author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Reggie ELLIOTT and Brenda Ejimofor, as Co-Administrator and Co-Administratrix of the Estate of Joe Orlando Elliott, Deceased, Orlando Elliott, and Frankie Mitchell, as Co-Guardians of Orlandrea Elliott, a minor, Michael Elliott, and Alma Elliott v. AMERIGAS PROPANE, L.P.
    NO. 2017-CA-00133-SCT
    Supreme Court of Mississippi.
    August 2, 2018
    ATTORNEY FOR APPELLANTS: JAY MARSHALL ATKINS, Oxford
    ATTORNEYS FOR APPELLEE: MICHAEL J. TARLETON, Ridgeland, WARREN HORN
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. An undetected flammable gas ignited and caused an explosion at the Elliotts' home. Because the Elliotts believed the flammable gas was natural gas from a broken municipal pipeline, they filed suit against the city. They also sued the chain of vendors that supplied the city with natural gas and related products. But a few years into litigation, the defendants began pointing to the propane gas tank in the Elliotts' yard. The defendants insisted propane gas-not natural gas-was the source and cause of the explosion. While the Elliotts and their experts adamantly denied that propane gas caused the explosion, the Elliotts amended their complaint, adding claims against the propane gas vendor. They did so, not because they sought to prove propane gas caused the explosion, but to avoid the risk of fault being apportioned to a nonparty-or, as they put it, to cut off an "empty chair defense."

¶ 2. But their reason for joining the propane gas defendant is now gone. The Elliotts were able to negotiate a settlement with the municipality. And summary judgment was previously granted to all of their targets-the Natural Gas Defendants-which have all been dismissed. So the Elliotts have no need to assert an empty chair defense.

¶ 3. The posture of this case has placed the Elliotts in a quandary, and they now attempt to change course to pursue the propane gas defendant-the defendant they admitted they did not believe caused the explosion. While our procedural law permitted the Elliotts to plead inconsistent, alternative claims that the explosion could have been caused by either natural gas or propane gas, it is not their pleadings that complicate this case. Rather, it is the decade the Elliotts spent pursuing only their natural gas claims, assuring both federal and state court judges that there was no merit or evidence supporting the propane gas theory. These various written and oral representations prompted Circuit Judge Andrew K. Howorth to find the Elliotts were bound by their cumulative admissions. Judge Howorth granted the propane gas defendant summary judgment, preventing the Elliotts from now taking an inconsistent position to pursue the propane gas defendant. Finding no error in the circuit judge's ruling, we affirm.

Background Facts and Procedural History

¶ 4. Joe and Alma Elliott's Holly Springs home exploded on April 3, 2008. Joe died as a result, and Alma, her grandson Michael, and her infant granddaughter Orlandrea were severely injured. Investigators quickly determined flammable gas had entered and accumulated in the Elliotts' home. The gas was then ignited, and, after initially starting a fire, caused an explosion. The next morning, the Holly Springs Utility Department's (HSUD) assistant superintendent investigated the scene and noticed "bubbling in the street." HSUD supplied natural gas to Holly Springs customers through an underground pipe network. Tests revealed a gas leak under Cuba Street, about sixty to seventy feet from the Elliotts' home. And one of the Elliotts' neighbors told investigators he had smelled natural gas in the neighborhood "off and on" before the explosion.

I. The Elliotts' Complaint

¶ 5. On October 14, 2008, the Elliotts filed suit against HSUD, who owned and maintained the municipal gas distribution pipelines and supplied natural gas to customers. They also sued El Paso Corporation, a natural gas supplier, and numerous John Does. As discovery progressed, the Elliotts amended their complaint six times and replaced John Does with named defendants. By their final amendment, the Elliotts had named, in addition to HSUD and El Paso, Tennessee Gas & Pipeline Company, the subsidiary of El Paso that directly supplied natural gas to HSUD. They also named Tri-State Meter and Regulator Service, Inc., which supplied HSUD with warning odorant for its natural gas, and Chevron Phillips Chemical Company, L.P., Tri-State's warning-odorant supplier. These companies became known as the "Natural Gas Defendants."

¶ 6. The Elliotts claimed the Natural Gas Defendants were negligent and supplied a defective product-the warning odorant. Their theory was that natural gas from the broken Cuba Street pipeline traveled through the ground to their home. And the allegedly defective warning odorant was removed, or adsorbed, in the process. This caused natural gas to accumulate in the house without warning, leading to the explosion.

¶ 7. The Natural Gas Defendants denied liability. They pointed out the Elliotts' home was not connected to a natural gas pipeline. Instead, their home used propane gas, supplied by a large tank in their yard. The Natural Gas Defendants asserted that the fire and explosion-which originated near a propane heater in Joe and Alma's bedroom-were caused by propane gas, not natural gas. In response to this finger-pointing by the Natural Gas Defendants, the Elliotts named AmeriGas Propane, L.P., as a defendant, claiming AmeriGas was negligent and supplied a defective product. But they did not assert propane caused the explosion. As they described it, the only reason for naming AmeriGas was to prevent an "empty chair defense."

¶ 8. Even after pleading claims against AmeriGas, the Elliotts repeatedly represented-both in state and federal court-that they were "not buying the Natural Gas Defendants' theory" about propane gas. The Elliotts instead maintained that natural gas caused the fire and explosion.

¶ 9. When the defendants sought to remove the case to federal court after AmeriGas was added as a defendant, District Judge Michael P. Mills remanded the case back to Marshall County Circuit Court. He based his remand on the Elliotts' direct assertions to him that natural gas-not propane gas-had caused the explosion. And the Elliotts represented to the judge they would only present evidence to that effect.

¶ 10. AmeriGas, with the Natural Gas Defendants joining in, had argued that when the Elliotts made claims against AmeriGas, the case had been so substantially altered that it constituted a new suit. Thus, the thirty-day removal period had been revived. See 28 U.S.C. § 1446. But the Elliotts fought against removal, representing to the federal judge that their experts "have always opined that this explosion was caused by natural gas[.]" The Elliotts assured Judge Mills they would not offer any evidence or testimony that propane caused the explosion and "AmeriGas knows it." They maintained "the addition of AmeriGas will not affect the proof presented by the plaintiffs at trial."

¶ 11. Because the Elliotts admitted they were not targeting AmeriGas, the Elliotts argued the "same factual situation" was present as had existed before AmeriGas had been sued. Thus, the removal period had not been revived. The district judge acted on the Elliotts' assurances and found that:

¶ 12. Plaintiffs' rationale in adding AmeriGas is that their attorney simply wished to avoid the apportionment of fault to a non-party at trial . Thus, the target of the Plaintiffs' attack, by their own admission, is not AmeriGas . Plaintiffs intend to present the same evidence at trial as they had planned prior to their third amendment ... [the] Plaintiffs' legal theory of the case remains the same .

(Emphasis added.) For these reasons, Judge Mills remanded the case to state court.

¶ 13. After the case was remanded, the Elliotts made later amendments, based on subsequent deposition testimony, to their claims against AmeriGas. But they consistently represented to the court-both orally and in writing-that propane gas did not cause the explosion. The Elliotts even sought to exclude evidence and expert testimony that propane gas had caused the explosion.

II. AmeriGas's First Summary-Judgment Motion

¶ 14. After remand to state court, AmeriGas filed its first motion for summary judgment. It argued the Elliotts had judicially admitted that propane gas did not cause the explosion. And even while arguing against summary judgment, the Elliotts continued to insist that natural gas had caused the explosion. The Elliotts made it clear they were actively trying to undercut the propane gas theory.

¶ 15. The Elliotts did not plead or argue that causation was unknown and therefore a jury question. Instead, it is the Elliotts' response to AmeriGas's first summary-judgment motion that perhaps best portrays their view that AmeriGas was not the target of their lawsuit. As they framed it:

¶ 16. [The] [d]efendants will present this theory to the jury as a potential explanation for how this explosion could have resulted from the ignition of propane gas, as opposed to natural gas. If the Court would like to find as a matter of law that the natural gas Defendants have failed to produce any admissible evidence that the subject explosion was caused by propane gas as opposed to natural gas ... then Plaintiffs are happy for AmeriGas to go home .

(Emphasis added.) Still, even in light of this insistence, the trial judge was hesitant to grant AmeriGas summary judgment at that stage. So AmeriGas remained a defendant.

III. AmeriGas's Second Summary-Judgment Motion

¶ 17. Meanwhile, all the Natural Gas Defendants had likewise moved for summary judgment. And Judge Howorth, with one exception, granted summary judgment in the Natural Gas Defendants' favor. Tri-State-the sole remaining natural gas defendant-appealed. So did the Elliotts.

¶ 18. On appeal, this Court in a unanimous opinion found summary judgment was appropriate for all Natural Gas Defendants. See Elliott v. El Paso Corp. et al. , 181 So.3d 263 (Miss. 2015). It was only after the Elliotts' claims against all Natural Gas Defendants were dismissed that the Elliotts switched course. At that point, they began a full-throttle pursuit against AmeriGas.

¶ 19. After this Court's decision in El Paso , AmeriGas filed a second motion for summary judgment. In it, AmeriGas asserted the Elliotts had no evidence that propane gas had caused the explosion. It also renewed its argument that the Elliotts had judicially admitted propane gas was not the cause. This time, Judge Howorth agreed with AmeriGas. He found the Elliotts' statements and briefs against the propane gas theory during litigation had compounded and were judicial admissions.

¶ 20. As Judge Howorth saw it:

[T]here is no question that the case that the plaintiff wants to present now was a case that was going to come in through the back door. Through the defendants who are not here any more. That is a fact. And that does not in and of itself mean that he can't now present that case which is what he intends to do. But it sure is a twisted way to arrive at where we are.

Judge Howorth quipped that the case "went to the Supreme Court with [a] heart beat and it came back on life support. And the question for me is whether or not it's my job to pull the plug ...." He noted "for the record that the judicial admissions to some extent are cumulative and we have more today than we had the last time we were in court." Based on these admissions and the "factors argued by ... Amerigas," he granted AmeriGas summary judgment. Judge Howorth emphasized his history with the case and "hope[d] that if [this case] is looked at again the appellate court will appreciate how difficult this is to wrestle with ...."

IV. The Present Appeal

¶ 21. The Elliotts now appeal to this Court. They argue Judge Howorth wrongly deemed their various oral and written representations to state and federal courts judicial admissions. In their view, they merely pleaded alternative claims under Mississippi Rule of Civil Procedure 8(e)(2), and AmeriGas was not entitled to summary judgment. The Elliotts further insist Judge Howorth wrongly denied their motion for a seventh amended complaint, deprived them of their constitutional right to a jury trial, and did not follow the law of the case.

¶ 22. We review de novo a trial court's grant or denial of summary judgment. Young v. Smith , 67 So.3d 732, 741 (Miss. 2011) (citing J.R. v. Malley , 62 So.3d 902, 905 (Miss. 2011) ). "Summary judgment is proper only when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law." Owen v. Pringle , 621 So.2d 668, 670 (Miss. 1993) (citations omitted). To determine whether a material fact is in dispute, "the court reviews 'all admissions, answers to interrogatories, depositions, affidavits, and any other evidence, viewing the evidence in a light most favorable to the non-movant.' " Id. (quoting Skelton v. Twin Cty. Rural Elec. Ass'n , 611 So.2d 931, 935 (Miss. 1992) ).

Discussion

¶ 23. After review, we find the record shows the Elliotts made pointed and contradictory representations about the propane gas theory in statements and briefs before both federal and state courts, and Rule 8(e)(2) does not apply. We see no error in the trial judge's ruling, as his decision was not focused on the Elliotts' pleadings but rather their representations made after the pleadings. A trial judge may certainly find oral or written representations in briefs or by counsel are judicial admissions. But even if that was not the case here, AmeriGas is still entitled to summary judgment because the Elliotts failed to meet their burden of production, since there is no causation evidence to support claims against AmeriGas.

I. The Elliotts' Propane Gas Claims

¶ 24. From the outset, this Court recognizes the trial judge, the Elliotts, and AmeriGas found themselves in a difficult case, factually and procedurally. Ultimately, Judge Howorth found the Elliotts' cumulative judicial admissions over nearly ten years of litigation entitled AmeriGas to summary judgment. He found the Elliotts had admitted that propane gas did not cause the explosion. And with no contrary evidence, they were prohibited from now changing positions.

A. Judicial Admissions

¶ 25. Judicial admissions are formal concessions in pleadings or stipulations by a party or counsel that are binding on the party making them. Martinez v. Bally's Louisiana, Inc. , 244 F.3d 474, 476 (5th Cir. 2001). While not itself evidence, a judicial admission has the effect of withdrawing a fact from contention. Id.

¶ 26. The Elliotts insist they made no admissions but instead merely pleaded alternative, inconsistent theories of liability, which Mississippi Rule of Civil Procedure 8(e)(2) permits them to do. The Elliotts are correct in one respect. Rule 8(e)(2) does permit pleading alternative, inconsistent, claims. And had Judge Howorth held against the Elliotts the inconsistent allegations in their amended complaint, then Rule 8(e)(2) would require this Court to reverse that ruling. See Henry v. Daytop Village, Inc. , 42 F.3d 89, 95 (2d Cir. 1994) (finding the court may not hold one claim "as an admission against another alternative or inconsistent claim"). But that is not what Judge Howorth did. His ruling did not hinge on the inconsistent factual allegations in the Elliotts' amended complaint. Instead, his decision was based on the numerous factual assertions that-despite what the amended complaint said-propane gas did not cause the explosion. See Purgess v. Sharrock , 33 F.3d 134, 144 (2d Cir. 1994) (holding that a trial court may hold statements by an attorney or by a party in a brief as a binding judicial admission of fact).

¶ 27. In other words, the record bears out that the Elliotts never argued that either the Natural Gas Defendants or AmeriGas were to blame. Instead, for almost ten years they represented that only the Natural Gas Defendants were responsible. So this is simply not a situation covered by Rule 8(e)(2). Rule 8(e)(2) gives no protection to a party who at every turn discounts and attempts to defeat its supposed alternate theory. See Schott Motorcycle Supply, Inc. v. Am. Honda Motor Co., Inc. , 976 F.2d 58, 61-62 (1st Cir. 1992) (holding that, because the plaintiff's factual admission "was not made in the context of an alternative or hypothetical pleading," it was not protected by Rule 8(e)(2) ).

¶ 28. Essentially, Judge Howorth estopped the Elliotts from taking a completely opposite position than the one they repeatedly took throughout the course of litigation-an action he was authorized to take. See Rankin v. Am. Gen. Fin., Inc. , 912 So.2d 725, 728 (Miss. 2005) (affirming the trial court's ruling that a plaintiff was estopped from raising in state court claims that had been abandoned in federal court for the purpose of having the case remanded). He recognized that it was a "fact" that they were now trying to push a claim "through the back door"-a claim they had asserted solely to prevent an "empty chair defense" against defendants who were no longer present.

¶ 29. The record backs up his position. Despite their amended complaints, the Elliotts had consistently represented in both state and federal court that AmeriGas was never the target of their lawsuit because there was no evidence that propane gas was the culprit. The record shows their representation to the federal judge that they did not intend to target AmeriGas gained them a remand to circuit court. Cf. id. at 729 (noting the plaintiffs had secured remand by "successfully, unequivocally, and repeatedly assert[ing] to the federal district court" that their claims were not based on federal law). And after remand, the Elliotts further represented to Judge Howorth, during AmeriGas's first motion for summary judgment, that the propane gas theory was merely an unsubstantiated defense theory. It was only in defense of the second motion for summary judgment that the Elliotts changed course and argued they intended to pursue the theory that propane gas had caused the explosion. But by this point, Judge Howorth found the Elliotts could not reverse course. See id. at 728.

¶ 30. Because we can discern no legal or factual error with his decision, we affirm. But still, we emphasize that our legal system permits flexibility-even inconsistency-in pursing a theory of liability or trial strategy. But as Judge Howorth essentially found, there comes a time when a party reaches a point of no return-when it has so thoroughly and consistently committed itself to a position that it cannot now turn back. And we cannot say that he was wrong to hold the Elliotts to the consequences of their cumulative factual assertions and representations undercutting the propane gas theory and keeping them from changing course.

B. Burden of Production

¶ 31. Even absent judicial admissions, there is yet another reason that mandates we affirm on de novo review-the Elliotts have not met their burden of production.

¶ 32. While, as the summary-judgment movant, AmeriGas must show no genuine material fact issues exist, the Elliotts must make a showing too. Because they bear the burden at trial to prove every essential element of their case, they bear the burden at the summary-judgment stage to produce evidence establishing each element. See Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88-89 (Miss. 2013). And by their own admission, they cannot meet this burden.

¶ 33. Specifically, the Elliotts themselves asserted there was no evidence that propane gas caused the explosion. For negligence claims, " '[i]t is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence.' " Herrington v. Leaf River Forest Prods., Inc. , 733 So.2d 774, 779 (Miss. 1999) (quoting Kramer Serv., Inc. v. Wilkins , 184 Miss. 483, 497, 186 So. 625, 627 (1939) ). And for products-liability claims, causation may be proven through circumstantial evidence, but a plaintiff must still prove proximate cause. See Mine Safety Appliance Co. v. Holmes , 171 So.3d 442, 450-51 (Miss. 2015) ; Smith v. Union Carbide Corp. , 130 So.3d 66, 70-71 (Miss. 2013).

¶ 34. Here, the causation expert witnesses originally designated by the Elliotts "have always opined that this explosion was caused by natural gas." And the Elliotts argued the Natural Gas Defendants' expert witnesses-cross-designated by them to testify that propane gas was the cause-were "not qualified to testify" on theories of causation or should testify only on theories of causation that were "tested by applying accepted methods of testing and observation, not those based on pure speculation." In other words, they insisted the cross-designated experts should testify only about their initial findings and conclusions that natural gas was the cause. It was for this reason the Elliotts moved to exclude expert-witness testimony or limit their cross-designated experts to testimony that natural gas-not propane gas-was the cause.

¶ 35. So even absent judicial admissions, without causation evidence, summary judgment was appropriate. The Elliotts, as "the non-moving party[,] [have] failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which [they] will bear the burden of proof at trial." Karpinsky , 109 So.3d at 89 (citation omitted).

¶ 36. This Court "may affirm the lower court's grant of summary judgment on grounds other than that which the trial court used." Kirksey v. Dye , 564 So.2d 1333, 1336 (Miss. 1990) (citation omitted). While Judge Howorth granted summary judgment specifically citing judicial admissions-and the awkward posture of naming a defendant only to prevent an empty chair defense-AmeriGas had also argued the Elliotts lacked causation evidence and had failed to meet their burden of production. After review, we find this is also true.

II. Motion for Seventh Amended Complaint

¶ 37. The grant of summary judgment is not the only decision the Elliotts challenge. After this Court in El Paso held summary judgment was appropriate for all the Natural Gas Defendants, the Elliotts, at a subsequent hearing before the trial judge, verbally moved to amend their complaint a seventh time. Without ruling on their motion, Judge Howorth instead granted AmeriGas's second motion for summary judgment. The Elliotts claim this failure to rule was reversible error. We disagree.

¶ 38. Since AmeriGas was the last remaining defendant, the grant of their motion for summary judgment contained an implicit denial of all outstanding motions. See Lucas v. Baptist Mem'l Hosp.-N. Miss, Inc. , 997 So.2d 226, 231 (Miss. Ct. App. 2008) ; see also Tollett v. City of Kemah , 285 F.3d 357, 369 n.* (5th Cir. 2002). Decisions to grant or deny "[m]otions for leave to amend complaint[s] are left to the sound discretion of the trial court." Moeller v. Am. Guar. & Liab. Ins. Co. , 812 So.2d 953, 961 (Miss. 2002) (quoting Preferred Risk Mut. Ins. Co. v. Johnson , 730 So.2d 574, 579 (Miss. 1998), overruled on other grounds ). Absent an abuse of discretion, this Court will not reverse such a decision. Id.

¶ 39. Mississippi Rule of Civil Procedure 15(a) governs motions to amend. We have liberally construed the language that "leave [to amend] shall be freely given when justice so requires" to suggest that, unless actual prejudice would result to the opposing party, leave to amend should be granted. Id. (quoting Estes v. Starnes , 732 So.2d 251, 252 (Miss. 1999) ). The Elliotts suggest, without a finding from the trial court that AmeriGas would suffer actual prejudice, the judge abused his discretion by implicitly denying their motion to amend.

¶ 40. But what the Elliotts are seeking is not an amendment to their complaint. As they maintain in their appellate brief, the proposed amended complaint "would not have altered the allegations against AmeriGas whatsoever." Instead, "it would have merely removed the alternative theory of causation against the Natural Gas Defendants." In other words, the Elliotts are asking the trial court to remove claims that this Court has already ruled fail as a matter of law. They are not adding anything to their complaint.

¶ 41. Beyond that, the Elliotts have amended their complaint six times. Three of those amendments came after AmeriGas was named to prevent an "empty chair defense." And this most recent motion to amend the complaint comes more than three years after the sixth amended complaint was filed on June 24, 2013.

¶ 42. We see no abuse of discretion here. What the Elliotts are asking for is not truly a motion to amend their complaint-certainly not as contemplated by Rule 15. And, even if the Elliotts' motion is treated as their seeking to amend their complaint, they occupy no different position now than if the motion had been granted. The claims they are seeking to remove have already been adjudged insufficient as a matter of law.

III. Right to a Jury Trial

¶ 43. The Elliotts next argue that by dismissing their claims against AmeriGas, Judge Howorth violated their constitutional right to a jury trial. Both the United States Constitution and Mississippi Constitution establish the right to trial by jury. U.S. Const. amend. VII ; Miss. Const. art. 3, § 31. But to exercise this right, there must be a factual dispute requiring a jury trial. The law is well-settled on this point. Indeed, the United States Supreme Court has held that "to preserve the court from frivolous defenses, and to defeat attempts to use formal pleading as a means to delay the recovery of just demands," rules for summary judgment are necessary and do not violate the Seventh Amendment. Fid. & Deposit Co. of Maryland v. U.S. , 187 U.S. 315, 320, 23 S.Ct. 120, 122, 47 L.Ed. 194 (1902) ; see also Parklane Hosiery Co., Inc. v. Shore , 439 U.S. 322, 336, 99 S.Ct. 645, 654, 58 L.Ed. 2d 552 (1979) (many procedures developed since 1791 have diminished the civil jury's historic domain while also being consistent with the Seventh Amendment).

¶ 44. In other words, "[n]o constitutional right to a [jury] trial exists" where a party fails to show that "some dispute of material fact exists which a trial could resolve." Oglesby v. Terminal Transp. Co., Inc. , 543 F.2d 1111, 1113 (5th Cir. 1976). This Court similarly interprets the Mississippi Constitution. The right to a jury trial is not violated when the party moving for summary judgment is entitled to a judgment by law. Towner v. Moore , 604 So.2d 1093, 1098 (Miss. 1992).

¶ 45. Because the Elliotts lack a triable case, and AmeriGas is entitled to judgment as a matter of law, the trial judge did not violate the Elliotts' right to a jury trial by granting summary judgment.

IV. Law of the Case

¶ 46. Lastly, the Elliotts suggest the judge ignored the law-of-the-case doctrine. They insist that because both the state and federal trial courts previously ruled against AmeriGas's judicial-admissions arguments, those rulings became the law of the case. This is not so. The law-of-the-case doctrine requires a dispositive, final ruling on a question of law. See Holland v. Peoples Bank & Trust Co. , 3 So.3d 94, 104 (Miss. 2008). Every case cited by the Elliotts involved an appeal, a ruling and remand by this Court, and a subsequent appeal involving the same or similar legal question. See Fortune v. Lee Cty. Bd. of Supervisors , 725 So.2d 747 (Miss. 1998) ; Simpson v. State Farm Fire & Cas. Co. , 564 So.2d 1374 (Miss. 1990) ; and Woolridge v. Woolridge , 856 So.2d 446 (Miss. Ct. App. 2003). That is not what happened here. The federal judge ruled on the Elliotts' motion to remand the case, addressing only whether the time for removal under United States Code Title 28, Section 1446, had been revived when AmeriGas was added as a defendant. The record contains no ruling by the federal court on the merits of any judicial admission argument. And while the state circuit judge denied AmeriGas's first motion for summary judgment, he was at liberty to revisit and change his ruling. "An order denying summary judgment is neither final nor binding upon the court or successor courts." Holland , 3 So.3d at 104 (quoting Mauck v. Columbus Hotel Co. , 741 So.2d 259, 268 (Miss. 1999) ). And the law-of-the-case doctrine "has no applicability where the order or judgment is not of a final character." Id. (citing Mauck , 741 So.2d at 268 ).

¶ 47. Because the order denying AmeriGas's first motion for summary judgment was neither final nor binding on the trial court, it was well within Judge Howorth's authority to revisit the issue and change his ruling. So the law-of-the-case doctrine does not apply.

Conclusion

¶ 48. For nearly a decade the Elliotts pursued the Natural Gas Defendants, consistently undercutting the propane gas theory and related claims. The circuit judge found their admissions were cumulative, and they were just too far down that road to turn back now. The Elliotts' contradictory assertions are not alternative, inconsistent claims protected by Rule 8(e)(2), and could be deemed judicial admissions or grounds for estoppel. Finding no error in those rulings, and finding the Elliotts also failed in their burden of production, this Court affirms summary judgment in AmeriGas's favor.

¶ 49. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.

      The Elliotts filed a motion in limine to exclude expert testimony that propane gas had caused the explosion. And they asserted that only "until such time as this Court grants Plaintiffs' forthcoming motion in limine to exclude [the Natural Gas Defendants' experts], the natural gas Defendants' theory of the case remains a viable one for the jury to consider and AmeriGas must remain at the table."

      Presiding Justice Dickinson authored the opinion, joined by Chief Justice Waller and Justices Lamar, Kitchens, Chandler, Pierce, King and Coleman. Presiding Justice Randolph did not participate.

      Judge Howorth was highly complimentary of Mr. Lott, who had diligently pursued the Elliotts' case for many years.

      See also City Nat'l Bank v. United States , 907 F.2d 536, 544 (5th Cir. 1990) (statements of fact in briefs, particularly summary judgment briefs, may be treated as binding judicial admissions); United States v. McKeon , 738 F.2d 26, 30 (2d Cir. 1984) (a statement by an attorney may be admissible against his or her client).

      A prime example from the record is the Elliotts' response to AmeriGas's first motion for summary judgment. The Elliotts very clearly explain, while attempting to defend against summary judgment, that they "have consistently maintained that the explosion was caused by natural gas" and that evidence propane gas caused the explosion "is completely illogical and inconsistent with the forensic evidence available to everyone in this case."

      Even if the federal trial court had denied a motion for summary judgment based on judicial admissions, that decision would not be a final judgment and therefore not subject to the law-of-the-case doctrine. See Zarnow v. City of Wichita Falls , 614 F.3d 161, 171 (5th Cir. 2010). Cf. Liberty Mut. Ins. Co. v. Wetzel , 424 U.S. 737, 744, 96 S.Ct. 1202, 1206-07, 47 L.Ed. 2d 435 (1976) (a summary judgment ruling that leaves issues or claims unresolved has never been considered a "final judgment" under 28 U.S.C. § 1291 ).


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    Connie HAWKINS, individually and on behalf of the Wrongful Death Beneficiaries of George Leith Hawkins, III, Deceased v. HECK YEA QUARTER HORSES, LLC, Wallace Heck d/b/a Heck Yea Quarter Horses, LLC and Bruce Horn
    NO. 2016-CT-00215-SCT
    Supreme Court of Mississippi.
    August 2, 2018
    ATTORNEY FOR APPELLANT: JOHN HUNTER STEVENS, Jackson
    ATTORNEYS FOR APPELLEES: PAUL PACIFIC BLAKE, Ridgeland, ROBERT P. THOMPSON
    EN BANC.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. On June 19, 2013, George "Leith" Hawkins (Hawkins), suffered a stroke while working at Heck Yea Quarter Horses, LLC (Heck Yea); he died days later. Connie Hawkins (Connie), George Hawkins's widow, sued Heck Yea and other defendants for wrongful death. The Circuit Court of the First Judicial District of Hinds County granted summary judgment and the Mississippi Court of Appeals affirmed. Hawkins v. Heck Yea Quarter Horses, LLC , --- So.3d ----, 2016 WL 9402885 (Miss. Ct. App. Jan. 13, 2016). We granted Connie's petition for a writ of certiorari to address whether the trial court and the Mississippi Court of Appeals erred in failing to take into account affidavits which create genuine issues of material fact with regard to the care Hawkins received at Heck Yea. Because we find summary judgment to have been proper, and the Mississippi Court of Appeals' analysis on the matter to have been correct, we affirm the judgment of the Circuit Court of the First Judicial District of Hinds County and the ruling by the Court of the Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 19, 2013, Bruce Horn-the manager of Heck Yea Quarter Horses-hired Hawkins to wash a wooden fence. After lunch, Hawkins complained of feeling ill. Horn stated in his deposition that he offered to call an ambulance, but Hawkins declined. Horn said he then transported Hawkins to a barn on the property in the bucket of a tractor's front-end loader and "[s]at him down in the shade in the rocking chair on ... the porch of the barn, and got him a cold drink." Horn stated that he then asked Hawkins a second time whether he wanted an ambulance, but that Hawkins again refused. According to Horn, Hawkins also declined his offer to drive him home, recounting that Hawkins said "he was feeling better; he'd be fine."

¶ 3. Horn testified in his deposition that Hawkins left Heck Yea between 3:00 p.m. and 3:30 p.m. However, in a signed affidavit, William "Kevin" Thompson (a friend of Hawkins's) said that "sometime near the end of the lunch hour" on June 19, 2013, he "was traveling north on Interstate 55 near the Hinds/Copiah county line" and recognized Hawkins and his vehicle proceeding "in the southbound lane at approximately 10 mph." According to Thompson, "[t]raffic was backed up all around him and I thought at the time someone was going to get hurt." Although he did nothing to notify police or Connie Hawkins, or otherwise attempt to assist his friend, Thompson's affidavit expressed that he "knew something was terribly wrong with [Hawkins]."

¶ 4. Connie Hawkins stated in her deposition that she arrived home some time between 4:30 p.m. and 4:50 p.m. and found Hawkins's soaking-wet clothes on the kitchen floor. She then found Hawkins in the bed with the covers pulled over his head. Hawkins told his wife that he had passed out at Heck Yea. Connie stated that she asked why nobody had called her, but "never got an answer to that." Hawkins asked his wife to rub the back of his neck, which she did. Hawkins then requested a Tylenol, for which his wife went to his truck; when she returned, Hawkins had "gotten to the couch" and was "shaking and trembling and couldn't say anything." According to Connie, Hawkins then "fell off the couch, and from then on he never said another word and he was just shaking; all over his body was shaking and jerking."

¶ 5. Connie reported her husband's distress to Emergency Medical Services at 6:44 p.m. Hawkins died in the hospital on June 28, 2013, from a stroke.

¶ 6. Connie sued Heck Yea, Wallace Heck, Bruce Horn (Heck Yea Defendants) and five John Does for wrongful death. She alleged that Hawkins had been left alone "to tend to the fence, at which time he, due to the extreme heat, passed out in the field." She continued that Hawkins's coworkers "loaded his body into the front bucket of a tractor and drove him back to the barn, where they attempted to wake him by hosing him down with a garden hose." According to the complaint, Hawkins regained consciousness "but was incoherent and unsteady." According to the complaint, Heck Yea employees told Hawkins "to get in his vehicle and drive home," which he did.

¶ 7. In her deposition, Connie admitted to receiving the information about what happened to her husband at Heck Yea from Danny Martin, who "is a farmer and he cuts and bales hay for different people." Martin had not witnessed the events of the June 19, 2013. According to Connie, "Bruce Horn and his crew" had told Martin about Hawkins's incident.

¶ 8. Heck Yea moved for summary judgment, arguing that Connie's allegations were "based entirely on inadmissible hearsay and were unsupported by any admissible evidence." Heck Yea argued that Horn's deposition testimony proved it had not been negligent.

¶ 9. Connie Hawkins responded that Horn's deposition testimony had been refuted by admissible evidence in the form of an affidavit from Brad Goodman. Goodman stated in the following in an affidavit:

I had previously done tree service work for Heck Yea .... I was aware that George Hawkins was doing some work for Bruce Horn and Heck Yea and became aware that George Hawkins had been admitted to the hospital on or about June 19, 2013, and was in serious condition.
Within a day of this occurrence, I called Bruce Horn and told him that George Hawkins was in the hospital in bad shape and further asked him what had happened. Bruce Horn responded, "initially, I thought he was going to die out there." He further stated, "I guess 'Leith' got too hot and passed out. We gave him some water and assistance, but I sure thought he was going to leave here today."
I have personal knowledge of this conversation and know that this was Bruce Horn, as he identified himself on the telephone and I have his number in my telephone and recognized his voice. On at least two occasions, Bruce Horn stated that he knew "Leith" was in a serious medical state and he thought he was going to die. He never made any mention of contacting or calling for medical assistance, 911, or even calling George Hawkins'[s] wife, Connie Hawkins, about what had occurred on June 19, 2013, while George Leith Hawkins, III, was doing work for Heck Yea and Bruce Horn.

Connie argued that "[t]his admissible evidence, admission against interest, from Mr. Goodman creates a factual dispute, making summary judgment improper." See Miss. R. Evid. 801(d)(2). In response, Horn denied ever having spoken to Goodman, saying he had "never heard of him."

¶ 10. Connie also offered an affidavit from Dr. Tiffany Scarff, a neurologist, in response to Heck Yea's motion for summary judgment. In Dr. Scarff's opinion, Heck Yea had acted unreasonably by failing to obtain immediate medical care in response to Hawkins's symptoms. Dr. Scarff provided that, "had Mr. Hawkins obtained adequate medical treatment within at least 4.5 hours before he exhibited signs of significant medical distress at Heck Yea Farm, I believe he would have had a reasonable or much higher chance of survival with less injury from the stroke." She concluded that "the failure of Mr. Horn to give appropriate aid was a contributing and causative factor in the death of George Hawkins."

¶ 11. The Circuit Court of the First Judicial District of Hinds County granted summary judgment, finding the good-samaritan statute, Mississippi Code Section 73-25-37(1), to have been dispositive. The court held that "no admissible evidence has been presented to create a genuine issue of material fact concerning the exercise of reasonable care (or alleged lack thereof) offered by Defendants to the decedent when he fell ill" and that the only "admissible evidence consistently provides that the decedent refused" the offer of an ambulance.

¶ 12. The Mississippi Court of Appeals affirmed. Hawkins , --- So.3d at ----, 2016 WL 9402885, at *2. It agreed with the circuit court that Martin's statements, to which Connie referred in her deposition, "constituted inadmissible double hearsay, since Hawkins merely repeated Martin's recollection of Horn's statements." Id. at ----, at *3. Connie did not depose or subpoena Martin to substantiate her claims. Id. The appeals court held that the "good-samaritan statute is not dispositive where the principles of negligence may also apply." Id. at ----, at *2 (citing Ladner v. Holleman , 90 So.3d 655, 658 (Miss. Ct. App. 2012) ). However, it held that Connie did not support her claim because she "failed to establish that Heck Yea's negligence was the proximate cause of George's death ...." Hawkins , --- So.3d at ----, 2016 WL 9402885, at *3. "[E]ven under the general principles of negligence," according to the Court of Appeals, "Heck Yea did not breach its duty to George [Hawkins]." Id.

¶ 13. Connie petitioned this Court for a writ of certioriari, arguing that the trial court and the Court of Appeals overlooked Goodman's affidavit. She claims that Goodman's affidavit, along with Dr. Scarff's affidavit, created a genuine issue of material fact with regard to Heck Yea's care of Hawkins following his stroke. With this evidence, Connie asserts that a jury question exists as to the standard of care the defendants provided. After due consideration, we granted her petition to address this sole issue.

STANDARD OF REVIEW

¶ 14. "When reviewing a trial court's grant or denial of motion for summary judgment, this court applies a de novo standard of review." Whitaker v. Limeco Corp. , 32 So.3d 429, 433-34 (Miss. 2010).

¶ 15. "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 forthwith be entered in his favor. Otherwise, the motion should be denied." Leslie v. City of Biloxi , 758 So.2d 430, 431-32 (Miss. 2000) (quotations omitted).

ANALYSIS

¶ 16. Connie requested this Court grant certiorari to reverse the Court of Appeals' decision, which she claims is in direct conflict with Mississippi law and the overwhelming weight of the evidence. We granted her petition and agreed to examine whether the trial court failed to consider the Goodman affidavit, and whether the affidavit revealed issues of material fact which should have prevented the trial court from granting summary judgment. After a thorough review, we find that the Court of Appeals and the trial court properly concluded that the affidavit does nothing to support an inference of negligence, making summary judgment on the matter appropriate. Therefore, we affirm the decisions of both courts.

Whether the trial court erred in its failure to consider issues of fact presented by the plaintiff's affidavits, making summary judgment improper.

¶ 17. Connie focuses her petition on the trial court's and the Court of Appeals' failure to rely upon the sworn affidavit of Brad Goodman in their rulings. She claims that Goodman's testimony includes statements admissible at trial that create a factual dispute as to whether Bruce Horn provided Hawkins reasonable care at the Heck Yea ranch. Noting that Horn's deposition supported the argument that the defendants did not breach a duty on general negligence principles, Connie claims that the Goodman affidavit indicates that Horn was aware of the severity of Hawkins's injuries and the likelihood that he was not capable of refusing treatment. As a result, the affidavit serves to contradict Horn's testimony, creating a genuine dispute to be evaluated by the factfinder.

¶ 18. The defendants disagree. Without addressing the applicability of the Goodman affidavit, the defendants argue that the Court of Appeals correctly found that Connie failed to establish the two essential elements of her negligence claim: breach of a duty owed and proximate cause of the injury endured. Without these elements, Connie's claim could not survive summary judgment.

¶ 19. The trial court and the Court of Appeals reviewed this issue in their respective rulings, finding that Connie failed to carry her burden to prove that the defendants were negligent. The trial court explained that, through Mississippi Code Section 73-25-37, the defendants acted reasonably in rendering emergency care to Hawkins and could not be held liable for the fatal result of his injuries. Noting that Connie waited to request medical support until two hours after she arrived home, the trial court determined that Horn's decision to accept Hawkins's refusal of an ambulance or medical assistance was not unreasonable and did not create an issue of fact sufficient to survive summary judgment.

¶ 20. On appeal, the Court of Appeals agreed, holding that the defendants fulfilled their duty by rendering first aid to Hawkins, and that such a duty ended when Hawkins left the ranch and Connie assumed care for her husband. Hawkins , --- So.3d ----, ----, 2016 WL 9402885, at *3 (Miss. Jan. 13, 2016). Citing Estate of White ex rel. White v. Rainbow Casino-Vicksburg Partnership , the court recognized that the defendants had a duty to render reasonable care, though "that duty abates when a competent patron refuses medical aid, and surrenders [his] care to [his] own discretion and to the judgment of [his] spouse." Id. (citing Estate of White ex rel. White v. Rainbow Casino-Vicksburg P'ship , 910 So.2d 713, 719 (Miss. Ct. App. 2005) ). With no admissible evidence indicating that Hawkins was incompetent or incoherent, the Court of Appeals determined that the defendants acted reasonably in providing Hawkins aid and then allowing him to drive home. Applying the general principles of negligence, the court held that "Heck Yea did not breach its duty to George." Id.

¶ 21. On certiorari , Connie seeks to establish that the defendant's negligence-through a breach of the defendant's duty of care-was the proximate cause of Hawkins's death. Applied to the facts at issue, Connie must show that the defendant's choice to accept Hawkins's refusals of an ambulance were both unreasonable and resulted in Hawkins's fatal injuries. See Ladner v. Holleman , 90 So.3d 655 (Miss. Ct. App. 2012) (holding that when a layman renders aid to an injured person, that layman has a duty to render the aid by using reasonable care.)

¶ 22. To carry this burden at the trial court and at the Court of Appeals, Connie used the testimony of several witnesses who were not at the scene of Hawkins's injury and were not present to observe the care rendered by Horn. Here, Connie again presents the affidavits of Brad Goodman and Dr. Tiffany Scarff as impeachment testimony and expert testimony, respectively. Connie claims that, when read together in light of Horn's deposition, the affidavits show that there is a genuine issue of material fact as to the degree of distress Hawkins was in when the defendants rendered care. While Horn described Hawkins as "fine ... feeling better," Connie claims his deposition testimony is contradicted by Goodman's account of a conversation in which Horn later admitted Hawkins "was in a serious medical state and he thought he was going to die." Further, Connie presents Dr. Scarff's affidavit to prove that such an admission against interest raises questions about the adequacy of the care rendered and Hawkins's competence to refuse such care.

¶ 23. We disagree. When a property owner voluntarily renders care to an injured party on his premises, he owes her a duty of reasonable care in that treatment. Ladner , 90 So.3d at 660. Reasonableness is a question of fact, and although the reasonableness of the aid rendered generally is a question for the jury, the trial court properly granted summary judgment. Applying the good samaritan statute, the trial court found that Horn's offers of medical assistance and his acceptance of Hawkins's refusal of those offers fulfilled any duties owed to the decedent. Likewise, the Court of Appeals properly determined that the defendants' duty to render care abated when Hawkins coherently refused the medical aid offered and surrendered his care to his spouse and himself. Hawkins , --- So.3d at ----, 2016 WL 9402885, at *3 (Miss. Jan. 13, 2016) (citing Estate of White ex rel. White , 910 So.2d 713, 719 (Miss. Ct. App. 2005) ).

¶ 24. Using the affidavits for support, Connie argues that Horn was aware that Hawkins was not capable of refusing treatment, and therefore it was unreasonable for him to send Hawkins home without medical assistance. Citing Dr. Scarff's affidavit, Connie claims that had Horn instead called an ambulance, Hawkins's injuries would have been reduced, and he likely would have survived. But any uncertainty regarding Hawkins's capacity to refuse offers of reasonable care does not render summary judgment inappropriate; this is not evidence that Horn failed to exercise reasonable care in rendering aid. Horn treated Hawkins by ushering him into the shade, providing him a seat, water, and an opportunity to rest. He twice offered him medical transport, and a third time offered him an alternative means to get home. Hawkins refused, said he was fine, and opted to drive himself home. Notably, Connie waited two hours after arriving home and tending Hawkins before she determined an ambulance was necessary. Both the Court of Appeals and the trial court found this problematic. We find that, considering the totality of the circumstances, including Connie's lack of urgency as it related to Hawkins's condition, the defendants did not unreasonably provide treatment and did not breach any duty owed to Hawkins. As a result, Connie failed to provide this crucial element of negligence, and therefore, we need not discuss causation.

CONCLUSION

¶ 25. Connie Hawkins has failed to establish that the defendants' actions in rendering aid to her husband were both negligent and unreasonable, and that such negligence was the proximate cause of his fatal injuries. As a result, we affirm the decision of the Mississippi Court of Appeals as well as the judgment of the Circuit Court of the First Judicial District of Hinds County.

¶ 26. AFFIRMED.

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

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 27. The Circuit Court of the First Judicial District of Hinds County and the Mississippi Court of Appeals erred in failing to take into account affidavits which create genuine issues of material fact with regard to the care George "Leith" Hawkins received at Heck Yea Quarter Horses, LLC, in the aftermath of his stroke. Accordingly, summary judgment was improper. Because I would reverse the judgment of the circuit court as well as the judgment of the appeals court and remand the case to the circuit court for further proceedings, I respectfully dissent.

¶ 28. As the majority recognizes, "[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made." Leslie v. City of Biloxi , 758 So.2d 430, 431-32 (Miss. 2000) (quoting Miss. Dep't of Wildlife, Fisheries, & Parks v. Miss. Wildlife Enf't Officers' Ass'n, Inc. , 740 So.2d 925, 930 (Miss. 1999) ).

¶ 29. Rule 56 of the Mississippi Rules of Civil Procedure, in relevant part, provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

M.R.C.P. 56(c). Rule 801(d)(2)(A) of the Mississippi Rules of Evidence states, in relevant part: "[a] statement ... is not hearsay ..." if "[t]he statement is offered against an opposing party and ... was made by the party in an individual or representative capacity ...." Miss. R. Evid. 801(d)(2)(A).

¶ 30. Both the circuit court and the Court of Appeals found that no admissible evidence created a genuine issue of material fact concerning the care given Hawkins at Heck Yea. But Goodman's affidavit contains statements allegedly made by Horn to Goodman, which were offered by Connie Hawkins in response to the opposing party's motion for summary judgment. Horn's statement is not hearsay under Mississippi Rule of Evidence 801(d)(2)(A).

¶ 31. Horn claimed in his own deposition to have sat Hawkins down in the shade, brought him a cold drink, and offered to call an ambulance. According to Horn, Hawkins refused the latter. Goodman's account is consistent in that Horn told him that he had given Hawkins "water and assistance." But Goodman, whom Horn claimed not to know, also related in his affidavit that Horn had told him that Hawkins "was in a serious medical state," that Hawkins had "passed out" and that he " 'thought he was going to die out there.' " According to Goodman, Horn continued that he " 'sure thought [Hawkins] was going to leave here today.' ... On at least two occasions, Bruce Horn stated that he knew 'Leith' was in a serious medical state and he thought he was going to die."

¶ 32. In addition to Horn's statements to Goodman, Connie Hawkins responded to Heck Yea's motion for summary judgment with an affidavit from Dr. Tiffany Scarff, in which she opined that, "had Mr. Hawkins obtained adequate medical treatment within at least 4.5 hours before he exhibited signs of significant medical distress at Heck Yea Farm, I believe he would have had a reasonable or much higher chance of survival with less injury from the stroke." Connie Hawkins also presented the affidavit from her deceased husband's friend, William "Kevin" Thompson, who stated that, "sometime near the end of the lunch hour" on June 19, 2013, he (Thompson)

had been "traveling north on Interstate 55 near the Hinds/Copiah [C]ounty line." Thompson recognized Hawkins and his vehicle proceeding "in the southbound lane at approximately 10 mph." According to Thompson, "[t]raffic was backed up all around [Hawkins] and I thought at the time someone was going to get hurt." Thompson "knew something was terribly wrong with [Hawkins]."

¶ 33. Horn's statements to Goodman, Dr. Scarff's affidavit, and Thompson's affidavit create genuine issues of material fact, specifically with regard to Hawkins's ability to refuse medical care on June 19, 2013. The Mississippi Court of Appeals has held that a casino was not liable to the estate of a patron who, after having fainted and struck her head at the casino, died at home later that evening "as a result of aspirating on her own vomit." Estate of White ex rel. White v Rainbow Casino-Vicksburg P'ship, L.P. , 910 So.2d 713, 719, 714 (Miss Ct. App. 2005). The court observed that casino staff had provided first aid services and that the patron had refused their offer to summon an ambulance. Id. at 719.

¶ 34. In a case in which a patron of a V.F.W. post was assaulted and injured on the premises and V.F.W. officials refused to help because they claimed to have been " 'too tied up' " at the time, this Court observed that premises owners have an affirmative duty to aid an injured patron once the premises owners learn that the patron was injured on the premises. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc. , 519 So.2d 413, 417 (Miss. 1988) ("We are of the opinion that the V.F.W. officials had an affirmative duty to aid Mabeline once they learned she had been injured on V.F.W. premises."). Ultimately, the Court affirmed the grant of summary judgment in favor of the V.F.W. because, while the patron claimed "that the V.F.W. should have provided better lighting, hired security guards, and maintained a less violent atmosphere, [the patron] ha[d] made absolutely no showing that any of these omissions was the proximate cause of the attack." Id.

¶ 35. In White , a competent patron refused medical care. White , 910 So.2d at 715. And in Grisham , this Court observed that the V.F.W. officials had an affirmative duty to provide assistance to the patron assaulted and injured on their premises. Grisham , 519 So.2d at 417. Here, affidavits from Goodman and Dr. Scarff present genuine issues of material fact with regard to the adequacy of the care Horn purportedly provided Hawkins and whether, if Hawkins did refuse medical care, he was capable of doing so.

¶ 36. The majority finds nothing in the record to a create a genuine issue of material fact with regard to Hawkins's ability to refuse medical care. Yet Dr. Scarff said in her affidavit that Hawkins would have had a significantly higher chance of surviving had he received medical care within 4.5 hours of suffering the heat stroke. And Goodman stated that Horn had told him that he (Horn) knew that Hawkins was in a serious medical state:

I called Bruce Horn and told him that George Hawkins was in the hospital in bad shape and further asked him what had happened. Bruce Horn responded, "initially, I thought he was going to die out there." He further stated, "I guess 'Leith' got too hot and passed out. We gave him some water and assistance, but I sure thought he was going to leave here today."

Goodman's statement about what Horn had told him conflicted with Horn's deposition testimony that Hawkins had not passed out. Horn had provided deposition testimony that, had Hawkins passed out, he would have called an ambulance.

¶ 37. Moreover, the existence of genuine issues of material fact is even more apparent in light of Thompson's affidavit. Thompson, a friend of Hawkins's, said that he observed Hawkins driving in an apparent state of distress at ten miles-per-hour on Interstate 55 on June 19, 2013, the day of Hawkins's heat stroke. Thompson said also that "[t]raffic was backed up all around [Hawkins's vehicle] and I thought at the time someone was going to get hurt." Thompson "knew something was terribly wrong with [Hawkins]." Thompson's observations differed from Horn's deposition testimony, which emphasized Hawkins's purported lucidity. Furthermore, Thompson said that he had observed Hawkins on Interstate 55 "sometime near the end of the lunch hour," a significant departure from Horn's deposition testimony that Hawkins had left Heck Yea between 3:00 p.m. and 3:30 p.m. on June 19, 2013.

¶ 38. The majority, as did the circuit court and the appeals court, ignores the contrary testimony and, instead, accepts Horn's statements as true and lauds the treatment Horn claims to have provided Hawkins: "Horn treated Hawkins by ushering him into shade, providing him a seat, water, and an opportunity to rest. He twice offered him medical transport, and a third time offered him an alternative means to get home. Hawkins refused, said he was fine, and opted to drive himself home." Maj. Op. ¶ 24. I do not fault Horn for having provided "water and assistance" to Hawkins, and, if his version of events is worthy of belief, for offering Hawkins an ambulance or a means of transportation home. But the veracity of Horn's statement is lessened significantly by Horn's own deposition testimony that, had Hawkins passed out, he would have called an ambulance. Accordingly to Goodman, Horn told him, contrary to his (Horn's) deposition testimony, that Hawkins had passed out, that he had "thought [Hawkins] was going to die out there," and that he had thought Hawkins was "going to leave here today." The disparity in Horn's deposition testimony and in Goodman's account of what Horn told him altogether calls into question Horn's account, as does Thompson's observation of Hawkins's hazardous driving on Interstate 55 on June 19, 2013. Had the necessary medical attention been provided in a timely manner, according to Dr. Scarff's affidavit, Hawkins would have had a significantly higher chance of survival.

¶ 39. Horn's deposition testimony and what Goodman said Horn told him-and, indeed, Thompson's and Dr. Scarff's affidavits-could not be more indicative of the existence of genuine issues of material fact which should be resolved, not by this Court, but by the factfinder. I therefore decline to join my learned colleagues in the majority in affirming the decisions of the Circuit Court of the First Judicial District of Hinds County and the Mississippi Court of Appeals.

WALLER, C.J., AND KING, J., JOIN THIS OPINION.

      Mississippi Code Section 73-25-37(1) states:
      No duly licensed, practicing physician ... or any other person who, in good faith and in the exercise of reasonable care, renders emergency care to any injured person at the scene of an emergency, or in transporting the injured person to a point where medical assistance can be reasonably expected, shall be liable for any civil damages to the injured person as a result of any acts committed in good faith and in the exercise of reasonable care or omissions in good faith and in the exercise of reasonable care by such persons in rendering the emergency care to the injured person.
      Miss. Code Ann. § 73-25-37(1) (Rev. 2017).

      The Advisory Committee Notes to Mississippi Rule of Evidence 801(d)(2) explain that the term "admissions against interest," as referenced in Connie Hawkins's papers, has been removed from the current version of the rule:
      Statements falling under the hearsay exclusion provided by Rule 801(d)(2) are no longer referred to as "admissions" in the title to the subdivision. The term "admissions" is confusing because not all statements covered by the exclusion are admissions in the colloquial sense-a statement can be within the exclusion even if it "admitted" nothing and was not against the party's interest when made. The term "admissions" also raises confusion in comparison with the Rule 804(b)(3) exception for declarations against interest. No change in application of the exclusion is intended.
      Miss. R. Evid. 801(d)(2) cmt.


author: WESTBROOKS, J., FOR THE COURT:

text:
    In the Matter of the ADOPTION OF the Minor Child Described in the Petition: J.A.G. and Wife, S.G., APPELLANTS v. C.T. and B.T., Appellees
    NO. 2016-CA-00969-COA
    Court of Appeals of Mississippi.
    November 14, 2017 Rehearing Denied March 27, 2018 Certiorari Denied June 7, 2018
    ATTORNEYS FOR APPELLANTS: OLIVER E. DIAZ JR., DAVID NEIL MCCARTY
    ATTORNEY FOR APPELLEES: GAIL D. NICHOLSON
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. This case stems from a contested adoption suit filed in Hancock County Chancery Court between maternal grandparents, J.A.G. and S.G. ("grandparents"), and foster parents, B.T. and C.T. ("foster parents"). The parental rights of G.L.'s natural parents were terminated by judgment of the Hancock County Chancery Court following an order from Hancock County Youth Court recommending termination and a finding that the minor child's best interest would be served by adoption. Subsequently, the grandparents filed a complaint for adoption, and the foster parents filed a motion for leave to intervene and an intervenor's petition for adoption of G.L. On June 21, 2016, the chancery court granted the foster parents' petition to adopt G.L. The grandparents appeal. After our review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. G.L., a minor female child, was born to T.G. (mother) and A.H. (father) on June 21, 2012. T.G. and A.H. were living in a FEMA trailer with A.H.'s mother, M.H. (paternal grandmother), in Picayune, Mississippi.

¶ 3. G.L. was removed from this home and placed in a foster home from January 14, 2013, through February 5, 2013, after T.G., A.H., and M.H. were found unconscious from ingesting or taking oxycodone, leaving G.L. alone in the home without supervision. Later in February 2013, G.L. was temporarily placed with her grandparents. G.L. stayed with her grandparents for a while, because no one else in the grandparents' family could take care of G.L.

¶ 4. The foster parents presented testimony that J.A.G. approached B.T. at work regarding taking care of G.L. The grandparents of G.L. and the foster parents were close friends, and the grandparents conceded that they were glad that someone they knew could become foster parents for G.L. In July 2013, G.L. began spending the night with B.T. and C.T. The grandparents testified that during this time, the foster parents expressed interest in becoming G.L.'s foster parents. However, according to the grandparents, permanent reunification of G.L. with her mother was always the plan.

¶ 5. B.T. and C.T. filed a Resource Family Application and completed the steps required by the Department of Human Services ("DHS") to become licensed foster parents. J.A.G. and S.G. testified that they did not become licensed foster parents, because they felt it would be an incentive for their daughter to overcome her drug addiction.

¶ 6. Dana Spiers, who was a family-protection specialist employed with DHS in 2013, testified that S.G. stated that she and her husband were not interested in becoming licensed foster parents, because they had raised other children and did not want to raise any more. She also testified that S.G. stated that her older daughter, living in Louisiana, decided she could not handle raising G.L. Further, Spiers testified that S.G. stated that she knew someone from the community that would adopt G.L., because she could not take care of G.L. on a long-term basis.

¶ 7. Tequila Hall, another family-protection specialist for Hancock County DHS in 2013, testified that S.G. told her that she and her husband were not interested in becoming licensed foster parents, because they found family friends willing to adopt G.L. However, S.G. denied she made these statements, and denied that she did not want to keep G.L. long-term.

¶ 8. Subsequently, G.L. permanently moved in with her foster parents in October 2013. During that time, the grandparents continued to visit G.L. Also during that time, G.L.'s mother, T.G., moved back in with the grandparents, and visitation with G.L. became more difficult. However, T.G. began using drugs again and eventually reentered a rehabilitation center.

¶ 9. In August 2014, the grandparents filed a petition for adoption in the Chancery Court of Pearl River County. They asserted that they obtained a lawyer and filed a petition for adoption of G.L. once they realized that T.G. would not comply with the orders from DHS to reunite with G.L. However, their petition was denied for lack of proper venue. C.T. and J.A.G. testified that they had engaged in a heated exchange after she confronted S.G. regarding their petition for the adoption of G.L. The grandparents testified that their relationship with the foster parents became strained after the confrontation, and they had to obtain an attorney to set visitation schedules.

¶ 10. In November 2014, the grandparents filed a petition for custody, termination of parental rights, and adoption of G.L. in the Chancery Court of Hancock County. In December 2014, the foster parents filed a motion for leave to intervene and an intervenor's petition for adoption. Their amended petition for the adoption of G.L. was filed in July 2015.

¶ 11. T.G. and A.H.'s parental rights were terminated, and Ralph Lee Price III ("Price") was appointed as guardian ad litem ("GAL"). The grandparents and foster parents presented evidence, and the chancellor heard the testimony from Price regarding his recommendations for the adoption of G.L. First, Price recommended that the foster parents' petition for adoption of G.L. be approved. Second, Price recommended that the grandparents and foster parents create a visitation schedule, so that the grandparents could remain in G.L.'s life. Price based his recommendation on his extensive review and investigation of G.L.'s file, which included interviews of both parties and visits to both residences.

¶ 12. Using the Albright factors, the totality of the circumstances, and considering the best interest of G.L., the chancellor granted the foster parents' petition to adopt G.L. The chancellor also strongly recommended that the foster parents allow the grandparents to visit G.L., even though the court was without authority to require the foster parents to permit visitation.

¶ 13. The grandparents contend that the chancellor erred in granting the foster parents' petition for adoption and challenge the chancellor's analysis and application of certain Albright factors. Accordingly, we will only address the factors and issues the grandparents brought before this Court.

STANDARD OF REVIEW

¶ 14. "In a case disputing child custody, the chancellor's findings will not be reversed unless manifestly wrong or clearly erroneous, or the proper legal standard was not applied." In re N.B. , 135 So.3d 220, 223 (¶ 9) (Miss. Ct. App. 2014) (quoting Mabus v. Mabus , 847 So.2d 815, 818 (¶ 8) (Miss. 2003) ). Furthermore, "[the appellate court] will affirm the decree if the record shows any ground upon which the decision may be justified." Id. (citation and quotation marks omitted).

DISCUSSION

I. Whether the chancellor erred in the "emotional ties" analysis .

¶ 15. The chancellor completed an extensive analysis of the Albright factors to determine the best interest of G.L. In determining the best interest of the child, the following factors should be considered:

Age, health, and sex of the child; a determination of the party that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of each party and responsibilities of that employment; physical and mental health and age of the parties; emotional ties with the child; moral fitness of parties; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each party[;] and other relevant factors.

In re N.B. , 135 So.3d at 224 (¶ 12) (quoting Albright , 437 So.2d at 1005 ).

¶ 16. The grandparents assert that the chancellor did not honor their emotional ties with G.L. The grandparents further assert that the chancellor did not mention the "power of their familial bond." We disagree. The following is an excerpt from the chancellor's final judgment: "While this Court recognizes the [grandparents'] biological family ties with [G.L.] and is cognizant that kinship may be a factor for consideration, there is no rule preferring a third party based on the degree of kinship."

¶ 17. We are of the opinion that the chancellor adequately addressed the grandparents' relationship as G.L.'s biological maternal grandparents. We note that the grandparents' kinship to G.L. does not require that they are given a preference for custodial or adoption purposes. The grandparents are the maternal grandparents of G.L.-not her biological parents. This Court has previously held that "we are aware of no hard and fast rule that gives preference in a custody dispute such as this to any particular litigant based solely on the degree of kinship." Loomis v. Bugg , 872 So.2d 694, 698 (¶ 17) (Miss. Ct. App. 2004). Therefore, this issue is without merit.

¶ 18. During oral argument, the grandparents asserted that they had constitutional rights as blood relatives in an adoption matter and cited Moore v. City of East Cleveland, Ohio , 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). However, they did not present this argument in their brief before this Court, and so we cannot make this determination regarding the constitutional rights of grandparents in this adoption matter even though parental rights have been terminated. This issue is not properly before this Court.

II. Whether the chancellor erred in the "parenting skills" analysis.

¶ 19. The grandparents assert that they were punished by the chancellor, because they worried that their long-term care of G.L. would disrupt their daughter's recovery from drug abuse. As a result, they argue that the "parenting skills" analysis of the Albright factors was incorrectly weighed against them. We disagree.

¶ 20. The chancellor discussed the grandparents' decision declining to become G.L.'s foster parents. They asserted that they made the decision because they thought it would be a disincentive to their daughter's rehabilitation. However, we find nothing in the record to reflect that the chancellor abused his discretion by discussing their support of their daughter.

¶ 21. The grandparents testified that their daughter would come to stay with them after her stints in rehabilitation centers. We note that the chancellor found the grandparents' daughter an issue of particular concern. The chancellor was concerned that the biological mother could remain an integral part of G.L.'s life if they were awarded custody.

¶ 22. In In re N.B. , 135 So.3d at 226 (¶ 25), this Court held: "[W]e do not find that the chancellor erred in considering the relationship the parties had with their children, current or prospective, when reconsidering their parenting skills." In re N.B. stemmed from a contested adoption suit filed in Prentiss County Chancery Court between paternal grandparents and paternal great-grandparents on behalf of biological minor twins. Id. at 221-22 (¶ 1).

¶ 23. Accordingly, we find this issue to be without merit.

III. Whether the Albright factors negatively portrayed the grandparents.

¶ 24. The grandparents assert that the chancellor portrayed their family in a negative light while analyzing four of the other Albright factors: "the physical and mental health and age of the parents," "age, health, and sex of the child," "employment of the parents," and "stability of the home."

A. The Physical and Mental Health and Age of the Parties

¶ 25. The grandparents contend that the chancellor erred in not finding that their physical and mental health and age should have been weighed equally with that of the foster parents. They maintain that no evidence was presented that their age incapacitated them from being parents.

¶ 26. In support of their assertion, the grandparents reference that there was no evidence presented for the chancellor to weigh this factor in favor of the foster parents. In fact, the chancellor noted that all parties were in good physical and mental shape. The chancellor also noted that C.T. was thirty-four years old, and B.T. was thirty-eight years old at the time, and that they were nonsmokers. The foster parents also passed their medical evaluation by the Mississippi Department of Health prior to G.L.'s placement in their home.

¶ 27. Further, the chancellor discussed that J.A.G. was forty-nine years of age, and S.G. was forty-eight years of age at the time. There was evidence presented that they were both smokers; however, they avoided smoking in their homes and automobiles. Although the chancellor stated that the foster parents' younger ages made them more compatible with raising a young child, he concluded that the factor weighed in favor of the foster parents, because they were nonsmokers. At trial, testimony was presented that G.L. suffers from asthma and uses an inhaler regularly.

¶ 28. The grandparents assert that there was no evidence presented that G.L. had ever had an asthma attack as a result of their smoking. However, the chancellor's discussion of G.L.'s asthma and the smoking habits of the grandparents is not an abuse of discretion. Moreover, this Court has upheld a chancellor's findings where smoking was considered in an Albright -factor analysis. See Davis v. Stevens , 85 So.3d 943, 950 (¶ 31) (Miss. Ct. App. 2012) ; Love v. Love , 74 So.3d 928, 934 (¶ 25) (Miss. Ct. App. 2011).

¶ 29. Therefore, we find no abuse of discretion. We agree with the chancellor's analysis of this factor. Furthermore, this Court has previously held that "the chancellor has the ultimate discretion to weigh the evidence the way she sees fit in determining where the child's best interest lies." In re N.B., 135 So.3d at 227 (¶ 33).

B. Age, Health, and Sex of the Child

¶ 30. The grandparents contend that the chancellor erred in finding that the age, health, and sex of G.L. weighed in favor of the foster parents. In support of their argument, the grandparents argue that nothing in the record described how they could not provide for a child G.L.'s age, and that the facts indicate they had been her only parents for the better part of a year when she was very little.

¶ 31. Evidence at trial revealed that G.L. was three years of age at the time. She was generally in good health; however, she occasionally struggled with asthma and used an inhaler. The chancellor noted that the foster parents have two young sons, ages eleven and seven, who reside at the home where G.L. has lived for the majority of her life. The foster parents testified that their sons were honor-roll students who were involved in sports and weekly events at church. Additionally, the foster parents testified that they take their sons to weekly practices. G.L. takes gymnastics and ballet classes, which involve weekly rehearsals. The grandparents' youngest child was nineteen years of age at the time of trial. There was no evidence to suggest that the grandparents were busy with activities with their youngest child. Therefore, the chancellor found that the foster parents led a lifestyle conducive to successful parenting of younger children and concluded that the adoptive parents' lives were centered around rearing children.

¶ 32. Accordingly, we find there is credible evidence to support the chancellor's decision, and this issue is meritless.

C. Employment of the Parents

¶ 33. The grandparents assert that the chancellor incorrectly discounted an actual advantage that should have been awarded to them. They argue that the fact that S.G. was a homemaker should have weighed in their favor, because she could have given full-time care to G.L.

¶ 34. In the chancellor's analysis, he stated that S.G. did not work outside the home, and also acknowledged that J.A.G. was a senior electrician, working approximately forty hours a week (Monday through Thursday). The chancellor also noted that B.T. had been employed for the past eight years at Air Products & Chemicals, and C.T. had managed the same dental office for over thirteen years, working Monday through Thursday. However, the chancellor determined that while S.G. could provide more daily care, G.L. was in preschool and was adequately provided for while the foster parents were at work.

¶ 35. We find no abuse of discretion with the chancellor's findings or analysis of this factor.

D. Stability of the Home

¶ 36. Further, the chancellor noted that G.L., the foster parents, and their two sons lived in a newly built, five-bedroom, three-bath home. G.L. has her own room and toys. The foster parents testified that they have a support system consisting of several family members to help care for G.L., and that G.L. was familiar with these members of their family. Therefore, the chancellor found that the foster parents had extensive family to assist in rearing G.L., whereas the grandparents presented no evidence of additional family support. As a result, the chancellor found this factor slightly weighed in favor of the foster parents.

¶ 37. Accordingly, we find no abuse of discretion with the chancellor's analysis of the factor. Furthermore, this Court has held:

An Albright analysis is not premised solely on a scoring system to determine which parent "wins," and our review for manifest error is not a mechanical check on the chancellor's score card to see if she "tallied" each parent's score correctly. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor.

In re N.B., 135 So.3d at 227 (¶ 30) (quoting May v. May , 107 So.3d 1052, 1054 (¶ 8) (Miss. Ct. App. 2013) ).

¶ 38. Additionally, the chancellor noted that there was no evidence presented that any of the parties suffered from immoral character or exhibited any immoral behavior, nor was there any evidence that the parties had been involved in any illegal activity. The chancellor stated that both families attended church regularly and enjoyed long marriages. So the argument the grandparents submit to this Court asserting that the chancellor's application of the factors showed their family in a negative light is meritless.

¶ 39. Finally, during oral argument, the grandparents conceded that the chancellor's analysis of the Albright factors did not amount to manifest error. They also conceded that the chancellor's analysis of the Albright factors was thorough, even though they did not agree with the chancellor's analysis of the factors.

¶ 40. Accordingly, after review of the record, the chancellor's written findings and judgment, and oral argument, we find that the chancellor did not abuse his discretion in his analysis of the Albright factors. The chancellor made clear findings of fact and conclusions of law for each factor after weighing the evidence, including the GAL's report.

¶ 41. AFFIRMED .

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      To protect the minor child's confidentiality, we will refer to her and the parties throughout this opinion by their initials.

      The grandparents and the foster parents live in Pearl River County; however, venue was proper in the Hancock County Chancery Court.

      Albright v. Albright , 437 So.2d 1003 (Miss. 1983).