author: CHANDLER, Justice, DICKINSON, Justice, KITCHENS, Justice,

text:
    Don SAUVAGE and Gene Sauvage, Individually and as Personal Representatives of the Estate of Aranka Abadie Sauvage, Deceased v. MEADOWCREST LIVING CENTER, LLC., Steve Yancovich, Administrator of Meadowcrest Living Center, LLC., Transition Health Services of Louisiana, LLC., Robert R. Bates, Corporate President of Transition Health Services of Louisiana, LLC., New Orleans Tours, Inc., and James E. Smith, Jr., Representative for New Orleans Tours, Inc., John Does 1-25.
    No. 2008-CA-02116-SCT.
    Supreme Court of Mississippi.
    Feb. 25, 2010.

      Stephen W. Mullins, Ocean Springs, attorney for appellants.
    Corey Donald Hinshaw, Clifford B. Am-mons, Jackson, attorneys for appellees.
   CHANDLER, Justice,

for the Court.

¶ 1. Don Sauvage and Gene J. Sauvage (the Sauvages), individually, and as the personal representatives of the estate of Aranka Abadie Sauvage (Aranka), filed a wrongful-death lawsuit in the Circuit Court of Hinds County against Meadow-crest Living Center, LLC (Meadowcrest), Steve Yancovich, Transition Health Services of Louisiana, LLC, Robert Bates, New Orleans Tours, Inc., James E. Smith, Jr., and John Does 1-25. The complaint alleged that Meadowcrest was a nursing home in the City of Gretna, Louisiana, and that, on August 28, 2005, the eve of Hurricane Katrina, Meadowcrest evacuated its elderly residents to a church camp in Raymond, Mississippi. The complaint alleged that Aranka was one of the evacuated residents, and that she died on September 1, 2005, as the result of inadequate medical care at the church camp. . The Sauvages filed an almost identical action in Jefferson Parish, Louisiana. The circuit court dismissed the complaint based on lack of personal jurisdiction over the defendants, or alternatively, forum, non conveniens, and the Sauvages appeal from the dismissal.

¶ 2. On appeal, the Sauvages argue that the circuit court erred by dismissing the case for lack of personal jurisdiction or forwm non conveniens. The defendants address these issues and make the additional argument that dismissal was proper because the pendency of an action is a bar to a second action involving the same parties and subject matter. We find that under our wrongful-death statute and interpretive caselaw, the Mississippi action was properly dismissed due to the pen-dency of the prior-filed Louisiana wrongful-death action. Miss.Code Ann. § 11-7-13 (Rev.2004). Therefore, we affirm.

FACTS

A. The complaint

¶ 3. The Sauvages filed the complaint on October 3, 2007, asserting their status as Aranka’s grandchildren and the personal representatives of her estate. The complaint identified the individual defendants as: Meadowcrest Living Center, LLC, a Louisiana limited-liability company doing business in Gretna in Jefferson Parish, Louisiana; Steve Yancovieh, the signatory and administrator of Meadowcrest; Transition Health Services of Louisiana, LLC, a Texas limited-liability company that managed Meadowcrest Living Center; Robert R. Bates, the corporate president of Transition Health Services; New Orleans Tours, Inc., which transported the elderly residents to the church camp in Raymond, Mississippi; James E. Smith, a representative of New Orleans Tours, and John Does 1-25.

¶ 4. The Sauvages averred that Aranka was a Louisiana resident at the time of her death, and that the Sauvages and all the defendants were Louisiana residents. The Sauvages claimed that on August 25, 2005, Robert Bates became aware that Hurricane Katrina was gathering strength over the Gulf of Mexico and it had the ability to impact or destroy Meadowcrest’s nursing home, yet Meadowcrest made no attempt to evacuate its residents until August 28, 2005, when the hurricane was less than twenty-four hours from landfall. The Sau-vages claimed that, pursuant to Meadow-crest’s evacuation plan, 102 elderly, bedridden residents were transported in three tour buses to the United Pentecostal Church (UPC) Camp located in Raymond, Mississippi, a location which actually was in the path of Hurricane Katrina. According to the Sauvages, the UPC Camp consisted of a “large metal building with a concrete floor.” Hurricane Katrina struck the area early the next day, on August 29, 2005. The Sauvages claimed that in Hurricane Katrina’s wake, the UPC Camp lost electrical power, and the building in which Aranka and the others were confined became “very hot, humid[,] and smelled of human waste.” They claimed that Aranka and at least one other elderly resident died as a result of these conditions.

¶ 5. The Sauvages asserted negligence claims against all defendants, alleging that confining Aranka to the metal building without adequate medical care proximately caused Aranka’s death, and that the defendants knew or should have known that the UPC camp was unfit housing for the elderly residents. They claimed that the defendants were negligent in failing to formulate and implement a contingency plan for the evacuation, despite advance knowledge that the UPC camp was in the path of Hurricane Katrina. They claimed that the defendants’ actions breached the standard of reasonable care. They further claimed New Orleans Tours was negligent in failing to ensure the residents were transported to a proper and safe location. The Sauvages also. asserted breach-of-contract claims against Meadowcrest and New Orleans Tours. The Sauvages asserted that the defendants’ conduct constituted gross negligence and willful and wanton disregard for Aranka’s welfare, and they requested compensatory and punitive damages.

B. Subsequent proceedings

¶ 6. On December 14, 2007, Mea-dowcrest, Yancovich, Transition, and Bates answered and moved to dismiss for reasons including lack of personal jurisdiction and forum non conveniens. On January 3, 2008, they filed a separate “Motion to Dismiss for Lack of Personal Jurisdiction or Based on Forum Non Conveniens.” These defendants asserted that on January 27, 2006, the Sauvages had filed another, similar action that was pending in Jefferson Parish, Louisiana. They attached a copy of the complaint in the Jefferson Parish action, in which the Sauvages asserted wrongful-death claims against Mea-dowcrest and Transition based upon the same conduct described in the Mississippi complaint. They requested class-certification status, to include all Meadowcrest residents who were present on August 28, 2005, who suffered damages, including those who were evacuated and transported to Mississippi.

¶ 7. The defendants asserted a lack of personal jurisdiction, noting that no party to this case is a Mississippi resident and all allegedly negligent decisions concerning the evacuation occurred in Louisiana. Alternatively, the defendants argued that the case should be dismissed under the doctrine of forum non conveniens because Mississippi is an inconvenient forum for trial, and Jefferson Parish is the more appropriate forum.

¶ 8. The Sauvages filed a response, asserting that personal jurisdiction was proper under Mississippi’s long-arm statute, and that Mississippi’s assertion of jurisdiction over the defendants comported with due process. In a response to the defendants’ rebuttal, they additionally argued that the case should not be dismissed under the doctrine of forum non conve-niens. At the hearing on the motion to dismiss, the Sauvages stated that if the circuit court denied the motion to dismiss and allowed the case to proceed, they would dismiss the Jefferson Parish action.

¶ 9. The circuit court dismissed the complaint on July 11, 2008. The circuit court found that Mississippi’s long-arm jurisdiction did not extend to the defendants because “the torts alleged, which concerned lack of reasonable care as to planning and/or carrying out evacuation plans, occurred primarily in the State of Louisiana.” The court further found that, even if jurisdiction were proper under the long-arm statute, the defendants lacked minimum contacts with the State of Mississippi and assertion of jurisdiction over them would be unconstitutional. Alternatively, the circuit court dismissed the action under the doctrine of forum non conveniens because Louisiana was a more appropriate forum. In support of this finding, the court noted that the Sauvages previously had commenced the Jefferson Parish action concerning the same set of facts, that all defendants are nonresidents of Mississippi, that Meadowcrest is a Louisiana LLC doing business in Louisiana, and that the evacuation plan was put into effect in Louisiana. The trial court denied the Sau-vages’ motion for reconsideration.

¶ 10. The Sauvages have timely appealed, arguing that the circuit court erred by dismissing their complaint.

DISCUSSION

¶ 11. The parties’ arguments primarily focus upon the circuit court’s alternative grounds for dismissal, lack of personal jurisdiction and forum non conveniens. The defendants also argue that, although the circuit court did not find that the prior Louisiana lawsuit was a bar to this Mississippi lawsuit, the court correctly dismissed this lawsuit because the pendency of a prior action is a bar to a second action involving the same parties and the same subject matter. Although we adopt a somewhat different analysis than that promulgated by the defendants, we find this issue to be dispositive of this appeal. Therefore, we do not discuss the issues raised by the Sauvages.

¶ 12. The defendants cite Abiaca Drainage District of Leflore, Holmes & Carroll Counties v. Albert Theis & Sons, Inc., 185 Miss. 110, 187 So. 200, 201 (1939), in which the Court held: “[t]he pendency of a prior suit between the same litigants and involving the same subject matter constitutes a bar unless adequate relief is not attainable in the prior suit.” Abiaca Drainage concerned competing lawsuits involving the same parties and subject matter that were filed in chancery court and in circuit court, respectively. The case of Smith v. Holmes, 921 So.2d 283, 286 (Miss.2005), states that Abiaca articulated the rule for priority jurisdiction between courts of concurrent jurisdiction. This rule provides that “a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged.” Id. (emphasis added) (quoting Long v. McKinney, 897 So.2d 160, 172 (Miss.2004)). “It is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending.” Id. (quoting Lee v. Lee, 232 So.2d 370, 373 (Miss.1970)).

¶ 13. In Long, this Court discussed the rule of priority jurisdiction in the context of wrongful-death suits, which are governed by Mississippi Code Section 11-7-13. Long, 897 So.2d at 171-73; Miss.Code Ann. § 11-7-13 (Rev.2004). Section 11-7-13 provides:

Whenever the death of any person or of any unborn quick child shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person or of any unborn quick child shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all'parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

Miss.Code Ann. § 11-7-13 (Rev.2004) (emphasis added). In Long, the Court noted that the statutory language allows but “one suit” for the same death, for the benefit of all concerned parties. Id. at 171-72. The Court observed that competing wrongful-death suits usually will involve the same parties and subject matter; therefore, “a logical extension of the principle of priority jurisdiction requires that all claims for the wrongful death of a person be litigated in the same suit and in the same court.” Id. at 172. Accordingly, the Court held “that the first court to properly take jurisdiction of a wrongful-death action in our state courts shall, so long as that action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect.” Id. at 173.

¶ 14. Long applies when two wrongful-death suits are currently pending at the time the trial court decides a motion to dismiss. Briere v. South Cent. Reg'l Med. Ctr., 3 So.3d 126, 129 (Miss.2009). In Briere, the plaintiff filed a wrongful-death action against Cottonwood Manor nursing home, and then filed a second wrongful-death action against South Central Regional Medical Center (SCRMC). Id. at 127. SCRMC moved to dismiss on the basis that the pending action against Cottonwood barred a second wrongful-death lawsuit. Id. at 128. At the hearing on the motion to dismiss, the plaintiff voluntarily dismissed the suit against Cottonwood. Id. However, the trial court subsequently granted SCRMC’s motion to dismiss the second lawsuit because it had been filed while another suit for the same death was pending. Id. This Court reversed the dismissal of the second suit. Id. at 129. We noted that under Section 11-7-13, a second wrongful-death suit is not barred if an initial action was dismissed without a decision on the merits. Id. We clarified Long and held that a second suit may not be dismissed just because, at some point, it was pending at the same time as a previously-filed suit. Id. Because the first suit was dismissed without a decision on the merits, the second suit was the only wrongful-death suit pending when the trial court addressed SCRMC’s motion to dismiss, and it was not subject to dismissal. Id.

¶ 15. As in Long and Briere, in this case, the Court is confronted with two lawsuits for the same death. But unlike in Long and Briere, the instant lawsuits were filed in two different states. Arguably, the rule articulated in Long that the court that entertains the first-filed action “shall have exclusive jurisdiction” applies only if the first-filed action was brought “in our state courts.” Long, 897 So.2d at 173. In fact, in Brown v. Brown, 493 So.2d 961, 963 (Miss.1986), this Court stated “that there is another action regarding the same subject matter pending in the courts of a sister state poses no jurisdictional obstacle to a court of this state of otherwise competent jurisdiction hearing and adjudging the matter in controversy.” However, Brown involved competing state-court divorce proceedings, not competing wrongful-death suits. Id. at 962.

¶ 16. At the time the Sauvages filed their wrongful-death suit in Hinds County, another suit for the same death was pending in Louisiana. The Louisiana action remained pending at the time the trial court determined the motion to dismiss. Under Section 11-7-13, there shall be one suit for the same death; under Long, all claims must be joined in that single action. Long, 897 So.2d at 174; Miss. R. Civ. P. 19; Miss. Code Ann. § 11— 7-13 (Rev.2004). These fundamental procedural rules for wrongful-death litigation in this state would be thwarted if our courts entertained a wrongful-death action in Mississippi, while a previously-filed suit for the same death was pending in another state. We hold that a wrongful-death suit filed in Mississippi is subject to dismissal during the pendency of a suit for the same wrongful death in a sister state. Accordingly, we affirm the dismissal of the Sauvage’s complaint.

¶ 17. AFFIRMED.

CARLSON, P.J., DICKINSON, RANDOLPH AND PIERCE, JJ., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY. DICKINSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.; GRAVES, P.J., JOINS IN PART.

DICKINSON, Justice,

Specially Concurring:

¶ 18. I concur with the majority opinion. The majority correctly concludes that the Sauvages’ previously filed wrongful-death suit in Louisiana requires dismissal of the suit in Mississippi. Our wrongful-death statute provides that “there shall be but one (1) suit for the same death.... ” Miss.Code Ann. § 11-7-13 (Rev.2004). See Long v. McKinney, 897 So.2d 160, 171-73 (Miss.2004). The fact that the plaintiffs brought the two suits in different states is of no moment.

¶ 19. I write separately to provide a salve to assuage the dissent’s concern that — because the plaintiffs may “be unable to recover punitive damages in Louisiana-adequate relief may not be obtainable by them in that state’s courts.In Mississippi, punitive damages are not considered “relief’ to which a plaintiff is entitled. In fact, our trial courts consistently inform juries that

punitive damages are added damages awarded for the social value in bringing a wrongful party to account for his/her/ its actions and to discourage others from acting in a similar manner. Such damages are not awarded as a matter of right and are not based on the idea of benefitting an injured party, but are instead founded on the premise of punishing the wrongdoer. The paramount purpose in awarding punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others, while the purpose of compensatory damages is to make the plaintiff whole.

Miss. Model Jury Instr. Civil § 11:15 (2009-10). Furthermore, the Mississippi Code provides:

The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.

Miss.Code Ann. § 11-1-65(1)(e)(Rev.2002).

¶ 20. Thus, the absence of punitive damages in Louisiana may facilitate defendants’ escape from civil punishment, but it in no way deprives plaintiffs of a remedy to which they are entitled. If it did, one would wonder why the plaintiffs chose to file suit there in the first place.

CHANDLER, J., JOINS THIS OPINION.

KITCHENS, Justice,

Dissenting:

¶ 21. I do not agree with the reasoning or the conclusion of the majority opinion, which holds that a wrongful death complaint filed in a court of competent jurisdiction in this state must be dismissed if a similar action is pending in a sister state, a holding that is at odds with this Court’s prior interpretation and application of priority jurisdiction.

¶ 22. Each of the cases relied upon by the majority stands for the proposition that the first suit filed takes priority over any other case based on the same cause of action that is filed in the same jurisdiction. See, e.g. Abiaca Drainage Dist. of Leflore, Holmes & Carroll Counties v. Albert Theis & Sons, Inc., 185 Miss. 110, 187 So. 200 (1939); Long v. McKinney, 897 So.2d 160 (Miss.2004); Smith v. Holmes, 921 So.2d 283 (Miss.2005). However, the majority has failed to cite authority in support of its conclusion that priority jurisdiction operates to terminate a Mississippi case which was filed subsequent to a similar or related action in another state that involves the same litigants.

¶ 23. Other problems with the majority opinion’s reasoning are manifest. First, the rule articulated in Abiaca Drainage—that “the pendency of a prior suit between the same litigants and involving the same subject matter constitutes a bar unless adequate relief is not obtainable in the prior suit” — does not support the majority’s logic, because, in the case at bar, it has not been- — and, at this point, cannot be— determined whether “adequate relief is obtainable [in the Louisiana action].” Abiaca Drainage, 187 So. at 201. Given the potential that the plaintiffs will be unable to recover punitive damages in Louisiana, “adequate relief’ may not be obtainable by them in that state’s courts, depending, of course, on the proof that ultimately is adduced. Id. The plaintiffs have sued for punitive damages in their Mississippi action. To be sure, they are a very long way from collecting punitive damages; nevertheless, Mississippi’s law affords them a far better opportunity of doing so than does Louisiana’s, whose law makes that possibility exceedingly remote.

¶ 24. Second, the rule in Abiaca Drainage applies only to actions involving “the same litigants and involving the same subject matter.” Id. Here, this Court is unable to determine who the parties in the Louisiana action will be at trial, because there is no indication in the record that the Louisiana court has decided whether to certify the case filed there as a class action, which, from the limited information before us, appears to be the main thrust of the Louisiana ease. Of course, this constitutes a major difference in the two cases: class actions are permitted in the state courts of Louisiana, but are nonexistent in Mississippi’s state courts. Thus, the parties who filed the Louisiana case eventually could become class members there, along with a multitude of other people, and not individual plaintiffs, as they will always be in the Mississippi case. It also is possible that the Louisiana court could certify a class that excludes the Sauvage plaintiffs. However, as it stands, the question of whether the parties at a Mississippi trial and the parties at a Louisiana trial will be the same is an unanswered question that must be answered before any court can determine whether the “same litigants” element is present. Id.

¶ 25. The majority cites but one case pertaining to priority jurisdiction in the interstate setting, Brown v. Brown, 493 So.2d 961, 963 (Miss.1986), and concludes that because “Brown involved competing divorce proceedings, not competing wrongful-death suits,” Brown is distinguishable and does not govern this case. Maj. Op. at ¶ 15. With respect, this logic is beyond my comprehension; I am unable to fathom any reason why it is valid. The holding in Brown — “... another action regarding the same subject matter pending in the courts of a sister state poses no jurisdictional obstacle to a court of this state of otherwise competent jurisdiction hearing and adjudging the matter in controversy ... ” — provides the only on-point precedent in Mississippi jurisprudence, and, thus, should be followed. Id. at 963 (citing Kline v. Burke Constr. Co., 260 U.S. 226, 232, 43 S.Ct. 79, 81, 67 L.Ed. 226, 231 (1922); Cuevas v. Cuevas, 191 So.2d 843, 847-48 (Miss.1966); Cox v. Cox, 234 Miss. 885, 108 So.2d 422, 424 (1959); Ex Parte Buck, 291 Ala. 689, 691, 287 So.2d 441 (1973); Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 835 (1935)).

¶ 26. In Crawford v. Morris Transportation, Inc., 990 So.2d 162 (Miss.2008), this Court noted,

For priority jurisdiction to apply, the second action “should be between the same parties, seeking on the one hand, and opposing on the other, the same remedy, and should relate to the same questions.” As a general rule, the principle of priority jurisdiction does not apply where like suits are pending in both state and federal courts. Because federal and state courts are separate jurisdictional sovereigns, “the pendency of an action in a federal court is no ground for abatement of a like suit in a state court.”

Id. at 169 (internal citation omitted). In Crawford, a self-proclaimed “procedural quagmire” of a case, this Court held that, because the respective actions pending in the federal district court for the Northern District of Mississippi and the Circuit Court of Coahoma County “were not separate causes of actions,” the principle of priority jurisdiction was inapplicable. Id. at 174. Thus, Crawford is distinguishable from the case at hand. Yet, if a federal court and a state court in the same state are not precluded by priority jurisdiction from going forward independently, it logically follows that priority jurisdiction should not bar a Mississippi trial of this case merely because a similar (though certainly not identical) action is pending in a sister state. Id. at 169.

¶ 27. Moreover, Mississippi is not alone in this interpretation of priority jurisdiction. The Ohio Court of Appeals, Second District, Miami County, has observed,

The fact that an action is pending in another state does not constitute a defense to an action between the same parties over the same cause of action in Ohio. An Ohio court’s options, in this situation, are to grant a stay pending the resolution of the earlier action outside Ohio, or to maintain the action in the state. In other words, dismissal is not an option at this stage of the proceedings.

Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp., 106 Ohio App.3d 477, 666 N.E.2d 571 (1995); See also, Buck, 291 Ala. at 691, 287 So.2d 441. The Restatement of Conflicts also speaks to the general acceptance of this rule among jurisdictions. “A state may entertain an action even though an action on the same claim is pending in another state.” Restatement (Second) of Conflicts § 86 (1971). “While the pendency of a foreign action is not a bar to the maintenance of an action in the state of the forum, it may induce the court to grant a stay of the latter action.” Id. (Emphasis added.) This rule applies “whether the two actions are both instituted in State courts or in federal courts or one in a State court and the other in a federal court,” and the rule “does not result in the imposition of double liability on the defendant, since the judgment first handed down effectively bars further prosecution of the second action,” whether through comity or full faith and credit. Id.

¶ 28. The foregoing authorities make it clear that the doctrine of priority jurisdiction does not preclude a Mississippi court’s proceeding with this matter, as Louisiana and Mississippi are “separate jurisdictional sovereigns.” Crawford, 990 So.2d at 169; Brown, 493 So.2d at 963. Moreover, it is evident that there are fundamental differences in the two cases.

¶ 29. As for the argument that the “but one (1) suit” language in the first paragraph of our wrongful death statute deprives Mississippi’s courts of their right to proceed with a traditional wrongful death case when a class action involving the same parties and facts is pending in the courts of a separate jurisdictional sovereign, be it a U.S. state or a foreign country, this ignores other pertinent language in the same statute, as well as the obvious purpose of the “one (1) suit” limitation. Clearly, that language is intended to prevent multiple wrongful death beneficiaries from filing separate suits in Mississippi courts — the only courts over which we can exercise control — for the same decedent’s alleged wrongful death.

¶ 30. During most of Mississippi’s legal history, plaintiffs could file civil actions in the county of their residence. Thus, if a wrongful death claim occurred or accrued, in whole or in part, anywhere in Mississippi, a Mississippi resident with standing to pursue a wrongful death claim in such case could file suit in the county of his or her residence, without regard to whether the cause of action occurred or accrued in that same county, or elsewhere in the state. So, if multiple siblings, living in various Mississippi counties, wished to file separate wrongful death actions for the alleged wrongful death of their mother or father in each of the siblings’ respective counties of residence, as well as in a county where an alleged tortfeasor resided, and also in the county where the cause of action occurred or accrued, they could have done so, but for the “but one (1) suit” restriction.

¶ 31. However, if one or more of those prospective beneficiaries filed his or her suit in another sovereign jurisdiction, our wrongful death statute did not, and still does not, prohibit his filing and prosecuting an identical cause of action in Mississippi, in light of all the authorities cited above.

¶ 32. The “but one (1) suit” language clearly applies to Mississippi’s legitimate and practical interest in providing for the filing of “but one (1) suit” here, not in places where we have no say-so, such as Louisiana, China, and other sovereign jurisdictions.

¶ 33. The “but one (1) suit” measure in our statute continues that the suit “... shall ensue for the benefit of all parties concerned ...,” and is not a restriction on the number of suits that can be pursued in other sovereign jurisdictions, especially when such other suits seek different relief than the related or similar Mississippi wrongful death action, as here, where a class action has been filed in a jurisdiction that allows state-court class actions, which Mississippi does not.

¶ 34. Finally, the same lengthy sentence concludes, “... but the determination of such suit shall not bar another action unless it be decided on its merits.” Miss.Code Ann. § 11-7-13 (Rev.2004). In the circumstances sub judice, the Mississippi and Louisiana cases may coexist; and, if the Louisiana case should be “determined” by dismissal on procedural grounds, or, if it should be dismissed voluntarily by the plaintiffs, or concluded in any other manner short of an adjudication on its merits, it is no bar to the somewhat-similar case that may proceed apace in the Circuit Court of the Second Judicial District of Hinds County, Mississippi. Since there has been no adjudication on the merits of the Louisiana action, Section 11-7-13, when read in full, provides that the Louisiana action does not preclude the case at bar from going forward in a court of this state.

¶ 35. The logic of the majority seemingly would prohibit a case initially filed in a court of this state, and subsequently filed in a court of another state, from going forward in a Mississippi court, relying on the “but one (1) suit” language and disregarding the fact that there is “but one (1) suit” existing within the boundaries of this state. Because I disagree with this interpretation of the wrongful death statute and the majority’s application of this interpretation to the facts before us, I dissent, and would remand this matter to the Circuit Court of the Second Judicial District of Hinds County for trial on the merits.

WALLER, C.J., JOINS THIS OPINION. GRAVES, P.J., JOINS THIS OPINION IN PART.

      . New Orleans Tours and James E. Smith, Jr., did not file an answer or otherwise appear in the case. The circuit court issued summonses for all defendants, but it has no record of summons returns for any defendant. Because a person named in a complaint does not become a party until served with process, New Orleans Tours and James E. Smith, Jr., are not parties remaining before the circuit court. Stanley v. Allstate Ins. Co., 465 So.2d 1023, 1025 (Miss.1985). Defendants Mea-dowcrest, Yancovich, Transition, and Bates waived the defenses of insufficiency of service of process and insufficiency of process by omitting these defenses from their answer and motion to dismiss. Miss. R. Civ. P. 12(h)(1). Therefore, the order dismissing Meadowcrest, Yancovich, Transition, and Bates fully adjudicated the case as to all parties and it was a final, appealable judgment. Miss. R. Civ. P. 54(b), 58.

      . This Court also has held that Section 11-7-13 and Long prohibit the severance of a wrongful-death lawsuit. Adams v. Baptist Mem’l Hosp.-Desoto, Inc., 965 So.2d 652 (Miss.2007).

      . Our holding today rests upon the wrongful-death statute's one-suit requirement and the procedural rules this Court has developed to manage wrongful-death litigation consistent with that requirement. This decision does not erode the general rule that a previously-filed action in a sister state is no bar to an action in Mississippi.

      . See generally Abiaca Drainage Dist. of Leflore, Holmes & Carroll Counties v. Albert Theis & Sons, Inc., 185 Miss. 110, 187 So. 200, 201 (1939).

      . Article 3546 of the Civil Code of Louisiana provides,
      Punitive damages may not be awarded by a court of this state unless authorized: (1) by the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the injury was domiciled: or (2) By the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled.
      La. Civ.Code Ann. art. 3546 (1994).

      . While the "salve” offered by my valued friend and colleague, Justice Dickinson, does not go unappreciated, it is nevertheless incomplete in its attempted instruction, as it stops short of mentioning one of the long-established reasons that Mississippi has allowed punitive damages as a deterrent measure: "Punitive damages are punishing damages, and are awarded to the injured party as a reward for his public service in bringing the wrongdoer to account.” Neal v. Newburger Co., 154 Miss. 691, 123 So. 861, 863 (1929); see also Bankers Life and Cas. Co. v. Crenshaw, 483 So.2d 254, 269 (Miss.1985) ("The basis for awarding [punitive] damages is to reward a plaintiff for public service in bringing the wrongdoer to account.”). That said, the writer does understand that punitive damages are not meant to be compensation to a plaintiff.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Sarah Lynn HUDSPETH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00097-COA.
    Court of Appeals of Mississippi.
    May 5, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied Feb. 25, 2010.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Sarah Lynn Hudspeth was driving on Sport Watkins Road in Kemper County at approximately 10:20 p.m. on December 27, 2006, when her car collided with a vehicle being driven by Victoria Edwards. Edwards was deceased by the time the emergency responders arrived. Hud-speth’s blood-alcohol content after the accident was .24 percent, well above the legal limit of .08 percent. Miss.Code Ann. § 63-11-30(1) (Supp.2008).

¶ 2. Hudspeth was convicted of vehicular manslaughter while driving under the influence (DUI) by a jury in the Circuit Court of Kemper County and was sentenced to twenty years in the custody of the Mississippi Department of Corrections with fourteen years suspended and five years of supervised probation. Hudspeth was also assessed a fine of $2,000 and restitution in the amount of $7,650 to be paid to Edwards’s family for funeral costs. Hudspeth filed for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, which was denied by the trial court.

¶ 3. Hudspeth now appeals, asserting the following issues: (1) the blood-alcohol-content test results were invalid; (2) the State failed to prove beyond a reasonable doubt that the accident was the cause of Edwards’s death; (3) the trial court erred in allowing irrelevant opinion evidence; and (4) the trial court erred in denying her motion for a JNOV. Finding no error, we affirm the conviction and sentence.

DISCUSSION

I. ADMISSION OF HUDSPETH’S BLOOD-ALCOHOL CONTENT

¶ 4. Hudspeth argues that the results of the Intoxilyzer 8000 breath test should not have been admitted into evidence because Deputy Greg Campbell of the Kemper County Sheriffs Department failed to continually observe her for twenty minutes before administering the test and because the State failed to present proof that Deputy Campbell was certified to administer the test on the date it was performed.

¶ 5. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Morris v. State, 963 So.2d 1170, 1175(¶ 15) (Miss.Ct.App.2007). “[A]bsent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” McCoy v. State, 820 So.2d 25, 31(¶ 15) (Miss.Ct.App.2002).

A. Did Deputy Campbell comply with the required twenty-minute observation period before administering the Intoxi-lyzer 8000 test?

¶ 6. According to the Mississippi Department of Public Safety’s guidelines and the Intoxilyzer 8000 Implied Consent Policies and Procedures manual, a twenty-minute observation period is required immediately before a breath sample is taken. The glossary to this manual defines observation period as follows: “A period during which the person being tested has been observed to determine that he has not ingested alcohol or other fluids, regurgitated, vomited, eaten, smoked, or placed anything into his mouth in the 20 minutes immediately prior to the collection of a breath sample.”

¶ 7. Deputy Campbell testified at the hearing that he arrived at the accident scene at approximately 10:26 p.m. Another deputy, who was already on the scene, told Deputy Campbell that he was friends with the family of one of the parties involved in the wreck and asked Deputy Campbell to take over the case. When Deputy Campbell approached Hudspeth to ask for her driver’s license, she was being attended to by the fire department. The fire chief was attempting to calm her down and checking her for injuries.

¶ 8. Deputy Campbell observed the strong odor of alcohol on Hudspeth and had to assist her to his patrol car because she could not walk a straight line on her own. Hudspeth admitted to drinking “a couple” of beers and agreed to submit to a breath test. Deputy Campbell testified that at 10:31 p.m. he ran Hudspeth’s car tag while she was looking for her purse. In his written report, he stated that he left the accident scene at approximately 10:40 p.m. and drove Hudspeth to the jail. A female fire chief rode with Hudspeth in the back of Deputy Campbell’s patrol car. The fire chief was instructed to observe Hudspeth and not to allow her to smoke or put anything in her mouth. The start time, which reflects when Deputy Campbell turned on the machine, on the Intoxi-lyzer 8000 was 10:46 p.m. He typed 10:31 p.m. into the machine as the beginning time for the observation period. Hudspeth gave breath samples at 11:00 and 11:02 p.m.

¶ 9. Prior to trial, a hearing was held on Hudspeth’s motion to suppress the results of the Intoxilyzer 8000 test. After hearing the testimony of Deputy Campbell and arguments by the attorneys, the trial court ruled as follows:

The observation period as defined by the glossary terms of the Intoxilyzer 8000 does require an officer to observe an individual before he takes a test and observe that that person had not ingested alcohol' — I don’t think there’s any question about that here — or other fluids. I don’t think there’s any question about that. She did not regurgitate or vomit in the car. She didn’t eat anything. She didn’t smoke anything. And he’s observing her with a Fire Chief there in the backseat with her. And his testimony here is clearly that she didn’t place anything in her mouth during that 20 minutes prior to the test and the sample being taken at 11:00.

¶ 10. We find that the trial court did not err in denying Hudspeth’s motion to suppress. Deputy Campbell testified that he combined his observation time with the prior officer’s and the fire chiefs observation times, which totaled an observation time of approximately twenty-nine minutes. Therefore, even though Hudspeth was not under the constant observation of Deputy Campbell, she was being observed by another deputy and the fire chief when he was unable to personally observe her. The term observation period, as defined in the glossary, does not require that a single officer observe the person being tested. The definition only requires that “the person being tested has been observed” for twenty minutes immediately prior to the collection of a breath sample. The deputy who responded to the scene observed Hud-speth from at least 10:31 p.m., which gives a total observation time of twenty-nine minutes. Even if the observation time started when Deputy Campbell put Hud-speth in his patrol car at 10:40 p.m., the observation time would still be twenty minutes. Therefore, we find that this issue is without merit.

B. Was proper proof made that Deputy Campbell was certified to operate the Intoxilyzer 8000 on the date of the accident?

¶ 11. Hudspeth argues that while Deputy Campbell provided proof that he was certified to operate the Intoxilyzer 8000 on the day of trial, he did not produce documentary proof that he was certified on the date of the accident.

¶ 12. The results of a breath-analysis test are only valid if performed by a person certified to give such a test. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). To prove that the operator is certified, the State must show that the breath test was “performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis.” Miss.Code Ann. § 63-11-19 (Rev.2004). “This statute, however, ‘is not a rule of evidence,’ so that evidence ‘otherwise admissible’ will not be excluded because of failure to comply with the statute.” Henley v. State, 885 So.2d 89, 91(¶ 5) (Miss.Ct.App.2004) (quoting Jones v. State, 858 So.2d 139, 143(¶ 10) (Miss.2003)).

¶ 13. The following exchange took place during the State’s direct examination of Deputy Campbell:

Q. Okay. And then December the 27th of 2006, did you have a certificate that allowed you to run the intoxilyzer machine that was current?
A. That’s right.
BY [DEFENSE COUNSEL]: Your Honor, we would object until the original certificate can be produced for examination.
BY THE COURT: Objection’s overruled. I think he’s sworn to tell the truth. The question is did he have one. I’ll allow that question. Answer [is] yes, correct?
A. That’s correct.

On cross-examination, Hudspeth’s counsel asked to see Deputy Campbell’s Intoxilyzer 8000 card. Deputy Campbell produced his current card, which was valid as of April 2007. He stated that proof of his certification from 2006 was kept at the Kemper County Sheriffs Department and that he could have someone bring it to the court. At the conclusion of cross-examination, the trial court released Deputy Campbell but instructed him to “[h]ave that certificate available, and you may be called as a witness later.” After the trial court overruled Hudspeth’s motion for a directed verdict, the judge stated to Hud-speth’s counsel, “you asked as to the verification of the certification status of Deputy Campbell. They’re securing that information now.” This is the last time the certification is mentioned in the record.

¶ 14. We find that this case is analogous to Henley. In Henley, the State introduced an uncertified copy of a police officer’s permit to perform a breath test. Henley, 885 So.2d at 91(¶ 4). The supreme court held that “[t]he fact that the copy of Officer Clark’s permit was not certified is inconsequential because the same result was effectuated by him testifying at trial.” Id. at (¶ 6). As did the officer in Henley, Deputy Campbell testified that he was certified to perform a breath test, and he was subjected to cross-examination on his knowledge and experience on the matter.

¶ 15. Therefore, we find that the trial court did not abuse its discretion in finding sufficient proof was presented by Deputy Campbell’s testimony that he was certified to perform the test on the date of the accident. This issue is without merit.

II. CAUSE OF EDWARDS’S DEATH

¶ 16. Edwards was deceased when emergency personnel arrived at the scene of the accident. The cause of death was determined by the coroner to be internal injuries from the car accident. An autopsy was not conducted. Hudspeth now argues that the State failed to prove a causal connection between the accident and Edwards’s death. Hudspeth asserts that the coroner for Kemper County, Kathy Lanier, was not qualified to give an opinion as to Edwards’s cause of death, and even if she was qualified, Lanier’s testimony was unreliable as she failed to testify with any degree of medical certainty.

¶ 17. Lanier testified that when she arrived at the scene, Edwards was deceased and “pinned inside a car” with her “legs and knees ... just bent up under the dashboard.” Lanier found nothing in Edwards’s blood work that would have contributed to her death. Lanier obtained a medical history from the victim’s mother. Lanier testified that nothing in Edwards’s medical history indicated that she suffered from a medical condition which would have caused her death on the evening of the accident. Based on her experience as a coroner, Lanier concluded that Edwards died of internal injuries caused by the automobile collision.

¶ 18. Hudspeth argues that Edwards’s medical history was “sketchy,” her only visible injuries were bruising to her legs, and no proof was shown that she did not have a heart attack or other acute problem which caused her death. The supreme court has held that:

The law does not require an autopsy or medical evidence to establish [cause of] death. These facts are ordinarily proved by witnesses who saw the deceased after his death and who testified that the deceased was dead. The criminal agency or cause of death is usually shown by witnesses who saw the homicide, or by circumstances sufficient to establish the crime to the exclusion of every other reasonable hypothesis.

Gibson v. State, 503 So.2d 230, 232-33 (Miss.1987) (quoting King v. State, 251 Miss. 161, 176, 168 So.2d 637, 643 (1964)). We find that, with no other facts on which to base an alternative “reasonable hypothesis,” it was proper for the jury to determine that the injuries from the wreck caused Edwards’s death. Therefore, we find that this issue is without merit.

III. TESTIMONY OF THE ACCIDENT RECONSTRUCTIONIST

¶ 19. Sergeant Mike Cain, an accident reconstructionist with the Mississippi Highway Safety Patrol, testified that after reviewing the interview with Hudspeth, the evidence at the scene, measurements made at the scene, and photographs of the vehicles, it was his opinion that as the two vehicles entered the curve from opposite directions on Sport Watkins Road, Hudspeth’s vehicle crossed the centerline and impacted relatively head-on with Edwards’s vehicle. He testified that since there were no skid marks on the road, he did not use any scientific calculations in reconstructing the accident. Hudspeth objected to Sergeant Cain’s qualification as an expert on the basis that his testimony was not based on scientific methods and procedures.

¶20. For expert testimony to be admissible, it must be both relevant and reliable. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 38(¶ 16) (Miss.2003). The testimony is relevant if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” M.R.E. 702. In determining whether the principles and methods used are reliable, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), provides “ ‘an illustrative, but not an exhaustive, list of factors’ that trial courts may use in assessing the reliability of expert testimony.” McLemore, 863 So.2d at 38(¶ 16) (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002)). The Daubert factors include:

whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

Id. at 37(¶ 13) (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786).

¶ 21. Again, the admission or exclusion of evidence, including expert testimony, is within the discretion of the trial court. Tunica County v. Matthews, 926 So.2d 209, 212(¶ 5) (Miss.2006). The trial court found that Sergeant Cain had many years’ experience with the Mississippi Highway Safety Patrol, was certified as an accident reconstructionist, and had been accepted as an expert in both state and federal courts. Sergeant Cain testified that he was unable to perform any scientific tests because the physical conditions presented made it impossible to obtain reliable data. Therefore, he based his opinion that the collision occurred when Hudspeth’s car crossed the centerline of the road on the evidence that was available. Sergeant Cain was thoroughly cross-examined on his investigation. We find that the trial court did not err in allowing Sergeant Cain to testify. Therefore, this issue is without merit.

IV. JNOV

¶ 22. Hudspeth argues that the trial court erred in denying her motion for a directed verdict and JNOV because the State failed to prove all the elements of aggravated DUI.

¶ 23. “In a criminal proceeding, motions for a directed verdict and [a JNOV] challenge the legal sufficiency of the evidence supporting the guilty verdict.” Croft v. State, 992 So.2d 1151, 1157(¶24) (Miss.2008). Because a motion for a directed verdict and a motion for a JNOV both require consideration of the evidence before the trial court when made, this Court only reviews the ruling on the last occasion the challenge was made. Id. (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). The last challenge to the sufficiency of the evidence was Hudspeth’s motion for a JNOV. When reviewing the denial of a motion for a JNOV, “all of the evidence on behalf of the [S]tate must be taken as true, together with any reasonable inferences, and, if there is sufficient evidence to support a vei'dict of guilty, the motion for a directed verdict must be overruled.” Gibson, 503 So.2d at 232.

¶ 24. Hudspeth was convicted under Mississippi Code Annotated section 63—11—30(5) (Supp.2008), which states in part: “Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another ... shall, upon conviction, be guilty of a separate felony for each such death.... ” Subsection (l)(c) states that it is unlawful for any person to operate a vehicle who has a blood-alcohol concentration of .08 percent or more for persons who are above the legal age to purchase alcoholic beverages under state law. Miss. Code Ann. § 63-11-30(1)(c) (Supp.2008).

¶ 25. The jury was presented with evidence that Hudspeth’s blood-alcohol concentration was three times the legal limit; testimony was presented from Sergeant Cain that Hudspeth admitted in an interview on the night of the accident that she believed her vehicle had crossed the cen-terline of the road just before the collision; and evidence was presented that there was no other reasonable cause of Edwards’s death.

¶ 26. Taking the evidence presented by the State as true, we find the evidence legally sufficient to support Hudspeth’s conviction. Therefore, we find that this issue is without merit.

¶ 27. THE JUDGMENT OF THE KEMPER COUNTY CIRCUIT COURT OF CONVICTION OF DUI MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOURTEEN YEARS SUSPENDED, SIX YEARS TO SERVE, AND FIVE YEARS OF SUPERVISED PROBATION AND PAYMENT OF A $2,000 FINE, APPEARANCE BOND FEE OF $500, AND $7,650 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO KEMPER COUNTY.

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


author: MYERS, P.J.,

text:
    Darrius EUBANKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01201-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied Feb. 25, 2010.

      William R. Labarre, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Darrius Eubanks was convicted in the Circuit Court of Hinds County of capital murder, with the underlying felony of felonious child abuse. The trial court sentenced Eubanks to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole. Aggrieved by his conviction and sentence, Eubanks appeals, asserting that the trial court erred in admitting hearsay testimony and deprived him of his fundamental right to present a defense. Finding no error, we affirm.

FACTS

¶2. On the morning of November 19, 2003, Eubanks and his girlfriend, Deyasha Johnson, were off work from their jobs at an IHOP Restaurant. Johnson and Eu-banks planned to catch up on household chores and move furniture into their apartment at 1595 West Highland Drive in Jackson, Mississippi. Eubanks and Johnson had lived together for about five to six months. The couple shared the apartment with Johnson’s two children, four-year-old Daviyon Johnson and two-year, eleven-month-old Inecia McNeil. The children called Eubanks “Daddy,” but he was not related to them by blood or marriage.

¶ 3. The pair had lived in the apartment for about a month, but they did not have a telephone in the apartment. After doing laundry, Johnson called her aunt from a payphone about the availability of a family member’s truck to move furniture later in the day. Johnson discovered, however, that her grandmother was critically ill at Central Mississippi Medical Center (CMMC), less than ten minutes away from the apartment. Johnson returned to the apartment to change clothes, and Eubanks offered to watch the children as he had often done before. Johnson arranged for a ride to CMMC with a friend. At 6:00 p.m. that evening, about six hours later, Johnson returned to the apartment.

¶4. Johnson testified that on returning home, she entered the apartment and called to her children, going up the hallway to their bedroom. In the children’s bedroom, she found Daviyon lying on the floor with Eubanks standing beside him. Inecia was standing against a wall, not moving, and she appeared “scared.” Johnson asked Eubanks what was wrong, and he replied that he did not know. Johnson moved into her bedroom and called for her son to get up. When Daviyon failed to respond, Johnson went back into the children’s bedroom. Eubanks picked Daviyon up, and Johnson described the child as limp “like a little Raggedy Ann doll.” Johnson testified she took Daviyon into the bathroom, where she observed that “the whole side of [his] face was just black and blue and red.” Johnson testified she asked Eubanks what had happened. He again told her that he did not know, but he added that the children had both reverted from their toilet training and soiled their clothing. Johnson also testified that Eu-banks told her that Inecia had hit her older brother in the head with a stick that had been used to secure the apartment’s patio door.

¶ 5. Johnson then went to a neighbor’s apartment to telephone her mother and aunt. She asked them to come to get her and Daviyon and take them to CMMC. She then returned to the apartment, where she undressed Daviyon, washed him thoroughly, wrapped him in a blanket, and threw on a coat to meet her mother at the door. Johnson then took her daughter to an upstairs neighbor, Emma Robinson. When her mother arrived, Johnson testified that Eubanks said he would stay and clean up the apartment; Johnson was surprised he did not accompany them to the hospital. Johnson, Daviyon, her mother, and her aunt then left for the nearby CMMC.

¶ 6. CMMC could not stabilize Daviyon, and about an hour later, Daviyon was sent by ambulance to the University of Mississippi Medical Center (UMMC). Johnson returned to the apartment to pick up her daughter before continuing on to UMMC. Johnson testified that during the ride to UMMC, Inecia appeared “[q]uiet, scared. Like she was terrified.” Johnson observed that ordinarily Inecia “never stopped talking,” but she had been silent since Johnson returned home. In the car, Johnson asked the child, “Raja[,] what happened?” Johnson testified, over the objection of the defense, that Inecia responded, “[Djaddy hit Doc with the stick in the head a lot of times[,j and he hit me too. Then Doc started crying[,j and [Djaddy wouldn’t stop hitting him. And then Doc stopped crying[,j and he didn’t move no [sic] more.”

¶7. Johnson testified that at UMMC, Daviyon could be kept alive only by machine. Two days later, her son was removed from life support, and he died. Johnson also testified that when she ultimately returned to the apartment, Eu-banks had not cleaned it up. She identified the stick that had been used to keep the patio door locked. She explained that after the door was repaired, she placed it in a closet where it had remained, except on one occasion when Eubanks used the stick to play baseball with neighborhood children.

¶ 8. Jackson Police Department child protection officers were called on the night of the incident to investigate the suspected abuse of Daviyon. Based on their interview of Johnson, an arrest warrant was issued for Eubanks, who turned himself in the next day and consented to an interview with the officers.

¶ 9. Officer Harvey Davis of the child protection unit testified as to Eubanks’s statement. Eubanks first said that he heard a loud scream and found Inecia hitting Daviyon with the stick. Officer Davis testified that Eubanks told the officers that he had hit Daviyon with a belt because he had written on the wall. Eu-banks then stated that he did not know what had happened because he had smoked marijuana and drank beer earlier. Officer Davis also testified that Eubanks said he had been playing with the children, tossing Daviyon into the air and allowing him to fall back onto the mattress. Eu-banks also explained that he and Daviyon had played a punching game, with Eu-banks punching the child in the shoulder area, but not anywhere below the shoulder.

¶ 10. Detective Eric Smith testified that he recovered the stick Johnson had previously identified. He testified that it was found in the living room of the apartment, leaning against the wall in a corner. He stated that he observed what appeared to be blood on the stick.

¶ 11. Dr. Stephen Hayne, who autopsied Daviyon’s body, also testified for the State. He stated that the cause of death was closed head injury, which was a product of blunt force trauma to the head. Dr. Hayne also described other injuries, which included bruising and abrasions on both sides of Daviyon’s head, face, eyes, chest, back, buttocks, and thighs. He also noted three fractured ribs, tears and bruising to the rectum consistent with penetration, and bruising and abrasions to the genitals. Dr. Hayne opined that the injuries he observed had occurred approximately two days prior to death, and the injuries could not have been inflicted accidentally.

¶ 12. The defense put on no witnesses, and Eubanks did not testify. He was subsequently convicted of capital murder and sentenced to life imprisonment without eligibility for parole. On appeal, Eubanks argues two assignments of error.

DISCUSSION

I. Whether the trial court erred in admitting hearsay testimony.

¶ 13. Eubanks argues that the trial court erred in admitting the hearsay testimony of two-year, eleven-month-old Inecia. He asserts that the trial court erred in three distinct respects, so we shall address each separately.

A. Whether Inecia’s hearsay statements were properly admitted as an excited utterance.

¶ 14. Hearsay statements are excluded under Mississippi Rule of Evidence 801(c), which defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 803(2), however, provides an exception to the exclusion of hearsay evidence, namely a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The official comment to Rule 803(2) elaborates, stating in pertinent part:

The underlying theory of the excited utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication.... [T]he essential ingredient here is spontaneity. With respect to the time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly....

¶ 15. Eubanks asserts that Inecia’s hearsay statement was neither spontaneous nor made while the child was still under the stress of the incident.

¶ 16.. Eubanks argues that Inecia was no longer “under the stress of excitement” caused by the incident. See M.R.E. 803(2). In particular, Eubanks argues that too much time had passed between the beating and Inecia’s statement to her mother. He argues that the beating was only shown to have occurred at some point during the six hours that Johnson was visiting her grandmother at CMMC and that, based on Johnson’s testimony, approximately two hours had passed since she first returned home. Therefore, Eubanks argues that the beating occurred at least two hours, and at most eight hours, prior to the statement being given. Eubanks also argues that Inecia’s statement was not spontaneous, because it was made in response to a question posed by her mother.

¶ 17. Mississippi law does not provide a specific time period for a statement to be admitted as an excited utterance. Smith v. State, 733 So.2d 793, 798(¶ 18) (Miss.1999) (observing that twenty-four hours appeared to be the practical limit in prior cases). As the comment to Rule 803(2) states, the time element, “depending on the exact circumstances of a case, can vary greatly.” We have noted that “[i]t is important that there has been no intervening matter to eliminate the state of excitement and call into question the reliability of the utterance.” McCoy v. State, 878 So.2d 167, 173(¶ 12) (Miss.Ct.App.2004) (citing Berry v. State, 611 So.2d 924, 926 (Miss.1992)).

¶ 18. The comment to Rule 803(2) states that spontaneity is “the essential ingredient” in admitting a hearsay statement as an excited utterance. Nonetheless, our case law is clearly consistent with the proposition that “[t]he mere fact that the statement ... was in response to an inquiry ... does not necessarily take [it] outside the realm of admissible excited utterances.” Barnett v. State, 757 So.2d 323, 330(¶ 18) (Miss.Ct.App.2000) (citing Sanders v. State, 586 So.2d 792, 795 (Miss.1991)). Indeed, the supreme court has held that “[w]here the excited utterance is prompted by a simple question, even from an officer, such as ‘What happened?’ or ‘What’s wrong?’ ” it may still fall under the exception. Carter v. State, 722 So.2d 1258, 1261(¶ 10) (Miss.1998) (citations omitted).

¶ 19. Whether to admit hearsay evidence as an excited utterance is entrusted to the sound discretion of the trial court, and we review such decisions for an abuse of discretion. Davis v. State, 611 So.2d 906, 914 (Miss.1992).

¶ 20. On our review of the record, we find that the trial court did not err in finding that Inecia was still under the stress of the excitement at the time of the statement. While Eubanks argues that the beating could have occurred up to eight hours before, such does not, per se, preclude a finding that the child was still under stress at the time she made the statement. Instead, we must look at the exact circumstances of the case.

¶ 21. The record reflects that Inecia, a child of two years and eleven months, was beaten by a man she regarded as her father. She then witnessed her four-year-old brother receive a savage beating that left him mortally wounded and comatose. Sometime later, Johnson returned to the apartment, where she observed that her daughter was in the same room as Eu-banks and Daviyon. Johnson observed that Inecia acted unusual and appeared to be under great stress. Johnson, however, was preoccupied with her son and, within a few minutes, left Inecia in the care of a neighbor. When Johnson returned, approximately two hours later, she observed that Inecia still appeared to be under stress. A few minutes later, Johnson asked the child, “What happened?,” which prompted the statement that was ultimately admitted as an excited utterance.

¶ 22. The record, therefore, indicates that the child spent the great majority of the time following the incident either in the presence of the perpetrator or in the care of a neighbor. Once returned to her mother’s care, Johnson testified that Ine-cia appeared to still be under great stress, and Inecia made the statement shortly thereafter. Under these circumstances, the trial court did not err in finding the statement to have been made while the child was under the stress of the incident.

¶ 23. Likewise, the trial court did not abuse its discretion in finding the statement spontaneous, notwithstanding the time that passed or that it was prompted by a general question from Johnson. Essentially, Inecia’s statement was made at the first reasonable opportunity she had to tell a trusted relative what had occurred. See Heflin v. State, 643 So.2d 512, 519 (Miss.1994). Furthermore, the question itself, “What happened?,” has been specifically cited by the supreme court as an example of a question that, while bearing upon the spontaneity requirement, does not necessarily preclude admission of the statement as an excited utterance. See Carter, 722 So.2d at 1261(¶ 10). On our review of the record, nothing in the question itself or the surrounding circumstances indicates that this was the sort of leaded or manufactured declaration that the spontaneity requirement guards against. See Sanders, 586 So.2d at 795. Accordingly, the trial court did not abuse its discretion in finding the statement sufficiently spontaneous.

¶ 24. Having found that the trial court did not abuse its discretion in finding the hearsay statement was made spontaneously under the stress of the incident, we likewise find that the trial court did not abuse its discretion in admitting the hearsay statement as an excited utterance under Rule 803(2). This issue is without merit.

B. Whether the trial court erred in not evaluating whether the child was competent to testify.

¶ 25. Eubanks argues that the trial court should have held a competency hearing to determine whether Inecia was competent to testify. The child did not, however, actually testify at trial. Under Mississippi Rule of Evidence 803, an excited utterance is admissible notwithstanding the availability of the declarant at trial; the declarant’s present competence to testify is therefore irrelevant. This issue is without merit.

C. Whether admission of the child’s hearsay statements violated the Confrontation Clause.

¶ 26. Finally, Eubanks argues that admitting Inecia’s hearsay statements, without allowing him an opportunity to cross-examine the child, violated his Sixth Amendment right to confront the witnesses against him.

¶ 27. The United States Supreme Court, however, has stated that this right exists only where the hearsay statement in question is “testimonial” in nature. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court declined to provide a precise definition of “testimonial” hearsay, stating only that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.

¶ 28. The Mississippi Supreme Court “has concluded that a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Bishop v. State, 982 So.2d 371, 375(¶ 10) (Miss.2008) (internal quotations omitted); see also Giles v. California, - U.S. -, - - -, 128 S.Ct. 2678, 2692-93, 171 L.Ed.2d 488 (2008) (“Statements to friends and neighbors about [domestic] abuse and intimidation ... would be excluded, if at all, only by hearsay rules.... ”).

¶ 29. From our review of the record, it is evident that Johnson was neither a police officer, nor was she “working in connection with the police for the purpose of prosecuting the accused” at the time she received Inecia’s hearsay statement. Accordingly, the hearsay statement was non-testimonial in nature, and the Confrontation Clause is inapplicable. This issue is without merit.

II. Whether the trial court erred in granting the State’s motion in li-mine.

¶ 30. Eubanks argues that the trial court erred in granting the State’s motion in limine to preclude him from introducing accusations that Johnson had abused or mistreated her children on prior occasions. This, Eubanks asserts, violated his constitutional right to present a defense notwithstanding that it was within the trial court’s discretion under the Mississippi Rules of Evidence.

¶ 31. The United States Supreme Court has stated:

State and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. This latitude, however, has limits. Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. This right is abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.

Holmes v. South Carolina, 547 U.S. 319, 324-25, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (internal citations and quotations omitted).

¶ 32. When it granted the State’s motion in limine, the trial court clearly stated that its ruling was conditioned on the absence of any evidence connecting Johnson to Daviyon’s injuries. The trial court stated that if such evidence were presented, it would revisit the issue if Eubanks raised it. Eubanks, however, did not raise the issue again, nor did he proffer the proposed testimony. In fact, on our review of the record, we can find no evidence that tied Daviyon’s injuries to any prior abuse by Johnson. Instead, the testimony, particularly that of the medical examiner, was that Daviyon’s many injuries were inflicted on November 19, 2003.

¶ 33. On appeal, Eubanks argues that a jury, after hearing accusations that Johnson had abused her children on prior occasions, could have concluded that Johnson caused the child’s injuries on November 19, 2003. Other than Johnson’s admission that she was present at the apartment until approximately noon, Eubanks cites no other evidence supporting this theory. The Constitution, however, does not entitle a defendant to introduce evidence that “is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.” Holmes, 547 U.S. at 327, 126 S.Ct. 1727. This assignment of error is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . “Raja" was Inecia's nickname, and Daviyon was also called “Doc.”


text:
    Harry VINSON, Appellant, v. Elizabeth Vinson VIDAL, Appellee.
    No. 2008-CA-00653-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Dec. 1, 2009.
    Certiorari Denied Feb. 25, 2010.

      B. Sean Akins, Ripley, attorney for appellant.
    Elizabeth Vinson Vidal (pro se).
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. In August 2004, Harry Vinson (Vinson) filed a petition in the DeSoto County Chancery Court seeking visitation with his granddaughter, Reagan Vinson. Reagan is the daughter of Elizabeth Vinson Vidal (Elizabeth) and Harry’s son, Brad Vinson. Elizabeth and Brad had divorced in 1999, and Elizabeth had been awarded physical custody of Reagan. Brad died in 2004, instigating the petition for grandparent’s visitation.

¶ 2. The chancellor awarded Vinson temporary visitation. The parties agreed to expand visitation, and as of March 2006, Vinson received one Saturday per month for visitation with Reagan. Another chancellor was assigned to the case, and a hearing was held on the matter. In August 2007, the chancellor denied Vinson’s petition for grandparent’s visitation and ordered Vinson to pay $18,226.79 to Elizabeth for her attorney’s fees. Vinson now appeals, asserting that the chancellor erred in terminating his visitation and in awarding attorney’s fees to Elizabeth.

STANDARD OF REVIEW

¶ 3. Absent an abuse of discretion, this Court will not reverse the decision of the chancellor. Martin v. Coop, 693 So.2d 912, 914 (Miss.1997). “This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous.” Id. (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992)).

DISCUSSION

¶ 4. We first note that Elizabeth has failed to file a brief in this matter. This Court has long held that an appellee’s failure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error. Varvaris v. Perreault, 813 So.2d 750, 752(¶ 5) (Miss.Ct.App.2001) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). “Automatic reversal is not required where [the] appellee fails to file a brief.” Id. (quoting N.E. v. L.H., 761 So.2d 956, 962(¶ 14) (Miss.Ct.App.2000)). In order to merit reversal, “[t]he appellant’s argument ‘should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Id. (citing Selman v. Selman, 722 So.2d 547, 551(¶ 13) (Miss.1998)). After considering the record and brief, we can say with confidence that there was no error.

I. TERMINATION OF VINSON’S VISITATION

¶ 5. In his first issue on appeal, Vinson argues that the chancellor erred in terminating his visitation rights. It is well settled that “[n]atural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right, if any, must come from a legislative enactment.” In re Adoption of Minor, 558 So.2d 854, 856 (Miss.1990) (citing Olson v. Flinn, 484 So.2d 1015, 1017 (Miss.1986)). In 1983, the Mississippi Legislature enacted the grandparents’ visitation rights statutes, codified at Mississippi Code Annotated sections 93-16-1 to -7 (Rev.2004). These statutes outline how a grandparent may-seek the opportunity to secure visitation with a grandchild. According to section 93-16-3(1) (Rev.2004), “either parent of the child’s parents who was not awarded custody ... or who has died ... may petition the court ... and seek visitation rights with such child.”

¶ 6. Although a grandparent has standing to petition for visitation, a natural grandparent’s statutory right to visit his grandchild is not as comprehensive as a parent’s visitation rights. Settle v. Galloway, 682 So.2d 1032, 1035 (Miss.1996). As always, the best interest of the child is the paramount consideration when determining visitation. Morgan v. West, 812 So.2d 987, 992(¶ 13) (Miss.2002). In Martin, our supreme court listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Martin, 693 So.2d at 916. The Martin court acknowledged that this list was not all-inclusive, stating that the chancellor should weigh “all circumstances and factors he [or she] feels to be appropriate.” Id.

¶ 7. The chancellor addressed all of the factors in Martin, ultimately finding that it was in the best interest of Reagan to cease visitation with Vinson. In regard to the first factor, the chancellor found that visitation with Vinson caused disruption in Reagan’s life. The chancellor noted that Reagan was unhappy visiting with Vinson and would become physically ill the week preceding the visits. Reagan testified that she had a heart condition, for which she takes medication. In regard to the second factor, the chancellor found no evidence that Vinson’s home was unsuitable. In regard to the third factor, the chancellor found that Reagan was thirteen years old, and she would take Reagan’s preference into consideration. Reagan testified that she would keep visiting Vinson if the chancellor ordered her to do so, but she would rather visit him when she chose to do so. The chancellor also noted that Reagan’s activities will increase as she grows older, possibly creating problems with visitation.

¶ 8. In regard to the fourth factor, the chancellor found Vinson to be a young grandparent in good health. In regard to the fifth factor, the chancellor found that although Vinson and his longtime girlfriend, Patty, loved Reagan, Reagan did not appear to have the same emotional attachment to Vinson. However, the chancellor put most of the blame on Elizabeth for instilling in Reagan a fear of Vinson. Elizabeth and Vinson had a contentious relationship at best and had not spoken with each other in approximately seven years.

¶ 9. In regard to the sixth factor, the chancellor noted her concern that Vinson and his girlfriend, Patty, had been together for almost twenty years and living together for more than ten years, but they had never officially married. In regard to the seventh factor, the chancellor found that the distance from Vinson’s house to Reagan’s was a concern because of the length of time spent in the car on visitation days. The trip from Vinson’s house to Reagan’s house took approximately one and one-half hours, and the chancellor voiced her concern over Reagan spending three hours a day in the car. In regard to the eighth factor, the chancellor found no issue due to the fact that there was no testimony that Vinson undermined Elizabeth’s discipline. In regard to the ninth factor, the chancellor found that Vinson and Patty had flexible work schedules which would not affect their visitation with Reagan.

¶ 10. In regard to the tenth factor, the chancellor was concerned about the lack of communication between the parties. The chancellor was concerned that Vinson did not know Elizabeth’s “manner of child rearing” and might not be able to handle certain situations. Although the chancellor noted that Vinson had handled certain situations in a responsible manner, she found this factor weighed against Vinson.

¶ 11. The chancellor then found that it was not in Reagan’s best interest to continue visitation with Vinson. The chancellor stated that “I don’t think it is fair to traumatize a child and make her continue to have forced visitation.... [CJhildren that age do not like to be pressured[,] and she is already feeling pressure from Elizabeth to not go and to not want to have anything to do with [Vinson].” The chancellor ceased Reagan’s visitation with Vinson and urged Vinson and Elizabeth to repair their relationship. The chancellor hoped that Reagan would want to resume visitation at some later date, rather than being forced to visit with Vinson.

¶ 12. Even though the chancellor realized that Elizabeth was the cause of Reagan’s negative feelings toward Vinson, the chancellor decided that it was in Reagan’s best interest to cease visitation. The chancellor relied heavily upon Reagan’s testimony that she did not want to be forced to visit Vinson. We note that visitation with Vinson had occurred without incident for approximately two years, and many of the instances that Elizabeth cited as causing stress to Reagan either happened approximately seven or eight years ago during Elizabeth’s divorce proceedings with Brad or were unrelated to the visitation. However, the chancellor found that it was in Reagan’s best interest to allow her the freedom to visit with Vinson when she chose to do so. The chancellor weighed the Martin factors and determined that it was in Reagan’s best interest to cease visitation. We cannot find that the chancellor abused her discretion in doing so; thus, we affirm.

II. AWARD OF ATTORNEY’S FEES TO ELIZABETH

¶ 13. In his other issue on appeal, Vinson argues that the chancellor erred in awarding Elizabeth attorney’s fees in the amount of $18,226.79. Vinson contends that the chancellor mistakenly relied upon Mississippi Code Annotated section 93-16-3(4) (Rev.2004) in awarding attorney’s fees. Section 93-16-3(4) states as follows:

Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to such child has previously been entered. If no such custody order has been entered, then the grandparents’ petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney’s fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

Section 93-16-3(2) allows grandparents who are not authorized to petition for visitation rights pursuant to section 93-16-3(1) another manner of seeking visitation. See Miss.Code Ann. § 93-16-3(2) (Rev.2004). Vinson petitioned for visitation pursuant to 93-16-3(1) and, therefore, contends that subsection (4) is not applicable to a petition filed pursuant to subsection (1). The chancellor found that the award of attorney’s fees in grandparent visitation cases is not limited to a petition filed under subsection (2).

¶ 14. In Zeman v. Stanford, 789 So.2d 798, 805(¶ 28) (Miss.2001), the grandparent filed a petition under subsection (1), and the chancellor denied attorney’s fees finding that the father had the ability to pay the attorney’s fees. The supreme court affirmed, finding that an award of attorney’s fees is “largely a matter entrusted to the sound discretion” of the chancellor, and absent an abuse of discretion, the chancellor’s decision will be upheld. Id. at 806(¶ 30). In Solomon v. Robertson, 980 So.2d 319, 322(¶ 8) (Miss.Ct.App.2008), this Court upheld the chancellor’s decision to deny the mother attorney’s fees in a grandparent-visitation case filed under subsection (1). We agreed with the chancellor’s determination that the mother failed to prove financial hardship and inability to pay. Id. These cases do not specifically discuss whether subsection (4) applies to cases filed pursuant to subsection (1), and we can find no cases that hold as such. However, these cases ultimately rested upon whether the chancellor abused his discretion in determining whether to award attorney’s fees. In the present case, we find that the chancellor did not abuse her discretion in awarding Elizabeth attorney’s fees. The chancellor found that Elizabeth did not have the financial ability to pay the attorney’s fees. Elizabeth testified that she had lost her home through foreclosure, worked at a low-paying job, and had trouble paying for Reagan’s clothes. We reiterate that subsection (4) states that the court may direct the grandparents to pay attorney’s fees to the parent “regardless of the outcome of the petition.” Miss.Code Ann. § 93-16-3(4). We affirm the decision of the chancellor awarding attorney’s fees to Elizabeth.

¶ 15. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J„ CONCURS IN RESULT ONLY.