the time of sentencing that a drug test, if administered, could come back positive.

For the foregoing reasons, we conclude that Abrams’s contention that the trial court erred in revoking his probation on the sexual-abuse conviction based on a delinquency report related to his probation on another conviction because, he argues, the trial court erroneously considered evidence indicating that Abrams used illegal drugs before he was placed on probation on the sexual-abuse conviction is not precluded from appellate review.

IV. Conclusion

The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for further proceedings.

REVERSED AND REMANDED.

COBB, C.J., and SEE, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . The entire hearing is set forth in just over 10 pages of transcript.

      . The record indicates that the use of illegal drugs that resulted in the revocation of Abrams’s probation occurred either on the night of March 5, i.e., two nights before he appeared in court, or as early as March 4.

      . Although a copy of the results of a drug test is not in the record, according to the probation officer Abrams admitted to drug use when he was asked to take a drug test. Also, at the beginning of the hearing the trial court stated, “You came back positive on a drug test,” and Abrams replied, "Yes sir.”


author: McMILLAN, Judge.

text:
    Sylvester James ABRAMS v. STATE of Alabama.
    CR-06-1288.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.
    Jackson Brett Harrison, Montgomery, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   After Remand by the Alabama Supreme Court

McMILLAN, Judge.

On October 26, 2007, this court affirmed the trial court’s revocation of Sylvester James Abrams’s probation by unpublished memorandum. Abrams v. State (No. CR-06-1288, October 26, 2007),-So.3d-(Ala.Crim.App.2007) (table). On May 2, 2008, the Alabama Supreme Court reversed this court’s judgment and remanded the cause for further proceedings. Ex parte Abrams, 3 So.3d 819 (Ala.2008). The Supreme Court held that Abrams’s sufficiency-of-the-evidence claim was not procedurally barred and that his probation could not be revoked for failure to pass a drug test because a drug test predated his sentence of probation, and nothing suggested that his probation was conditioned upon a negative drug test. In accordance with the opinion of the Alabama Supreme Court, the trial court’s order revoking Abrams’s probation is reversed, and this cause is remanded to the trial court for further proceedings consistent with the Alabama Supreme Court’s opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and SHAW, WISE, and WELCH, JJ., concur.


author: BOLIN, Justice.

text:
    Dr. Therese WEBER and The Radiology Group, P.A. v. Carolyn FREEMAN, as mother of Samuel Freeman, a minor, deceased. Jackson Hospital & Clinic, Inc. v. Carolyn Freeman, as mother of Samuel Freeman, a minor, deceased.
    1060001 and 1060854.
    Supreme Court of Alabama.
    June 26, 2008.
    Rehearing Denied Aug. 15, 2008.

      Michael A. Florie, Laura H. Peck, and J. Wilson Axon, Jr., of Starnes & Atchison, LLP, Birmingham, for appellants Dr. Therese Weber and The Radiology Group, P.A.
    L. Peyton Chapman III and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant Jackson Hospital & Clinic, Inc.
    Michael K. Beard and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
   BOLIN, Justice.

Pursuant to Rule 5, Ala. R.App. P., this Court, on December 6, 2006, granted Dr. Therese Weber and The Radiology Group, P.A., permission to file an interlocutory appeal from an order of the trial court denying then motion to dismiss a wrongful-death action alleging medical malpractice. On April 24, 2007, this Court granted Jackson Hospital & Clinic, Inc. (“Jackson”), permission to appeal from the denial of its motion to dismiss in the same wrongful-death action. We consolidated the appeals for the purpose of writing one opinion.

Facts and Procedural History

On December 20, 2002, three-month-old Samuel Freeman was treated at the emergency room at Jackson Hospital, a hospital owned and operated by Jackson, and released. On December 22, 2002, Samuel died from a bowel obstruction. On December 20, 2004, Samuel’s mother, Carolyn Freeman, sued Jackson, Dr. Bryan P. Sweet, Dr. Richard Doyan, and certain fictitiously named parties pursuant to Rule 9(h), Ala. R. Civ. P. Carolyn alleged that the defendants failed to diagnose Samuel’s bowel obstruction. Specifically, Carolyn’s complaint provided, in pertinent part:

“4. The Plaintiffs Decedent, infant Samuel Freeman, was born prematurely at 31 weeks gestation. Following his premature birth, Samuel Freeman was hospitalized for approximately a ten-week period at Baptist Medical Center South in Montgomery. During this prolonged admission, Samuel Freeman suffered several bouts of abdominal distention and on November 19, 2002, the baby was transferred to Children’s Hospital so that the disorder known as Hirsh-sprung’s Syndrome could be ruled out. Based on lab studies conducted at Children’s Hospital by the infant’s physicians, the physicians were able to rule out the possibility of Hirshsprung’s Syndrome. Thereafter, Samuel Freeman was transferred back to Baptist Medical Center South on November 24, 2002, and was discharged on December 4, 200[2],
“5. On December 20, 2002, CAROLYN FREEMAN, presented to Jackson Hospital emergency room with her infant son and told DR. SWEET, the doctor on duty in the Jackson Hospital emergency room, that she believed that the infant’s abdomen was distended. Mrs. Freeman also told DR. SWEET that her son had not slept the night before, and had cried continuously. Despite the fact that Carolyn Freeman told DR. SWEET that her infant had been hospitalized just a few weeks earlier, Dr. Sweet neither obtained the infant’s previous medical records nor did he call the Baptist Medical Center South physicians who had treated the infant during that recent admission. Significantly, DR. SWEET did not perform an abdominal examination of the infant. Moreover, DR. SWEET did not order any blood tests, even though the infant was breathing significantly higher than the normal rate. DR. SWEET did order abdominal x-rays; a flat and an upright x-ray of the infant’s abdomen. The x-ray films revealed a ‘marked gaseous distention of the colon suggesting bowel obstruction,’ a condition which DR. SWEET affirmed by his handwritten notation on the infant’s emergency room medical record on December 20, 200[2]. With those radiographic findings, DR. SWEET knew or should have known of the probability that the infant was experiencing a potentially fatal bowel obstruction. However, DR. SWEET ignored the obvious signs and symptoms of a bowel obstruction and failed to reach a tentative or working diagnosis of Samuel Freeman’s medical problem. Instead, DR. SWEET merely recorded in the chart a symptom, ‘abdominal distention’ and discharged the infant with no diagnostic work up or treatment.
“6. On the morning of December 22, 2002, CAROLYN FREEMAN brought Samuel back to the Jackson Hospital Emergency Room. Samuel Freeman had been continually crying and eating poorly, and his abdomen remained distended since his discharge two days earlier. Samuel Freeman was examined by Dr. Richard Doyan who performed a physical examination and found the infant’s severely distended abdomen and a left-sided inguinal hernia. Dr. Doyan noted that the infant appeared ill and dehydrated with a sunken anterior fontanel. Dr. Doyan ordered a complete blood count (‘CBC’), and blood chemistry profile and additional abdominal x-rays. The x-rays were interpreted as follows: ‘Films are consistent with bowel obstruction as described on December 20, 2002, with further increase in abdominal distention from the comparison study.’ Dr. Doyan determined that Samuel Freeman was suffering from ‘acute severe small bowel obstruction and left inguinal hernia’ and ordered the infant to be transferred to Children’s Hospital in Birmingham, Alabama (‘Children’s’), for emergency surgery to correct the small bowel obstruction.
“7. Samuel Freeman was transported to Children’s in Birmingham via Haynes Ambulance. Approximately ten minutes before reaching the Children’s Hospital’s emergency room, the infant suffered from cardiopulmonary arrest and died.
“8. An autopsy was performed at Children’s Hospital. The cause of death was listed as ‘midgut volvulus with strangulation obstruction, marked dilatation and hemorrhagic infarction of the jejunum and ileum.’
“Count One
“9. Plaintiff re-alleges paragraphs 1-8 above as if stated herein.
“10. DR. SWEET, JACKSON, AND FICTITIOUS DEFENDANTS LISTED HEREIN, negligently and/or wantonly breached the acceptable standards of practice in providing medical services to Samuel Freeman by: (a) failing to perform a proper physical examination on December 20, 2002; (b) failing to obtain a proper history of the infant’s medical history; (c) failing to timely assess, diagnose and treat Samuel’s bowel obstruction and (d) failing to call for an immediate consult with a surgeon or other specialist.
“11. The Plaintiff alleges that the negligent conduct of the defendants, including the fictitious party defendants, combined and concurred to proximately cause Samuel’s death.
“12. The Plaintiff requests that the jury selected to hear this case render a verdict for the Plaintiff and against the Defendants in accordance with the gravity of the wrong committed by the Defendants in this case, and that it award damages to plaintiff in an amount which will adequately reflect the enormity of the defendants’ wrong in causing the death of plaintiffs decedent and which will effectively prevent other similarly caused deaths. Further, plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
“Count Tim
“13. Plaintiff re-alleges paragraphs 1-12 as if fully set out herein.
“14. Jackson had a duty to insure that the physicians treating patients in its emergency room were properly trained, monitored, supervised and credentialed. Jackson failed to properly train, monitor, and supervise Dr. Sweet and allowed him to practice emergency medicine when he was not fit for such activities.
“15. Jackson had a duty to insure that it scheduled and provided a sufficient number of physicians and nurses to work in its emergency department so that the health care providers working at Jackson Hospital had time to take a careful history, perform a thorough physical examination, and adequately diagnose and treat the patients admitted to the emergency department.
“16. At the time Samuel Freeman was seen in the Jackson Emergency Department on December 20, 2002 Jackson breached the above described duties and violated the applicable standard of care by failing to insure that Dr. Sweet was properly trained, monitored, supervised and credentialed to provide emergency room care to its patients and by failing to provide sufficient staff in its emergency department to properly treat the number of patients it admitted to its emergency department.
“17. In addition to [Jackson’s] independent negligence, Jackson is liable for the conduct of DR. SWEET under the doctrine of respondeat superior.
“18. The Plaintiff alleges that the aforementioned negligent conduct of the defendants, including the fictitious party defendants, combined and concurred to proximalely cause Samuel’s death.
“19. The Plaintiff requests that the jury selected to hear this case render a verdict for the Plaintiff and against the Defendants in accordance with the gravity of the wrong committed by the Defendants in this case, and that it award damages to plaintiff in an amount which will adequately reflect the enormity of the defendants’ wrong in causing the death of plaintiffs decedent and which will effectively prevent other similarly caused deaths. Further, plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.
“Count Three
“20. Plaintiff re-alleges paragraphs 1-19 above as if stated herein.
“21. Jackson, Dr. Doyan and fictitious defendants negligently breached the acceptable standards of practice in providing medical services to Samuel Freeman by: (a) failing to consult with appropriate specialists in a timely fashion on December 22, 2002; (b) failing to obtain a surgery consult to determine whether Samuel needed immediate surgery in Montgomery, Alabama as opposed to sending Samuel to Children’s Hospital in Birmingham, and (c) failing to properly stabilize Samuel before transferring his care to Children’s Hospital.
“22. The Plaintiff alleges that the negligent conduct of the defendants, including the fictitious party defendants, combined and concurred to proximately cause Samuel’s death.
“23. The Plaintiff requests that the jury selected to hear this case render a verdict for the Plaintiff and against the Defendants in accordance with the gravity of the wrong committed by the Defendants in this case, and that it award damages to plaintiff in an amount which will adequately reflect the enormity of the defendants’ wrong in causing the death of plaintiffs decedent and which will effectively prevent other similarly caused deaths. Further, plaintiff requests that the Court enter judgment consistent with the verdict, and that it also award plaintiff interest from the date of judgment and the costs incurred by the Court in managing this lawsuit.”

(Capitalization in original.)

On September 14, 2005, Carolyn moved to amend her complaint, substituting NES Healthcare for a fictitiously named party, which the trial court granted. On February 16, 2006, Carolyn amended her complaint a second time, asserting additional claims against Jackson. The amended complaint asserted a claim against Jackson for negligently or wantonly breaching the standard of care by failing to have a policy and procedure in place to ensure that patients who had left the hospital were contacted and asked to return to the hospital when radiographs were read by board-certified radiologists and potentially life-threatening conditions were discovered. Carolyn alleged that Jackson breached the standard of care by failing to contact her after receiving information that Samuel had a potentially life-threatening condition. On March 17, 2006, Jackson filed a motion, objecting to Carolyn’s second amended complaint on the grounds that the amendment alleges totally separate and distinct acts or omissions than those alleged against Jackson in the original complaint. On May 25, 2006, Carolyn filed an amendment to clarify the second amended complaint to state that Jackson, “by and through the acts of its agent Dr. Therese Weber, while acting within the line and scope of her agency with Jackson Hospital,” breached the standard of care by negligently or wantonly failing to contact Carolyn after receiving information that Samuel had a potentially life-threatening condition. On June 7, 2006, the trial court entered an order allowing the clarified second amendment to the complaint.

On June 15, 2006, Carolyn filed a third amended complaint, naming Dr. Therese Weber and her employer, The Radiology Group, P.A., in the place of fictitiously named parties. Carolyn alleged that Dr. Weber, the radiologist who interpreted Samuel’s abdominal radiograph and correctly found a bowel obstruction, failed to follow Jackson’s protocol and notify emergency-room personnel when she had discovered a life-threatening condition. On July 7, 2006, the trial court entered an order allowing the third amended complaint.

On July 19, 2006, Weber and The Radiology Group filed a motion to dismiss or, in the alternative, a motion for a summary judgment. In their motion, they argued that the claims against them should be dismissed on the ground that Carolyn’s amended complaint did not relate back to the original complaint and, therefore, that the statute of limitations on her claims against them had run. On September 1, 2006, the trial court, after a hearing, although recognizing that Carolyn knew the identity of Dr. Weber and her employer when the original complaint was filed, denied the motion, stating:

“However, they had no information that either one of these defendants had done anything wrong regarding the standard of care revolving around the medical treatment of Samuel Freeman. Both sides admitted at oral arguments that depositions in this case, on certain parties and/or witnesses, took place after the two-year statute of limitations had run for various reasons, such as scheduling conflicts.... Due to no fault on either side, the deposition of the hospital representative, Denise Sweeney Portera, was not taken until May 17, 2006. During this deposition, plaintiffs counsel learned for the first time that not only was there a policy requiring a radiologist to contact the emergency room physician under the circumstances of this case, but that Jackson had determined from internal records, that were not part of the regular medical record and were not available to the plaintiff, that Dr. Weber had breached hospital procedures by failing to notify the emergency room department of the life-threatening bowel obstruction. The motion to file a third amendment to the complaint adding Dr. Weber and [her employer] was filed within three weeks of the deposition taken of Ms. Portera.”

The trial court noted that if Dr. Weber and The Radiology Group had been named in the original complaint on the sole basis that they were identified in the medical records, Carolyn and her attorneys “would have opened themselves up to Rule 11[, Ala. R. Civ. P.,] sanctions and certainly would not have been complying with the ethical obligations owed by attorneys to pursue only valid causes of action.”

On September 29, 2006, at the request of Dr. Weber and The Radiology Group, the trial court entered a certification pursuant to Rule 5, Ala. R.App. P., allowing Dr. Weber and The Radiology Group to pursue an interlocutory appeal of its order denying them motion to dismiss Carolyn’s third amended complaint. The trial court certified the following issues: “Whether the plaintiff, after the applicable statute of limitations had run, could properly substitute Dr. Weber and her radiology group under [Rule] 9(h), [Ala. R. Civ. P.,] and [Rule] 15, [Ala. R. Civ. P.,] when the plaintiff knew the defendants’ identities at the initiation of the lawsuit, but did not name these parties as defendants until subsequent discovery of a cause of action after the applicable statute had run.” Dr. Weber and The Radiology Group then petitioned this Court for permission to appeal, which this Court granted.

On February 12, 2007, Jackson filed a “renewed” motion to dismiss the clarified second amended complaint. Jackson argued that the allegations in the clarified second amended complaint were based on wrongful conduct on a different day by a different doctor from the allegations in the original complaint. Jackson relied on this Court’s decision in Pnor v. Cancer Surgery of Mobile, P.C., 959 So.2d 1092 (Ala. 2006), in arguing that the clarified second amended complaint did not relate back to the original complaint. At Jackson’s request, the trial court entered a certification order pursuant to Rule 5(a), allowing Jackson to pursue an interlocutory appeal. The trial court certified the following issue: Whether the amendments in the clarified second amended complaint were properly allowed, after the applicable statute of limitations had run. Jackson then petitioned this Court for permission to appeal, which this Court granted.

Analysis

Dr. Therese Weber and The Radiology Group (case no. 1060001)

Carolyn argues that Dr. Weber and The Radiology Group were fictitious parties within the meaning of Rule 9(h), Ala. R. Civ. P., and that the third amended complaint therefore related back to the filing of the original complaint. We disagree.

Rule 9(h), Ala. R. Civ. P., provides:

“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

As this Court stated in Ex pavie Atkinson, 976 So.2d 1001, 1003 (Ala.2007): true identity before filing the original complaint, Fulmer v. Clark Equipment Co., 654 So.2d 45 (Ala.1995)

“This Court has stated on numerous occasions that in order to invoke the relation-back principles of Rule 9(h), that is, in order for the amended complaint with the defendant’s true name to relate back to the original complaint with the fictitious name, the plaintiff must establish (1) that the plaintiff was ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time the complaint was filed that the party subsequently named was in fact the party intended to be sued, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala. 1983); and (2) that the plaintiff used due diligence to discover the defendant’s

The purpose of Rule 9(h) is to toll the applicable statute of limitations when the plaintiff has diligently pursued the identity of, but has been unable to identify, certain defendants. The fictitious name serves as a placeholder for the defendant, and Rule 15(c) allows the claim against the substituted defendant to relate back to the date of the original complaint. Toomey v. Foxboro Co., 528 So.2d 302 (Ala.1988).

“Rule 9(h)[, Ala. R. Civ. P.,] is not intended to give plaintiffs additional time beyond the statutorily prescribed period within which to formulate causes of action. Instead, the principal reason for the rule is to toll the statute of limitations in emergency cases where [the] plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity.”

Columbia Eng’g Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983) (citing Browning v. City of Gadsden, 359 So.2d 361 (Ala. 1978)).

The dispositive question here is whether Carolyn was “ignorant” of the identity Dr. Weber and The Radiology Group within the meaning of Rule 9(h) when she filed her original complaint.

In Marsh v. Wenzel, 732 So.2d 985 (Ala. 1998), a patient brought a medical-malpractice action against a surgeon who had removed tissue from her breast but had failed to diagnose it as cancerous. She also sued several fictitiously named parties under Rule 9(h), Ala. R. Civ. P. After she deposed the pathologist who had also examined the tissue and failed to diagnose the cancer, the patient substituted the pathologist for one of the fictitiously named defendants. In Marsh, the patient argued, pursuant to Rule 9(h), Ala. R. Civ. P., that she was ignorant of the identity of the pathologist when she filed her action. “However, ... one could not reasonably conclude that she was ignorant of matters — such as the name of the pathologist who examined the tissue samples — -that clearly were set forth in her medical records.” 732 So.2d at 990. We concluded that the patient had not been ignorant of the identity of the pathologist but of her cause of action against him and that Rule 9(h) excused only ignorance of the identity of the party against whom a cause of action had been stated in the original complaint. Therefore, this Court held that the patient’s claims were time-barred because she could not have reasonably been ignorant of the pathologist’s identity, and her claims against the pathologist, therefore, did not relate back to her original complaint.

In Ex parte Snow, 764 So.2d 531 (Ala. 1999), the issue was whether a plaintiffs ignorance of a cause of action against a particular defendant is treated the same as the plaintiffs ignorance of the identity of that defendant. In Snoiv, the patient and her husband brought a medical-malpractice action against the surgeons who performed an operation to alleviate her pain caused by gallstones. They also listed other fictitiously named defendants. After the statute of limitations had run, they sought to substitute the names of two other surgeons who had performed a different operation to remove the patient’s gallbladder. The plaintiffs argued that the substitution of the fictitiously named defendants related back to the date of the filing of the original complaint because, they said, it was not until a deposition was taken that they learned that the two other surgeons had acted negligently. The plaintiffs admitted that they knew the names of the two surgeons and the procedure they had performed when they filed them original complaint. This Court held although the plaintiffs may not have known the significance of the information they had regarding the two surgeons and the operation performed, “it was incumbent upon them to learn of that significance” before the running of the statutory period. 764 So.2d at 537.

In Harmon v. Blackwood, 623 So.2d 726 (Ala.1993), the personal representative of his son’s estate knew the identity of a treating physician when the original complaint was filed. However, he sought to substitute the treating physician for a fictitiously named defendant. This Court stated:

“When the plaintiff filed the original complaint against the two named defendants and the fictitiously named defendants number 3 and number 4, he was apparently relying on a discussion with Dr. Edward Cornier, a neonatologist, concerning the involvement in the child’s death of the nurses in the nursery at the hospital and of the obstetrician who had delivered the child. Nonetheless, when a plaintiff kuoivs the name of a physician and the involvement of that physician in the treatment of the patient, it is incumbent upon the plaintiff, before the running of the statutory period, to investigate and to evaluate his claim to determine tuho is responsible for the injury and to ascertain whether there is evidence of malpractice. In this case, the plaintiff did not do that.”

623 So.2d at 727 (emphasis added).

In the present case, Carolyn argues that her substitution of Dr. Weber and The Radiology Group for fictitiously named parties should be allowed because, she says, when she filed her original complaint she was unaware of Jackson’s protocol requiring radiologists to notify emergency-room personnel if they discovered a life-threatening condition in a patient who had left the emergency room. However, Carolyn was not “ignorant” of a relationship that gave rise to a duty. Carolyn knew of the identity of Dr. Weber and The Radiology Group and knew that Dr. Weber had interpreted Samuel’s abdominal radiographs (the only diagnostic test performed on Samuel during his visit to the emergency room) before she filed her action. Because she knew of Dr. Weber’s involvement in Samuel’s treatment, it was incumbent upon her, before the statute of limitations on her claim expired, to investigate and evaluate the claim to determine who was responsible for Samuel’s death. Carolyn attempts to raise an argument that, under Rule 11, Ala. R. Civ. P., she could not, in good faith, have named Dr. Weber and The Radiology Group as defendants, because she was unaware of Dr. Weber’s negligence. However, given the facts of this case, there was a reasonable, good-faith basis for counsel to have named Dr. Weber in the original complaint.

This Court recently applied Rule 9(h), Ala. R. Civ. P., to allow a plaintiff to substitute a real party for a fictitiously named defendant where the plaintiff knew of the identity of the defendant before filing the action. See Ex parte Bowman, 986 So.2d 1152 (Ala.2007). However, we find Ex parte Bowman to be distinguishable. In Bowman, the plaintiff was injured on a fermenter tank located at his place of employment. The plaintiff and his wife sued the manufacturer of the tank and several fictitiously named defendants, alleging that they had been negligent in designing, manufacturing, and installing the fermenter tank. After the statute of limitations had run, the plaintiffs filed a motion to amend their complaint to substitute the employer’s quality-assurance manager. The quality-assurance manager filed a motion to dismiss on the ground that the amended complaint did not relate back to the original complaint, which the trial court denied. The manager then petitioned this Court for a writ of mandamus directing the trial court to dismiss him as a defendant. We held that although the plaintiffs knew the identity of the quality-assurance manager at the time the original complaint was filed, they were unaware that he had also been responsible for acquiring, installing, and modifying the tank. The fact that the plaintiffs knew that the manager was in charge of quality control of the product ultimately produced by the employer was not related to the plaintiffs’ claim. “There is no logical and necessary linkage between knowledge that such an individual was a participant in acquiring, installing, and modifying the machine that makes the product.” 986 So.2d at 1157. This Court denied the manager’s petition.

In the present case, the medical records obtained by Carolyn before she filed her action showed that Dr. Weber and The Radiology Group read the radiographs of Samuel’s abdomen and discovered an obstruction. Carolyn’s complaint did not allege that a fictitiously named party failed to contact Carolyn after determining that Samuel had a life-threatening condition, nor did the original complaint allege that a fictitiously named party failed to comply with hospital protocol (or common sense for that matter) by not contacting the emergency-room physician to notify him of the life-threatening condition discovered in the radiograph. In contrast, the plaintiffs in Bowman alleged that a fictitiously named party was negligent in designing, manufacturing, and installing the tank, and they later substituted the manager as one of those fictitiously named parties involved in installing the tank.

Jackson (case no. 1060854)

Jackson argues, and we agree, that Prior v. Cancer Surgery of Mobile, P.C., 959 So.2d 1092 (Ala.2006), is dispositive of whether Carolyn’s clarified second amended complaint relates back to the original complaint.

In Prior, the personal representative of a cancer patient’s estate filed a medical-malpractice action against Dr. Bradley Scott Davidson and his employer, the surgery center. She also asserted claims of vicarious liability. She amended the complaint once to comply with the specificity requirements of § 6-5-551, Ala.Code 1975. She filed a second amended complaint, seeking to hold the surgery center vicariously liable for the actions of another of its employees, Dr. Gaylord T. Walker. Dr. Walker had cared for the patient on a different day than did Dr. Davidson. Dr. Davidson performed surgery on the patient that the personal representative alleged was negligent, and Dr. Walker provided care for the patient following the surgery.

The surgery center in Prior moved for a summary judgment on the ground that the claims asserted in the second amended complaint did not relate back to the date of the filing of the original complaint and thus were time-barred. The trial court granted the summary-judgment motion, and the personal representative appealed. This Court affirmed the summary judgment, concluding that the claim did not relate back to the original complaint because the personal representative was seeking to add new facts and a new claim that the surgery center was vicariously liable for a different doctor on a different day from those actions that formed the basis of the claims asserted in the original complaint and the first amended complaint.

Carolyn’s clarified second amended complaint was filed after the statutory period had run; therefore, the claims against Jackson set forth in the amended complaint are time-barred unless Rule 15, Ala. R. Civ. P., applies. Under Rule 15(c)(2), an amendment relates back to the original complaint when “the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading .... ” Although Carolyn had timely made Jackson a party to her medical-malpractice action, for the first time in her clarified second amended complaint, she alleged that Jackson was negligent in caring for Samuel by and through its employee, Dr. Weber. The original complaint contained no allegations regarding policies and procedures relating to radiographs or any alleged breach of the standard of care. In other words, the only allegations in the original complaint were based on the actions of Dr. Sweet on December 20, 2002, and Dr. Doyan on December 22, 2002. Carolyn’s clarified second amended complaint asserting Jackson’s vicarious liability for the medical services provided by Dr. Weber does not relate back to the original complaint.

Conclusion

Dr. Weber and The Radiology Group were not proper fictitious parties within the meaning of Rule 9(h), Ala. R. Civ. P., and the statute of limitations now bars the action against them. Therefore, we reverse the judgment of the trial court denying Dr. Weber and The Radiology Group’s motion to dismiss, and we remand the cause for proceedings consistent with this opinion. The claim against Jackson set out in Carolyn’s clarified second amended complaint regarding Jackson’s vicarious liability based on its employee, Dr. Weber, is time-barred because the original complaint did not assert that Samuel’s death was the result of any action by Dr. Weber. Therefore, we reverse the judgment of the trial court denying Jackson’s motion to dismiss Carolyn’s clarified second amended complaint, and we remand the cause for proceedings consistent with this opinion.

1060001 — REVERSED AND REMANDED.

1060854 — REVERSED AND REMANDED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.