author: RANDOLPH, Justice, PIERCE, Justice,

text:
    MADISON HMA, INC. d/b/a Madison Regional Medical Center v. ST. DOMINIC-JACKSON MEMORIAL HOSPITAL.
    No. 2009-CA-00754-SCT.
    Supreme Court of Mississippi.
    June 3, 2010.

      Andy Lowry, Thomas L. Kirkland, Jr., Ridgeland, Allison Carter Simpson, attorneys for appellant.
    Jonathan Robert Werne, Sheldon G. Alston, Edmund L. Brunini, Jr., Jackson, attorneys for appellee.
   RANDOLPH, Justice,

for the Court:

¶ 1. In the case sub judice, this Court is presented with competing contracts for the acquisition of the same property: Madison Ambulatory Surgery Center, LLC’s (“ASC”) membership interest and its assets, which included a Certificate of Need (“CON”) to exclusively operate an ambulatory center in Canton, Mississippi. St. Dominic-Jackson Memorial Hospital (“St. Dominic”) entered into an agreement to purchase ASC and its interest in the aforementioned property. As the deal was not consummated, ASC and its interests in this property were placed on the market again. ASC then entered into an agreement for Madison HMA, Inc. (“HMA”) to acquire the same interest. Subsequently, St. Dominic sued ASC to enforce the first agreement, and HMA moved to intervene in the suit to protect its interest. After the Chancery Court of Madison County denied HMA’s motion to intervene, HMA proceeded with this interlocutory appeal.

¶ 2. As intervention of right existed, this Court concludes that the chancellor erred by denying HMA’s motion to intervene. Therefore, this Court reverses that ruling and remands for further proceedings consistent with this opinion.

FACTS

¶ 3. The object of the present dispute is not only ASC’s membership interest, but also the right to operate the facility granted by the CON. The CON, issued by the Mississippi State Department of Health, permitted the construction and exclusive operation of an ambulatory center within a designated area. The Department of Health initially issued the CON to Progressive Family Medical Corporation (“Progressive”) on April 25, 2002.

¶ 4. On December 19, 2002, Progressive transferred ownership of the CON to ASC. On January 31, 2005, Heritage Banking Group (“Heritage”) issued a loan to Progressive for $2.92 million and, as collateral, Progressive granted Heritage a security interest in its business assets. In March 2008, Progressive defaulted on the loan, and Heritage initiated foreclosure proceedings on the real property. Before Progressive’s default, a Tennessee corporation, Surginet, Inc., transferred seventy-seven percent of its membership interest in ASC to Progressive, which subjected that interest to Heritage’s security interest. Thereafter, an offer to sell ASC’s membership interest was made to St. Dominic.

¶ 5. On April 28, 2008, St. Dominic sent a purchase agreement to ASC regarding the purchase of its membership interest. Two days later, the owners holding ninety-two percent of the membership interest in ASC executed a letter of agreement with St. Dominic. This agreement set a target date of thirty days after its execution for the completion of the purchase, and contained two conditions precedent which precluded any binding effect upon St. Dominic until their satisfaction. The first condition was that a final agreement for the transfer of the CON and the purchase of ASC’s building must be executed. The second condition was that the Department of Health must approve the transfer of the CON to St. Dominic. By June 24, 2008, nearly thirty days after the target date, the transaction had not been completed, and ASC sent a letter informing St. Dominic that it intended to place the CON and the building back on the market, based upon St. Dominic’s alleged failure to act. Thus, ASC took the position that St. Dominic had breached the agreement.

¶ 6. On July 8, 2008, ASC entered into a letter of intent with HMA for the purchase of its membership interest, assets, and transfer of its CON. HMA placed $80,000 in escrow for the benefit of ASC, which represented ten percent of the $800,000 purchase price. That contract reveals, in relevant part, that:

[HMA] contemplates the expenditure of substantial sums of time and money in connection with legal, accounting, financial, and due diligence work to be performed in conjunction with the proposed transaction prior to execution of Definitive Agreements ... [ASC] shall not directly or indirectly, solicit or entertain offers from, negotiate with, or in any manner encourage, discuss, accept or consider any proposal of any other person relating to the purchase of the CON....

A mutual agreement to terminate was the only avenue to release the signatories from their respective obligations.

¶ 7. On September 18, 2008, St. Dominic initiated suit, alleging that ACS had breached its agreement for the purchase and transfer of ASC and its CON. St. Dominic sought specific performance under the agreement and a preliminary injunction to prevent ASC from engaging in negotiations with any other person or entity.

¶ 8. On November 19, 2008, Heritage moved the chancery court for leave to intervene in the suit between St. Dominic and ASC, which was granted. Heritage’s security interest in ASC’s membership interest, which resulted from an after-acquired clause in the promissory note, indirectly allowed it to control the CON.

¶ 9. On December 23, 2008, St. Dominic and ASC agreed to a preliminary injunction, which provided:

Defendants are hereby enjoined and restrained from directly or indirectly initiating, soliciting, encouraging, negotiating or responding favorably to any solicitation from any other person or entity regarding the sale of [ASC], their membership interests in [ASC], or any of the assets of [ASC], including the [CON]....
Defendants are hereby enjoined and restrained from taking any other action to market or sell [ASC], their membership interests in [ASC], or any of the assets of [ASC], including the [CON], to any other person on entity.
Defendants are hereby enjoined and restrained from finalizing any transaction with any other person or entity for the sale of [ASC], their membership interests in [ASC], or any of the assets of [ASC], including the [CON], to any other person or entity.

(Emphasis added.)

¶ 10. On January 27, 2009, HMA moved to intervene in the action. Relying on its executed, binding letter of intent, HMA maintained that it possessed the exclusive contractual right to finalize the purchase of ASC, its assets, and its interest in the CON. HMA averred that its interests were not adequately represented by ASC and asserted that if it were not allowed to intervene, its interest could be impeded or impaired, and it was not otherwise protected.

¶ 11. Following argument, the chancellor denied HMA’s motion, offering only that the motion was not made in good faith. In so doing, the chancellor failed to address the requirements to be considered for purposes of intervention of right, see Guaranty National Insurance Co. v. Pittman, 501 So.2d 377, 381 (Miss.1987), or provide any factual findings which might aid this Court in its appellate review. Following that ruling, HMA sought interlocutory appeal.

ISSUE

¶ 12. This Court will consider:

Whether the chancery court erred in denying HMA’s Rule 24 motion for intervention of right.

STANDARD OF REVIEW

¶ 13. Rule 24 governs both intervention of right and permissive intervention, stating, in pertinent part, that:

(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action:
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.[]
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:
(2) when an applicant’s claim or defense and the main action have a question of law or fact in common.

Miss. R. Civ. P. 24 (emphasis added).

¶ 14. Rule 24, its comment, and the underlying purposes of the Rules clearly demonstrate that a de novo standard of review applies to all intervention-of-right judgments. However, our caselaw regarding the proper standard of review for Rule 24 intervention rulings is in conflict. We previously have stated “a trial court has considerable discretion in ruling on a motion to intervene.” Hayes v. Leflore County Bd. of Supervisors, 935 So.2d 1015, 1017 (Miss.2006) (quoting City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss.1999)). See also Cohen v. Cohen, 748 So.2d 91, 93 (Miss.1999) (holding Rule 24 rulings are subject to an abuse-of-discretion standard of review). Contrastingly, this Court has held, in the seminal case for intervention under our current rules, that “Rule 24(a)(2) is entitled ‘Intervention of Right’ and includes the mandatory ‘shall,’ thus giving the impression that the trial court has little, if any, discretion in the matter[,]” which is consistent with the Comment to Rule 24, which states that “[a]n application for permissive intervention is addressed to the discretion of the court, whereas an application for intervention of right poses only a question of law.” Guar. Nat’l Ins. Co., 501 So.2d at 381 n. 1; Miss. R. Civ. P. 24 cmt. (emphasis added).

¶ 15. Circumscribing all intervention decisions is that the Rules “shall be construed to secure the just, speedy, and- inexpensive determination of every action.” Miss, R. Civ. P. 1. The Comment to Rule 1 adds that:

[t]he mandate in the final sentence of Rule 1 is only one of a number of similar admonitions scattered throughout the rules [and] directing that the rules be interpreted liberally in order that the procedural framework in which litigation is conducted promotes the ends of justice and facilitates decisions on the merits, rather than determinations on technicalities.

Miss. R. Civ. P. 1 cmt.

¶ 16. Regarding permissive intervention (Rule 24(b)(2)), the abuse-of-discretion standard is logically sound, for the trial judge may permissively grant or deny a motion to intervene, provided there is a common question of law or fact and the motion was timely filed. See Miss. R. Civ. P. 24(b)(2). Accordingly, the rule set forth in Cohen is proper for permissive intervention under Rule 24(b)(2). See Cohen, 748 So.2d at 93.

¶ 17. However, with regard to intervention of right, the abuse-of-discretion standard deviates greatly from this Court’s historical review of questions of law. It is well-settled that questions of law are to be reviewed de novo. See Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999). As Rule 24(a) addresses the right of one to intervene, it constitutes a question of law. Prudence, logic, and precedent dictate a de novo review. This position is consistent with the federal court’s de novo review of the denial of a motion for intervention of right pursuant to Federal Rule of Civil Procedure 24(a)(2). See Trans Chem. Ltd. v. China Nat’l Mach. Imp. and Exp. Corp., 332 F.3d 815, 822 (5th Cir.2003); Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977). Thus, our analysis of the chancery court’s denial of HMA’s motion for intervention of right employs a de novo standard of review.

ANALYSIS

¶ 18. By order, the chancellor denied HMA’s motion for intervention of right in its entirety, offering only that the motion was “not being well taken.” There are no on-the-record findings of fact or conclusions of law in support of the ruling. Thus, we are provided with no insight into the basis for the chancellor’s ruling.

¶ 19. In Guaranty National, this Court held that when a movant satisfies four separate requirements, the trial court “shall” allow intervention. Guar. Nat’l Ins. Co., 501 So.2d at 381. In order to intervene as a matter of right, a movant must: “(1) ... make timely application, (2) ... have an interest in the subject matter of the action, (3) ... be so situated that disposition of the action may as a practical matter impair or impede his ability to protect his interest, and (4) his interest must not already be adequately represented by existing parties.” Id. See also Hood ex rel. State Tobacco Litigation v. State, 958 So.2d 790, 802-803 (Miss.2007); Perry County v. Ferguson, 618 So.2d 1270, 1272 (Miss.1993). The requirements of Rule 24(a)(2):

are not bright lines, but ranges — not all “interests” are of equal rank, not all impairments are of the same degree, representation by existing parties may be more or less adequate, and there is no litmus paper test for timeliness. Application of the rule requires that its components be read not discreetly, but together. A showing that a very strong interest exists may warrant intervention upon a lesser showing of impairment or inadequacy of representation. Similarly, where representation is clearly inadequate, a lesser interest may suffice as a basis for granting intervention.

Cummings v. Benderman, 681 So.2d 97, 101 (Miss.1996) (quoting Int’l Paper v. Town of Jay, Me., 887 F.2d 338, 344 (1st Cir.1989)) (emphasis added).

(1) Did HMA have an interest in the subject matter of the action?

¶ 20. The subject matter of this action is ASC’s membership interest, which holds a CON exclusively to operate an ambulatory center. Given HMA’s agreement with ASC, this Court finds that HMA has an interest in that subject matter, i.e., “a claim or interest in property which is the subject of a pending action and which may be materially affected by the outcome of the litigation.... ” Miss. R. Civ. P. 24 cmt.

¶ 21. In order to intervene, a movant must assert a “ ‘direct, substantial, legally protectable interest’ in the proceedings. ... A movant found to be ‘a real party in interest’ generally establishes sufficient interest.” Ferguson, 618 So.2d at 1272 (citing League of United Latin Amer. Citizens v. Clements, 884 F.2d 185, 187 (5th Cir.1989)). An “interest” is defined as “[a] legal share in something; all or part of a legal or equitable claim to or right in property.” Black’s Law Dictionary 828 (8th ed. 2004). HMA’s contract with ASC is empirical evidence of its “ ‘direct, substantial, legally protectable interest’ in the proceedings.” Ferguson, 618 So.2d at 1272.

¶ 22. Mississippi previously has recognized interests that are contingent upon the outcome of trial. In Guaranty National, this Court determined that intervention was warranted even in spite of the fact that the would-be intervenor was not capable of initiating suit directly. See Guar. Nat’l Ins. Co., 501 So.2d at 383. This Court, although not directly determining that an interest was present, found that “[a]ll that is necessary is that [the would-be intervenor] establish an interest in the rights that are at issue in the litigation.” Id. (citing Hartford Accident and Indem. Co. v. Crider, 58 F.R.D. 15, 18 (N.D.Ill.1973)). The pending suit involves ASC’s membership interest and interest in assets, including ASC’s interest in the CON.

¶ 23. In the case sub judice, HMA alleges it possesses ASC’s exclusive rights to the CON, which it received pursuant to the provisions contained in the terms of the dually-executed letter of intent. See ¶ 6 supra. The question then becomes whether these are sufficient interests for purposes of an intervention of right. St. Dominic and HMA are in pursuit of the same property.

¶ 24. ASC conveyed rights or interests to HMA by contract. The right to negotiate for the purchase of the same interests is why St. Dominic initiated suit. Therefore, it cannot logically be suggested that these interests are of no import. Accordingly, HMA’s putative right exclusively to negotiate the acquisition of ASC, its assets, and the CON was “direct, substantial, [and] legally protectable.... ” Ferguson, 618 So.2d at 1272.

¶ 25. The CON is a one-of-a-kind object which law recognizes as unique. Both St. Dominic and HMA claim to possess a “direct, substantial, [and] legally protectable interest” in acquiring the same CON. Thus, both St. Dominic and HMA have an “interest in the subject matter of the action. ...” Guar. Nat’l Ins. Co., 501 So.2d at 381.

(2) Did HMA make a timely application?

¶ 26. A court considers whether an application or motion for leave to intervene was timely for the purpose of determining prejudice to existing parties. See id. at 382. Mississippi has adopted a four-factor test for determining the timeliness of an application to intervene. See Hood ex. rel, 958 So.2d at 805-06; Guar. Nat’l Ins. Co., 501 So.2d at 381-82. In this case, the timeliness of HMA’s motion to intervene is not in serious dispute.

¶ 27. Four months and nine days transpired between St. Dominic’s filing of this action and HMA’s motion for leave to intervene. It is undisputed that HMA was not placed on actual notice of St. Dominic’s action until shortly before HMA’s motion to intervene was filed. In short, any delay was minimal, as the record reveals no more than one month elapsed between HMA’s constructive knowledge of St. Dominic’s suit and the filing of its motion to intervene. This length of time pales in comparison to the 119-day period of time at issue in Guaranty National. See Guar. Nat’l Ins. Co., 501 So.2d at 382. Thus, the motion was filed in a timely manner.

¶ 28. Furthermore, St. Dominic has presented no evidence of prejudice from permitting the intervention, instead summarily arguing at the motion hearing that if HMA is allowed to intervene it will be prejudiced by the change of a scheduled court date. During that motion hearing, HMA offered that no discovery or depositions had occurred or otherwise been taken, and the chancellor acknowledged same. Furthermore, HMA’s attorney asserted that there was no need for extended discovery and advised the court that HMA would not delay the trial. In the absence of actual prejudice being shown, St. Dominic’s argument of prejudice due to untimeliness carries little, if any, weight when balanced against the prejudice to be suffered by the putative intervenor, i.e., being excluded from presenting a case at all.

¶ 29. Should St. Dominic be allowed to proceed without contest and procure the CON that HMA claims it has the right to obtain, without HMA being afforded an opportunity to contest such, the prejudice that will be suffered by HMA is obvious. Specifically, its claim will be extinguished, while it is denied access to the courts to assert such. Conversely, a holding allowing intervention will eliminate a separate suit, decrease litigation expenses for the parties, relieve the court system from multiple actions, and prevent the risk of inconsistent judgments, thereby furthering the stated purpose and spirit of our Rules.

¶ 30. Accordingly, justice is well-served in finding that HMA made a timely application under Rule 24.

(3) Is HMA so situated that disposition of the action may, as a practical matter, impair or impede its ability to protect its interest?

¶ 31. HMA claims that it was not provided notice of the action initiated by St. Dominic against ASC, and that ASC agreed to a preliminary injunction which deprived HMA of its contractually acquired right. See ¶ 9 supra.

¶ 32. If St. Dominic prevails at trial in HMA’s absence, then HMA’s putative right to negotiate exclusively for the sale and/or purchase of ASC will disappear. Practically speaking, although HMA’s legal claim against ASC will survive, the object which it seeks, the CON, will no longer be available. If HMA is not allowed to intervene, it cannot be accorded a full measure of justice.

¶ 33. Therefore, HMA is so situated that disposition of the St. Dominic-ASC action, without intervention, will seriously impair or impede its ability to protect its interests.

(⅝) Are HMA’s interests already adequately represented by existing parties?

¶ 34. Clearly, HMA’s interest are not adequately represented in this case. St. Dominic and HMA’s interests are antithetical. Moreover, ASC wants only to conclude the transaction. Common sense dictates that ASC is indifferent to which party prevails, for the transaction is for the same price in both agreements, $800,000. HMA and St. Dominic both seek to obtain the one-of-a-kind CON. Their purpose is to obtain the CON in order to provide ambulatory surgical services within a designated area. Determinative on this factor is the preliminary injunction. ASC has agreed to cease and desist negotiations with anyone other than St. Dominic, a right that ASC contracted away when it executed the letter of intent with HMA. Accordingly, HMA’s interests are not adequately protected by ASC.

CONCLUSION

¶ 35. In sum, the four requirements necessary to establish intervention of right, viewed collectively, are met. Therefore, this Court concludes that the chancery court erred in denying HMA’s motion to intervene. Accordingly, this Court reverses that ruling and remands for further proceedings consistent with this opinion.

¶ 36. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, AND KITCHENS, JJ, CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. CHANDLER, J„ NOT PARTICIPATING.

PIERCE, Justice,

dissenting:

¶ 37. Because today’s majority opinion exposes future litigants to intervention by third parties who do not have a legally protectable interest in the subject matter of the litigation at issue, I respectfully dissent.

Standard of Review

¶ 38. I must first point out my disagreement with the majority’s analysis as to the standard of review for intervention as of right. The majority states, “Rule 24, its comment, and the underlying purposes of the Rules clearly demonstrate that a de novo standard of review applies to all intervention-of-right judgments.” (Maj. Op. ¶ 14). Not so fast. While the comment to the rule does state that motions for intervention of right pose only questions of law, this Court has clearly stated:

Rule 24(a)(2) is entitled “Intervention of Right” and includes the mandatory “shall,” thus giving the impression that the trial court has little, if any, discretion in the matter. Candor requires recognition that the four tests stated above each in and of itself contains language sufficiently open textured that not inconsiderable discretion is as a practical matter vested in the trial court. To be sure, if the four requisites are found met, the applicant must be allowed to intervene. The wording of the four requisites, however, is such that the trial court is of necessity required to exercise discretion in judgment for none is stated with mathematical precision.

Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 381 n. 1 (Miss.1987) (emphasis added). This Court consistently has held that an abuse-of-discretion standard of review is appropriate for both intervention as of right and permissive intervention. Trial courts must be given discretion to determine if the four requisites to intervention as of right are met, and this Court should continue to review sueh determinations for an abuse of the discretion the rule provides the trial court.

¶ 39. However, Rule 24(a) mandates a party be allowed to intervene when all four requisites have been met. Hood v. State, 958 So.2d 790, 806 (Miss.2007). It is this determination in which the trial court is granted no discretion by the rule. If the four requisites are met, the intervening party must be allowed to intervene, as the rule uses the mandatory “shall.”

¶ 40. Therefore, the trial court has discretion in determining whether each of the four required elements to intervene as of right have been met, and this Court should review such determinations for an abuse of discretion. However, if the trial court determines that each of the four elements is met, Rule 24(a) requires that the trial court allow the would-be intervenor to intervene as a matter of right, and that determination by the trial court should be reviewed de novo.

Interest in the Subject Matter of the Action

¶ 41. Regardless of the standard of review, a party must meet the four-part test outlined in Guaranty National in order to intervene as of right. Because HMA has no interest in the subject matter of the action, it does not have the right to intervene. Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 381 (Miss.1987). Today’s majority opinion opens the door for would-be intervenors to join suits over contracts to which they are not parties and confuse the issues at trial. For example, the majority position would allow third parties to intervene in real estate contracts where the third party enters into a letter of intent after a valid land sale contract has been entered between two parties.

¶ 42. In the present matter, HMA has the burden to prove that it has a “direct, substantial and legally protectable interest” in order to intervene in this suit. Perry County v. Ferguson, 618 So.2d 1270, 1272 (Miss.1993). HMA also must show that it has more than a mere economic interest. Id. It cannot be said that the trial judge abused her discretion in determining whether HMA met each of the four elements under Guaranty National, 501 So.2d at 381, where HMA has no interest in the subject matter of the suit between St. Dominic and ASC.

¶ 43. The suit in which HMA seeks to intervene involves a contract between ASC and St. Dominic, and the issue before the trial court is whether that contract is legally binding upon those two parties. HMA claims its interest in the litigation arises out of its interest in acquiring ASC and its CON. However, the rule requires an interest in the subject matter of the litigation— here, the St. Dominic/ASC contract — not the parties to the litigation. HMA has no direct interest in the St. Dominic/ASC contract. While it is true that HMA and St. Dominic “are in pursuit of the same property” (Maj. Op. ¶ 23), HMA can in no way contribute to the determination of whether the St. Dominic/ASC contract is enforceable or whether it has been breached by either party.

¶ 44. If the St. Dominic/ASC contract is found to be invalid or unenforceable, HMA can then seek to enforce its letter of intent with ASC. However, HMA’s letter of intent is not the subject of the suit at issue, and HMA’s remedies are contingent upon the outcome of the St. Dominic suit. “By definition, an interest is not direct when it is contingent on the outcome of a subsequent lawsuit.” Ross v. Marshall, 456 F.3d 442, 443 (5th Cir.2006).

¶ 45. Although the majority cites Guaranty National as an example of this Court allowing a party to intervene where the intervenor would not be capable of bringing suit directly, that matter is factually distinguishable from the present case. (Maj. Op. ¶ 22), Guar. Nat’l Ins. Co., 501 So.2d at 383. In Guaranty National, the would-be intervenor was an insurer who may have been required to pay the damages which were the subject matter of the suit. Clearly, that is a “direct, substantial, and legally protectable” interest in the subject matter of that particular suit — the damages on the tort claim. In the present case, however, HMA has no direct interest that is the subject matter of the suit — the St. Dominic/ASC contract.

¶ 46. Our caselaw defines the interest required to intervene as of right to be a legally protectable interest. Perry County, 618 So.2d 1270, 1272 (Miss.1993). The majority’s holding today allows third parties to intervene in suits over contracts to which they are not parties. The dispute in this matter is between St. Dominic and ASC, the subject of which is a contract between those two parties.

¶ 47. The majority states, “[t]he CON is a one-of-a-kind object which law recognizes as unique.... Thus, both St. Dominic and HMA have an ‘interest in the subject matter of the action.’ ” (Maj. Op. ¶ 25). This is simply not the test under Rule 24(a). As stated infra, the majority’s erroneous analysis will open the floodgates to would-be intervenors in every real estate contract, as land, like the CON, is a “one-of-a-kind object which the law recognizes as unique.”

¶ 48. Finally, the majority states, “Common sense dictates that ASC is indifferent to which party prevails_” (Maj. Op. ¶ 34). This is utter speculation in which this Court should not engage.

¶ 49. Because HMA is not a party to the St. Dominic/ASC contract and does not have a legally protectable interest in the subject matter of the litigation at hand, I would affirm the trial court’s denial of HMA’s motion to intervene. Accordingly, I dissent.

GRAVES, P.J., JOINS THIS OPINION.

      . This was the same purchase price as ASC agreed to with St. Dominic.

      . The Comment to Rule 24 adds that “when it has happened that an owner or part owner has a claim or interest in property which is the subject of a pending action and which may be materially affected by the outcome of the litigation, he has been allowed to intervene to protect his interest; this is referred to as equitable intervention.” Miss. R. Civ. P. 24 cmt. (emphasis added).

      . Unquestionably, the requirements for intervention of right under Rule 24(a)(2) are not “stated with mathematical precisión),]” such that the trial court "is of necessity required to exercise discretion in judgment....” Guar. Nat’l Ins. Co., 501 So.2d at 381 n. 1. This discretion, however, does not change the fact that "an application for intervention of right poses only a question of law.” Miss. R. Civ. P. 24 cmt.

      . As ASC made no objections to HMA’s motion, any prejudice as to it is waived.

      . Miss. R. Civ. P. 24 cmt.

      . [A] would be intervenor “shall ’’ be allowed to intervene if he meets four prerequisites: (1) he must make timely application, (2) he must have an interest in the subject matter of the action, (3) he must be so situated that disposition of the action may as a practical matter impair or impede his ability to protect his interest, and (4) his interest must not already be adequately represented by existing parties.

        Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 381 (Miss.1987) (emphasis in the original).

      . See Hayes v. Leflore County Bd. of Supervisors, 935 So.2d 1015, 1017 (Miss.2006); City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss.1999); Cummings v. Benderman, 681 So.2d 97, 101 (Miss.1996); Cohen v. Cohen, 748 So.2d 91, 93 (Miss.1999); Perry County v. Ferguson, 618 So.2d 1270, 1271-72 (Miss.1993) (all holding that the standard of review for denial of a motion to intervene is abuse of discretion).

      . In order to determine whether each of the four factors is met, the trial court must look to the facts and evidence before it. Because these determinations are questions of fact, they are reviewed for an abuse of discretion. See Foss v. Williams, 993 So.2d 378, 380 (Miss.2008).

      .If each of the four factors is met, the trial court has no discretion under Rule 24(a) and must grant the motion to intervene. This determination is a question of law, as contemplated by the comment to Rule 24, and should therefore be reviewed de novo. See Franklin Corp. v. Tedford, 18 So.3d 215, 230 (Miss.2009) (citing Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1000 (Miss.2007)).

      . The record presently before this Court contains no findings of fact as to the four required elements for intervention as of right under Guaranty National, 501 So.2d at 381. The majority ignores that it is the appellant's responsibility to ensure the record before this Court is complete. See Miss. R.App. P. 10.

      . This Court has said, “[fjederal jurisprudence is helpful in our application of Rule 24(a)(2) intervention.” Perry County v. Ferguson, 618 So.2d 1270, 1273 (Miss.1993).

      . Alternatively, even if the CON is the subject matter of the action, as the majority opinion has presumed, HMA still has no legally protectable interest in the CON. The HMA/ ASC letter of intent clearly states that it ”do[es] not constitute and will not give rise to any legally binding obligation on the part of any party.”

      . Further, the majority footnotes part of the Comment to Rule 24 regarding equitable intervention. (Maj. Op. ¶ 13 n. 2.) Equitable intervention is not at issue here as HMA's letter of intent with ASC did not make HMA an "owner or part owner” of ASC.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Rhonda YEAGER, Appellant, v. David KITTRELL, Appellee.
    No. 2008-CA-01783-COA.
    Court of Appeals of Mississippi.
    Dec. 1, 2009.
    Rehearing Denied March 30, 2010.
    Certiorari Denied June 3, 2010.
    Eric A. Tiebauer, Jr., Waynesboro, attorney for appellant.

      David Kittrell, pro se.
    Michael Duane Mitchell, attorneys for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Rhonda Yeager appeals the judgment of the Wayne County Chancery Court, which transferred child custody jurisdiction to Texas under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) and denied her motion to reconsider the transfer of jurisdiction. Finding no error, we affirm the chancery court’s judgment.

FACTS

¶ 2. Rhonda and David Kittrell were married in Mobile, Alabama on December 3, 1993. The couple had two children— Rheygan, who was born in January 1995, and Trevor, who was born in May 1996. Rhonda filed for divorce on February 15, 1996, in the Greene County Chancery Court and was awarded full legal and physical custody of the children, with David having limited visitation rights.

¶ 3. Over the next decade, the parties engaged in a tumultuous legal battle, filing numerous motions for contempt against the other and continuously sparring over visitation rights. On various occasions, Rhonda refused to abide by the visitation order, and David had to call the sheriff to pick up the children. On May 11, 1999, Rhonda received a thirty-day suspended jail sentence, which was conditional upon her future compliance with the visitation order. Additionally, in September 2000, Rhonda alleged that David had sexually abused Trevor. A hearing was held on October 28, 29, and 30, 2002, and the court found that no such abuse ever occurred.

¶ 4. According to his brief, David moved to Navarro County, Texas in January 2002. In September 2003, the parties agreed to move the case to Wayne County Chancery Court. The parties determined this was a more convenient forum since David lived in Texas and the children resided in Wayne County with Rhonda.

¶ 5. In May 2004, the Waynesboro Police Department and the Mississippi Department of Human Services removed Rhey-gan and Trevor from Rhonda’s custody upon learning that she had been using cocaine while the children were present in the home. In July 2004, the chancery court granted David temporary physical and legal custody of the children, and the children moved to Texas with David. After the trial held on August 4, 2005, the Wayne County Chancery Court determined that due to Rhonda’s erroneous allegations of sexual abuse of Trevor, her constant interference with David’s visitation rights, and Rhonda’s history of drug abuse, a material change in circumstances adversely affecting the best interests of the children had occurred, warranting modification of the custody agreement. The court awarded David permanent legal and physical custody. The final order granting David permanent custody was filed on December 19, 2005.

¶ 6. On June 8, 2006, Rhonda appealed the final order, but her appeal was dismissed by the Mississippi Supreme Court as untimely filed. Rhonda’s motion to reopen time for appeal was granted by the chancery court, and she filed a second notice of appeal in October 2006. The supreme court dismissed this appeal with prejudice, determining that the chancery court had erred in granting Rhonda’s motion to reopen time for appeal.

¶ 7. In February 2007, David filed a motion to transfer jurisdiction of the proceedings involving the children from Mississippi to Texas. David alleges in his brief that a hearing was held on March 7, 2007, to consider the matter. He further alleges that on March 27, 2007, he filed a petition to establish jurisdiction in the District Court of Navarro County, Texas. Rhonda did not file an objection to the petition.

¶ 8. In an order filed on August 6, 2007, the chancery court found Mississippi to be an inconvenient forum within the meaning of the UCCJEA, specifically Mississippi Code Annotated section 93-27-207 (Rev. 2004), and thus relinquished jurisdiction to Texas. The court further noted that Rheygan and Trevor had resided in Texas for over sixteen months prior to the date of the order. Additionally, after conferring with the court in Texas, the chancery court agreed that Texas is a more convenient forum to assert jurisdiction over the proceedings involving the children.

¶ 9. On August 13, 2007, Rhonda filed a motion to reconsider the order releasing jurisdiction, claiming that the order violates the Parental Kidnapping Prevention Act of 1980 (PKPA) and that the UCCJEA is unconstitutional.

¶ 10. After a hearing on September 10, 2007, the District Court of Navarro County, Texas, entered an order establishing its jurisdiction over the children. In the order, the court modified David’s and Rhonda’s visitation rights, with David maintaining permanent physical and legal custody. Rhonda did not appear at the hearing. The district court also issued a writ of capias with pick-up order for Rhonda’s failure to appear and pay child support.

¶ 11. On April 22, 2008, a hearing was held in the Wayne County Chancery Court regarding Rhonda’s motion to reconsider the order releasing jurisdiction. The following summer of 2008, Rhonda proceeded to exercise her summer visitation in accordance with the visitation order issued by the Texas court. On October 21, 2008, the Wayne County Chancery Court denied her motion to reconsider. Rhonda appeals, arguing that the chancellor erred in granting the order releasing jurisdiction on the grounds that it was unlawful under the UCCJEA.

STANDARD OF REVIEW

¶ 12. “Whether the chancery court had jurisdiction to hear a particular matter is a question of law, to which this Court must apply a de novo standard of review.” In re Guardianship of Z.J., 804 So.2d 1009, 1011(¶ 9) (Miss.2002).

DISCUSSION

¶ 13. Rhonda argues that the order releasing jurisdiction is unlawful under the UCCJEA and the PKPA. Rhonda specifically asks this Court to determine whether the chancery court correctly applied the UCCJEA, assuming that the court even applied it at all, to herself and her parental rights, in a case where original jurisdiction in Mississippi was transferred to Texas despite her continued domicile in Mississippi. Rhonda submits that the chancellor failed to make findings of fact as to all of the factors in section 93-27-207(2) and, instead, ruled that the factors, when taken together, favor David.

¶ 14. Jurisdiction over interstate custody disputes is governed by the UCCJEA and the PKPA. Deborah H. Bell, Bell on Mississippi Family Law § 18:09 at 454 (2005). The UCCJEA regulates the ability of chancery courts to enforce or modify child custody judgments entered in another state. Shadden v. Shadden, 11 So.3d 761, 768(¶ 8) (Miss.Ct.App.2009).

¶ 15. The predecessor of the UCCJEA, the Uniform Child Custody Jurisdiction Act (UCCJA), was created to establish uniformity in state decisions and to limit forum shopping by custody litigants seeking to enforce or modify custody. Bell on Mississippi Family Law § 18:09. Some states were slow to adopt the UCCJA, which led Congress to pass the PKPA in 1980. Id. The PKPA contains requirements almost identical to the UCCJA. Id. Although the two Acts were created to ensure consistent results in interstate custody decisions, the differences between the Acts led to confusion. Id. The UCCJEA, promulgated in 2001 and subsequently adopted in Mississippi in 2004, was intended to bring the UCCJA into compliance with the PKPA. Id.

¶ 16. Under the UCCJEA, only one court may assert jurisdiction after an initial custody order has been entered. See Miss.Code Ann. § 93-27-201 (Supp.2009). A court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree. Id. However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. See Miss.Code Ann. § 93-27-202(l)(a). Only the issuing state may make this determination. Additionally, a court with continuing jurisdiction may decline to modify custody if another court is a more appropriate forum. See Miss.Code Ann. §§ 93-27-203(a) (Supp.2009); 93-27-207.

¶ 17. The PKPA mandates that a state must give full faith and credit to “any custody determination or visitation determination made consistently with the provisions of this section by a court of another [s]tate.” The PKPA also directs that:

A court of a [sjtate may modify a determination of the custody of the same child made by a court of another [sjtate, if-
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other [sjtate no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C. § 1738A(f) (2006).

¶ 18. In the present case, Mississippi had jurisdiction to make the initial child custody determination under section 93-27-201(l)(a) since, at the time of the initial determination, Mississippi was “the home state of the children on the date of the commencement of the proceeding.” However, section 93-27-207 provides that:

(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

¶ 19. In Stowers v. Humphrey, 576 So.2d 138, 140 (Miss.1991), the chancellor held that although Mississippi made the initial determination of the child custody agreement at issue, Alabama had become the children’s “home state”; thus, Alabama was a more convenient forum. The chancellor found that: the children had a closer connection to Alabama; they had lived in the state for two and one-half years; and evidence concerning the effects of visitation with their father was more readily available in Alabama than in Mississippi. Id. at 142.

¶ 20. In Bridges v. Bridges, 910 So.2d 1156, 1157(¶ 4) (Miss.Ct.App.2005), the parties lived in Louisiana at the time of the divorce, and a Louisiana court entered the original child custody determination at issue. Subsequently, the mother moved to Arkansas, and the father moved to Mississippi. Id. An Arkansas court proceeded to assert jurisdiction over the matter and enforced the temporary custody order set forth by the Louisiana court until a final order was entered. Id. When the mother refused to return the children during the father’s visitation period, the Scott County Chancery Court in Mississippi entered an order incarcerating the mother until she, among other things, reimbursed the father for his costs and expenses incurred in litigating the matter and insured future compliance with the visitation orders. Id. at 1158(¶ 6). On appeal, this Court noted that the children resided with their mother in Arkansas for a period greater than six months. Further, other than the presence of their father and other family members, the children had no connection to the State of Mississippi. Thus, this Court found that the Scott County Chancery Court did not have jurisdiction over the matter. Id. at 1159(¶ 12).

¶ 21. In the present case, the chancery court declined to exercise its continuing jurisdiction over Rheygan and Trevor based on the determination that Texas is a more convenient forum. Although the court states in its order transferring jurisdiction that Mississippi is an inconvenient forum under section 93-27-207, the transcript from the August 3, 2006, hearing is not part of the record, and we cannot review the chancellor’s application of the factors set forth in section 93-27-207(2). However, upon our own review of the facts in the present case and application of the factors in 93-27-207(2), substantial evidence in the record supports the chancellor’s finding that Texas is the most convenient forum to assert jurisdiction over the children.

¶ 22. In applying section 93-27-207(2)(a) to the present facts, the record before us reflects that the children suffered domestic violence while in Rhonda’s care. After the trial on August 4, 2005, the chancellor observed that due to Rhonda’s erroneous allegations of child abuse, Trevor suffered from “the child abuse of the child abuse allegation ... being examined, poked and prodded, questioned by experts in the field of child abuse.” The chancellor also stated that “Rhonda’s parenting skills led her to use cocaine and [have] illicit sex in the presence of the children.”

¶ 23. Section 93-27-207(2)(b) examines the length of time the children have resided- outside of Mississippi. The children have lived in Texas with David since 2004, only returning to Mississippi for court-ordered visitation.

¶24. Section 93-27-207(2)(c) considers the distance between the Wayne County Chancery Court in Mississippi and the District Court of Navarro County, Texas. Rhonda alleges that visitation is difficult because of the distance. However, the record reflects that David consistently drove the roughly eight-hour drive during his visitation weekends to see the children.

¶ 25. When considering section 93-27-207(2)(d), little evidence exists in the record as to the parties’ financial circumstances. In 2005, Rhonda told the chancery court that she was studying to be a cosmetologist. In David’s brief, he submits that he is an electrician, and his wife is a teacher. No recent evidence as to the parties’ income appears in the records or briefs.

¶ 26. Regarding section 93-27-207(2)(e), no evidence appears in the record that the parties are in agreement on any aspect of the case, although David asserts that he submitted various orders regarding jurisdiction to Rhonda, to which she has not responded.

¶ 27. Section 93-27-207(2)(f) examines “[t]he nature and location of the evidence required to resolve the pending litigation, including testimony of the child.” Here, all of the current evidence relevant to the determination of custody matters is located in Texas; most importantly, the children themselves, but also their school and health records, are located in Texas.

¶ 28. Under 93-27-207(2)(g), both the Mississippi and Texas courts proved themselves able in deciding the issues at hand expeditiously. Finally, 93-27-207(2)(h), which examines familiarity of the court of each state with the facts and issues in the pending litigation, favors the court in Texas. Although the Wayne County Chancery Court is familiar with the facts and issues of the case, the Texas court possessed the current school and health records of the children.

¶ 29. After applying the UCCJEA and PKPA to the case at hand, we find that although the chancellor had continuing jurisdiction over the case, substantial evidence in the record supports his finding that Texas was a more convenient forum than Mississippi. Therefore, we find that the chancellor properly transferred jurisdiction to Texas under the UCCJEA and PKPA.

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

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

      . The petition does not appear in the record. In her brief, Rhonda states that on March 7, 2007, she received notice of the hearing in the District Court of Navarro County regarding the transfer of jurisdiction. David asserts, however, that the hearing regarding transfer of jurisdiction was held on March 7, 2007, in Wayne County, Mississippi. A transcript of the hearing does not appear in the record.

      . Codified at Mississippi Code Annotated sections 93-27-101 to -402 (Rev.2004).

      . We note that Rhonda bore the responsibility of providing the transcript from the hearing to be included in the record. See Oakwood Homes Corp. v. Randall, 824 So.2d 1292, 1293(¶ 4) (Miss.2002) (citation omitted).

      . Upon learning of Rhonda’s cocaine abuse, the Mississippi Board of Nursing revoked her nursing license.


author: KING, C.J.,

text:
    Rebecca GILL, Appellant v. HARRAH’S ENTERTAINMENT, INC., a Self-Insured Corporation, Appellee.
    No. 2009-WC-01119-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.

      David L. Walker, attorney for appellant.
    George E. Dent, Tupelo, attorney for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   KING, C.J.,

for the Court:

¶ 1. Rebecca Gill was injured on the job and thereafter applied for benefits through the Mississippi Workers’ Compensation Commission (the Commission). The administrative law judge (ALJ) found that Gill had sustained a permanent-partial disability and suffered a twenty-percent loss of wage-earning capacity. The case was appealed to the Commission, and the Commission amended the ALJ’s order, awarding Gill only a ten-percent loss of wage-earning capacity. Both parties appealed to the trial court, and the trial court affirmed the Commission’s ruling. Aggrieved, Gill appeals raising one issue— whether the trial court erred by affirming the Commission’s reduction of her benefits. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Harrah’s Entertainment, Incorporated (Harrah’s) hired Gill in November 2001 to work as a security officer. During her time at Harrah’s, Gill was promoted to a lead security officer position.

¶3. On July 2, 2003, Gill sustained a back injury on the job while attempting to lift a five-gallon gas can. Gill reported the injury and sought treatment. In the beginning, Gill received conservative treatment. However, the conservative treatment failed to alleviate her complaints of severe back pain. As a result, Gill opted to undergo back surgery, which was performed by Dr. Laverne Lovell on November 26, 2003.

¶ 4. Following the surgery, Gill returned to work in February 2004 on light duty. Her complaints of pain persisted. On August 17, 2004, Dr. Lovell found that Gill had reached maximum medical improvement, and she was placed on a thirty-five-pound weight restriction. In September 2004, Harrah’s terminated Gill stating that the company could not ensure her safety if she remained in her current position and that there were no permanent light-duty positions available.

¶ 5. Thereafter, Gill filed a petition to controvert on September 15, 2004. The parties stipulated that: (1) Gill sustained a work-related back injury on July 2, 2003; (2) at the time the injury, Gill’s weekly wage was $379.52; (3) Harrah’s provided all medical treatment and temporary benefits to which Gill was entitled; and (4) Gill reached maximum medical improvement on August 17, 2004. Gill argued that she had sustained a permanent disability that prevented her from finding a comparable job after her termination from Harrah’s. She stated that her current salary was $129 less per month than the wages she earned with Harrah’s. Conversely, Har-rah’s denied that Gill was permanently disabled and that Gill had suffered any loss of wage-earning capacity. The following evidence was presented to the ALJ in regard to Gill’s petition to controvert.

A. Work History

¶ 6. During the hearing, Gill expounded upon her education and work history. Gill obtained her high school diploma in 1981, and she completed Emergency Medical Technician (EMT) courses at a community college in 1995.

¶ 7. Thereafter, Gill held the following jobs: a security EMT for Hollywood Casino from May 1995 to November 1997, a seller of manufactured homes for Oakwood Homes from November 1997 to January 1999, a deli manager at Fast Lane from January 1999 to May 2000, and a bookkeeper for Baker & Sons Electric from May 2000 to October 2001. As previously mentioned, Gill was employed by Harrah’s as a security officer, and her employment lasted from November 2001 to September 2004.

¶ 8. Gill was forty-one years old when she was terminated by Harrah’s. After her termination, it took Gill eight months to find other employment. She testified that she allowed her EMT registration to lapse because she could no longer perform the physical aspects of the job. Gill went back to work for Baker & Sons Electric as a bookkeeper and was paid $250 per week. After Gill’s employment ended with Baker & Sons, she obtained employment with Memphis Auto Center making the same wage.

¶ 9. Ty Pennington, a vocational rehabilitation expert, also testified regarding Gill’s efforts to find employment. Pennington testified that based on Gill’s education and work history, she classified as a person who could earn above minimum wage. The vocational rehabilitation center found several jobs for Gill to apply for, and the salaries for those jobs ranged from $8 to $10 per hour. Pennington followed up with the companies to see if Gill had submitted an application. Only one company indicated that it had an active application for Gill.

¶ 10. Gill explained that she submitted an application for several of the jobs. She also stated that she did not apply to one job because of the driving requirement, and she did not apply to a second job because she could not find its location.

B. Medical Evaluation

¶ 11. Dr. Lovell treated Gill’s back injury and performed her surgery. In his October 2005 deposition, Dr. Lovell testified that on August 31, 2003, Gill had full strength, normal sensory and reflexes, normal gait, and good flexibility. Thus, despite Gill’s subjective complaints of back pain, Dr. Lovell gave her a permanent-partial impairment rating of zero percent.

¶ 12. Two weeks later, Gill experienced pain while she was preparing to go to work one morning. She returned to Dr. Lovell’s office with those complaints. A physical exam revealed that Gill had developed pain in her thighs. However, Dr. Lovell noted that Gill did not exhibit any outward signs of pain, and this continued throughout Dr. Lovell’s eight-month treatment of Gill. Dr. Lovell believed that Gill had magnified her symptoms. He noted on many occasions that Gill complained of pain; however, she did not exhibit any outward signs of pain. Also, although Gill walked with a cane, Dr. Lovell noted that she did not bear any weight on the cane.

¶ 13. Because of Gill’s persistent complaints of pain, Dr. Lovell ordered an MRI. The MRI revealed that she had spondylo-listhesis, a slip in the vertebra, and bilateral spondylolisthesis. Dr. Lovell stated that this was a hereditary or congenital condition. Dr. Lovell opined that Gill’s congenital condition was not work related. However, as a result of her work-related injury, Gill sustained a herniated disk. Using the American Medical Association’s guidelines for impairment, Dr. Lovell assigned Gill a ten-percent permanent-partial impairment rating.

¶ 14. Dr. Lovell also had Gill undergo a functional-capacity exam. Based on the results, he assigned Gill a thirty-five-pound weight restriction. Dr. Lovell testified that Gill did not put forth full effort in her functional-capacity exam. However, he gave her the benefit of the doubt and accepted the weight restriction. Dr. Lo-vell testified that Gill smoked excessively, which hindered her post-operative healing. Dr. Lovell stated that Gill went through her pain medication very quickly, and her incessant complaints of pain became a burden on his office. Eventually, Dr. Lovell had to refer Gill to a pain specialist since he did not deal with the treatment of long-term pain.

¶ 15. In December 2007, Dr. Lovell submitted a letter to clarify his opinion regarding Gill’s weight restrictions. In this letter, Dr. Lovell stated that Gill’s herniated disc required a discectomy, which he attributes to the work-related injury. Dr. Lovell explained that, generally, patients do not have restrictions following a simple discectomy. Thus, he attributed Gill’s weight restriction to her preexisting condition.

C. Proceedings Below

¶ 16. Based on the aforementioned evidence, the ALJ found that Gill had sustained a permanent-partial disability and had suffered a twenty-percent loss of wage-earning capacity. The ALJ awarded Gill $50.60 per week to be paid for 450 weeks. Aggrieved, both Gill and Harrah’s appealed the ALJ’s decision to the Commission.

¶ 17. The Commission found that “[biased on the Claimant’s age, education, work experience, and the ten[-]percent impairment rating assigned by Dr. Laverne Lovell, the Commission finds that [the] Claimant sustained only a ten-percent loss of wage-earning capacity as a result of the work[-related] injury.” Thus, the Commission amended the ALJ’s order to reflect the reduction, awarding Gill $25.30 per week for 450 weeks.

¶ 18. Further aggrieved, both parties appealed to the Circuit Court of Tunica County. The trial court affirmed the Commission’s decision. Thereafter, Gill timely filed her notice of appeal.

ANALYSIS

¶ 19. In workers’ compensation cases, the Commission is the ultimate fact-finder. Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct.App.2006). Thus, we give deference to the Commission’s decision and will not disturb it on appeal absent a finding that the decision was “unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id.

¶ 20. Gill argues that the trial court erred by affirming the Commission’s finding that she sustained only a ten-percent loss of wage-earning capacity. Gill maintains that the Commission failed to consider the substantial pay decrease that she sustained following her termination from Harrah’s. Conversely, Harrah’s claims that Gill failed to establish even a ten-percent loss of wage-earning capacity and maintains that the Commission’s decision was erroneous. Alternatively, Har-rah’s argues that Gill’s award should not be increased.

¶ 21. Pursuant to Mississippi Code Annotated section 71-3-3(i) (Rev.2000), “ ‘[disability means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” If the claimant proves that she is disabled and that disability is not specifically addressed by statute, then her disability is measured by a loss of wage-earning capacity. Havard v. Titan Tire Corp. of Natchez, 919 So.2d 995, 998-99 (¶ 16) (Miss.Ct.App.2005) (citing Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991)). Such a determination is essentially “left to the uncertainty of a factual estimate which is necessarily lacking in mathematical accuracy.” Robinson v. Packard Elec. Div., 523 So.2d 329, 331 (Miss.1988) (citation omitted).

¶ 22. Thus, Gill bore the burden to prove that she suffered a total disability as a result of a work-related injury and a loss of wage-earning capacity due to that disability. See Leslie v. SAIA Motor Freight, 970 So.2d 218, 221 (¶ 12) (Miss.Ct.App.2007). “Once a prima facie case for total disability has been established, the employer bears the burden of proving that the claimant has suffered only a partial disability or no loss of wage-earning capacity.” Goolsby Trucking Co. v. Alexander, 982 So.2d 1013, 1020 (¶ 19) (Miss.Ct.App.2008) (quoting Whirlpool Corp., 952 So.2d at 272 (¶ 19)). The ultimate determination is a question of fact for the Commission to decide. Mosby v. Farm Fresh Catfish Co., 19 So.3d 789, 793 (¶ 10) (Miss.Ct.App.2009).

¶ 23. Dr. Lovell’s testimony established that Gill had sustained a herniated disc from her work-related injury, which he assigned a ten-percent impairment rating. Gill submitted proof that her post-injury wages were approximately thirty percent less than her pre-injury wages. Gill believes that her award should be equal to her loss in wages. However, in addition to Gill’s actual loss of wages, the Commission may consider other factors in its determination. See Mosby, 19 So.3d at 794 (¶ 10). In this case, the Commission considered Gill’s age, education, work experience, Pennington’s testimony, and the ten-percent impairment rating assigned by Dr. Lovell.

¶ 24. Harrah’s argues that Gill is not impaired because her complaints of pain were not substantiated by objective medical evidence; Gill did not have any work restrictions that were attributable to her alleged injury; and her job search was a sham. There is some evidence that Gill may have exaggerated complaints of pain and that she did not fully participate in her functional-capacity exam. Dr. Lovell expressed concern that Gill was exaggerating her pain. However, he also stated that there were times when Gill’s outward demeanor matched her complaints of pain. There is also some evidence to suggest that Gill did not exhaust her job opportunities through the vocational rehabilitation clinic. However, any “[d]oubtful claims should be resolved in favor of compensation, so as to fulfill the beneficial purposes of statutory law.” Univ. of Miss. Med. Ctr. v. Rainey, 926 So.2d 938, 940 (¶ 6) (Miss.Ct.App.2006) (citing Sharpe v. Choctaw Elec. Enter., 767 So.2d 1002, 1006 (¶ 19) (Miss.2000)). It is abundantly clear that the Commission gave Gill the benefit of the doubt and relied heavily upon the ten-percent impairment rating when making its decision to reduce her award of benefits.

¶ 25. Based on the foregoing, we find that the Commission’s decision to reduce Gill’s award of permanent-partial disability benefits from a twenty-percent loss of wage-earning capacity to a ten-percent loss of wage-earning capacity was supported by substantial evidence. Thus, we affirm the Commission’s award of $25.30 per week to be paid for 450 weeks. This argument is without merit.

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

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.


author: MAXWELL, J.,

text:
    Clark David BRUMFIELD, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-00579-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.
    F. Kay Hardage, Carol F. Thweatt, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   MAXWELL, J.,

for the Court:

¶ 1. A jury in the Circuit Court of Walt-hall County found Clark David Brumfield not guilty by reason of insanity of first-degree arson. The circuit court ordered Brumfield committed to the Mississippi State Hospital in Whitfield, Mississippi. Several years later, the state hospital, on Brumfield’s behalf, sought Brumfield’s conditional release. Following a hearing, the circuit court denied the state hospital’s request and ordered Brumfield to remain in Whitfield. Brumfield appeals from this decision.

¶ 2. Until recently, there was no statutory procedure in place in Mississippi for considering the release of an insanity ac-quittee. During the pendency of the present appeal, our Legislature established such a procedure. Given that the circuit court made no findings regarding Brum-field’s mental state or his dangerousness to the community, and in light of the Legislature’s recent enactment, we vacate the circuit court’s judgment and remand this case for an expedited hearing to be conducted in a manner consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 10, 2003, a Walthall County grand jury indicted Brumfield for first-degree arson. The indictment alleged that Brumfield burned the home of Linda Hightower, his girlfriend at the time. According to the State, Brumfield set fire to Hightower’s house while she was present inside, although she was able to escape uninjured. The State maintains that Brumfield’s conduct was a result of his belief that “among other things, ‘spirits’ within her were having sex with her.” Further, the State alleges Brumfield’s “actions were routinely governed by ‘voices[.]’ ”

¶ 4. On February 5, 2004, the jury found Brumfield not guilty by reason of insanity. In rendering its verdict, the jury specifically found that Brumfield had not been restored to his sanity and was a danger to the community. See Miss.Code Ann. § 99-13-7 (Supp.2009). Accordingly, the circuit court ordered Brumfield committed to the state hospital until further order of the court. See id.

¶ 5. On November 5, 2007, the state hospital, on behalf of Brumfield, filed a petition in the circuit court for conditional release. The State objected arguing that Brumfield was a danger to the community and that he should be housed indefinitely at the state hospital. The circuit court held a hearing on the matter.

¶ 6. The only testimony at the hearing came from Brumfield’s treating physician, Dr. Sondra F. Holly, and Brumfield’s mother, Vergie Bracey. Dr. Holly began treating Brumfield in 2007 after the Discharge Advisory Committee (DAC) at the state hospital found Brumfield could be transferred to a unit with a lower level of care. After treating Brumfield for about one year, Dr. Holly determined that Brum-field should be discharged, and she presented Brumfield’s case to the DAC. The DAC agreed that Brumfield could be discharged, subject to certain conditions. These included that Brumfield regularly follow up with the mental health center, that he be medication compliant and that he refrain from using illicit drugs.

¶ 7. Dr. Holly testified that Brumfield had worked at the state hospital and successfully completed a behavioral program. Also, Dr. Holly had given Brumfield regular passes to leave the state hospital, and there had been no problems reported. In her opinion, Brumfield was not a danger to himself or the community.

¶ 8. Brumfield’s mother, Bracey, testified that if Brumfield were released, he could live in her home. She claimed that she would assume responsibility for ensuring Brumfield took his medication and attended his appointments.

¶ 9. Following the hearing on February 11, 2009, the circuit court entered an order denying the state hospital’s petition and ordering that Brumfield continue to be retained. The order did not include a finding as to whether Brumfield had regained his sanity or whether he was a danger to the community.

¶ 10. On appeal, Brumfield argues: (1) the circuit court erred in denying the petition when it did not make a finding that he was a danger to the community, and (2) a person acquitted by reason of insanity may not be held indefinitely at the state hospital when he is no longer a danger to the community.

DISCUSSION

¶ 11. Until recently, Mississippi had no statutory procedure for considering the release of a defendant confined to a psychiatric hospital after being found not guilty by reason of insanity but still a danger to the community. During the pendency of this appeal, the Mississippi Legislature amended section 99-13-7 to include such a procedure. Section 99-13-7, as amended, provides:

(1) When any person is indicted for an offense and acquitted on the ground of insanity, the jury rendering the verdict shall state in the verdict that ground and whether the accused has since been restored to his sanity and whether he is dangerous to the community. If the jury certifies that the person is still insane and dangerous, the judge shall order him to be conveyed to and confined in one of the state psychiatric hospitals or institutions.
(2) There shall be a presumption of continuing mental illness and dangerousness of the person acquitted on the ground of insanity. The presumption may be challenged by the person confined to the state psychiatric hospital or institution and overcome by clear and convincing evidence that the person has been restored to sanity and is no longer dangerous to the community. The court ordering confinement of the person to a state psychiatric hospital or institution shall conduct the hearing to determine whether the person has been restored to sanity and is no longer dangerous to the community. The person shall have the right to counsel at the hearing and if the person is indigent, counsel shall be appointed. The provisions of this subsection shall not apply to a person found by the jury to have been restored to sanity and no longer a threat to the community.

2010 Miss. Laws S.B. 2841 (emphasis added). In the same Act, the Legislature created a new statute to be codified as section 41-21-88, which states that “[a] person committed pursuant to [sjection 99-13-7 shall not be released for any reason without order of the court having confined the person.” The newly enacted law further provides: “This act shall take effect and be in force from and after its passage.” Id.

¶ 12. Here, the circuit court made no findings as to whether Brumfield had been restored to his sanity or was no longer dangerous. Rather, the court denied the state hospital’s petition for conditional release without explanation and ordered Brumfield to be retained at the state hospital. However, as the parties agree, when the circuit court considered this matter, Mississippi had no statutory scheme in place for considering the release of insanity acquittees from confinement. Nor had our appellate courts ever addressed the proper procedure.

¶ 13. Under the framework adopted by our Legislature, there is a presumption that Brumfield continues to be mentally ill and dangerous. Id. Brumfield is entitled to be released only if he overcomes this presumption “by clear and convincing evidence that [he] has been restored to sanity and is no longer dangerous to the community.” Id. (emphasis added). The circuit court is required to conduct a hearing to make these determinations. Id.

¶ 14. We find the circuit court should be provided an opportunity to provide findings in light of the new framework adopted by our Legislature in its March 29, 2010 enactment, which is to be codified as section 99-13-7(2). 2010 Miss. Laws S.B. 2841. Although a hearing was conducted, there was no such statutory procedure in place at the time. In addition, the circuit court made no determination as to whether Brumfield was restored to his sanity or remained a danger to the community. Accordingly, we vacate the circuit court’s order, remand the case for another hearing to be held in accord with the directives of our Legislature, and instruct the circuit court to make specific findings thereon.

¶ 15. We note our concern with whether this procedure complies with the due-process requirements set forth by the United States Supreme Court in Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) and Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). The Supreme Court has held that because an insanity acquittee has not been convicted, he may not be punished. Jones, 463 U.S. at 369, 103 S.Ct. 3043; see also Foucha, 504 U.S. at 72, 112 S.Ct. 1780. Due process requires “the nature and duration of commitment [to] bear some reasonable relation to the purpose for which the individual is committed.” Jones, 463 U.S. at 368, 103 S.Ct. 3043. Thus, “[t]he purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness.” Id.

¶ 16. In Jones, the Supreme Court held: “[T]he Constitution permits the Government, on the basis of [an] insanity judgment, to confine [an insanity acquittee] to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” Jones, 463 U.S. at 370, 103 S.Ct. 3043 (emphasis added). Thus, under Jones, if just one of these two bases is present, the insanity acquittee must be released. Thereafter, in Foucha, the Supreme Court reiterated its prior holding that “ ‘the committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous[.]’ ” Foucha, 504 U.S. at 77, 112 S.Ct. 1780 (quoting Jones, 463 U.S. at 368, 103 S.Ct. 3043) (emphasis added). That is, “the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” Id. The Court further stated that “as a matter of due process ... it [is] unconstitutional for a[s]tate to continue to confine a harmless, mentally ill person.” Id. (citing O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)).

¶ 17. However, the constitutionality of section 99-13-7, as amended, has not been raised by either party, no doubt because the Legislature passed the subject statute during the pendency of this appeal. Thus, we are without the benefit of briefing or oral arguments on this issue. Where neither party raises the constitutionality of a statute on appeal, the issue is not properly before us. See Arceo v. Tolliver, 949 So.2d 691, 696 (¶ 9) (Miss.2006) (citations omitted). Therefore, aside from the above-noted concerns, we decline to address this issue. This opinion should not be construed as stating a position on the constitutionality of section 99-13-7, as amended, although upon remand, the parties may raise this issue.

CONCLUSION

¶ 18. In summary, the circuit court made no findings regarding Brumfield’s mental state or his dangerousness. Given the Legislature’s recent enactment detailing the procedure for considering the release of persons found not guilty by reason of insanity, we find it appropriate to vacate the circuit court’s order and remand this matter for the trial court to conduct an expedited hearing. We instruct the circuit court to make specific findings in light of the Legislature’s directives.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALT-HALL COUNTY.

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

      . Pursuant to tills section, prior to an insanity acquittee's release, notice must be given to "the sheriff of the county where the offense was committed, the sheriff of the county of the committed person's destination and the crime victim or an immediate family member[.]” 2010 Miss. Laws S.B. 2841.


author: GRIFFIS, J„

text:
    Archie BRUCE, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01748-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.

      Cheryl Ann Webster, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
   GRIFFIS, J„

for the Court:

¶ 1. Archie Bruce was found guilty of two counts of drive-by shooting, in violation of Mississippi Code Annotated section 97-3-109 (Rev.2006). On appeal, Brace argues that the trial court committed error when it: (1) admitted evidence about the car wreck which occurred after the alleged drive-by shooting, (2) admitted photographs of the bullet holes in Tracy Wide’s car, (3) admitted a prior statement made by Bruce, and (4) excluded Bruce’s grandmother’s testimony about his character. We find no error and affirm.

FACTS

¶ 2. On December 6, 2005, shortly after midnight, Brace was driving his Ford Explorer. He came to an intersection, and he pulled into the left turn lane next to a Ford Taurus. The Taurus was driven by Anthony Allen. Wide was a passenger in the Taurus.

¶ 3. On December 6th, Wide was in a romantic relationship with Allen. She previously had been in a relationship with Bruce. Bruce bought the Taurus for Wide. Bruce and Wide were the parents of three children. In fact, at the time of this incident, Wide was pregnant with her fourth child fathered by Bruce. Nevertheless, Wide and Bruce did not live together.

¶ 4. Bruce testified that he pulled alongside the left side of the Taurus and saw Allen driving with Wide in the passenger seat. Bruce claimed that Allen turned his head toward Brace, and it scared him. He grabbed his pistol and pointed it toward the Taurus. He then fired two shots out of his passenger window at the Taurus.

¶ 5. After the shots were fired, Allen made a right turn. Bruce followed. Allen spotted a police officer and attempted to waive the officer down. He honked his horn and waived his hands. Allen let his foot off the accelerator, and Bruce’s Ford Explorer collided with the rear of the Taurus. The Taurus ran off the road and struck a tree.

¶ 6. Officer Williams witnessed Brace following closely behind the Taurus. He saw the collision of Bruce’s Explorer and the Taurus. Officer Williams called for backup. Officer Ramel Matthews arrived at the scene and took photographs of the broken windshield and bullet holes in the left side of the Taurus.

¶ 7. That evening, Bruce signed a Miranda waiver and spoke to Officer Matthews. Officer Matthews asked Brace a series of questions. Officer Matthews prepared a statement that consisted of his questions and Brace’s responses. Bruce read and signed the statement.

¶ 8. Bruce was found guilty of both counts of drive-by shooting and sentenced to serve twelve years on each count in the custody of the Mississippi Department of Corrections.

ANALYSIS

1. Whether the trial court erred in allowing evidence of the car wreck.

¶ 9. Bruce contends that evidence of the car wreck and photographs of a broken windshield were not relevant and that the prejudicial effect of this evidence substantially outweighed its probative value, violating Rule 403 of the Mississippi Rules of Evidence. Bruce argues that the car wreck was evidence of “other crimes or bad acts.” Thus, Bruce claims that when evidence of other crimes or bad acts are offered as evidence under Rule 404(b) of the Mississippi Rules of Evidence, such evidence may not be admitted unless it also passes the so-called Rule 403 filter.

¶ 10. Mississippi Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 11. When a trial court determines that potentially prejudicial evidence possesses sufficient probative value, it is within the court’s sound discretion whether or not to admit the evidence, “since Rule 403 does not mandate such an exclusion but rather states that the evidence may be excluded.” Baldwin v. State, 784 So.2d 148, 156 (¶ 27) (Miss.2001). “The task of an appellate court in reviewing such a determination is not to conduct its own de novo Rule 403 balancing, but simply [to] determine whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence.” Jones v. State, 904 So.2d 149, 152 (¶ 7) (Miss.2005).

¶ 12. The supreme court has held that “even though it may reveal other crimes, evidence or testimony may be given in order to tell a rational and coherent story of what happened and where it is substantially necessary to present a complete story.’ ” Flowers v. State, 773 So.2d 309, 319 (¶ 28) (Miss.2000) (citing M.R.E. 404(b); Mackbee v. State, 575 So.2d 16, 27-28 (Miss.1990)). The supreme court has further held that evidence of another crime is “also admissible if it sheds light upon the motive or if it forms a part of a chain of facts intimately connected so that in order to interpret its general parts, the whole must be heard.” McGowen v. State, 859 So.2d 320, 332 (¶ 38) (Miss.2003) (quoting Flowers, 773 So.2d at 319 (¶ 28)).

¶ 13. Bruce’s counsel moved to exclude any evidence about the car wreck. Bruce sought to exclude the testimonies of Officer Williams and Allen, along with the photographs taken after the wreck of the Taurus.

¶ 14. The trial court found that the wreck was “part of that continuous transaction of events that took place” and that allowing evidence of the car wreck did not cause undue prejudice. After reviewing the record, we are satisfied that the trial court weighed the probative value of this evidence against the potential for undue prejudice. The trial court did not abuse its discretion. We find that this issue is without merit.

2. Whether the trial court erred in admitting photographs of the bullet holes in the Taurus.

¶ 15. Bruce next argues that the admission of the photographs of the bullet holes caused him undue prejudice and denied him a fair trial. The State responds that the photographs were probative evidence and were submitted to corroborate other testimony presented at trial.

¶ 16. The photographs at issue were of the bullet holes on the outside in the front driver’s door. Bruce contends that these photographs are prejudicial because there is no proof that the bullet holes came from his gun on that night.

¶ 17. “Photographs of the crime scene are generally admissible, and ‘some probative value’ is the only requirement for the admission of photographs, absent a clear showing of unfair prejudice to the objecting party outweighing their probative value.” Selders v. State, 794 So.2d 281, 285 (¶ 19) (Miss.Ct.App.2001). Generally, if the photographs are used to supplement a witness’s testimony, the photographs have probative value. Id. Rulings on the admission or exclusion of photographs are reviewed under an abuse-of-discretion standard. Id.

¶ 18. Here, Bruce failed to make a clear showing of how admitting the photographs would cause him undue prejudice. The photographs corroborated Allen’s testimony which was that Bruce fired gunshots at Wide and him.

¶ 19. We find that the trial court did not abuse its discretion in admitting the photographs. Accordingly, this issue is without merit.

3. Whether the trial court erred in admitting a prior statement made by Bruce.

¶ 20. At trial, Bruce’s counsel asked the court to exclude Bruce’s prior statement to Officer Matthews because it was incomplete. Bruce cites Cobb v. State, 734 So.2d 182, 185 (¶ 8) (Miss.Ct.App.1999), which held that “it was error to introduce the officer’s written version of [the defendant's statement into evidence as an exhibit since it was never adopted by [the defendant].”

¶21. This case is distinguishable from Cobb. In Cobb, this Court addressed the admissibility of a disputed confession. James Cobb was accused of robbing a jewelry store. Id. at 184 (¶ 2). Cobb moved to suppress an oral confession made after his arrest. Id. at (¶ 5). Cobb did not challenge the voluntariness of the statement. Id. at (¶ 6). What he challenged was the content of the statement. Id. at 184-85 (¶ 6). Cobb claimed that he told the police that he did not commit the robbery. Id. at 185 (¶ 6). The State claimed that he had admitted robbing the store. Id. at 184 (¶ 5). When police typed this confession, Cobb refused to sign it. Id.

¶ 22. This Court held that, “such testimony does not constitute grounds to exclude the confession if it is contradicted by competent evidence that the statements were, in fact, made.” Id. at 185 (¶ 7). “Once there is credible proof that such a statement was made, evidence of the contents of the statement is admissible.” Id.

¶ 23. The mere fact that Bruce disputes the content of the statement is not a sufficient basis to exclude it. Rather, we must determine if there was credible proof that such a statement was made. If so, the statement is admissible.

¶ 24. At the suppression hearing, Officer Matthews testified that he took Bruce’s statement after Bruce read, understood, and signed the Miranda form. Officer Matthews asked Bruce questions and then he typed Bruce’s responses. Bruce signed the statement after it was completed.

¶ 25. From the record, there was sufficient support for the trial court’s conclusion that the statement was, in fact, complete and voluntary. Bruce had the opportunity to change his statement when he read it. However, Bruce read it, made no changes, and signed the statement. Bruce’s counsel was allowed to cross-examine Officer Matthews and to present his version of his statement. Accordingly, we find that the trial court’s admission of the statement was not an abuse of discretion.

i. Whether the trial court erred when it did not allow Bruce to call his grandmother as a character witness.

¶ 26. The trial court excluded Bruce’s grandmother’s testimony as to his reputation. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (¶ 7) (Miss.2002). In general, character evidence is inadmissible to show that the person acted in conformity with it on that particular occasion. M.R.E. 404. However, character evidence is admissible if it is “[e]vidence of a pertinent trait of his character offered by an accused.” M.R.E. 404(a). Evidence is limited to testimony about the defendant’s general reputation. Winters v. State, 449 So.2d 766, 768 (Miss.1984). Accordingly, the trial court could have admitted the grandmother’s testimony as to Bruce’s reputation.

¶ 27. Despite the trial court’s ruling, we find that any error in the trial court’s excluding Bruce’s grandmother’s statement into evidence was harmless. The supreme court has held that:

The basic test for harmless error in the federal constitutional realm ... is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained .... [T]he inquiry is not whether the jury considered the improper evidence or law at all, but rather, whether that error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Thomas v. State, 711 So.2d 867, 872-73 (¶ 25) (Miss.1998) (internal citations and quotations omitted). The trial court allowed the grandmother to proffer her statement for the record. She stated that Bruce had never been violent to her, and as far as she knew, he had never been violent.

¶ 28. The exclusion of the testimony was harmless when compared to the overwhelming evidence of guilt contained elsewhere in the record. -Mississippi Code Annotated section 97-3-109(1) provides:

A person is guilty of a drive-by shooting if he attempts, other than for lawful self-defense, to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life by discharging a firearm while in or on a vehicle.

The jury heard Bruce admit that he had fired shots out of his automobile in the direction of the Taurus, while Wide and Allen were in it. Bruce admitted that he shot his pistol at the Taurus because he was trying to protect Wide. Allen testified that he and Wide were headed to a hotel to sleep and that Wide was safe. No evidence was admitted showing that Wide was in danger.

¶ 29. Even with the grandmother’s statement, there was overwhelming evidence showing that Bruce shot his pistol at the Taurus while Bruce was in his vehicle. Thus, the trial court’s excluding the grandmother’s statement from evidence was harmless error and does not require reversal of Bruce’s convictions.

¶ 30. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF DRIVE-BY SHOOTING AND SENTENCE OF TWELVE YEARS FOR EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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

      . At the time of the trial, Ms. Wide was known as Tracy Bruce. Tracy and Archie Bruce married between this incident and the trial.