author: CARLSON, Presiding Justice,

text:
    Robert W. KENNEDY v. ILLINOIS CENTRAL RAILROAD COMPANY.
    No. 2008-CA-01831-SCT.
    Supreme Court of Mississippi.
    March 11, 2010.

      John Timothy Givens, Timothy W. Porter, Ridgeland, Patrick C. Malouf, William S. Guy, McComb, C.E. Sorey, II, Wayne Dowdy, Magnolia, attorneys for appellant.
    Lonnie D. Bailey, Glenn F. Beckham, Greenwood, attorneys for appellee.
   ON MOTION FOR REHEARING

CARLSON, Presiding Justice,

for the Court:

¶ 1. The motion for rehearing filed by Counsel for the Appellee, Illinois Central Railroad Company is granted. The prior opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. Robert W. Kennedy filed this action against Illinois Central Railroad Company pursuant to the Federal Employers’ Liability Act for damages he incurred as a result of alleged exposure to asbestos. After the defense rested its case-in-chief during the course of the trial, the Pike County Circuit Court directed a verdict on the issue of damages in favor of Illinois Central Railroad Company, and thereafter entered a final judgment, from which Robert W. Kennedy has appealed to this Court. Finding error, we reverse the trial court’s judgment in favor of Illinois Central Railroad Company and remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. Robert Kennedy was an employee of Illinois Central Railroad Company (Illinois Central) from 1948 until his retirement in 1992. Kennedy allegedly developed asbestosis, and on August 31, 2006, he filed suit against Illinois Central claiming exposure to asbestos while an employee of Illinois Central in McComb. Kennedy alleged that, pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C.A. § 51 (2009), Illinois Central was negligent, inter alia, for failing to provide him with a reasonably safe workplace and failing to warn him of the hazards of exposure to asbestos.

¶ 4. On August 25, 2008, the jury trial of this matter commenced in the Pike County Circuit Court, Judge Michael M. Taylor presiding. At the conclusion of all the evidence, on August 29, 2008, Judge Taylor directed a verdict in favor of Illinois Central, stating, in part:

The evidence is simply, in the Court’s opinion — even when viewed under the very deferential standard that the Court’s called upon to exercise in this case, and accepting as true all the Plaintiffs evidence, there is simply nothing to tie an award — certainly an award of economic damages to, and nor (sic) has the Court heard anything to tie an award of noneconomic damages to. And so for those reasons the Court will grant the Motion for Directed Verdict.
And I probably didn’t speak precisely there. And it’s not so much a question — obviously pain and suffering are always difficult to quantify, and they’re not subject to any sort of absolute calculation. My saying that there was no rational basis for any — to support an award goes more to another issue. And, like I say, I explained it probably poorly, which is to say that I did not hear testimony from the witness stand, even in view — accepting as true everything your witnesses said, with all reasonable inferences flowing from that, that Mr. Kennedy would be better off today without asbestosis. And that’s the basis of my ruling is that I understand you’re saying he would be, and asbestosis is not a good thing and — but there’s no — I did not hear — there is not in the record testimony to support an award that Mr. Kennedy would be better off today without asbestosis, that he would be in any different condition than he is now.

Subsequently, on October 20, 2008, the trial court entered its Judgment on Motion for Directed Verdict and dismissed the case with prejudice. As a result, Kennedy perfected this appeal.

DISCUSSION

¶ 5. Kennedy presents but one issue for this Court to decide.

WHETHER THE CIRCUIT COURT ERRED IN DIRECTING A VERDICT FOR ILLINOIS CENTRAL RAILROAD COMPANY ON THE ISSUE OF DAMAGES.

¶ 6. In reviewing directed verdicts, this Court’s standard of review is de novo. Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1069 (Miss.2005) (citing Skrmetta v. Bayview Yacht Club, Inc., 806 So.2d 1120, 1124 (Miss.2002); Morgan v. Greenwaldt, 786 So.2d 1037, 1041 (Miss.2001)). “In reviewing a motion for a directed verdict this Court must decide whether the facts presented, together with any reasonable inferences, considered in the fight most favorable to the nonmov-ing party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.” Robley v. Blue Cross/Blue Shield of Miss., 935 So.2d 990, 996 (Miss.2006) (citation omitted). “If we find that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Morgan, 786 So.2d at 1041-42 (citation omitted).

¶ 7. This claim was brought under FELA, which provides in pertinent part that:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C.A. § 51.

¶ 8. This Court has stated that “ ‘[t]o prevail under the Act, a plaintiff must prove that (1) the defendant is a common carrier by railroad engaged in interstate commerce; (2) he was employed by the defendant with duties advancing such commerce; (3) his injuries were sustained while he was so employed; and (4) his injuries resulted from the defendant’s negligence.’ ” Canadian Nat’l/Ill. Cent. R.R. Co. v. Hall, 953 So.2d 1084, 1090-91 (Miss.2007) (quoting Smith v. Med. & Surgical Clinic Ass’n, 118 F.3d 416, 419 (5th Cir.1997)). FELA is founded on common-law concepts of negligence and injury. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 2404, 129 L.Ed.2d 427 (1994). However, “FELA supplants an employer’s common law duty with a ‘far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.’ ” Canadian Nat’l/Ill. Cent. R.R. Co., 953 So.2d at 1091 (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 507-08, 77 S.Ct. 443, 449, 1 L.Ed.2d 493, 500 (1957)).

¶ 9. Kennedy argues that a significantly lower burden of proof is imposed upon the plaintiff under FELA; however, Illinois Central asserts that only the causation prong of a common-law negligence analysis is modified by FELA. “Under the statute, the plaintiffs burden of proving causation is significantly relaxed compared to the burden in an ordinary negligence action. The question is ‘whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.’ ” Id. (citing Consol. Rail Corp., 512 U.S. at 543, 114 S.Ct. 2396; quoting Rogers, 352 U.S. at 508, 77 S.Ct. 443). When there is proof, even though entirely circumstantial, from which a jury may with reason make this inference of employer negligence, the burden of the employee is met, and the obligation of the employer to pay damages arises. Rogers, 352 U.S. at 508, 77 S.Ct. 443.

¶ 10. In today’s case, the trial court ruled that there were questions for the jury with respect to duty, breach, and causation, or, in other words, that reasonable jurors could have returned a verdict for Kennedy as to these elements of a negligence claim; but, on the other hand, the trial court determined that on the issue of damages, there was no evidence to support a jury verdict for economic or noneco-nomic damages, and there was no testimony “to support an award that Mr. Kennedy would be better off today without asbestosis, that he would be in any different condition than he is now.” However, we have stated that “ ‘unless the evidence is so speculative that no reasonable juror could find more than nominal damages,’ the trial court may not direct a verdict against the plaintiff.” Tupelo Redev. v. Gray Corp., Inc., 972 So.2d 495, 516 (Miss.2007) (quoting Wall v. Swilley, 562 So.2d 1252, 1256 (Miss.1990)). Damages must be shown with reasonable certainty and should not be left to only speculation and conjecture. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1164 (Miss.1992) (citations omitted). However, a plaintiff should not be deprived of the right to recover simply because of the inability to prove with absolute certainty the extent of the loss. Id. (citations omitted). “ ‘If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.’ ” Id. (citations omitted). Further, “[t]he amount of damages to be awarded to an injured litigant is primarily a question of fact for the jury.” Edwards v. Ellis, 478 So.2d 282, 289 (Miss.1985) (citations omitted).

¶ 11. The testimony of Dr. Barry L. Whites, Dr. Arnold Brody, and Kennedy presented issues for jury determination. Dr. Whites, a pulmonologist, testified to a reasonable degree of medical certainty that he thought Kennedy suffered from asbestosis. He testified that x-rays of Kennedy’s lungs revealed linear markings which mean “fibrosis or scarring.... It can be from asbestos, it can be from other interstitial lung disease, but it is obviously an abnormality that shouldn’t be there.” Dr. Whites stated that in patients with scarring in the lung, one hears what are referred to as crackles or Velcro rales, and he further testified to hearing Velcro rales in both of Kennedy’s lungs, attributable to asbestosis. Dr. Whites also affirmed that asbestosis is a disease that may progress, and it does not regress. Further, he agreed that asbestos alone is a carcinogen and can cause cancer. Dr. Whites likewise testified that, based on a pulmonary function test done in 2003, Kennedy had “airflow obstruction, chronic airflow obstruction, he has findings here that are also consistent with asbestos-related lung disease.” According to Dr. Whites, asbestos, by itself, could cause airflow obstruction, and asbestos had reduced Kennedy’s lung reserve. Dr. Whites also testified that Kennedy’s two disease processes, emphysema and asbestosis, occurring simultaneously, had further reduced Kennedy’s lung reserve.

¶ 12. Dr. Arnold Brody, a Ph.D. researcher in the area of asbestos-related lung disease, testified by video deposition that if a person had asbestosis, the lung’s elastic tissue was replaced by scar tissue, “so a person’s lung can become stiff, and that’s when, if you measure a restrictive process, that means a person has a stiff lung, that means they are restricted from taking a deep breath.” Dr. Brody also testified to ways in which asbestosis causes shortness of breath. Kennedy testified that he was in generally good health and did not have any problems breathing when he quit smoking and retired in 1992, but he began experiencing shortness of breath in 1994. He stated that his breathing had gotten worse since he quit smoking, and he needed oxygen when doing any activities. Kennedy further testified that he once was fairly active, but could no longer quail hunt, garden, or fish as he once did because of his breathing problems. He also stated that he could no longer perform his yard work; it took all of his “wind” to crank his chainsaw or weedeater, resulting in insufficient energy to actually use his yard tools. Kennedy further testified that he had to purchase a riding lawn mower and an electric weedeater to accomplish any yard work, but even when operating a riding lawn mower, he was “in trouble” if the mower got stuck.

¶ 13. The record before this Court provides evidence from which a reasonable juror could find noneconomic damages.

“ ‘Noneconomic damages’ means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury”

Miss.Code Ann. § 11 — 1—60(l)(a) (Supp. 2009). The testimony discussed supra certainly created a question of fact for the jury with respect to pain, suffering, inconvenience, physical impairment, disfigurement, and loss of the enjoyment of life. It was undisputed that Kennedy also suffered from emphysema. However, it is a well-settled principle of tort law that the defendant must take the plaintiff as the defendant finds him. See Jordan v. Atchison, Topeka & Santa Fe Ry. Co., 934 F.2d 225, 228-29 (9th Cir.1991) (FELA case). Further, under FELA, an employer is hable for damages for injury or death at work due in whole or in part to the employer’s negligence. Canadian Nat’l/Ill. Cent. R.R. Co., 953 So.2d at 1091 (citation omitted).

¶ 14. We are thus constrained to find that the evidence favorable to Kennedy and the reasonable inferences which could be drawn from the evidence presented questions for the jury, not only with respect to duty, breach, and causation, but also as to noneconomic damages. Stated differently, from the evidence found in the record before us, as well as all reasonable inferences which may be drawn from the evidence, viewed in the light most favorable to Kennedy, we cannot safely say that reasonable and fair-minded jurors in the exercise of impartial judgment could have found only for Illinois Central on the issue of noneconomic damages. Tupelo Redev., 972 So.2d at 513. Therefore, we find that the learned trial judge erred in granting a directed verdict in favor of Illinois Central at the conclusion of the presentation of the evidence in this case.

CONCLUSION

¶ 15. Finding that the trial court erred in granting a directed verdict on the issue of noneconomic damages and entering judgment in favor of Illinois Central Railroad Company on the issue of noneconomic damages, we reverse the judgment of the Circuit Court of Pike County, and remand this case for a new trial on all issues, consistent with this opinion.

¶ 16. REVERSED AND REMANDED.

WALLER, C.J., GRAVES, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. RANDOLPH, J., NOT PARTICIPATING.

      . Robert Kennedy concedes in his brief that he did not present any evidence at trial concerning economic damages. Specifically, Kennedy asserts in his brief that "[wjhile the Appellant may not have introduced any proof of economic damages at trial, the jury was still entitled to consider the issue of noneco-nomic damages.” Thus, we focus today on the sole issue of whether the trial judge should have allowed the jury to consider an award of noneconomic damages.

      . Dr. Whites testified to a reasonable degree of medical certainty that he thought Kennedy suffered from emphysema as well.

      . Interstitial is defined as "situated between the cellular components of an organ or structure." Webster's New World Dictionary 707 (3rd College Ed. 1988).

      .This also was attributed to Kennedy's severe emphysema.


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    Michael STRINGER as Natural Father and Next Friend of Alicia Stringer, A Minor v. James T. TRAPP, M.D.
    No. 2008-CA-01192-SCT.
    Supreme Court of Mississippi.
    March 18, 2010.

      William W. Fulgham, Erin S. Rogers, attorneys for appellant.
    Robert K. Upchurch, Joshua Shey Wise, Tupelo, attorneys for appellee.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. This medical malpractice action was dismissed because the trial court determined that the statute of limitations had run before the filing of the complaint. The plaintiff appeals, arguing that the discovery rule should have served to toll the statute of limitations.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 6, 2005, the plaintiff, thirteen-year-old Alicia Stringer, sought treatment from West Point Family Medical Clinic for nausea, abdominal pains, diarrhea, and severe cramping. At the clinic, a nurse practitioner advised her to seek emergency care at the North Mississippi Medical Center (“NMMC”). In the emergency department of NMMC, Dr. Steve Noggle treated Stringer for the presenting issues, diagnosed gastroenteritis, administered medication, and discharged her.

¶ 3. For the next several days, the symptoms persisted, and, on January 10, 2005, the plaintiff again sought treatment at the West Point Family Medical Clinic, where she was advised to seek emergency care. Stringer was immediately taken to the emergency room at NMMC, where she again was examined by Dr. Noggle, and it was discovered that Stringer had extremely high levels of white blood cells, indicative of infection.

¶ 4. Dr. Noggle admitted Stringer to the hospital, where she was transferred to the care of Dr. Timothy Whittle, an obstetrician and gynecologist. Dr. Whittle’s assessments and analyses resulted in his ordering an abdominal scan for more extensive diagnostic purposes, the results of which were read by a radiologist, Dr. James Trapp. Dr. Trapp’s report of January 10, 2005, initially indicated that plaintiff had multiple “cystic masses;” however, the following day, Dr. Trapp amended his report to say that the “cysts” may, in fact, have been “abscesses,” and that the plaintiff could have been suffering from appendicitis. The plaintiff asserts that this addendum was not made available to the treating physician, Dr. Whittle, who continued to treat Stringer for gynecologic issues. According to the complaint, Dr. Whittle informed Stringer’s mother that a hysterectomy might be necessary.

¶ 5. On the morning of January 12, 2005, Stringer sought a second opinion at Oktib-beha County Hospital, where exploratory surgery was performed, revealing that Stringer was suffering from acute, gangrenous, and perforated appendicitis. Following an emergency appendectomy, the plaintiff remained hospitalized until January 21, 2005.

¶ 6. A month later, on February 23, 2005, Stringer retained counsel and on March 29, 2005, counsel for Stringer requested her medical records, which were received by Stringer’s counsel on April 14, 2005. On January 5, 2007, Stringer’s father filed suit on her behalf against NMMC, Dr. Whittle, and Dr. Noggle, alleging that they were negligent by failing to diagnose and properly treat Stringer’s appendicitis. The initial complaint did not name Dr. Trapp as a defendant, but noted that he had performed a CT scan on Stringer and had prepared a CT report, which was supplemented by an addendum.

¶ 7. On March 14, 2007, two years and sixty-one days after Stringer’s emergency appendectomy, the plaintiff amended her complaint, adding Dr. Trapp as a defendant. Dr. Trapp moved for dismissal under Mississippi Rule of Civil Procedure 12(b)(6), arguing that the statute of limitations began to run on January 11, 2005, the day he amended his report, and therefore, the limitations period expired on March 12, 2007. The trial court ordered that the motion to dismiss be converted into a motion for summary judgment. After a hearing on the matter, the circuit court found that no genuine issue of material fact existed as to whether the statute of limitations had run and granted summary judgment in favor of Dr. Trapp. Pursuant to Mississippi Rule of Civil Procedure 54(b), the trial court ruled this a final judgment for the purposes of appeal.

¶ 8. Stringer appeals from that order and presents to this Court the questions of (1) whether the trial court erred in holding that the discovery rule did not apply to toll the two-year statute of limitations of Mississippi Code Section 15-1-36, and (2) whether the trial court erred in finding that no genuine issue of material fact existed with regard to the running of the statute of limitations.

STANDARD OF REVIEW

¶ 9. The issue of whether the applicable statute of limitations has run is a question of law. Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (Miss.2004). In reviewing the grant or denial of a motion for summary judgment, the standard of review is de novo. Knight v. Terrell, 961 So.2d 30, 31 (Miss.2007). If no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law, summary judgment should be entered in that party’s favor. Id. The burden is upon the moving party, and the evidence should be viewed in the light most favorable to the nonmov-ing party. Id.

ANALYSIS

¶ 10. On appeal, Dr. Trapp contends that the statute of limitations began to run on January 12, 2005, when Stringer discovered she needed an appendectomy rather than a hysterectomy. Stringer asserts that, although she was aware of the potential misdiagnosis on January 12, 2005, the statute of limitations with regard to Dr. Trapp did not begin to run on that date, because she had never met with Dr. Trapp, nor had she been aware of his involvement with her treatment.

¶ 11. Pursuant to the governing statute, Mississippi Code Section 15-1-36(1), an action for medical malpractice must be brought “within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” Miss.Code Ann. § 15-1-36(1) (Rev. 2003). To determine when a plaintiff can be said to have sufficient knowledge to commence the running of the statute of limitations, this Court has espoused the following: “The operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986); see also Huss v. Gayden, 991 So.2d 162, 165 (Miss.2008). Said another way, the statute of limitations is tolled by the discovery rule until the plaintiff (1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury. Smith, 485 So.2d at 1053.

¶ 12. The question of whether a statute of limitations is tolled by the discovery rule often turns on the factual determination of “what the plaintiff knew and when.” Huss, 991 So.2d at 168. Thus, “[ojccasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion.” Smith, 485 So.2d at 1053.

¶ 13. In this case, Dr. Trapp argues that the discovery rule should not apply to toll the statute of limitations, because the plaintiff discovered she had appendicitis, a known nonlatent injury, on January 12, 2005, during emergency surgery. However, while the latency or non-latency of an injury may be viable issues, they are not in this case.

[I]n the medical malpractice context, the discovery rule may apply in cases where the injury is not latent at all, but where the negligence which caused the known injury is unknown. For instance, a patient who undergoes a medical procedure may develop serious complications which are clearly known. However, if the patient has no reason to know that the doctor's negligence in performing the procedure caused the complications, the discovery rule will apply, even though the injury itself is not latent at all.

Sutherland v. Estate of Ritter, 959 So.2d 1004, 1008-09 (Miss.2007).

¶ 14. The trial court noted in the order granting summary judgment that the present case “seems to be entirely on-point with” Joiner v. Phillips, 953 So.2d 1123 (Miss.Ct.App.2006). Yet, upon closer inspection, the distinctions between Joiner and this case become obvious. In Joiner, Daisy Joiner brought a medical malpractice action against several named defendants and John and Jane Doe defendants for their alleged negligence during and after a surgical procedure. Id. at 1125. Nearly two years after filing her complaint, the plaintiff substituted a radiologist, Dr. Phillips, and his practice group for the Doe defendants. Id. The trial judge granted summary judgment in favor of Dr. Phillips and his group, finding that the two-year statute of limitations had run, and the Court of Appeals affirmed. The Court of Appeals noted that Joiner was “aware that Dr. Phillips had some involvement in her treatment” from the beginning of her treatment, “even if that involvement was only his taking or interpreting x-rays.” Id. at 1126-27. The opinion also noted that Joiner did not exercise “due diligence” in investigating her case when she did not request her medical records until nearly two years after her treatment. Id. at 1127.

¶ 15. Thus, Joiner is distinguishable from this case on two primary grounds. First, unlike the present case, Joiner always knew of the radiologist’s existence and involvement in her treatment, even if she believed the involvement to be minimal. Second, Joiner did not diligently seek her records.

¶ 16. Here, it is undisputed that Dr. Trapp never met with Stringer, and Dr. Trapp makes no assertion that Stringer was made aware of his involvement in her treatment until she received her medical records on April 14, 2005. Moreover, Dr. Trapp concedes that Stringer exercised reasonable diligence in seeking her medical records. Yet the factual questions of “what the plaintiff knew and when” remain unanswered. Huss, 991 So.2d at 168. Accordingly, the trial court erred in dismissing the cause of action against Dr. Trapp at the summary judgment level.

CONCLUSION

¶ 17. The ruling of the trial court granting summary judgment in favor of Dr. Trapp is reversed, and this cause is remanded for proceedings consistent with this opinion.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER, AND PIERCE JJ., CONCUR.

      . Dr. Trapp acknowledges that, although he was not a named defendant in the initial complaint, he was given notice of Stringer’s claim by letter dated January 5, 2007.

      . This date is calculated by adding two years and sixty days to the alleged January 11, 2005, discovery date. Miss.Code Ann. § 15-1-36 (Rev.2003); see also Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1276-77 (Miss.2006) ("the reasonable interpretation of Sections 15-1-36(15) and 15-1-57 requires that the sixty-day notice period may not be used in calculating the statute of limitations, whether notice is given before or during the final sixty-day period of the statute of limitations”). Dr. Trapp argued at the hearing on the motion to dismiss and argues on appeal that the statute of limitations began to run on January 12, 2005, and that the statute of limitations expired on March 13, 2007; however, the variance in his argument does not affect the disposition of this case.


author: LEE, P.J.,

text:
    UNITED PLUMBING & HEATING COMPANY, INC., Price’s Glass & Mirror Co., Inc., James Thomas d/b/a T’s Tile, Carr Plumbing Supply, Inc., Ricky Jackson d/b/a Jackson Sheet Metal & Welding, Tommy Meadows d/b/a F & M Construction, Precision Ceiling, LLC and Ronnie Deforest, Appellants, v. AMSOUTH BANK, sometimes identified as Regions Bank as successor from the merger with AmSouth Bank f/k/a Deposit Guaranty National Bank, Appellee.
    No. 2007-CA-01944-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.
    Rehearing Denied Dec. 1, 2009.
    Certiorari Denied March 18, 2010.

      William W. Fulgham, attorney for appellants.
    J. Jeffrey Trotter, David W. Donnell, Jackson, attorneys for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. W.D. Russum planned to build a Wee Care Child Care Center (Wee Care) in Byram, Mississippi, and selected Am-South Bank to finance the project. Rus-sum and AmSouth entered into a loan agreement in which Russum agreed to repay the funds loaned for the project and grant AmSouth the project’s deed of trust. Russum then chose United Plumbing & Heating Company, Inc. (United) to serve as the project’s general contractor. Rus-sum and United subsequently entered into agreements that acknowledged AmSouth’s limited role as lender in the project and specified AmSouth would have no liability for Russum’s payment or performance associated with the project. The two parties also agreed that AmSouth’s duties were strictly limited to those outlined in the loan agreement between AmSouth and Russum.

¶ 2. In 2003, United employed several subcontractors to perform various tasks during the building process. As progress was made, United asked Russum to release funds borrowed from AmSouth through pay applications. AmSouth hired FAS, a construction management company, to oversee the pay applications on the project. United and Russum also executed an agreement consenting to FAS’s role. Wee Care then filed for bankruptcy, and the contractors went unpaid. United, Price’s Glass & Mirror Co., Inc.; James Thomas d/b/a T’s Tile; Carr Plumbing Supply, Inc.; Ricky Jackson d/b/a Jackson Sheet Metal and Construction; Tommy Meadows d/b/a F & M Construction; Precision Ceiling, LLC; and Ronnie DeForest (collectively referred to as United) subsequently filed suit against Russum, Wee Care, AmSouth, and FAS in the Circuit Court of Hinds County asserting various claims including breach of contract, negligence, stop-notice violation, fraud, and quantum meruit.

¶ 3. AmSouth filed a motion for summary judgment, which was granted by the trial court. United now appeals the summary judgment and asserts that the trial court erred in (1) reading Mississippi Code Annotated section 31-3-15 (Rev.2008) to require the construction contract to be null and void, (2) finding that no claims for breach of contract could be maintained against AmSouth, and (3) granting summary judgment in favor of AmSouth.

STANDARD OF REVIEW

¶ 4. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547(¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995).

¶ 5. The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987) (citation omitted).

DISCUSSION

I. INTERPRETATION OF MISSISSIPPI CODE ANNOTATED SECTION 31-3-15

¶ 6. In its first issue on appeal, United argues that the trial court incorrectly found that the construction contract entered into between Wee Care and United was null and void under Mississippi Code Annotated section 31-3-15. Section 31-3-15 states:

No contract for public or private projects shall be issued or awarded to any contractor who did not have a current certifícate of responsibility issued by said board at the time of the submission of the bid.... Any contract issued or awarded in violation of this section shall be null and void.

¶ 7. The trial court found that even though United held a current certifícate of responsibility, it was not the appropriate certificate for the work United contracted to perform. The trial court stated in its findings:

There are no regulations, minutes, or orders promulgated by the Board that interpret whether or not “certificate of responsibility” in § 31-3-15 means any certificate or the specific certificate necessary to work on a particular project. However, the Court believes that the rules, orders, and minutes of the Board implicitly accept this Court’s interpretation that § 31-3-15 is designed to enforce the overall purpose of the Act. Thus, ... the Court interprets § 31-3-15 to mean that a contractor must have a specific certificate of responsibility to prevent the contract being null and void.

United argues that the language of the statute simply refers to “a current certificate of responsibility” and does not require any certain classification. Thus, United asserts that since it held a current certificate of responsibility issued by the State Board of Contractors of the State of Mississippi (Board), regardless of which classification, the contract with Wee Care was valid.

¶ 8. Despite not specifying if a specific certificate of responsibility is required by statute, the Board is given the power by this section of the code “[t]o adopt rules and regulations setting forth the requirements for certificates of responsibility, the revocation or suspension thereof, and all other matters concerning same....” Miss. Code Ann. § 31 — 3—13(f). The duty of the Board is to “conduct an objective, standardized examination of an applicant for a certificate to ascertain the ability of the applicant to make practical application of his knowledge of the profession or business of construction in the category or categories for which he has applied for a certificate of responsibility.” Miss.Code Ann. § 31-3-13(a). The Board has “the power and responsibility to classify the kind or kinds of works or projects that a contractor is qualified and entitled to perform under the certificate of responsibility issued to him. Such classification shall be specified in the certificate of responsibility.” Miss.Code Ann. § 31-3-13(g). Finally, Mississippi Code Annotated section 31-3-21(1) (Rev.2008) states, “It shall be unlawful for any person who does not hold a certificate of responsibility issued under this chapter ... to submit a bid, enter into a contract, or otherwise engage in or continue in this state in the business of a contractor, as defined in this chapter.”

¶ 9. According to the Rules and Regulations of the State Board of Contractors, the Board has seven major classifications of work from which an applicant for a certificate of responsibility must choose: building construction; highway, street, and bridge construction; heavy construction; municipal and public works construction; electrical work; mechanical work; and specialty work. State Board of Contractors Rule 2(b). According to Rule 2(a) of the Rules and Regulations of the State Board of Contractors, an applicant for a certificate of responsibility “will not be classified or permitted to bid on or perform a type or types of work not included in his request.” The Rules go on to state the penalty for bidding on a project outside of the applied for classification as follows:

In any case in which a holder of a Certificate of Responsibility has bid outside the classification contained in his, her or its Certificate of Responsibility, the Executive Secretary of the State Board of Contractors shall notify each holder to appear before the Board at its next regular meeting and show cause, if possible, why the holder’s Certificate of Responsibility shall not be suspended.

State Board of Contractors Rule 5.

¶ 10. Norman Brooks, executive secretary of the Board, testified by affidavit that he reviewed the Board’s records for the legal classifications of United and found that it held the following specialty classifications: asbestos abatement or removal; heat, air conditioning, and ventilation; plumbing; and renovations. Brooks testified that an entity contracting to do work as a construction manager must have a certificate of responsibility in construction management or the major classification of building construction. See State Board of Contractors Rule 19. An exception is made to the specific classification requirement when the project is a private project totaling less than $100,000. Miss. Code Ann. § 31 — 3—1(b) (Rev.2008). An exception is also made when at least fifty percent of the total cost of the project is for work within the particular specialty classification held. State Board of Contractors Rule 4. According to Brooks, since United did not have a certificate of responsibility in either classification and no exception was claimed, United was not licensed to do work as a prime contractor, subcontractor, or sub-subcontractor as a construction manager.

¶ 11. We find that the contract entered into between United and Wee Care was null and void because United failed to possess the appropriate certificate of responsibility for the type of work it undertook to perform. Having found that United’s contract with Wee Care was void, it follows that any contractual obligations AmSouth may have owed the subcontractors are also void. Therefore, we find that this issue is without merit.

II. BREACH OF CONTRACT

¶ 12. In its second issue on appeal, United argues that the trial court erred in finding no claims for breach of contract against AmSouth. In order to establish a breach of contract claim, United bore the burden of proving: (1) the existence of a valid and binding contract between it and AmSouth, (2) that AmSouth breached the contract to which it was a party, and (3) that United was damaged monetarily. Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1175(¶ 35) (Miss.Ct.App.2007). United claims it entered into a valid contract with AmSouth through the “Subordination Agreement” as well as other agreements that granted AmSouth broad project powers and various project duties.

¶ 13. Questions concerning the construction of a contract are questions of law to be reviewed by the trial court. Miss. State Highway Comm’n v. Patterson Enters. Ltd., 627 So.2d 261, 263 (Miss.1993). Here, the trial court found that no contractual relationship was formed between the parties. The trial court further concluded that AmSouth failed to enter into any relationship with United which would hold AmSouth liable for damages. The trial judge stated, “The relationships of the parties to this action are clear: the subcontractors contracted with United, who contracted with the Owner. Am-South’s contracts regarding its loan were with the Owner, not with the plaintiffs ... without any privity of contract with Am-South, [the] plaintiffs cannot establish a claim for breach of contract.”

¶ 14. We find that AmSouth possessed no contractual relationship with United. Therefore, we find it unnecessary to address the other contractual arguments pertaining to breach found in United’s brief. Thus, this issue is without merit.

III. SUMMARY JUDGMENT

¶ 15. In its third issue on appeal, United argues that the trial court erred in granting AmSouth’s motion for summai'y judgment because it has a valid negligence claim. United argues that AmSouth had a duty to protect it from an unreasonable risk of damage and that AmSouth breached that duty which ultimately caused it damage. United attempts to bolster this argument by claiming that AmSouth failed to investigate why Russum asked Am-South to withhold payments designated for United or to follow AmSouth’s own dispute resolution policies. United also claims the proper standard of care owed to them by AmSouth was that of “reasonable diligence.”

¶ 16. We disagree with United’s argument and hold its negligence claim invalid as a matter of law. We find no contract, statute, or law that would establish that AmSouth had a duty to (1) pay money to a party it was not obligated to pay; (2) investigate or contradict a valid request made by its client, Russum; or (3) adhere to its own dispute resolution policies when United was neither a client nor a party to any valid contract involving Am-South. As to United’s reasonable-diligence argument, the supreme court held in Riley Building Supplies, Inc. v. First Citizens National Bank, 510 So.2d 506, 509 (Miss.1987), that a reasonable-diligence duty only applied to lien-priority disputes and did not create a common-law duty between banks and contractors. Therefore, absent an owed duty in a negligence claim, United’s tort claim is without merit.

¶ 17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. CARLTON AND MAXWELL, JJ., NOT PARTICIPATING.


text:
    Cherelle L. GERMAN a/k/a Cherelle Lamar German, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01277-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied March 18, 2010.

      George T. Holmes, Jackson, attorney for appellant.

      Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 12, 2008, a jury in the Lafayette County Circuit Court convicted Cherelle L. German of felony child abuse. German was sentenced to forty years, with ten years suspended, thirty years to serve in the custody of the Mississippi Department of Corrections and five years of supervised probation. German filed several post-trial motions, including a motion for a new trial, a motion for a judgment notwithstanding the verdict, and a motion to reconsider sentencing. The trial court denied all of German’s post-trial motions. German now appeals, asserting the following issues: (1) his trial counsel was ineffective; (2) the trial court should have excluded the evidence related to a polygraph test; and (3) the verdict was contrary to the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. Toya Hilliard and German are the parents of Makia German. On November 6, 2005, in Oxford, Mississippi, Hilliard was at work and had left Makia, who was two months old at the time, and Nevin, her two-year-old son, at home with her mother and German. German was asleep when Hilliard left for work. At some point that morning, Hilliard’s mother left the children with German. Hilliard came home that afternoon for approximately two hours before returning to work. Hilliard spent that time with Makia and noticed nothing out of the ordinary. Hilliard arrived home from work at approximately 7:30 p.m. and noticed that Makia was fussy, would not eat, and had bruises on her face. German told Hilliard that he had gone to another room for a few minutes and left Makia in a bouncy seat on the floor. Hilliard’s son was also in the room. German told Hilliard that he heard Makia cry, and upon returning to the room, he saw Makia’s bouncy seat turned on its side.

¶ 3. Alarmed by Makia’s condition, Hilli-ard and German ultimately decided to take Makia to the emergency room at the local hospital. Dr. Jason Waller, an emergency room physician, examined Makia and noticed bruising on both sides of the child’s face. Dr. Waller, noting that the bruises were inconsistent with falling out of a bouncy seat, ordered a CT scan of Makia’s head. Dr. Waller, suspecting child abuse, had a nurse notify a social worker. The Lafayette County Sheriffs Department was also notified.

¶ 4. Dr. Waller stated that the CT scan showed bleeding around Makia’s brain. Dr. Waller determined that Makia’s injuries were life threatening and arranged to have Makia transported to the pediatric intensive care unit at Le Bonheur Hospital in Memphis, Tennessee. Dr. Waller also testified that, as a result of her brain injury, Makia was severely developmentally disabled. Makia is blind; she cannot sit up; she must be fed through a feeding tube; she cannot walk or talk; and she has seizures.

¶ 5. Detective Scott Mills of the Lafayette County Sheriffs Department was dispatched to the emergency room that night. Detective Mills first took photographs of Makia and then interviewed Hilliard and German separately. Holly Jeffrey of the Mississippi Department of Human Services was also present. In addition to the facts as recited above, German also told Detective Mills that when he went back into the room after hearing Makia cry, Nevin was attempting to set the bouncy seat back upright. German also told Detective Mills that he watched Makia for fifteen or twenty minutes to make sure that she was not hurt.

¶ 6. After Makia was taken by helicopter to Le Bonheur, Hilliard and German went back to Hilliard’s home to pack to travel to Memphis. Detective Mills accompanied them in order to view the scene of Makia’s injury. Hilliard signed a consent for Detective Mills to search her home. Detective Mills took photographs of the house and the bouncy seat. German also demonstrated for Detective Mills what had occurred that afternoon.

117. Dr. Greg Stidham, a pediatric intensive care physician at Le Bonheur, testified that Makia’s injuries included bleeding over the surface of the brain, swelling of the brain, retinal hemorrhages, facial bruising, and a skull fracture. Dr. Stid-ham testified that Makia was also having seizures from the brain injury. According to Dr. Stidham, Makia’s injuries were not likely caused by a fall from a bouncy seat. Dr. Stidham testified that the bleeding over the surface of the brain, the swelling of the brain, and the retinal hemorrhages were “almost exclusively caused in an infant under [one] year of age by a severe shake, a shake impact which would be a shake, a very vigorous, aggressive shaking with the impact of also hitting the head [on] some sort of a surface.”

¶ 8. On January 4, 2006, German again met with Detective Mills concerning Ma-kia’s injuries. Detective Mills testified that he advised German of his Miranda rights. German signed a waiver form and agreed to speak with Detective Mills. German told Detective Mills that Makia had been crying a lot that day, and her crying irritated him. German stated that he picked Makia up and shook her one time.

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 9. In his first issue on appeal, German argues that his trial counsel was ineffective. German cites several instances that he alleges show his trial counsel’s ineffectiveness. We will address each separately. First, we note that in order to successfully claim ineffective assistance of counsel, German must demonstrate that: (1) his attorney’s performance was deficient, and (2) such deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). German must show that, but for his attorney’s performance, he would have received a different outcome at the trial level. Stringer v. State, 627 So.2d 326, 329 (Miss.1993).

A. Testimony of Detective Mills

¶ 10. German contends that Detective Mills was allowed to give opinion testimony concerning Makia’s injuries without an objection by German’s trial counsel. During direct examination, Detective Mills described the photographs that he took of Makia in the hospital. These photographs were being introduced into evidence. Detective Mills stated that “you will also notice around the top of both of her eyes it appears to be redness like blood pooling behind her eyes and I observed that myself....” The State then asked Detective Mills about the injuries he observed. Detective Mills responded that “you will see the redness which [was] described to me as [sic] by the doctors as blood beginning to pool behind her eyelids.”

¶ 11. German argues that the first quote from Detective Mills’s testimony consisted of medical conclusions rather than his observations. We first note that trial counsel’s choice of whether to make certain objections falls within the scope of trial strategy. Hancock v. State, 964 So.2d 1167, 1175(¶ 18) (Miss.Ct.App.2007). We are not persuaded that Detective Mills was offering any medical conclusion that only an expert could give; thus, we cannot find German’s trial counsel was ineffective for failing to object to the first statement.

¶ 12. German’s brief focuses more on Detective Mills’s second quote and claims that Detective Mills’s repetition of what the doctors told him was hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). This statement made by Detective Mills concerning what the doctors told him was hearsay. However, we find that German has failed to demonstrate how his trial counsel’s failure to object prejudiced his defense.

B.Polygraph-test Evidence

¶ 13. German contends that his trial counsel was ineffective in eliciting testimony about German’s offer to submit to a polygraph examination. As German’s second issue concerns whether the trial court erred in allowing the polygraph testimony into evidence, we will address both issues together under Issue II.

C. Stipulation of Makia’s Injuries

¶ 14. German contends that his trial counsel was ineffective for stipulating to the fact that Makia’s injuries were “se-vei’e and profound.” German argues that the portion of the statute under which he was indicted, Mississippi Code Annotated section 97 — 5—39(2)(a) (Rev.2006), states that the injury inflicted “cause serious bodily harm.” During her testimony, Hil-liard testified about Makia’s permanent damage. German’s trial counsel objected, stating that two doctors had already testified as to Makia’s condition. The State countered that if German was willing to stipulate as to Makia’s condition, then no further questions regarding that topic would be asked. German’s trial counsel conceded. We cannot find that this action by German’s trial counsel was deficient. German’s trial counsel was attempting to prevent the jury from hearing any more testimony about the lingering effects of Makia’s injuries.

D. Circumstantial-evidence Instruction

¶ 15. Finally, German argues that his trial counsel was ineffective by failing to proffer a circumstantial-evidence jury instruction. German contends that because he did not admit to shaking Makia, then the case was circumstantial. However, German did admit to shaking Makia in his handwritten statement to the police on January 4, 2006. German’s “admission to an important element of [the] crime negates the need for a circumstantial[-]evidence instruction.” Smith v. State, 981 So.2d 1025, 1032(¶ 33) (Miss.Ct.App.2008). We cannot find German’s trial counsel deficient in this regard.

II. POLYGRAPH-TEST EVIDENCE

¶ 16. In his second issue on appeal, German argues that it was reversible error for the trial court to allow the evidence related to a polygraph test in front of the jury, notwithstanding his trial counsel’s insistence to do so. We will also address whether German’s trial counsel was ineffective in eliciting this evidence. The supreme court held in Weatherspoon v. State, 732 So.2d 158, 163(¶ 15) (Miss.1999), that “any evidence pertaining to a witness’s offer to take a polygraph [test], refusal to take a polygraph test, the fact that a witness took a polygraph test or the results of a polygraph test is inadmissible at trial by the State or by the defense.” However, we are not required to reverse in every instance in which such evidence is admitted. Id. Where the claimed error involves the admission or exclusion of evidence, we will only reverse if the error adversely affects a substantial right of a party. Stallworth v. State, 797 So.2d 905, 908(¶ 8) (Miss.2001). In determining whether the error in admitting evidence related to a polygraph is so severe as to require reversal, we must engage in a case-by-case analysis, looking to the “nature of the error and the circumstances attendant to [the evidence’s] disclosure.” Weatherspoon, 732 So.2d at 163(¶ 15).

¶ 17. During the cross-examination of Detective Mills, German’s trial counsel asked him why German was at the sheriffs department on January 4, 2006. After approaching the bench, the State informed the trial court that German was at the department to undergo a polygraph examination. German’s trial counsel stated that he wanted this information on the record for two reasons. One reason was because the jury was under the impression that German came to the sheriffs department to confess to the crime. The other reason was that the person conducting the polygraph test was not actually a person who conducts polygraph tests but who was there to interrogate German without reading German his Miranda rights. German apparently spoke with this person outside the presence of Detective Mills, and approximately an hour later, this person informed Detective Mills that German had decided to forgo the polygraph test and admit that he had shaken Makia.

¶ 18. The trial court initially refused to allow this evidence, but after much discussion with the parties and the persistence of German’s trial counsel, the trial court allowed this information to go before the jury. During German’s direct examination, much of his testimony concerned the questioning by the polygraph examiner. German was attempting to show that he was under duress from the improper questioning. German also informed the jury that he wanted to take the polygraph test, but the examiner kept interrogating him and, ultimately, told Detective Mills that German wanted to confess. German testified that he never told the polygraph examiner that he wanted to confess.

¶ 19. In terms of whether or not German’s trial counsel was ineffective for entering this evidence into the record, we conclude that this falls under the scope of trial strategy. Much of German’s defense was built around the information contained in his second statement of January 4, 2006. This second statement is the first time German stated that he shook Makia. German attempted to show the jury that he was tricked into making this statement during his interrogation by the polygraph examiner.

¶ 20. In terms of whether or not it was reversible error for the trial court to allow this evidence into the record, we find that it was not reversible error. After hearing German’s trial counsel’s reasons for introducing the evidence related to the polygraph test, the trial court stated that it understood that German was trying to establish the nature of the interrogation. “Whenever a defendant makes a calculated, tactical choice and comes out on the losing end, he cannot then shift the burden to the [S]tate or to the trial [court].” Lancaster v. State, 472 So.2d 363, 366 (Miss.1985). This issue is without merit.

III. OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 21. Although German’s last issue is styled “overwhelming weight of the evidence,” his argument and citing authorities concern whether the evidence was legally sufficient to sustain his conviction. Thus, we will determine whether the evidence was sufficient to convict German of felony child abuse.

¶ 22. A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of the motion for a JNOV. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id. Furthermore, the jury is responsible for weighing any 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).

¶ 23. German contends that he did not confess to shaking Makia; thus, the case against him was circumstantial. German claims that there is no direct evidence of the actions necessary to result in the serious bodily harm of Makia. However, German admitted in a handwritten statement that he had shaken Makia. Although German did not admit to the severity of the shaking, there was testimony from two doctors that Makia’s injuries could not have been caused by a fall from a bouncy seat. One physician specifically stated that Makia’s injuries were exclusively caused by a severe shake with the impact of her head hitting a surface. German admitted that he was the only adult present when Makia’s bouncy seat supposedly overturned. From the evidence presented, we find that reasonable, fair-minded jurors could have concluded that German was guilty of felony child abuse. This issue is without merit.

¶ 24. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF FORTY YEARS, WITH TEN YEARS SUSPENDED AND THIRTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

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

      . Makia's first name is spelled inconsistently throughout the record. For clarity, we will refer to the child as "Makia." Likewise, her brother’s name is spelled “Neven” and "Nev-in” in the record. We will refer to him as "Nevin.”

      . German was actually at the sheriff's department because he was in custody on a misdemeanor charge. The polygraph test had been scheduled for January 5, 2006, but since German was there, he agreed to take the polygraph test a day early. Apparently, Hilliard, German, and Hilliard's mother were all scheduled to take a polygraph test on January 5.


author: IRVING, J.,

text:
    Claudine BROWN, Individually and as Administratrix of the Estate of Charles Brown, Deceased and on Behalf of All Wrongful Death Beneficiaries of Charles Brown, Deceased, Appellant, v. PROGRESSIVE GULF INSURANCE COMPANY, Appellee.
    No. 2008-CA-00028-COA.
    Court of Appeals of Mississippi.
    Aug. 11, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied March 18, 2010.

      James W. Nobles, Jackson, James Kevin Littleton, Travis T. Vance Jr., for Appellant.
    Cecil Maison Heidelberg, Ridgeland, Ginny Y. Kennedy, for Appellee.
   IRVING, J.,

for the Court.

¶ 1. Claudine Brown (Brown), adminis-tratrix of the Estate of Charles Brown, appeals from the judgment of the Yazoo County Circuit Court granting Progressive Gulf Insurance Company’s (Progressive) motion for summary judgment and denying hers. Brown asserts that the circuit court erred in finding that an insurance policy issued by Progressive to S & S Trucking, Inc. (S & S Trucking), with Scott Penn, Inc. (Scott Penn) named as an additional insured, did not provide any coverage for her decedent, Charles Brown.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Charles and Jessie Woods were killed on November 8, 2005, when the tractor-trailers that they were driving collided. At the time of the accident, Woods was an employee of Alma Frances McLean (Frances) and was driving a tractor-trailer that she owned. Frances’s husband, Henry McLean, operated a logging business, and the truck that Woods was driving was used in that business, although neither Frances nor Henry had liability insurance on the truck. As part of the business operation, Henry produced and hauled wood for Scott Penn. Scott Penn had an arrangement to sell wood to International Paper Company (International Paper) pursuant to a Master Wood Purchase and Service Agreement.

¶ 4. The agreement reads, in pertinent part, as follows:

[Scott Penn] undertakes and agrees to sell, deliver, cut, controvert, and/or transport to [International Paper] or other designated destinations, and [International Paper] undertakes and agrees to purchase and/or accept from [Scott Penn], those certain quantities of pulpwood, saw timber, in-wood chips, residual chips, chip mill chips, fiber fuel, poles, pulling or other forest products. ...

The agreement also provides as follows: “[w]hen [Scott Penn] is transporting [w]ood, pursuant to this Agreement, [Scott Penn] agrees to furnish a sufficient number of safe and operationally sound tractors, trailers, and other transportation equipment of sufficient capacity, together with licensed, and insured, competent drivers.” Further, as it relates to insurance, the agreement states in pertinent part:

Insurance: [Scott Penn] shall carry, with insurers satisfactory to [International Paper], during the term hereof, Auto Liability Insurance, including either “owned, hired and non-owned vehicles” or “hired, non-owned and scheduled vehicles,” with limits of not less than $1,000,000, combined single limit, for both bodily injury liability and property damage liability each occurrence .... Prior to commencing operations hereunder, a Certificate of Insurance evidencing such coverage, satisfactory to [International Paper], shall be furnished to [International Paper], which shall specifically state that such insurance shall provide for at least ten (10) days’ notice to [International Paper] in the event or cancellation or any material change in such insurance policies.

¶ 5. To meet its insurance obligations under the agreement, Scott Penn purchased an insurance policy from Ed Sanford Insurance Agency (Ed Sanford), an agent for Progressive. Christine Somrak, manager of administrative claims support for Progressive, testified by deposition that Ed Sanford did not request coverage for hired and non-owned vehicles in the application that it submitted for Scott Penn. Somrak further testified that the policy issued by Progressive, which was for the period of April 4, 2005, to April 4, 2006, did not contain hired and non-owned vehicle endorsements. Additionally, neither Woods nor the truck that he was driving at the time of the accident was listed on any of Scott Penn’s insurance policies with Progressive. Nevertheless, Ed Sanford issued two certificates of liability insurance to International Paper, one to International Paper’s Vicksburg, Mississippi facility and the other to its Canton, Mississippi facility. Both of the certificates indicated that “hired” and “non-owned” vehicles were covered by the policy. Somrak testified that Ed Sanford had no authority to issue the certificates and that Progressive was not aware that the certificates had been issued by Ed Sanford.

¶ 6. On December 6, 2005, Brown filed a wrongful death action, individually, and on behalf of Charles’s beneficiaries. Brown sought damages for Charles’s death based on her assertion that Woods negligently caused the accident by driving his tractor-trailer into the southbound lane and colliding head-on with the tractor-trailer being driven by Charles. After several amendments, the complaint finally listed the following defendants: Frances, the Estate of Jessie Woods, Progressive, and Scott Penn. In the complaint, Brown alleges that Frances and Scott Penn are liable for Woods’s negligence under the doctrine of respondeat superior. She sought a declaratory judgment that “[the] [Progressive] automobile liability insurance policies ... which named [Scott Penn] as an additional named insured, provided automobile liability insurance indemnity to [Scott Penn], Frances McLean and Jessie Woods, Deceased as ‘insureds’ under said policy for the wreck in question.”

¶ 7. Ail defendants responded by filing their separate answers in which they generally denied the material allegations of the complaint and asserted affirmative defenses. Progressive and Scott Penn later filed motions for summary judgment. Brown also filed a motion for summary judgment, contending that no genuine issue of material fact existed as to whether file tractor-trailer that she owned, which Woods was driving at the time of the accident, was covered by the policy issued to S & S Trucking for the benefit of Scott Penn.

¶ 8. The circuit court denied Brown’s motion for summary judgment, granted Scott Penn’s motion, and dismissed the action against Scott Penn with prejudice, finding that “Defendant Scott Penn, Inc., has no liability to Plaintiff for the accident and/or death at issue.” The circuit court also granted Progressive’s motion, dismissing all of Brown’s claims against it. The circuit court found that no genuine issue of material fact exists as to either Brown’s claims of coverage under the policy issued to S & S Trucking or to Progressive’s claim of non-coverage. The court then entered a judgment in favor of Progressive pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure. It is from this judgment that Brown now appeals.

¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. Our standard of review as it relates to summary judgment is well settled:

[An appellate court] conducts de novo review of orders granting or denying summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996).

Henderson v. Un-Named Emergency Room, 758 So.2d 422, 424(¶ 7) (Miss.2000).

¶ 11. Brown’s core argument is that the policy issued to S & S Trucking covered hired and non-owned vehicles and that the vehicle that was owned by Frances and driven by Woods at the time of the accident qualifies as either a hired or non-owned vehicle, subject to coverage under the policy. In support of her argument, Brown relies on three things: (1) the certificates of liability insurance issued by Ed Sanford to S & S Trucking indicating that hired and non-owned vehicles were covered under the policy for the period of April 4, 2005, to April 4, 2006; (2) a letter from Progressive to S & S Trucking, dated March 14, 2006, acknowledging the loss that occurred on November 8, 2005, involving Woods, an unlisted operator, and advising that it had added Woods to the policy and assessed a surcharge for the accident; and (3) a renewal declarations page for the policy in question, listing Woods as a rated driver for the renewal period: April 4, 2006, to April 4, 2007.

¶ 12. Before we begin our analysis, we make a few pertinent observations and recount some relevant undisputed facts. First, as we have already noted, there is a disclaimer on the face of each of the certificates of liability upon which Brown relies. The disclaimer clearly states: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. The certificate does not amend, extend or alter the coverage afforded by the [policy]....” Second, the March 14, 2006, letter is silent as to retro-activity. Third, notwithstanding the renewal declarations page that was sent to Scott Penn, Scott Penn did not renew the policy that added Woods as an insured driver. Fourth, it is not disputed that Ed Sanford was an agent for Progressive and that he had the apparent authority to issue the certificates. Fifth, Woods was not, and had never been, an employee of Scott Penn. Sixth, at the time of the accident, Scott Penn was not leasing or renting the vehicle that Woods was driving. Seventh, the policy issued by Progressive does not contain a hired vehicle endorsement. Eighth, Scott Penn was dismissed from the lawsuit, and International Paper was never made a party to the lawsuit. Mindful of these observations and undisputed facts, we now address Brown’s contention that the circuit court erred in denying her motion for summary judgment and granting Progressive’s.

¶ 13. We first observe that if it were International Paper making a claim for indemnification against Scott Penn or Scott Penn making a claim for coverage, our decision would be more difficult. This is because Scott Penn paid the policy premium and is listed as an additional insured on the policy and the certificates of liability insurance in question were issued to facilitate Scott Penn’s ability to conduct business with International Paper and to protect International Paper from this type of damage claim. However, resolution of this case does not require that we delve into this issue, so we will not engage in dicta.

¶ 14. As stated, Brown contends that coverage is extended to her decedent under the policy because of (1) the certificates of liability insurance issued by Ed Sanford to S & S Trucking indicating that hired and non-owned vehicles were covered under the policy for the period of April 4, 2005, to April 4, 2006; (2) a letter from Progressive to S & S Trucking, dated March 14, 2006, acknowledging the loss that occurred on November 8, 2005, involving Woods, an unlisted operator, and advising that it had added Woods to the policy and assessed a surcharge for the accident; and (3) a renewal declarations page for the policy in question, listing Woods as a rated driver for the renewal period: April 4, 2006, to April 4, 2007.

¶ 15. We find that Brown’s reliance is misplaced. First, Somrak stated in her deposition that Ed Sanford did not request coverage for hired and non-owned vehicles in the application that he submitted on behalf of Scott Penn, and no such coverage was provided in the policy that was submitted pursuant to the application. Second, it is clear from the face of the certificates of liability insurance that Ed Sanford issued that they do not expand the coverage afforded under the policy because they are not endorsements. Rather, they are intended merely as an explanation of coverage, even though in this instance, they misstated the scope of the coverage. Nevertheless, even if we were to accept that the certificates of liability insurance bound coverage, Brown still cannot prevail. We explain.

¶ 16. Chris Scullin, a commercial automobile casualty manager at Progressive, testified via deposition that although the certificates show coverage for hired and non-owned autos, it is Progressive’s position that the vehicle that was driven by Woods does not qualify as an insured vehicle under the definition of a non-owned auto, as defined in the policy, or as a hired vehicle as defined in Progressive’s hired auto endorsement. We have carefully examined the definition of non-owned auto that is contained in the policy and the definition of hired auto as provided in the specimen hired-vehicle endorsement. We agree with Progressive.

¶ 17. The hired vehicle endorsement defines a hired auto as “an auto which is not owned by [Progressive], registered in [Progressive’s] name, or borrowed from [Progressive’s] employees and which is obtained under a short-term rental agreement not to exceed thirty (30) days.” Clearly, the vehicle driven by Woods is not covered by this definition. Therefore, there is no need for further discussion of the “hired auto” provision as it relates to coverage. We look now to see whether coverage is provided under the provision for non-owned auto. The policy defines a non-owned auto as follows:

“Non-owned auto” means any auto which is:

a. not owned by or registered to you, your nonresident spouse or a resident of the household in which you reside;
b. not hired, owned by or borrowed from your employees or members of their households; or
c. Not hired by you or an employee of yours, and if you are a person, not hired by a resident of the household in which you reside unless it is specifically listed on the policy Declarations.

Clearly the vehicle driven by Woods fits within the description of a non-owned auto. However, this is not the end of the discussion, as the policy contains the following rider:

EMPLOYERS NON-OWNERSHIP LIABILITY
We agree with you that the insurance provided under the Bodily Injury and Property Damage Coverages of the Policy for your insured auto applies to any non-owned auto used in your business by any of your employees, subject to the following provisions:
1. Insureds. The “insured” provisions under the Bodily Injury and Property Damage Coverages apply to the insurance provided by this endorsement except that none of the following is an insured with respect to a non-owned auto:
a. the owner of a non-owned auto and any agent or employee of that owner.
b. an executive officer of yours with respect to an auto owned by him or a member of his household.

¶ 18. It is unquestionably clear that, although the vehicle which was involved in the accident in question is a non-owned auto as defined in Scott Penn’s policy, coverage for the vehicle is excluded by the policy because it was owned by Frances and driven by her employee. The non-ownership liability rider specifically provides that the owner of a non-owned auto and the employee of the owner, with respect to the bodily injury and property damage provisions of the policy, are not insureds as that term is defined in the policy.

¶ 19. We next address Brown’s contention that the renewal declarations page of the proposed renewal policy and the letter that Progressive sent to Ed Sanford and S & S Trucking raise genuine issues of material fact regarding insurance coverage for Frances’s vehicle that was involved in the accident. We find that there are several reasons why these two facts are not material to the question of whether coverage existed on Frances’s vehicle on the date of the accident. First, as noted, the renewal declarations page that Brown references is for a policy that was set to commence five months after the occurrence of the accident in question. Second, the policy was not renewed. It is true, as Brown argues, that the declarations page lists Woods as a rated driver. However, the policy that was in force on the date of the accident does not list Woods as a rated driver. When the renewal declarations page was prepared on March 15, 2006, it is clear that Progressive was not aware that Woods was deceased because it listed him as a rated driver for a policy period to begin on April 4, 2006, and end on April 4, 2007. The fact that Woods was listed prospectively does not mean that he was covered retroactively, as Brown contends. The question regarding retroactivity brings the discussion to the letter, dated March 14, 2006, that was sent by Progressive to S & S Trucking. The letter reads, in pertinent part, as follows:

A loss occurred on the above referenced policy on 11/08/05. Our investigation revealed that the driver at the time of [the] loss was Jesse Woods, an unlisted operator. We have added this driver to the policy along with a surcharge for the accident.

¶ 20. Somrak testified that Progressive did not extend coverage to Woods for the accident and that he was added by a customer service representative when the policy came up for renewal. Somrak explained as follows: “The policy was coming up for renewal at this time and that is when our customer service [representative] reviews the policy and noted that there was a loss and there was a loss with an unlisted driver and they were adding him going forward.” Somrak further explained that the customer sendee representative did not know that Woods was deceased. As for Brown’s contention that Woods was added to the policy retroactively, Somrak was asked the following question: “Okay. Now, before this customer service department issued document 1619, that’s the document where — -I’m sorry, 1609, that’s the document where Jesse Woods was added to the policy retroactively for the accident in question?” Somrak responded, “He was not added retroactively.” There is nothing ambiguous about the letter regarding the effective date of coverage for Woods. While the letter stated that a loss had occurred on the policy and that a surcharge had been added, this language merely indicates that a claim had been made against the policy as a result of an accident by an unlisted driver. In no way does this language raise a material issue regarding coverage at the time of the accident.

¶ 21. Lastly, Brown has cited several cases that speak to the issue of the proper treatment of ambiguous contracts. We see no need to discuss the holding in any of those cases because we see nothing ambiguous about the policy provisions in question. Additionally, Brown also has cited cases from another jurisdiction which construe the phrases “hired auto” and “non-owned auto” in policies that provide bodily injury and property damage to persons engaging in logging operations. It is sufficient to say that we have examined each of those cases and find that they are easily distinguishable in that they do not contain the employer’s non-ownership liability rider as does the policy in the case before us.

¶ 22. In conclusion, we find that the circuit court did not err in finding that no genuine issue of material fact exists with respect to whether Frances or her employee, Woods, are covered under the policy issued to S & S Trucking with Scott Penn listed as an additional insured. We further find that the circuit court did not err in finding that the policy issued to S & S Trucking provides no coverage for Frances or Woods. Therefore, we affirm the judgment of the circuit court granting summary judgment in favor of Progressive and denying Brown’s motion for summary judgment.

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

KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ., concur. LEE, P.J., Not Participating.

      .Hugh Scott Perm, owner of Scott Penn, testified that S & S Trucking was one of several entities created by Sanford Insurance Agency to avoid putting too many trucks on a single insurance policy because there was a limit on the number of trucks that Progressive would insure on a single policy. The S & S Trucking policy named Scott Tenn, Inc. rather than Scott Penn as an additional insured. However, all parties agree that the intended additional insured was Scott Penn, and there is no allegation that Scott Penn was not covered under the S & S Trucking policy.

      . Although Woods’s first name is spelled throughout the pleadings as "Jessie,” the insurance documents and the witnesses for Progressive, which will be discussed later, have his first name listed as "Jesse.” We have chosen to leave the spelling as indicated.

      . The accident occurred shortly after Woods had delivered a load of wood to International Paper’s facility in Redwood, Mississippi. Hugh testified at a deposition that there was no written contract between Henry and Scott Penn.

      . A copy of the form commercial vehicle policy, along with the policy declarations page, that was issued to S & S Trucking was attached to Progressive’s motion for summary judgment. Neither the form policy nor any of its endorsements provided coverage for hired vehicles.

      . At the time of the accident, Progressive insured a number of commercial vehicles specified on several policies of insurance that listed Scott Penn as an additional insured.

      .Although the certificates indicate that coverage was in place for hired and non-owned vehicles, it should be noted that the face of each certificate bears the following disclaimer: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage provided by the polices below.”

      . Prior to the filing of the lawsuit, neither Scott Penn nor Frances had reported the accident to Progressive. The record reflects that Brown’s attorney notified Progressive about the accident on or about February 15, 2006, which was more than three months after the accident.

      . Brown alleged that the McLeans and Scott Penn were involved in a joint venture to produce wood for International Paper. Later, in a memorandum in support of her motion for summary judgment, Brown abandoned her joint venture argument and stated that "[Scott Penn] is not needed to reach the liability insurance coverage [issue], [since] there is no need to prove agency or joint venture. [Scott Penn's] Motion for Summary Judgment is confessed as to those issues.”

      . As already noted. Woods was killed in the accident on November 8, 2005.


author: ROBERTS, J.,

text:
    John Albert WOODS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01279-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 18, 2010.

      G. Eric Geiss, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. On January 24, 2007, a jury sitting before the Harrison County Circuit Court found John Woods, Jr., guilty of one count of statutory rape, one count of sexual battery, and two counts of unlawful touching of a child under the age of sixteen. Post-trial, Woods filed an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Aggrieved, Woods appeals and argues that his rights under the Double Jeopardy Clause of the United States Constitution were violated because his convictions for unlawful touching of a child under the age of sixteen merged with his conviction of sexual battery. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. While attending a family birthday party in April 2005, Karmen Smith (Kar-men), along with her mother, noticed her seven-year-old niece, T.S., walking awkwardly. When the two women asked T.S. why she was walking “that way,” T.S. burst into tears and then continued to cry as they urged her to tell them what was wrong. Karmen then took T.S. into a bedroom to determine why T.S. was upset. After removing T.S.’s pants, Karmen observed a “creamy yellowish discharge” between T.S.’s legs. Karmen continued questioning T.S. about what had happened, and T.S. stated, “Sweet did it.” “Sweet” is the nickname T.S. called Woods. Woods was a long-time family friend, and he sometimes slept on the couch in the living room of T.S.’s home. Woods had stayed at T.S.’s home the night before the birthday party.

¶ 3. After T.S.’s mother observed T.S.’s condition and heard the same account as Karmen, the police were called, and T.S. was taken to the emergency room of Memorial Hospital in Gulfport, Mississippi for evaluation. T.S. had sustained injuries to her labia majora, the outside fold of her vagina, and medical tests revealed that T.S. had contracted gonorrhea. Woods also tested positive for gonorrhea.

¶ 4. T.S. described the incident to Kar-men and her mother; she was interviewed numerous times by police and medical personnel; and she testified in court. T.S. consistently stated that the night before the party, while she was sleeping on the living room floor, Woods laid down beside her, molested her, and attempted to have sexual intercourse with her. T.S. told Woods “it hurt” and “to stop,” and Woods got up and went back to the sofa.

¶ 5. T.S. also stated that, at some point after the incident in the living room, she went to her mother’s bedroom and got into bed with her mother. Woods later followed T.S. into the bedroom and began to touch her buttocks again. When T.S. told him to stop, Woods returned to the living room. Woods also threatened T.S. When Karmen told T.S. that they were going to call the police, T.S. resisted stating: “No. He said that he was going to kill me if I told.” At trial, T.S. testified that she was scared of Woods.

¶ 6. Woods was indicted on five counts: Count I, statutory rape in violation of Mississippi Code Annotated section 97-3-65(l)(b) (Rev.2006); Count II, sexual battery in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev.2006) for “inserting his finger into the anus” of the victim; Count III, sexual battery in violation of Mississippi Code Annotated section 97 — 3—95(l)(d) for “inserting his finger into the vagina” of the victim; Count IV, touching a child for lustful purposes in violation of Mississippi Code Annotated section 97-5-23(1) (Rev.2006) for touching the victim’s vagina: and Count V, touching a child for lustful purposes in violation of Mississippi Code Annotated section 97-5-23(1) for touching the victim’s buttocks. Woods was convicted on all counts, with the exception of Count III, which was dismissed by the trial judge at the close of the State’s case, and he was sentenced to serve a total of fifty years in the custody of the Mississippi Department of Corrections (MDOC). From his convictions and sentences, Woods files this appeal.

DISCUSSION

¶ 7. Claiming that his constitutional rights have been violated, Woods raises one issue on appeal. He argues that Mississippi law regards “touching” as a lesser-included offense of sexual battery with penetration. He also asserts that his “convictions] of both touching and sexual battery with digital penetration of the anus.... merge for the purposes of [the] Double Jeopardy Clause of the United States Constitution.” With this view in mind, Woods argues that his “rights under the Double Jeopardy Clause have ■ been violated, [and] his conviction [and sentence for touching] should be reversed.” We disagree. We will discuss the loathsome facts as briefly and succinctly as possible to verify that our evaluation and application of the law is correct.

¶ 8. “We apply a de novo standard of review to claims of double jeopardy.” Boyd v. State, 977 So.2d 329, 334(¶ 14) (Miss.2008) (citation omitted). “The constitutional protection at issue, commonly known as the double-jeopardy clause, is enforceable against the states through the Fourteenth Amendment. Its protection prohibits, inter alia, multiple punishments for the same offense.” Id. at (¶ 15). “[A] conviction can withstand [a] double-jeopardy analysis only if each offense contains an element not contained in the other.” Id. at (¶ 16) (citation omitted). “If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both.” Id. (citation omitted).

¶ 9. The only issue Woods raises on appeal relates to his conviction of sexual battery under Count II, and for touching a child for lustful purposes under Count V, wherein he was convicted for touching T.S.’s buttocks. Woods relies upon Friley v. State, 879 So.2d 1031 (Miss.2004), which established that touching may be a lesser-included offense to some types of sexual battery. Woods is accurate in his recitation of Friley’s holding, but a review of the record and other applicable case law reveals that Woods’s actions, which took place in T.S.’s mother’s bedroom, are not shielded by Friley. First, we briefly recap the facts of Friley in order to distinguish the facts of the instant case.

¶ 10. Friley involved the sexual battery and molestation of a nine-year-old girl while she was swimming in a pool at her grandmother’s home. Friley, 879 So.2d at 1032(¶ 2). The child was sexually assaulted by Friley, who was servicing the pool, when he “cornered her, placed a plastic bag in front of her face, put his hand in the bottom of her swimsuit, and inserted his Anger into her vagina.” Id. Friley was convicted of the lesser-included offense of molestation or touching, and the case was reversed and rendered, finding that the trial court erred when it found the crime of molestation to be a lesser-included offense of sexual battery. Id. at 1033 (¶¶4, 5). The supreme court reinstated the trial court’s judgment holding that “[w]here penetration has been achieved by touching a child under the age of [fourteen], molestation is a lesser-included offense of sexual battery.” Id. at 1035(¶ 18). Unlike Fri-ley, the record indicates that Woods’s cidmes against T.S. were not confined to one event or act.

¶ 11. As stated, T.S. was questioned by Karmen and her mother, interviewed several times by police officers and medical personnel, and testified in court. T.S. unwaveringly recounted that while she was sleeping on the living room floor, Woods lay down beside her, “put his hand in her butt,” then tried to “put his stuff in her stuff,” and she told him “it hurt” and “to stop.” T.S. said that Woods did stop at that time and went back to the sofa. However, he later followed her into her mother’s room, where she had gotten into bed with her mother, and began to “feel her butt” again. The record supports that the second incident of touching was in violation of Mississippi Code Annotated section 97-5-23.

¶ 12. We note that “[t]he molestation statute requires a showing of intent in that the State must prove that a defendant’s actions were done “with ... purpose.’” Friley, 879 So.2d at 1035(¶16). However, “[i]t is well settled that intent can be inferred from a defendant’s actions.” Id. (citation omitted). Considering that Woods had raped T.S. earlier in the living room, we, along -with the jury, make a reasonable inference that his second incidence of “touching” T.S. was with the purpose of gratifying his lust or indulging his depraved licentious sexual desires.

¶ 13. The record does not reveal how much “touching” of T.S.’s buttocks may have occurred before or in connection with Woods committing sexual battery against T.S., but it is clear that T.S. repeatedly described a second incident of “touching for lustful purposes” when Woods pursued her a second time, after she had removed herself from his presence. “[I]t is well-settled that separate acts, [against the same victim][,] ... committed close in ... time to one another, may constitute separate criminal offenses.” Hughery v. State, 915 So.2d 457, 459(¶ 10) (Miss.Ct.App.2005) (citing Clemons v. State, 482 So.2d 1102, 1106 (Miss.1985)).

¶ 14. We find that Winters v. State, 814 So.2d 184 (Miss.Ct.App.2002) is analogous to the case at bar. Winters, a twenty-five-year-old man, lured a fourteen-year-old boy into an abandoned house where he performed oral and anal sex upon the boy. Id. at 186(¶ 2). Winters was indicted and convicted of two counts of sexual battery, “one for the act of oral sex and the other for the act of anal sex.” Id. Even though Winter’s acts were part of the same lurid intent and scheme upon the fourteen-year-old boy, we found that he nonetheless committed two separate acts with distinct elements that had to be proven; therefore, they constituted two separate crimes. Id. at 190(¶ 23). The same is true in the instant case.

¶ 15. Woods sexually assaulted T.S. in the child’s living room when he committed statutory rape. He sexually assaulted her again when he committed sexual battery by inserting his finger into her anus. He committed the crime of unlawful touching when he touched her vagina, before raping her, for the purpose of indulging his depraved licentious sexual desires. Just as Winters committed a second crime of sexual battery, Woods committed a second crime of touching for the purpose of indulging his depraved licentious sexual desires when he waited and then went to T.S.’s mother’s bedroom and began to “feel [T.S.’s] butt” again. These were two separate acts or encounters between Woods and T.S. Consequently, these acts constituted two separate crimes. Id. at 190(¶23). Friley is not applicable to the second crime of touching committed by Woods, as there was not a second sexual battery conviction in which the lesser-included offense of touching could merge into. We are mindful that “[t]he State may not obtain [a] conviction on separate, independent multiple charges without offering separate and independent proof to sustain each charge.” Clemons, 482 So.2d at 1106. However, it is clear from the record that evidence was presented by numerous witnesses that T.S. consistently described a second act of touching at a different time and in a different location of the house: The State presented separate and independent proof of each charge. It is of no significance that the indictment or judgment does not specify that the second “touching” charge was for the unlawful “touching” that Woods committed in the bedroom, rather than the living room.

CONCLUSION

¶ 16. The supreme court has stated, “the Fifth Amendment protection against double jeopardy encompasses three separate sub-protections: (1) protection against a second prosecution for the same offense following an acquittal; (2) protection against a second prosecution for the same offense following a conviction; and (3) protection against multiple punishments for the same criminal offense.” Gibson v. State, 818 So.2d 372, 375(¶ 10) (Miss.Ct.App.2002) (Citing Thomas v. State, 711 So.2d 867, 870(¶ 14) (Miss.1998)). The record clearly evinces two separate acts of touching by Woods. Pursuant to the precedent of Hughery and Winters, we find that Woods has not suffered a second prosecution for the same offense, nor has he suffered multiple punishments for the same criminal offense. Therefore, we find that Woods’s constitutional rights have not been violated. Accordingly, we find this argument is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF COUNT I, STATUTORY RAPE, AND SENTENCE OF THIRTY YEARS; COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS TO RUN CONCURRENTLY WITH COUNT I; COUNT IV, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO COUNTS I AND II; AND COUNT V, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO COUNTS I, II, AND IV, ALL IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . We will protect the identity of the minor by calling her T.S. and by not disclosing T.S.'s mother’s name.

      . As well as verbally telling relatives and police that “Sweet” had sexually assaulted her, T.S. also identified Woods in a police photographic lineup.

      . The trial judge found that T.S., who was eight years old at the time of trial, was competent to be a witness under Mississippi Rule of Evidence 601. The trial judge stated that T.S. appeared to understand what was going on; she was intelligent enough to answer questions appropriately; she understood the importance of telling the truth; and she appeared to remember enough of the event to testify. In the course of her testimony, T.S. indicated that an individual named "Sweet” touched her on her “privates.” The trial judge ultimately made a determination that there were substantial indicia of reliability under Mississippi Rule of Evidence 803(25) to warrant the admission of hearsay statements, made by T.S., through various witnesses.

      . Sexual battery is defined by Mississippi Code Annotated section 97-3-95, which provides in part: (1) “A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”
      And, Mississippi Code Annotated section 97-5-23, defines the crime of touching a child for lustful purposes as:
      Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent....

      . Andrea Cauley, the trained sexual-assault nurse who examined T.S., testified that T.S.'s injuries were consistent with a grown man attempting to have sexual intercourse with a child T.S.'s age. Officer Tonya Laville, the police officer who responded to Karmen’s call, testified that T.S. told her that "Sweet Pea had placed his finger into her rear,” and then “tried to put his stuff into her stuff.” Also, during several interviews with medical personnel and police detectives, through the aid of drawings of boys and girls, T.S. identified "stuff" as being in the pelvic region between one’s legs.

        . We note that the terms "molestation,” "touching,” and "fondling” may be used interchangeably, but regardless of the term used, Mississippi Code Annotated section 97-5-23 has been called the "gratificalion-of-lust” statute and/or the "unlawful-touching” statute. Friley, 879 So.2d at 1033 n. 4.

      . "The lustful touching of a child under fourteen is not necessarily a lesser[-]included offense of statutory rape. Lustful touching is, however, a lesser[-]related offense." Branch v. State, 998 So.2d 411, 417(¶ 127) (Miss.2008) (internal citations and quotation omitted). “The elements of a lesser, non-included offense are not all contained in the greater. Therefore, such an offense is not automatically charged in an indictment charging the greater.” Id. (citation omitted).