text:
    Devin Ladarious ARRINGTON a/k/a Devin Ladarius Arrington a/k/a Devin Arrington v. STATE of Mississippi
    NO. 2017-KA-01329-SCT
    Supreme Court of Mississippi.
    April 18, 2019
    ATTORNEYS FOR APPELLANT: BERNARD C. JONES, JR., RIDGELAND, ASHLEY D. JONES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, JACKSON
    EN BANC.
   ISHEE, JUSTICE, FOR THE COURT:

¶1. Devin Ladarious Arrington was indicted by a DeSoto County grand jury for armed robbery. After jury selection, Arrington requested a continuance to allow him to retain new counsel, which was denied. During his attorney's opening statement, Arrington interrupted and declared that he did not want his counsel to continue representing him. After a jury trial, Arrington was found guilty. Arrington filed a Motion for J.N.O.V. or, in the Alternative, Motion for New Trial, which was also denied. Arrington now appeals. We affirm Arrington's conviction.

FACTS AND PROCEDURAL HISTORY

¶2. The facts surrounding the incident on November 29, 2014, are disputed. Arrington claimed he saw Janauris Blanch and confronted him because he believed Blanch had broken into his home in the past. Arrington testified that Blanch pulled a gun and that they got into a "scuffle." Arrington contends that he eventually got possession of the gun by grabbing a Dillards bag that the gun was on top of. The bag contained a Polo-brand shirt that Blanch had purchased earlier that day. Arrington claims that he then fled the scene with both the gun and the bag.

¶3. On the other hand, Blanch testified that when he arrived at his home, he noticed an unfamiliar car parked in front of his neighbor's house. A party was taking place in the neighborhood, but Blanch found the parked car odd because his neighbor did not allow people to park in front of his house. Although Blanch claimed he was nervous about exiting his vehicle, he nevertheless decided to go inside. Blanch testified that Arrington, whom he did not know, exited the car, approached him, pointed a gun at him, robbed him, got in his vehicle, and fled the scene.

¶4. Shortly after the incident, Blanch reported the alleged robbery, and Arrington was stopped by an officer with the Southaven Police Department. An AR-15-type rifle, a black duffle bag, a gray hoodie, a black mask, a Glock handgun, and a Dillards bag containing a Polo-brand shirt were found in the trunk. Arrington was indicted for armed robbery on February 10, 2015.

¶5. After a number of continuances, trial was held on April 18, 2017. After the jury had been selected, Arrington requested yet another continuance. Arrington contended that he needed a continuance to retain new representation because he learned that his attorney, Darin Vance, had not hired a private investigator to seek out potential witnesses. Arrington testified that Vance had told him that he would hire a private investigator. But Vance contended that the day before trial was the first time Arrington had brought up hiring a private investigator. Vance also said that he interviewed the known witnesses and was unaware of any other potential witnesses to the incident. Arrington told the trial court judge that, the day before trial, Vance had told him that he was not prepared. Vance denied ever saying that he was not prepared for trial. The trial court denied Arrington's request for a continuance.

¶6. Arrington was found guilty as charged and filed a Motion for J.N.O.V. or, in the Alternative, Motion for New Trial, which was denied. Arrington now appeals.

STATEMENT OF THE ISSUES

¶7. Five issues are raised on appeal: (1) whether the trial court erred in denying Arrington's Motion for J.N.O.V or, in the Alternative, Motion for New Trial; (2) whether the trial court erred in denying Arrington's request for a continuance; (3) whether Arrington had received ineffective assistance of counsel; (4) whether the trial court erred in not declaring a mistrial; and (5) whether cumulative error required reversal of Arrington's conviction.

DISCUSSION

I. Arrington's Motion for J.N.O.V or, in the Alternative, Motion for New Trial

¶8. Denial of a motion for J.N.O.V is reviewed de novo. Johnson v. St. Dominics-Jackson Mem'l Hosp. , 967 So.2d 20, 22 (Miss. 2007). Arrington argued that the verdict was against the overwhelming weight of the evidence and that the court erred in denying Arrington's motion for a directed verdict, the peremptory instruction, and the self-defense instruction. The issue of Arrington's J.N.O.V. is listed in his statement of the issues, but not one of the above arguments is mentioned in Arrington's brief on appeal. The law is well established that points not argued in the brief on appeal are abandoned and waived. Collins v. City of Newton , 240 So.3d 1211, 1221 (Miss. 2018) (citing Sumrall v. State , 758 So.2d 1091, 1094 (Miss. Ct. App. 2000) ).

¶9. Although Arrington did file an amended motion for J.N.O.V. in which he did raise the arguments, the claims are barred. "Failure to cite relevant authority obviates the appellate court's obligation to review such issues." Byrom v. State , 863 So.2d 836, 853 (Miss. 2003) (quoting Simmons v. State , 805 So.2d 452, 487 (Miss. 2001) ). Arrington's failure to cite authority regarding the J.N.O.V. issue renders it waived. No further discussion is necessary. Even if this claim had not been abandoned, we find it meritless.

II. Ineffective Assistance of Counsel

¶10. Although the claim for ineffective assistance of counsel is the only claim for which Arrington cites authority in his brief on appeal, it is not identified in the statement of the issues. The Mississippi Rules of Appellate Procedure provide that "[n]o issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified." M.R.A.P. 28(a)(3). Because Arrington did not identify his claim of ineffective assistance of counsel as an issue on appeal, he has abandoned this claim. Therefore, we need not address it. But, even if Arrington did not abandon this claim, we find it not fully developed.

¶11. Arrington claims that he was deprived of effective assistance of counsel because his attorney, Darin Vance, did not hire a private investigator to track down potential witnesses. This Court has held that,

While courts must defer to lawyers' judgments and strategies, "at a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case." Ferguson v. State , 507 So.2d 94, 96 (Miss. 1987).... While counsel is not required to exhaust every conceivable avenue of investigation, he or she must at least conduct sufficient investigation to make an informed evaluation about potential defenses. State v. Tokman , 564 So.2d [1339,] 1343 [ (Miss. 1990) ]. Under Strickland , counsel has a duty "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland [v. Washington ], 466 U.S. [668,] 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 [ (1984) ].

Wilson v. State , 81 So.3d 1067, 1075 (Miss. 2012) (quoting Ross v. State , 954 So.2d 968, 1005 (Miss. 2007) ).

¶12. Arrington also argues that Vance was not adequately prepared for trial. But Vance stated that he had scheduled a meeting to prepare Arrington for trial a week before the trial date. But Arrington did not show up to this meeting, nor did he contact Vance to inform him that he would not attend.

¶13. "The touchstone for testing a claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Ross , 954 So.2d at 1003 (citing Irby v. State , 893 So.2d 1042, 1049 (Miss. 2004) ). But this Court is limited in its review of Arrington's ineffective-assistance-of-counsel claim.

[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. Archer v. State , 986 So.2d 951, 955 (Miss. 2008). An appellate court is limited to the trial-court record in its review of the claim(s), and there may be instances in which insufficient evidence and/or information exists within the record to address the claim adequately. Id. In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for post-conviction relief. Read v. State , 430 So.2d 832, 837 (Miss. 1983). We may, however, address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22.

Dartez v. State , 177 So.3d 420, 422-23 (Miss. 2015). Even if Arrington's claim for ineffective assistance of counsel was properly raised on appeal, it would be dismissed without prejudice because the issues presented are based on facts not fully apparent from the record.

III. Arrington's Request for a Continuance

¶14. Arrington argues that the trial court should have granted his request to continue trial in order to retain new legal representation and seek out potential witnesses to the incident. A denial of a request for a continuance is reviewed for abuse of discretion. Ladnier v. State , 273 So.2d 169, 171-72 (Miss. 1973). Arrington does not cite any authority to support this claim. The Court "considers assertions of error not supported by citation or authority to be abandoned." Russell Real Prop. Servs., LLC v. State , 200 So.3d 426, 430 (Miss. 2016) (quoting McNeil v. Hester , 753 So.2d 1057, 1075 (Miss. 2000) ). Arrington's failure to cite authority renders this claim abandoned. But, even if Arrington did not abandon this claim by failing to cite any authority, the trial court did not abuse its discretion in denying Arrington's request for a continuance.

¶15. This Court has held that granting a continuance is within the discretion of the trial court and that judgment will not be reversed unless an abuse of discretion that resulted in injustice occurred. Ladnier , 273 So.2d at 171. And a trial court's "[d]enial of a continuance is not reversible unless manifest injustice appears to have resulted from the denial." Miles v. State , 249 So. 3d 362, 368 (Miss. 2018) (citing Hatcher v. Fleeman , 617 So.2d 634, 639 (Miss. 1993), overruled on other grounds by Smith v. Hollins , 905 So. 2d 1267, 1278 (Miss. 2005) ). Denying Arrington's request for a continuance did not result in injustice, and therefore the trial court did not abuse its discretion in denying it.

IV. Mistrial

¶16. Arrington claims that the trial court should have declared a mistrial on its own motion when Arrington interrupted the proceedings and declared that he did not want his attorney, Darin Vance, to represent him. Motions for mistrial are reviewed for abuse of discretion. Tate v. State , 912 So.2d 919, 932 (Miss. 2005). Like his previous arguments, Arrington fails to cite any authority, and therefore he has abandoned this claim. Even if it was not abandoned, we find the claim lacks merit.

¶17. Mistrials should only be declared sua sponte when manifestly necessary. Younger v. State , 931 So.2d 1289, 1291 (Miss. 2006). Arrington's outburst in open court did not create a manifest necessity to declare a mistrial. "This Court has recognized several examples where a declaration of a mistrial would likely be a manifest necessity: failure of a jury to agree on a verdict; a biased or otherwise tainted jury; improper separation of the jury; where jurors were failed to follow instructions." Spann v. State , 557 So.2d 530, 532 (Miss. 1990) (citing Watts v. State , 492 So.2d 1281, 1284 (Miss. 1986) ). Arrington's outburst pales in comparison. In Thermon Arrington v. State , the Mississippi Court of Appeals held,

If we were to find error and declare a mistrial due to the defendant's unprovoked outburst, we daresay the whole criminal prosecution system could come to a standstill. At any critical moment in a trial, a defendant could blurt out any type of disruptive statement that would tend to poison the jury. Under Arrington's theory, a mistrial would be declared and another trial would have to be held on every occasion of an outburst. We will not invite such disorder in to our system of law.

Thermon Arrington v. State , 77 So.3d 542, 548 (Miss. Ct. App. 2011), abrogated on other grounds by Leslie v. State , 171 So.3d 549 (Miss. Ct. App. 2015). We find that the trial court did not err in declining to grant a mistrial.

V. Cumulative Error

¶18. Like Arrington's previous claims, no authority is cited for Arrington's cumulative-error claim. Therefore, this claim has been abandoned. See Russell Real Prop. Servs., LLC , 200 So.3d at 430. Even if this claim was not abandoned, it is meritless.

¶19. Arrington's entire argument about cumulative error reads, "It is respectfully submitted that the cumulation of errors in this requires a reversal of Arrington's conviction in the interest of justice." But "[w]here there is no error in part, there can be no reversible error to the whole." Harris v. State , 970 So.2d 151, 157 (Miss. 2007) (citing Gibson v. State , 731 So.2d 1087, 1098 (Miss. 1998) ). We find that the trial court committed no error; therefore, we find no cumulative error that requires reversal of Arrington's conviction.

CONCLUSION

¶20. We affirm Arrington's conviction for armed robbery. Arrington abandoned each of his arguments on appeal by failing to make the arguments, failing to cite authority, or failing to identify the arguments. Even if Arrington's claims were not abandoned, Arrington's arguments are either without merit or are based on facts not fully apparent from the record.

¶21. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR.

      The fact that one of Blanch's neighbors was having a party is not disputed.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    JAMES ALLEN INSURANCE BROKERS and Certain Underwriters at Lloyd's, London, Subscribing to Certificate No. FRO-100944 v. FIRST FINANCIAL BANK
    NO. 2018-IA-00307-SCT
    Supreme Court of Mississippi.
    April 18, 2019
    ATTORNEYS FOR APPELLANTS: CHRISTOPHER ALBERT D'AMOUR, BENJAMIN E. GRIFFITH, OXFORD, LAURA FORD ROSE, RIDGELAND, G. ROBERT PARROTT, II, LAUREN ELIZABETH WARD
    ATTORNEY FOR APPELLEE: CHAD J. HAMMONS, JACKSON
    BEFORE KING, P.J., COLEMAN AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶1. James Allen Insurance Brokers (JAIB) and Certain Underwriters at Lloyd's, London, Subscribing to Certificate No. FRO-100944 (Lloyd's) petitioned this Court for interlocutory review of the Simpson County Circuit Court's order granting partial summary judgment in favor of First Financial Bank (FFB). The trial court held that FFB is entitled to insurance proceeds from a fire loss that occurred at Luther and Freda Feazell's poultry farm, because JAIB and Lloyd's failed to comply with Mississippi law requiring notice of cancellation of property insurance. We affirm the trial court's grant of partial summary judgment in favor of FFB.

FACTS

¶2. The Feazells have used Insurance Associates of Magee (IAM) as their local insurance agent to procure insurance coverage on their chicken farm and equipment since 2006. They also are indebted to FFB under promissory notes for loans first issued in 2006 in relation to the farm. The loans are secured by, among other things, four poultry houses on the Feazells' farm, valued at $ 231,750, $ 231,750, $ 150,000, and $ 150,000.

¶3. In December 2013, the Feazells, through IAM, requested that a new insurance policy be issued with Lloyd's with an effective date of December 13, 2013. The Feazells needed a new underwriter because their prior carrier would not renew coverage.

¶4. On December 11, 2013, IAM obtained a quote from JAIB on a policy to be issued by Lloyd's. The quote included a letter entitled "Non-Admitted Farm Quote Binding Terms: This Quote is Valid for 7 days." The letter quoted a premium of $ 7,429.34. The terms provided that a "binder" would issue with an effective date from December 13, 2013, to December 13, 2014.

¶5. The letter contained the following:

To issue the policy, we will need all of the following items in our office within 10 days of the binding effective date. Your binding authority is a maximum of 10 days after the effective date. If all items are not received, we will cancel the policy flat with no coverage afforded at anytime and all premium, less the policy fee will be returned.

¶6. One of the items stated, "Total premium payment must be received in our office within 10 days of agent's written request to bind coverage in order to retain requested effective date." The original due date for the total premium was December 23, 2013.

¶7. To obtain the total premium payment funds, the Feazells entered into a finance agreement with Insurance Premium Financing Solutions (Imperial PFS). Under this agreement, the Feazells would provide $ 2,383.80 of the $ 7,479.33 premium payment, while Imperial PFS would provide the remaining $ 5,095.53. IAM received Imperial PFS's portion of the total premium payment on December 16, 2013.

¶8. FFB provided the remaining portion of the premium to IAM using funds from the Feazells' escrow accounts. FFB's check containing its portion of the premium payment was dated December 18, 2013, and IAM allegedly received it on December 26, 2013. According to JAIB and Lloyd's, despite possessing the funds to pay the full premium, IAM did not send payment or inform JAIB that it had the funds.

¶9. On December 20, 2013, JAIB informed IAM, via email, that the Feazells' premium payment had not been received. The email stated that JAIB would "consider the premium to be on time if received by Friday, Dec. 27[, 2013.]"

¶10. On December 27, 2013, again via email, JAIB informed IAM that the premium payment had not been received. This email provided a final payment-deadline extension, stating that the "full payment must be on" the desk of Elizabeth Hauser, JAIB's employee, by January 2, 2014, or the effective date would be reset to the date the premium payment was paid with "no coverage offered in the interim." According to JAIB, the additional deadline offered to IAM was a courtesy and was not required of JAIB.

¶11. FFB claims IAM transmitted full payment of the premium to JAIB on December 30, 2013, in the amount of $ 7,429.33. But JAIB disputes this.

¶12. JAIB claims no proof exists that the premium was transmitted by IAM on December 30, only that the premium payment check bore the date December 30, 2013. JAIB claims that it had not received the total premium payment by January 2, 2014, which resulted in a failure to satisfy an express condition of the written terms required to bind coverage for the requested effective date of December 13, 2013.

¶13. On January 5, 2014, three days after the final premium payment deadline, the Feazells' poultry farm caught fire. All four of the chicken houses used to secure FFB's loan to the Feazells were either destroyed or rendered inoperable. According to FFB, due to the extensive fire damage, the Feazells' poultry operation came to a halt, effectively resulting in complete casualty loss.

¶14. On January 8, 2014, JAIB sent an email to IAM stating,

We still do not have premium for this policy. The requested date of 12/13 can no longer be honored. You should be aware that at this time there is no coverage due to nonpayment. Full premium must arrive by Friday, January 10 or the binder will be cancelled with a penalty assessed to your commission.

¶15. FFB claims that JAIB did not send FFB a copy of the January 8, 2014, email, nor did it otherwise notify FFB of any problem with receiving the premium. FFB says it never received a notice of cancellation of the policy from JAIB or Lloyd's at any time during the communications from JAIB to IAM regarding the unpaid premium.

¶16. JAIB and Lloyd's claim that JAIB did not receive the premium payment check from IAM until January 10, 2014. JAIB sent IAM an email that same day, stating,

Attached is the revised binder for [the Feazells]. Because premium was not received on time, the effective date of this policy was reset to the date premium was paid. The policy term is 1/10/2014 to 1/20/2015.

¶17. On May 13, 2014, FFB tendered a claim in writing to JAIB requesting that JAIB and Lloyd's honor the binder issued and pay FFB the amount owed for its loss based on its status as the loss payee under the terms of the binder. Neither JAIB or Lloyd's honored the request.

¶18. In August 2014, the Feazells filed a complaint against IAM, JAIB, and Lloyd's, asserting various causes of action. In March 2015, after the court allowed it to intervene, FFB filed a complaint and cross-claim, asserting (i) breach of contract by the Feazells; (ii) failure of JAIB and Lloyd's to pay FFB insurance proceeds as the contractual and statutory loss payee under Mississippi Code Sections 83-13-9 and 83-5-28 ; (iii) bad faith by JAIB and/or Lloyd's; and (iv) negligent failure to procure insurance by IAM.

¶19. Following discovery, FFB filed a motion for partial summary judgment seeking judgment in its favor on the second count, the alleged failure of JAIB and Lloyd's to pay FFB the amounts due under the insurance binder issued to the Feazells on FFB's collateral. The trial court granted FFB's motion for partial summary judgment and entered an order in December 2017.

¶20. In February 2018, on its own motion, the trial court amended the December 2017 order, substituting the following original language:

While the present binder stated that the full premium was payable and due within 10 days of the binding effective date[, t]his date was extended on numerous occasions. The binder itself does not contain any terms regarding automatic cancellation or withdrawal of coverage.

The following language, which JAIB and Lloyd's contend was proposed by the Feazells, FFB, and IAM, was substituted:

The "Non-Admitted Farm Quote Binding Terms" document that was attached to a December 11, 2013 email from [JAIB] to [IAM] stated that the premium was due in full within 10 days of the binding effective date.
However, the actual binder that was issued with effective dates of coverage from December 13, 2013 through December 13, 2014 contained no deadline for the payment of the premium and did not contain any terms regarding automatic cancellation or withdrawal of coverage.

¶21. JAIB and Lloyd's petitioned this Court for interlocutory appeal, which this Court granted.

DISCUSSION

¶22. Summary judgment granted by the trial court is reviewed de novo. Hardy v. Brock , 826 So.2d 71, 74 (Miss. 2002). Summary judgment is appropriate if the evidence-admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc.-shows "that there is no genuine issue" of material fact "and that the moving party is entitled to a judgment as a matter of law. Duckworth v. Warren , 10 So.3d 433, 436 (Miss. 2009) (quoting Miss. R. Civ. P. 56(c) ).

¶23. JAIB and Lloyd's submit that the material facts are not in dispute. They claim that the trial court misinterpreted those facts and the applicable law when it granted partial summary judgment in favor of FFB. They contend that the sole issue is a legal one-whether FFB was owed a statutory notice of cancellation when the policy never was cancelled because the binding terms never were satisfied. They maintain no coverage was in place at the time of the fire loss; without effective coverage, the notice requirements of Mississippi Code Sections 83-13-9 and 83-5-28(1) were not triggered. We disagree.

¶24. Section 83-13-9 contains a union or standard mortgage clause that becomes a part of every fire-insurance policy written in Mississippi. Carter v. Allstate Indem. Co. , 592 So.2d 66, 71 (Miss. 1991). The purpose of the clause "is to protect the mortgagee from loss occurring after the mortgagor or owner has caused a lapse in insurance coverage." Id. (emphasis omitted) (citing Highlands Ins. Co. v. Allstate Ins. Co. , 688 F.2d 398, 406 (5th Cir. 1982) ).

¶25. Section 83-13-9 provides, in pertinent part,

Each fire insurance policy on buildings taken out by a mortgagor or grantor in a deed of trust shall have attached or shall contain substantially the following mortgagee clause, viz: .... This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee (or trustee) for thirty (30) days after notice to the mortgagee (or trustee) of such cancellation and shall then cease, and this company shall have the right on like notice to cancel this agreement.

Miss. Code Ann. § 83-13-9 (Rev. 2011).

¶26. Section 83-5-28(1), in effect at the time of this case, also provides as follows:

A cancellation, reduction in coverage or nonrenewal of liability insurance coverage, fire insurance coverage or single premium multiperil insurance coverage is not effective as to any coverage issued or renewed after June 30, 1989, unless notice is mailed or delivered to the insured and to any named creditor loss payee by the insurer not less than thirty (30) days prior to the effective date of such cancellation, reduction or nonrenewal. This section shall not apply to nonpayment of premium unless there is a named creditor loss payee, in which case at least ten (10) days' notice is required.

Miss. Code Ann. § 83-5-28(1) (Rev. 2011) (emphasis added).

¶27. Here, the record shows that an insurance binder was issued by JAIB and Lloyd's with an effective date of coverage for the Feazells' chicken farm beginning on December 13, 2013, through December 13, 2014. The binder listed FFB as a mortgagee/loss payee and included FFB's mailing address.

¶28. Although temporary, a binder is nonetheless "a contract of insurance." T.H. Mastin & Co. v. Russell , 214 Miss. 700, 59 So.2d 321, 324 (1952). And it is sufficient to trigger statutory notification requirements. Scottsdale Ins. Co. v. Deposit Guar. Nat'l Bank , 733 So.2d 863, 865-66 (Miss. Ct. App. 1999).

¶29. In Scottsdale , a bank was listed as the mortgagee and loss payee under a binder providing builder's risk insurance on a home. Id. at 864. The binder was to provide coverage from July 25, 1988, through January 25, 1989. Id. Under the binder, a policy later was issued covering the property from July 25, 1988, through October 25, 1988. Id. The bank was not listed as the mortgagee or loss payee on the policy. Id. at 864-65. In March 1989, the home was partly destroyed by a tornado. Id. at 865 (quoting Miss. Code Ann. § 83-13-9 ). The insurer refused to pay for the damage because the loss occurred after the expiration dates of the policy and the preceding binder. Id. The bank sued, claiming the insurer had failed to comply with the statutory requirement that at least ten days' notice be given a mortgagee before an insurance policy is cancelled. The trial court entered summary judgment in favor of the bank as to the insurer's liability. Id.

¶30. The Court of Appeals affirmed, noting Section 83-13-9's requirement that a policy that cancels as provided by its terms "shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation and shall then cease ...." Id. at 865-66. The Court of Appeals agreed with the trial court that even though the evidence showed that two days before the tornado, the mortgagee had discovered that the coverage had expired, this did not relieve the insurer's obligation to give notice of cancellation as required by Section 83-13-9. Id. at 866. Based on its reading of Section 83-13-9, the Court of Appeals stated, "Actual notice by the mortgagee after the expiration of the policy does not prevent a lapse in coverage. Only the notice demanded by statute operates fully to protect the mortgagee." Id.

¶31. JAIB and Lloyd's contend that Scottsdale is distinguishable because the binder in that case was terminated at its expiration date. They contend that the binder here was not effective on the date of the loss because the premium payment had not been received by JAIB. They argue that the failure to timely fulfill the condition precedent of the premium payment meant that no coverage was in effect at the time of the loss. And if no coverage was formed, they contend that no coverage existed to cancel, making cancellation a nonissue. JAIB and Lloyd's therefore argue that they should not have been held liable by the trial court for resulting losses or damages incurred by FFB.

¶32. They contend the facts here are similar to those in AmFed National Insurance Co. v. NTC Transportation, Inc. , 196 So.3d 947 (Miss. 2016), in which this Court held that a workers' compensation insurer was not required to comply with the governing statute's notice requirements when a policy expired for failure to pay a premium on time and the insurer did not cancel the policy.

¶33. In AmFed , despite receiving renewal notices sixty and thirty days in advance of a workers' compensation policy expiration date, the insured failed to timely pay the insurance premium for renewal coverage. Id. at 950. This resulted in a two-week lapse of coverage for the insured, during which time one of its employees was injured on the job. Id. When the insurer denied coverage for that period, the insured sued, claiming, among other things, that the insurer had failed to comply with Section 71-3-77's notice requirements. Id. at 950-51.

¶34. This Court held that the notice requirements did not apply under the facts of that case. Id. at 957. Construing Section 71-3-77, in effect at the time, the AmFed Court found that the statute's notice requirements applied only to cancellations by the insurer within the policy period or in instances in which the insurer did not intend to renew the policy upon its expiration. Id. at 957-58. What occurred in the case, according to the AmFed Court, could not be characterized as a cancellation of workers' compensation coverage by the insurer or a manifest intention by the insurer not to renew the insured's policy. Id. at 961. Instead, the insured's policy simply expired, and its coverage lapsed for the insured's failure to pay the premium on time. Id.

¶35. FFB contends that AmFed is distinguishable because it turned on the interpretation of a completely different statute and set of circumstances. Section 71-3-77, the statute at issue in AmFed , required notice of cancellation to the insured, with no equivalent requirement to notify an interested third party, such as a loss payee, which Section 83-5-28(1) requires. FFB argues that, as a listed loss payee, it is afforded more protection than the policyholder, as was found to be the case in Scottsdale , in which the Court of Appeals held that although coverage may be cancelled, it "continue[s] in force for the benefit only of the mortgagee ...." Scottsdale , 733 So.2d at 866 (quoting Miss. Code Ann. § 83-13-9 ).

¶36. We agree with FFB. First, the claim asserted by JAIB and Lloyd's that coverage never went into effect because JAIB did not receive the premium timely has no merit.

¶37. "Insurance policies are matters of contract," and the same rules that govern other contracts apply to the interpretation of insurance contracts. AmFed , 196 So.3d at 954 (quoting Prudential Ins. Co. of Am. v. Stewart , 969 So.2d 17, 21 (Miss. 2007) (quoting Krebs v. Strange , 419 So.2d 178, 181 (Miss. 1982) ) ). Likewise, the same essential elements for contract formation apply: offer and acceptance, supported by consideration. Id. (citing Stewart , 969 So.2d at 21 ). Generally, "[w]hen the insurance company's offer to issue the insurance is accepted by the insured and premium payment is made, the contract is formed and the rights and obligations of the respective parties 'lock in.' " Krebs , 419 So.2d at 181.

¶38. But, in the absence of an agreement to contrary, "[i]t is not essential that the premiums on the policies be paid, or that the policies be actually delivered to the insured, before the contract becomes effective." Scottish Union & Nat'l Ins. Co. v. Warren Gee Lumber Co. , 118 Miss. 740, 80 So. 9, 13 (1918). This includes insurance binders. See, e.g., Cummings v. New England Ins. Co. , 266 F.2d 888 (5th Cir. 1959) (construing Mississippi caselaw to hold that failure to discuss the amount of the premiums does not necessarily prevent a binder from becoming effective); see also Camden Fire Ins. Ass'n v. Koch , 216 Miss. 576, 63 So.2d 103 (1953) (holding that a general agent for an insurance company may waive any provision of the policy).

¶39. Here, while JAIB and Lloyd's certainly could have contracted to require that the premium be paid before the binder went into effect, they did not do so. Instead, they agreed to issue a binder with an effective date of coverage from December 13, 2013, through December 13, 2014, with the full premium due within ten days of the binding effective date.

¶40. Thus, under this term for the binder, it cannot be said that coverage did not go into effect because JAIB did not receive the premium timely. Coverage did go into effect, as JAIB's corporate representative admitted during depositions.

Q. Let me ask you something. If the chicken houses in this case had burned down on December 14th, 2013, would there have been coverage for them?
A. Yes.

¶41. Whether the coverage ever cancelled or lapsed for failure to pay the premium timely is not a question currently before this Court in this interlocutory appeal. That question concerns the insured but not the mortgagee/loss payee in this particular case.

¶42. Coverage having gone into effect on December 13, 2013, under the terms of the binder, and FFB having been listed in the binder as a mortgagee/loss payee triggered Section 83-5-28(1)'s notification requirements for purposes of FFB. JAIB and Lloyd's failed to comply with those notification requirements; therefore, they are liable to FFB for its loss. Accordingly, the trial court correctly granted partial summary judgment in favor of FFB.

CONCLUSION

¶43. The trial court's grant of partial summary judgment in favor of FFB is affirmed. We remand the case to the Circuit Court of Simpson County for further proceedings consistent with this opinion.

¶44. AFFIRMED AND REMANDED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      "[A] binder is a contract for temporary insurance, until either a permanent policy can be written or its issuance approved or disapproved by the insuror." Miss. Farm Bureau Mut. Ins. v. Todd , 492 So.2d 919, 929 (Miss. 1986) (citing 43 Am. Jur. 2d Insurance § 219 (1982) ).

      The record contains a copy of the check from IAM to JAIB; it is stamped as having been received by JAIB on January 10, 2014.

      Section 83-5-28(1) was amended, effective July 1, 2018, with the following language added:
      The cancellation and nonrenewal notice requirements of this section shall not apply when a replacement policy form is issued by the same insurer or when a transfer of an insured to a licensed affiliate of the insurer occurs, so long as the replacement of policy forms or transfer results in the same or substantially similar coverage and the insurer mails or delivers to the insured at least thirty (30) days prior to the renewal effective date notice of any term or condition that is less favorable to the policyholder.
      Miss. Code Ann. § 83-5-28(1) (Supp. 2018).

      The Court of Appeals noted in the case that Section 83-13-9 was amended in July 1989, entitling mortgagees to thirty days' notice rather than ten. Id. at 865 n.2 (citing Miss. Code Ann. § 83-13-9 (Rev. 1991) ).

      Section 71-3-77 was amended after the time period in question in AmFed .


author: KING, PRESIDING JUSTICE, FOR THE COURT:

text:
    John T. SEYFARTH, Jr. v. ADAMS COUNTY BOARD OF SUPERVISORS
    NO. 2018-CA-00217-SCT
    Supreme Court of Mississippi.
    April 18, 2019
    ATTORNEY FOR APPELLANT: PAUL ANDERSON KOERBER, JACKSON
    ATTORNEY FOR APPELLEE: SCOTT FLETCHER SLOVER, NATCHEZ
    BEFORE KING, P.J., COLEMAN AND BEAM, JJ.
   KING, PRESIDING JUSTICE, FOR THE COURT:

¶1. The Adams County Board of Supervisors (Board) designated Mount Airy Plantation Road as a public road, placing it on the official county road register in 2000. John Seyfarth petitioned the Board to abandon the portion of the road that dead ends into his property. He alleged that people were using the road to reach his property and trespass on it. The Board declined to abandon the road, denied Seyfarth's request for damages, and did not address his requests that the Board take action to abate the nuisances he experienced. Seyfarth appealed to the circuit court, which affirmed the Board's decisions not to abandon the road and not to award damages. But the circuit court ordered the Board to reasonably abate any nuisances to Seyfarth. Seyfarth appeals the circuit court's ruling to affirm the Board's decision not to abandon the road and not to award damages, and the Board cross-appeals the order that it abate any nuisances. Because Seyfarth has no remedy on the record before this Court, this Court affirms the circuit court's judgment affirming the Board's decisions declining to abandon the road and declining to award damages. But because, on this record, the Board has no legal authority to abate any nuisance in the manners suggested, this Court reverses and renders the circuit court's order mandating that the Board abate any nuisance.

FACTS AND PROCEDURAL HISTORY

¶2. In 1998, the Legislature passed a law that required each county board of supervisors to prepare and adopt an official map designating all public roads on the county road system on or before July 1, 2000. Miss. Code Ann. § 65-7-4 (Rev. 2012). The Legislature's stated intent was that the official record "shall include all public roads that the board of supervisors determines, consistent with fact, as of July 1, 2000, or such date the initial official record is adopted, are laid out and open according to law." Miss. Code Ann. § 65-7-4(6) (Rev.

2012). The Legislature further explained that the legislative intent for the proceedings and public hearing for the initial adoption of the roads

are not intended to lay out, open, designate or otherwise establish new public roads, but to document and record existing roads which are, at the time of the initial adoption of said map and register, adjudicated by the board, consistent with fact, to be public roads by dedication, under the methods provided by statute, or by prescription and required by public convenience and necessity.

Miss. Code Ann. § 65-7-4.1 (Rev. 2012). On May 8, 2000, the Adams County Board of Supervisors published notice that a hearing would occur on June 5, 2000, regarding the official county road system registry, as required by statute. See Miss. Code Ann. § 65-7-4(3) (Rev. 2012). The road registry designated which county roads were public and which were private. The hearing occurred on June 5, 2000, and the Board approved the designations on June 19, 2000. Mount Airy Plantation Road, a road .58 miles long, was included as a public road on the designation.

¶3. Mount Airy Plantation Road dead ends into property owned by Seyfarth. The portion that traverses Seyfarth's land provides access to only one other property, and that property has a deeded perpetual easement and right-of-way over the portion of the road that must be used to access it. Seyfarth alleged that the public's use of the portion of the road that dead ends onto his property has created a nuisance. Deer guts were being dumped on his property, hunters have trespassed and even constructed deer stands on Seyfarth's property, and his cattle have been shot and injured.

¶4. In March 2014, Seyfarth twice approached the Board and asked that a portion of Mount Airy Plantation Road be removed from the county road system. Also in March 2014, several residents and landowners along Mount Airy Plantation Road signed a petition asking the Board to keep the road public. On July 18, 2016, Seyfarth appeared before the Board and requested that the Board abandon the portion of Mount Airy Plantation Road that encroaches on his property, declare a variance restricting public use of the portion of the road, take action to abate the nuisances to Seyfarth's property caused by the road, and/or provide just compensation to Seyfarth for the encroachment on his property. There was testimony that the road had been maintained by the general public since the 1980s. Moreover, the other landowner using the road objected to its abandonment. The Board declined to abandon the portion of the road at issue, and it found that Seyfarth's request for damages was untimely. Seyfarth filed a Petition for Bill of Exceptions and Other Relief in the Adams County Circuit Court, appealing the Board's decision. The circuit court affirmed the Board's decisions not to abandon the portion of the road and not to award damages. However, the circuit court noted that the Board did not address Seyfarth's nuisance concerns and ordered "that the county be required to maintain the road in a reasonable manner so as to reasonably abate any nuisance caused by public use of the road, specifically including those cited and complained of by the Plaintiff."

¶5. Seyfarth appeals, arguing that 1) the court erred in affirming the Board's decision not to abandon the road because no substantial evidence exists that the road is a "public road" and the Board should thus abandon the road, and 2) the Board's decision was arbitrary and capricious. Seyfarth asks this Court to 1) reverse and remand the Board's decision; 2) declare that the road was improperly and without legal notice designated a public road; 3) compel the Board to abandon the road; 4) compel the Board to declare a variance from use of the road, including restricting use from the general public and installing a gate at the point of access to Seyfarth's property, and to take action to prevent the nuisances, including stationing law enforcement continuously at the access point; and 5) order the board to provide just compensation to Seyfarth. The Board cross-appeals, arguing that the court's order to abate the nuisance was beyond the circuit court's authority.

ANALYSIS

1. Standard of Review

¶6. This Court does not disturb the decision of a board of supervisors unless the decision was not supported by substantial evidence, was arbitrary or capricious, was beyond the board's scope or powers, or violated the constitutional or statutory rights of the aggrieved party. Hooks v. George Cty. , 748 So.2d 678, 680 (Miss. 1999). Substantial evidence is more than a mere scintilla of evidence. Id. Additionally, because the Mississippi Constitution gives boards of supervisors "full jurisdiction" over roads, this Court gives substantial deference to board decisions regarding roads in which the board has discretion. See Covington Cty. v. Collins , 92 Miss. 330, 45 So. 854, 855 (1908).

2. Law Regarding County Roads

¶7. The Mississippi Constitution places authority over county roads with the county board of supervisors. Miss. Const. art. 6, § 170. It provides that "[t]he board of supervisors [of each county] shall have full jurisdiction over roads, ferries, and bridges, to be exercised in accordance with such regulations as the legislature may prescribe." Id. The Legislature reaffirmed this jurisdiction, providing that "[t]he board of supervisors of each county shall have full jurisdiction over all matters relating to the public roads of the county, including the establishment, laying out, opening, abandonment, altering, changing, working and maintaining of such roads ...." Miss. Code Ann. § 65-7-1(1) (Rev. 2012). The Legislature also mandated that "[a]ll public roads shall be kept open ...." Miss. Code Ann. § 65-7-3 (Rev. 2012). The Legislature provides only limited exceptions to its mandate to keep all roads open: 1) the board may regulate the kinds of wheels that may be used on public roads, and may prohibit vehicles from using cleats or spikes on wheels; 2) in the event of inclement weather, floods, or other causes in which nonuse of a public road is necessary, a supervisor may prohibit use of the road or regulate the type of traffic that may be used on the road; 3) the board may protect its roads from unusual or uncommon use, including regulating maximum loads or weights, that is likely to injure or impair the roads' usefulness as public highways; and 4) the board may close a road during its construction or repair. Miss. Code Ann. §§ 65-7-37, 65-7-43, 65-7-45, 65-7-53 (Rev. 2012).

¶8. The Legislature also provides that the board of supervisors "may ... declare any section of the county road system abandoned ...." Miss. Code Ann. § 65-7-121(1) (Rev. 2012) (emphasis added). The board may abandon any section if it finds

that one or more of the following circumstances are applicable to the section in question:
(a) The section does not provide primary access to occupied properties;
(b) Traffic on the section has for a period of at least ten (10) consecutive years been intermittent and of such low volume that no substantial public purpose is being served thereby;
(c) The board of supervisors has, for a period of at least the previous five (5) consecutive years, not maintained such section as part of the county road system; or
(d) For any reason, the public interest or convenience does not require the section to remain open to the public or that it is in the public interest or convenience to close, vacate and abandon the section.

Miss. Code Ann. § 65-7-121(1) (Rev. 2012).

3. Public Use

¶9. Seyfarth's primary argument on appeal is that substantial evidence of public use does not exist. Yet, the decision by the Board that Seyfarth appeals is the decision not to abandon the road. He did not appeal the Board's initial decision to make the road public. The Board does not have to establish public use in a determination of whether to abandon a road; it must establish public use only when initially designating a road as public. Mount Airy Plantation Road was listed as public in the county road registry as evinced by the Board's minutes in June 2000. Testimony indicated that it had been maintained by the public since the 1980s. And indeed, the Legislature noted that the intent of the registry was to memorialize already-existing public roads, not to create new ones. Miss. Code Ann. § 65-7-4.1 (Rev. 2012). Thus, the presumption is that Mount Airy Plantation Road was a public road prior to June 2000.

¶10. A person aggrieved by a decision of the board of supervisors of a county may appeal to the circuit court within ten days from the date of the decision. Miss. Code Ann. § 11-51-75 (Rev. 2012). At the latest, the Board decided that Mount Airy Plantation Road was public on June 19, 2000. Seyfarth filed his bill of exceptions with the circuit court on July 28, 2016. To the extent that Seyfarth appeals any decision regarding the public use or nature of Mount Airy Plantation Road, his appeal is out of time. The ten day time limit is mandatory and jurisdictional, and when it is not complied with, the appellate court lacks jurisdiction over the appeal. Lowndes Cty. ex rel. Bd. of Supervisors v. McClanahan , 161 So.3d 1052, 1056 (Miss. 2015).

4. Abandonment

¶11. To the extent Seyfarth argues that the Board failed to provide substantial evidence regarding its declining to abandon the road pursuant to Section 65-7-121, his argument is misplaced. Section 65-7-121 leaves the decision not to abandon a road entirely within the discretion of the board of supervisors. Miss. Code Ann. § 65-7-121(1) (Rev. 2012) (emphasis added) (The board of supervisors "may ... declare any section of the county road system abandoned ...."). The factors listed provide for the procedure the board must follow if and when it does determine to abandon a road; they do not provide mandates for when a board should or must abandon a road. This Court has recognized that the statute provides the "procedure for abandoning a road." McClanahan , 161 So.3d at 1056 ; see also Valley Road Action Comm. v. Lauderdale Cty. Bd. of Supervisors , 97 So.3d 1242, 1246 (Miss. Ct. App. 2012) ( Section 65-7-121(1)"sets forth the requirements for a county board of supervisors to close, vacate, or abandon a public road."). This is also illustrated by the statute itself, which provides that "any proceedings under this section shall be documented in the official record of the county road system in accordance with the requirements of Section 65-7-4." Miss. Code Ann. § 65-7-121(6) (Rev. 2012) (emphases added). Section 65-7-4 provides that "[c ]hanges to the county road system shall be recorded on this map as soon as is reasonably possible." Miss. Code Ann. § 65-7-4(1) (Rev. 2012) (emphasis added). A decision not to abandon a public road does not change the county road system in any way and would not need documentation on the road system record; thus it is clear that the procedures of this chapter are the requirements the county must follow in order to allow it to abandon a road, not mandates for when it must or should abandon a road.

¶12. The only other way to find abandonment of a road is through a finding of disuse, which is informed by the law of adverse possession. McNeely v. Jacks , 526 So.2d 541, 544 (Miss. 1988). Seyfarth does not argue that the road has been abandoned through disuse. Nor does it appear from the record that he would be successful doing so. He and another landowner use the road, and the public uses the road for allegedly improper purposes. This Court has held that each of those factors alone can defeat a claim of disuse. Id. at 545 ("If a public road runs through the property of one and deadends on the property of another, and for ten years the latter (and persons acting on his behalf and with his permission) are the only ones to use the road, no abandonment occurs.... [T]he owner of the land on whose property the road deadends is as much as any other a member of the general public, as able in law to interrupt the period of prescription."); Barrett v. Pilgrim , 317 So.2d 382, 383 (Miss. 1975) (holding that the Court was without power to close a public road in private litigation without an order from the Board of Supervisors closing the road, and noting that "[m]ere non-user [sic] by a part or all the general public, or use by some members of the general public of a public road as a 'lovers' lane, whiskey cache or as a place for dumping garbage, will not constitute such an abandonment as to deprive it of its public character ....").

5. Just Compensation

¶13. When a landowner claims compensation for land taken for a public road, the landowner must petition the board of supervisors "at the next meeting after the laying out of the road or at the meeting when the report thereof shall be returned ...." Miss. Code Ann. § 65-7-61 (Rev. 2012). At the latest, the public nature of the road was laid out in June 2000. Seyfarth filed his bill of exceptions in July 2016. Any claim for compensation under Section 65-7-61 is untimely, and this Court lacks jurisdiction to review it. Seyfarth has not filed suit under the takings clause of the Mississippi Constitution. However, to the extent Seyfarth argues in his brief that he is entitled to just compensation under Mississippi Constitution, article 3, section 17, his claim is likewise untimely, as a three-year statute of limitations applies to actions brought under the Takings Clause of the Mississippi Constitution. City of Tupelo v. O'Callaghan , 208 So.3d 556, 568 (Miss. 2017).

6. Abatement of Nuisances

¶14. The Mississippi Constitution gives county boards of supervisors full jurisdiction over roads, subject only to the regulations prescribed by the Legislature. Miss. Const. art. 6, § 170. The Legislature has required boards of supervisors to keep public roads open, subject only to limited exceptions, and it further prohibits obstruction of public roads. Miss. Code Ann. §§ 65-7-3, 65-7-7, 65-7-37, 65-7-43, 65-7-45, 65-7-53 (Rev. 2012); see also Op. Miss. Att'y Gen. 96-0421 (July 12, 1996). Seyfarth requests that the Board address his concerns by blocking public access to the public road, without citing any authority that would authorize the Board to do so. The Board does not have the authority to abate any nuisance by closing a public road to the public; its full jurisdiction over roads is subject to legislative regulations, which require that public roads be kept open and do not except situations in which some of the public use the road to interfere with private property. Moreover, the sheriff of each county is charged with keeping the peace and enforcing the laws. Miss. Code Ann. § 19-25-67 (Rev. 2012). Seyfarth points to no authority that would allow the Board of Supervisors to compel law enforcement to continuously monitor the road. Further, "[i]t is within the sheriff's discretion as to how to allocate and deploy the resources of his office." Op. Miss. Att'y Gen. 2009-00747 (Mar. 5, 2010). Seyfarth offers no other methods by which the Board could address his concerns. The circuit court determined, without citation of authority, that the Board's duty to "maintain" public roads includes "proper usage by the public." Seyfarth offers no authority to support the proposition that the duty to maintain roads encompasses ensuring only "proper" usage, nor does he offer any explanation as to how "proper usage" may be defined. Moreover, "the method and extent to which each road is maintained is within the discretion of the board[,]" unless a statutory provision mandates a certain method. Op. Miss. Att'y Gen. 97-0136 (Mar. 7, 1997). Seyfarth points to no statute that requires the Board to reasonably abate any nuisance on private property allegedly caused by the public nature of a road. Thus, we reverse the circuit court's order mandating that the county reasonably abate any nuisance and render judgment in favor of the Board on this issue. This holding does not preclude Seyfarth from petitioning the Board to employ means within its authority to address his concerns.

CONCLUSION

¶15. Because the decision not to abandon the portion of Mount Airy Plantation Road at issue did not abuse the Board's discretion, this Court affirms the Board's decision and the circuit court's order affirming the Board's decision. No authority exists for the Board to abate any nuisances in the manners suggested by Seyfarth, nor does the circuit court suggest any legal manner in which the Board may abate any nuisances; thus, the circuit court's order requiring that the Board reasonably abate any nuisances is reversed and rendered.

¶16. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Only one of those landowners needs the portion of Mount Airy Plantation Road that is contained within Seyfarth's property to access his property, and an easement for access exists.

      Seyfarth's concerns and the circuit court's sympathy for them are certainly understandable; however, on the record that is before this Court, Seyfarth does not have an available remedy.

      If the use of a road is "unreasonable, unusual, and dangerous to safe travel," the board is within its power to stop the usage within legal means available to it. See Collins , 45 So. at 855.


author: RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

text:
    Judy S. JOHNSON v. Ronnie GOODSON
    NO. 2018-CA-00455-SCT
    Supreme Court of Mississippi.
    April 18, 2019
    ATTORNEYS FOR APPELLANT: WILLIAM SCOTT MULLENNIX, CODY W. GIBSON, JACKSON
    ATTORNEYS FOR APPELLEE: J. SETH McCOY, WILLIAM M. DALEHITE, JR., JACKSON
    BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
   RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. Judy S. Johnson appeals the affirmance by the Circuit Court of the First Judicial District of Hinds County of the judgment of the County Court of the First Judicial District of Hinds County granting Ronnie Goodson's motion for summary judgment. Both courts rejected Johnson's claim of general negligence and granted judgment in favor of Goodson based on premises-liability law.

¶2. Were premises liability the only law applicable, the courts would be affirmed. But given the facts presented, both erred. We reverse the grant of summary judgment and remand the case for proceedings consistent with this opinion. This Court offers no opinion about Goodson's negligence, vel non . That question remains for the trier of fact.

FACTS AND PROCEEDINGS BELOW

¶3. Johnson claims that she was injured while she was an invited guest on Goodson's property and a passenger in his golf cart. Johnson sued Goodson in the County Court of the First Judicial District of Hinds County, alleging that Goodson had operated the golf cart carelessly, recklessly, and negligently, causing Johnson to be thrown about in the vehicle and to suffer injuries.

¶4. Johnson filed a motion for summary judgment, arguing that, at the time of the accident, Goodson was the operator of a motor vehicle, and, as such, the applicable standard of care was that of a reasonable person. Johnson argued that Goodson had breached his duty of care by operating a vehicle on his property in an unsafe manner, proximately causing Johnson's injuries. Goodson responded that Johnson was a licensee, that he did not breach any duties owed to her as a licensee, and that the standard Johnson sought was not applicable.

¶5. In Goodson's motion for summary judgment, he sought to be shielded from ordinary negligence by alleging that Johnson's cause of action was one of premises liability and that he, as a landowner, only owed Johnson, a licensee, a duty to refrain from wilfully, wantonly, knowingly, or intentionally injuring her.

¶6. At all times, the parties have agreed that the facts were not in dispute. The only question was what law applied to the undisputed facts. Despite their contentions, the county court determined that disputed issues of fact remained and denied both Goodson's and Johnson's motions for summary judgment. Goodson filed an unopposed motion to stay, which was granted by the county court pending this Court's ruling on Goodson's petition for interlocutory appeal, which was denied.

¶7. Subsequent to the denial, Goodson filed a motion for reconsideration. The county court found that "premises liability law applies and not the Rules of the Road of the State of Mississippi." Johnson then filed a motion for reconsideration, arguing that the county court erred in finding that premises-liability law applied. However, Johnson requested that if the county court found that premises-liability law applied, summary judgment should be granted in favor of Goodson.

¶8. In its final order, the county court found the following:

1. That premises liability law is the only legal standard applicable to the facts of this case;
2. That there are not any disputed issues of material fact as it pertains to the Motion for Summary Judgment previously filed by the defendant Ronnie Goodson in this matter; [and]
3. That the plaintiff requested that summary judgment be granted in favor of the defendant if the Court determined that premises liability law was the only legal standard applicable to the facts of this case....

(Emphasis added.) The county court granted summary judgment in favor of Goodson and dismissed him with prejudice. Johnson filed her notice of her appeal to the Circuit Court of the First Judicial District of Hinds County.

¶9. The circuit court affirmed the county court's grant of summary judgment in favor of Goodson. Johnson appealed to this Court.

STATEMENT OF THE ISSUE

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND RULING THAT THE ONLY APPLICABLE LAW IS PREMISES LIABILITY IN THIS MATTER, ESPECIALLY IN LIGHT OF THE ACTIVE NEGLIGENCE OF THE LANDOWNER IN THE OPERATION OF HIS GOLF CART UPON THE PROPERTY.

ANALYSIS

¶10. The only issue before this Court is whether summary judgment was properly granted in favor of Goodson based on premises-liability law.

On appeal, the grant or denial of a motion for summary judgment is reviewed de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made. Summary judgment is proper when 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 judgment as a matter of law.

Maness v. K & A Enters. of Miss. , LLC , 250 So.3d 402, 409 (Miss. 2018) (internal quotation marks omitted) (citations omitted). We find that both courts erred. Premises-liability law is not the only legal standard applicable to the facts of this case. Unrelated to the ownership of the land, this case involves whether the driver of a golf cart drove in an unsafe manner, causing injuries to a passenger in the golf cart. The incidental fact that the driver of the golf cart was also the owner of the property on which the accident occurred is of no moment.

¶11. Premises liability is a "theory of negligence that establishes the duty owed to someone injured on a landowner's premises as a result of 'conditions or activities' on the land ...." Doe v. Jameson Inn, Inc. , 56 So.3d 549, 553 (Miss. 2011) (quoting Black's Law Dictionary (7th ed. 2000) ). Johnson did not seek recompense for injuries based on premises liability but rather claimed she was injured due to Goodson's active negligence in the operation of the golf cart. She argued that

she was a passenger in a vehicle owned and operated by the Defendant, who was driving and operating said vehicle in an unlawful, careless and imprudent manner and traveling along trails or roads on property he owns and located in Copiah County, Mississippi, when suddenly, carelessly, recklessly, negligently and without warning, the Defendant collided said vehicle into an area of said trails or roads that had a ravine, ditch or hole which the Defendant knew or should have known would cause the vehicle to wreck, thereby causing the Plaintiff to be violently thrown about inside the vehicle, causing the Plaintiff to be ejected from the vehicle, and causing the Plaintiff to suffer injuries. Specifically, Defendant Goodson acted negligently, carelessly and recklessly in violating the such standards of care of the State of Mississippi by failing to stop at the ravine, ditch or hole, by failing to keep a safe and proper lookout, and by failing to operate the vehicle in a careful and prudent manner, which resulted in said collision of the vehicle driven by the Defendant.
That as a direct and proximate result of the careless, reckless and negligent acts of the Defendant, Goodson, the Plaintiff was caused to be thrown about in the vehicle and was caused to suffer injuries to her person.

Johnson's complaint did not raise premises-liability issues and did not rely upon Goodson's landowner status. She pleaded negligence-did Goodson operate his golf cart in the same manner as would a reasonably prudent person? Goodson cannot be absolved of putative negligence simply because he owned the land on which he was driving. Negligence, if any, is to be determined by the trier of fact.

¶12. In Hoffman v. Planters Gin Co. , an action was brought against a cottonseed-gin company to recover for injuries to the fourteen-year-old son of a truck driver, who accompanied his father to the gin and assisted in packing seed on trucks. Hoffman v. Planters Gin Co. , 358 So.2d 1008, 1010 (Miss. 1978). The child entered the seed house and slipped on seed. His right foot fell into the revolving auger, causing his leg below the knee to be amputated. Id. Over four decades ago, the Hoffman Court noted (as is true here) that the general statements of premise liability, licensee, and invitee

do not fit the present factual circumstance and therefore do not control it. We are of the opinion the testimony presented a conflict of facts for resolution by a jury to be measured by the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence as held by the trial court. We think the premises owner is liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business which subjects either licensee or invitee to unusual danger, or increases the hazard to him, when his presence is known and that the standard of ordinary and reasonable care has application.

Id. at 1013. The Court further stated that

[t]he legal distinctions between a licensee and invitee have little significance once the presence of a person upon the possessor's premises is known and there are affirmative actions involving him. Status relates largely to negligence for the condition of premises, that is, passive negligence and not to active or affirmative negligence emanating from action or inaction by the possessor with knowledge of an individual's presence.

Id. at 1012.

¶13. The Hoffman Court cited Astleford v. Milner Enterprises, Inc. , 233 So.2d 524, 525-26 (Miss. 1970), which discussed active and passive negligence:

These courts hold that where the negligence is passive the licensee is not permitted to recover in the absence of proof of wilfulness or wantonness but where the negligence is active, that is, actual operation on the premises, then a licensee is permitted to recover if the possessor of the premises is guilty of simple negligence or fails to use ordinary, reasonable care.

The Hoffman Court was persuaded by Astleford , as well as Harper & James and Prosser when it found that the trial court erred in finding that the premises-liability standard controlled. Hoffman , 358 So.2d at 1013. The Hoffman Court reversed and remanded the trial court's grant of a peremptory instruction based upon intentional or wanton negligence. Id.

¶14. As in Hoffman , today's case is not controlled by premises-liability law and its attendant standard of care. If proved, Goodson is liable for any injury caused by his negligence in actively operating the golf cart. While Johnson may have been a licensee and may have been injured while on Goodson's property, the claim that she was a guest passenger in his vehicle and allegedly was injured is a decision for the trier of fact properly instructed on the law of negligence.

¶15. In this case, Johnson alleged negligence against Goodson. "The standard of care applicable in cases of alleged negligent conduct is whether the party charged with negligence acted as a reasonable and prudent person would have under the same or similar circumstances." Donald v. Amoco Prod. Co. , 735 So.2d 161, 175 (Miss. 1999) (citing Knapp v. Stanford , 392 So.2d 196, 199 (Miss. 1980) ). We find that the circumstances surrounding a moving golf cart, which the property owner was driving, raise an issue of negligence proper for resolution by the trier of fact.

CONCLUSION

¶16. We reverse the grant of summary judgment in favor of Goodson and remand the case to the county court for a trial consistent with this opinion.

¶17. REVERSED AND REMANDED.

KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      This was the first time premises liability was mentioned in the pleadings.

      This issue is taken verbatim from Johnson's brief.

      The Hoffman Court's use of the "affirmative or active negligence in the operation or control of a business" described the conduct at issue, which occurred on the premises of a business. Subsequent opinions have read that language as a limitation only to a business premises. See, e.g. , Little v. Bell , 719 So.2d 757, 761-762 (Miss. 1998) ("[T]he Hoffman exception only applies to those cases involving the operation or control of a business .") (citing Hughes v. Star Homes, Inc. , 379 So.2d 301, 304 (Miss. 1980) ) ). Because the word "business" is not used in this same context anywhere else in the opinion, we find that the Hoffman Court's language does not limit its holding to business owners or business premises. Cases such as Little and Hughes are overruled to the extent that they declare otherwise.

      The Hoffman Court quoted Harper & James verbatim:
      There are a good many dicta mostly in older cases and some holdings to the effect that the occupier of land owes the bare licensee no greater duty than to refrain from intentional, or willful or wanton, misconduct towards him. "The prevailing view is to the contrary, however, and it is now generally held that in cases involving injury resulting from active conduct, as distinguished from conditions of the premises, the landowner or possessor may be liable for failure to exercise ordinary care towards a licensee whose presence on the land is known or should reasonably be known to the owner or possessor."
      Hoffman , 358 So.2d at 1013 (quoting 2 Fowler V. Harper & Fleming James, Jr., The Law of Torts § 27.10 (1956) ).

      Hoffman quoted the fourth edition of Prosser verbatim"[i]t is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee...." Hoffman , 358 So.2d at 1013 (quoting William L. Prosser, Law of Torts 379 (4th ed. 1971) ).

      This Court has held that when "we reverse a circuit court's affirmance of a county court's grant of summary judgment, we remand the case to county court." Chase Home Fin., L.L.C. v. Hobson , 81 So.3d 1097, 1102 (Miss. 2012) (citing Allen v. Mayer , 587 So.2d 255, 261 (Miss. 1991) ).


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    GENESIS HOSPICE CARE, LLC v. MISSISSIPPI DIVISION OF MEDICAID and Drew Snyder, in His Official Capacity as Interim Executive Director of Mississippi Division of Medicaid
    NO. 2018-SA-00284-SCT
    Supreme Court of Mississippi.
    April 18, 2019
    ATTORNEYS FOR APPELLANT: PHILIP JOSEPH CHAPMAN, RANDALL ELLIOTT DAY, III, JULIE BOWMAN MITCHELL, RIDGELAND
    ATTORNEYS FOR APPELLEES: JANET McMURTRAY, LAURA L. GIBBES, DION JEFFERY SHANLEY, RIDGELAND
    BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. Genesis Hospice LLC provided outpatient hospice care to Medicaid beneficiaries in the Mississippi Delta. As a Medicaid provider, Genesis was required to "maintain auditable records that will substantiate the claim[s] submitted to Medicaid." Because the hospice claims Genesis submitted were outside the norm, the Mississippi Division of Medicaid audited a statistical sample of 75 of the 808 billed claims. And what the multilevel audit revealed was that, of the 75 claims audited, 68 were not substantiated by the patients' records and thus were not eligible for payment.

¶2. To be eligible for hospice care, a patient must be certified by a physician as having a "terminal illness," defined as an expectation of death within six months if the disease follows its normal course. The auditing physicians specifically found that the patient records for the 68 rejected claims lacked sufficient documentation to support the given terminal-illness diagnosis and/or lacked documentation of disease progression. Medicaid's statistician extrapolated that 68 of 75 unsupported claims represented a total overpayment of $ 1,941,285 for the 808 claims Genesis billed during the relevant time period. And Medicaid demanded Genesis repay this amount.

¶3. Medicaid's decision has been affirmed in an administrative appeal before Medicaid and by the Hinds County Chancery Court, sitting as an appellate court. On further appeal to this Court, Genesis essentially argues Medicaid unfairly imposed documentation requirements not found in the federal or state Medicaid regulations. Genesis instead insists the only requirement was a physician's certification that in his or her subjective clinical judgment the patient was terminally ill, which Genesis provided.

¶4. But the regulations are clear. A physician's certification of terminal illness is indeed required, but so is documentation that substantiates the physician's certification. Substantiating documentation is necessary when, as in this case, Medicaid conducts an audit. Without substantiation-or, to use the auditing physicians' terminology, without "objective clinical data supporting a terminal diagnosis and/or ... supporting a progression of a terminal disease"-the auditors may reasonably conclude, as they did here, that hospice care was not in fact medically necessary.

¶5. Because Genesis' records failed to support 90 percent of its hospice claims, Medicaid had the administrative discretion to demand these unsupported claims be repaid. Therefore, we affirm.

Background Facts and Procedural History

I. Audit

¶6. In 2009, Medicaid ran a data analysis of all hospice claims paid during January 1, 2006, through December 31, 2008, for beneficiaries who lived longer than six months. Medicaid was looking for billing aberrations evidencing overpayment. And Medicaid found many aberrations among the 808 line-item claims Genesis billed during this time frame. So Medicaid initiated an audit of a statistical sample of 75 claims billed for 30 patients.

¶7. These 75 claims were scrutinized at three levels-an internal audit by Medicaid, conducted by one of its staff nurses; a third-party audit by a reviewing physician; and a third-party audit by a three-physician peer-review panel. What the panel ultimately concluded-after giving Genesis the opportunity to rebut its findings-was that the patient records did not support the medical necessity of the hospice care billed for 68 of the 75 claims.

¶8. Medicaid defines hospice as palliative care for terminally ill patients. PPM § 14.02 (Sept. 1, 2007). To be eligible for hospice, "the beneficiary must be certified as being terminally ill with a life expectancy of six (6) months or less, and there must be a documented diagnosis consistent with a terminal stage of six (6) months or less." Id. Moreover, there must be a plan of care and documentation of the beneficiary's terminal illness. PPM § 14.03 (Sept. 1, 2007). The panel's unanimous finding hinged on Genesis' failure to document "objective clinical information that corroborated the signed certification of terminal illness." (Emphasis added.) For two claims, both for Patient Doe, no records were submitted. And for the 66 other uncorroborated claims, "the information presented in the records did not support a reasonable clinical expectation of death within 6 months time either because of insufficient objective clinical data supporting a terminal diagnosis and/or [because of] insufficient objective clinical data supporting progression of a terminal disease." In other words, for 68 of 75 of the claims, the patients' records did not substantiate the physician certification that the beneficiary was terminally ill, leading Medicaid to conclude hospice care was not medically necessary and thus not compensable.

¶9. Hospice providers "must maintain auditable records that will substantiate the claim submitted to Medicaid." PPM § 14.12 (Oct. 1, 2000). "If a hospice's records do not substantiate [hospice] services paid," the provider "will be asked to refund to [Medicaid] any money received for such non-substantiated services."Id. That is exactly what Medicaid did here. Based on the panel's conclusion that 68 of the 75 audited claims were not hospice appropriate, Medicaid's statistician estimated that, for the 808 line-item claims billed, Genesis was overpaid $ 1,941,285. By letter on March 10, 2013, Medicaid demanded Genesis repay this amount.

IV. Appeal

¶10. Genesis responded by requesting an administrative appeal. While that appeal was pending, Genesis ceased operating July 31, 2013. Following a hearing, the hearing officer recommended to affirm, which Medicaid did in October 2014.

¶11. In November 2014, Genesis further appealed to the Chancery Court of Hinds County. See Miss. Code Ann. § 43-13-121(1)(j) (Supp. 2014) (statutorily authorizing, after July 1, 2014, appeals of Medicaid's recoupment decisions to the Hinds County Chancery Court). While its appeal was pending before that court, Genesis was administratively dissolved in December 2014. Following the chancery court's January 2018 ruling to affirm, Genesis appealed to this Court.

Issues on Appeal

¶12. On appeal, Genesis argues Medicaid acted arbitrarily, capriciously, and contrary to the substantial weight of the evidence:

(1) by denying claims based on the to failure to document "disease progression";
(2) by denying claims based on a physician certification of terminal illness; and
(3) by denying Patient Doe's two claims, for which no records had been submitted to the auditor.

Genesis also asserts:

(4) the Administrative Hearing Officer improperly upheld Medicaid's use of extrapolation.

¶13. This Court applies the same discretionary standard of review as the chancellor who first reviewed the administrative decision-reversing only if the decision (1) was not supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond Medicaid's power to adopt, or (4) violates a constitutional or statutory provision. Crossgates River Oaks Hosp. v. Miss. Div. of Medicaid , 240 So.3d 385, 387 (Miss. 2018).

Analysis

I. Motion to Dismiss

¶14. As a preliminary matter, Medicaid has filed a motion to dismiss. This motion was passed for consideration with the merits of the appeal.

¶15. Because Genesis was administratively dissolved in December 2014-more than three years before it filed its notice of appeal with this Court-Medicaid asserts Genesis had no authority to file the notice of appeal, because it no longer legally exists.

¶16. As support, Medicaid cites Mississippi Code Section 79-29-831, the statute that spells out the effects of an administrative dissolution. Medicaid selectively hammers on one provision-"A limited liability company that has been administratively dissolved may not maintain any action, suit or proceeding in any court of this state until such limited liability company is reinstated." Miss. Code Ann. § 79-29-831(4) (Rev. 2013). Medicaid argues this provision precluded Genesis from continuing to pursue its action against Medicaid without first being reinstated.

¶17. Genesis has responded by citing another provision of Section 79-29-831 -"The administrative dissolution of a limited liability company shall not ... prevent such limited liability company from defending any action, suit or proceeding with any court of this state." Miss. Code Ann. § 79-29-831(2) (Rev. 2013) (emphasis added). Genesis takes the position that, by further appealing Medicaid's decision, it is not "maintaining an action" against Medicaid. Rather, Genesis continues to defend itself against Medicaid's administrative decision.

¶18. We agree with Genesis. While Medicaid tries to characterize this matter as an original action against Medicaid, both the administrative regulation and the statute Medicaid cites clearly refer to Genesis'

requests, first, for an administrative hearing and, next, for chancery-court review as appeals. Miss. Code Ann. § 41-13-121(1)(j) (Supp. 2014); 23 Miss. Admin. Code Pt. 300. To follow Medicaid's logic, an administratively dissolved limited liability company loses its right to appeal-even in a proceeding in which the company began in a defensive posture. Since this position contradicts Section 79-29-831(2), which allows Genesis' appeal to proceed, Medicaid's motion to dismiss is not well taken and is therefore denied.

II. Medical Necessity of Hospice Care

¶19. Turning to the merits of Genesis' appeal, the now-dissolved hospice provider first attacks Medicaid's reasoning for denying 66 of the 68 rejected sample claims. The peer-review panel concluded hospice care for these 66 claims was not medically necessary "because of the failure of [Genesis] to document objective clinical information that corroborated the signed certifications of terminal illness."

¶20. While presented as two separate issues, Genesis' first two points of error are intertwined. Basically, as Genesis reads the applicable regulations, the medical necessity, and thus eligibility, for hospice care hinges "strictly" on the physician's certification that, in his or her subjective clinical opinion, the patient has a terminal illness. This certification, Genesis asserts, is entitled to the "utmost deference," especially here, where 20 different physicians certified the terminal illnesses for 30 patient records audited. So as Genesis sees it, by requiring objective documentation-especially of "disease progression"-to substantiate the certification, Medicaid has retroactively imposed a new substantive requirement in violation of its due-process rights.

¶21. But Genesis' claim that hospice eligibility is "strictly" based on a physician's certification of terminal illness is clearly contradicted by the regulations. Genesis is correct that, "[t]o be eligible to elect hospice care under Medicaid, the beneficiary must be certified as being terminally ill with a life expectancy of six (6) month or less[.]" PPM § 14.02 (Sept. 1, 2007). However, there are other express requirements. "[T]here must be a documented diagnosis consistent with a terminal state of six (6) months or less." Id. (emphasis added). The regulations also required a "written plan of care established and reviewed by the hospice's interdisciplinary team at each enrollment period and updated as required by the beneficiary's condition." PPM § 14.02 (June 1, 2005). And "[a] new or updated plan of care, along with supporting documents that explains the beneficiary's condition (i.e., progress notes from MD, nursing notes that explain beneficiary's physical condition), must be retained in the patient's medical record[.]" Id. (emphasis added).

¶22. Thus, Medicaid regulations very clearly required additional documentation to substantiate a physician's certification of terminal illness. See PPM § 14.12 (Oct. 1, 2000) (requiring the beneficiary's record to include, in addition to a physician's certification, a plan of care that supports each hospice service rendered, treatment rendered, documentation to show relationship of the treatment plan and medications to the terminal illness). And so did federal regulations. See 42 C.F.R. § 418.74 (2008) (requiring each beneficiary's record to contain, among other things, "[c]omplete documentation of all services and events (including the evaluation of treatments, progress notes, etc.)"); 42 C.F.R. § 418.104 (2008) (requiring "correct clinical information" for each patient, including "[r]esponses to medications, symptom management, treatments and services[,] ... [o]utcome measured data elements, ... [and] [p]hysician certification and recertification of terminal illness").

¶23. Though none of provisions contained the term "disease progression," we agree with the administrative hearing officer that, "[t]aken together, these regulations require that the hospice provider document disease progression or lack of disease progression or improvement. " (Emphasis added.) That the term "disease progression does not appear in the regulation does not change the fact that the regulations require documentation from which an auditor can determine whether or not the treatment is necessary and appropriate." So "[i]t was entirely appropriate for the physicians auditing hospice records to note an absence of evidence of disease progression, since the patient was initially certified as having an illness, which, if it followed its normal course, would result in death within 6 months."

¶24. This documentation requirement clearly distinguishes this case from the one Genesis cites in its brief, Bethany Hospice Services of Western Pennsylvania v. Department of Public Welfare , 88 A.3d 250 (Pa.Cmwlth. 2013). In Bethany Hospice Services , Pennsylvania's guidelines for hospice eligibility only required a physician to certify the beneficiary as terminally ill. There was no documentation requirement. Id. at 252. So, by later rejecting a hospice claim for lack of documentation that the patient was terminally ill and reasonably expected to die within six months, the Pennsylvania Department of Welfare retroactively imposed an additional, extra-regulatory requirement, supported only by its expert's testimony. Id. at 255.

¶25. By contrast, Mississippi's Medicaid policies clearly require more than just a physician certification of terminal illness. So by basing its decision, in large part, on the lack of "objective clinical data supporting progression of a terminal disease," Medicaid did not retroactively create a new substantive requirement in violation of Genesis' due-process rights. Instead, it was acting within already-existing, clear policy that patient records must contain documentation to substantiate each hospice claim. See PPM § 14.12 (Oct. 1, 2000) ("If a hospice's records do not substantiate services paid for under the Mississippi Medicaid program, as previously noted, the [provider] will be asked to refund to the Mississippi Medicaid Program any money received for such non-substantiated services.").

¶26. Hospice provides palliative care, which Medicaid defines "as the relief of severe pain or other physical symptoms and supportive care to meet the special needs arising out of physical, psychological, spiritual, social, and economic stresses which are experienced during the final stage of illness and during dying and bereavement." PPM § 14.02 (Sept. 1, 2007). Here, the three physicians reviewing the records were unanimous in their findings. Each found the vast majority of the patients' records contained insufficient objective data showing the patient was experiencing an illness, which in its normal course would result in death within six months. Thus, it was reasonable for the three-physician panel to conclude Genesis had failed to substantiate the medical necessity of hospice care.

¶27. At the administrative hearing, "Genesis submitted no evidence, medical or otherwise," to rebut the panel's finding.

So, by adopting the panel's decision, Medicaid was not acting contrary to the weight of the evidence. Thus, there is no basis to overturn this decision.

III. Patient Doe

¶28. Next, Genesis challenges the denial of the two claims for Patient Doe. The peer-review panel rejected these two claims because Genesis failed to submit any records until after the panel had deliberated.

¶29. At the administrative hearing, Genesis challenged the inclusion of these two claims in the sample size because Medicaid records indicated Medicaid had already been reimbursed for these two claims. The hearing officer rejected this specific challenge because Genesis did not repay the claims. Instead, the claims were reimbursed by a third party as part of a personal-injury settlement with Patient Doe. Consequently, the hearing officer found Genesis was not entitled to keep the payments for these claims. The chancellor similarly rejected Genesis' argument, holding that the two claims for Patient Doe were properly included within the sample, because they fell within the criteria and relevant time period. The chancellor further found the two claims were properly denied, because Genesis failed to provide any supporting records until after the peer-review panel had already made its final determination.

¶30. In its appeal to this Court, Genesis abandons its argument that Patient Doe's claims should not have been included in the statistical sample. Instead, it accuses Medicaid of arbitrarily refusing to review Patient Doe's records, which Genesis insists it submitted. Further, Genesis argues it never received timely notice these records were missing. So it should have been allowed to resubmit these records, even after the audit had been completed.

¶31. This issue is procedurally barred. Genesis' argument to the hearing officer focused on the appropriateness of including the two claims in the sample audit based on the third-party reimbursement. Genesis did not ask-or at least does not point to where in the record it asked-the hearing officer to fault Medicaid for the records not being submitted. See Fowler v. White , 85 So.3d 287, 293 (Miss. 2012) (holding that an issue raise for the first time on appeal is procedurally barred). Still, even if not barred, Genesis did not develop this issue. We have scoured the record and find no evidence that supports Genesis' claim it initially provided Medicaid with Patient Doe's records and was never timely notified the records went missing. In other words, there is no definitive record evidence showing Medicaid's disapproval of these claims for lack of records was arbitrary, capricious, or unsupported by the substantial weight the evidence. Thus, we find no basis in the record to overturn Medicaid's decision to include Patient Doe's two claims in the audited sample.

IV. Extrapolation

¶32. Finally, Genesis challenges Medicaid's use of extrapolation-using the audit of the statistical sample of 75 claims to estimate Medicaid's total overpayment for all 808 claims.

¶33. Like Genesis' medical-necessity argument, Genesis points to the physician certifications of terminal illness to justify why Medicaid could not use extrapolation. Because 20 different physicians certified the 30 patients in the sample as terminally ill-and even more physicians certified terminal illness in the entire universe of claims-Genesis argues each hospice claim billed was too fact-dependent and unrelated to apply statistical sampling.

¶34. As support, Genesis quotes an unreported Texas federal district court case. It pitches this case for the proposition that, when "each and every claim at issue was fact-dependent and wholly unrelated to each and every other claim, and determining eligibility for each of the patients involved a highly fact-intensive inquiry involving medical testimony after a thorough review of the detailed medical chart of each individual patient, ... the case [is] not suited for statistical sampling." United States ex rel. Wall v. Vista Hospice Care, Inc. , No. 3:07-CV-00604-M, 2016 WL 3449833, at *12 (N.D. Tex. June 20, 2016). But Wall posed a different scenario than this one. It concerned a qui tam action on behalf of the United States for violations of the federal False Claims Act (FCA) in connection to hospice claims. Id. at *1 (citing 31 U.S.C. § 3729 (2012) ). And the question the district court faced was "whether statistical sampling and extrapolation can be used to establish liability in an FCA case where falsity depends on individual physicians' judgment regarding individual patients. " Id. at *12 (emphasis added). That is not the question presented in this case. So Genesis' reliance on Wall and that case's focus on individual physicians' judgment is totally misplaced.

¶35. The specific question here is whether Medicaid could use statistical sampling to calculate overpayment to Genesis. And the majority of courts that have addressed this question have approved of sampling. See, e.g., Ratanasen v. California , 11 F.3d 1467, 1471 (9th Cir. 1993) ("We now join other circuits in approving the use of sampling and extrapolation as part of audits in connection with Medicare and other similar programs, provided the aggrieved party has an opportunity to rebut such evidence."); Yorktown Med. Lab., Inc. v. Perales , 948 F.2d 84, 89-90 (2d Cir.1991) (rejecting the claim that extrapolation violates due-process rights); Ill. Physicians Union v. Miller , 675 F.2d 151, 155 (7th Cir. 1982) (holding that "extrapolation based on review of a relatively small sample is a valid audit technique in cases arising under the Social Security Act"); United States v. Cabrera-Diaz , 106 F.Supp.2d 234, 240 (D.P.R. 2000) ; Chaves Cty. Home Health Serv. v. Sullivan , 931 F.2d 914 (D.C. Cir. 1991), cert. denied , 502 U.S. 1091, 112 S.Ct. 1160, 117 L.Ed.2d 408 (1992) ; Mile High Therapy Ctrs., Inc. v. Bowen , 735 F.Supp. 984 (D. Colo. 1988) ; Georgia v. Califano , 446 F.Supp. 404, 409-10 (N.D. Ga. 1977) ("Projection of the nature of a large population through review of a relatively small number of its components has been recognized as a valid audit technique and approved by federal courts in cases arising under Title IV of the Social Security Act."). See also Goldstar Med. Servs., Inc. v. Dept. of Soc. Servs. , 288 Conn. 790, 955 A.2d 15, 31 (2008) ("It is well established that proof of damages through the use of statistics and statistical sampling has been endorsed in numerous cases involving medicare and medicaid overpayments."). Indeed, the Seventh Circuit has held that, "in view of the enormous logistical problem of Medicaid enforcement, statistical sampling is the only feasible method available." Miller , 675 F.2d at 157.

¶36. That is exactly what the administrative hearing officer concluded here, noting the Genesis matter was "a prime example of why extrapolation is necessary." The 75-claim audit still required countless man hours to copy records, conduct an initial review, hire a consultant for a second review, send the records to the peer-review panel for a third review, and then make a demand for repayment and allow for an administrative appeal. To individually audit all 808 claims, in the hearing officer's view, "would be worse than impractical; ... it would be impossible."

¶37. We find no abuse of discretion. Sampling was the only feasible method to determine how much Medicaid overpaid Genesis for unsubstantiated hospice claims. And apart from one irrelevant, unreported district court case, Genesis cites no authority supporting its argument that Medicaid's use of extrapolation was improper.

¶38. Alternatively, Genesis argues the particular extrapolation performed by Medicaid's statistical expert, Dr. Mark McComb, was problematic and should have been rejected by the administrative hearing officer.

¶39. As support, Genesis points to the expert testimony of Dr. Harold Haller, Genesis' sole witness at the administrative hearing. At one point in his testimony, Dr. Haller challenged Dr. McComb's claims-based sampling unit. According to Dr. Haller, because most beneficiaries had multiple claims, the auditor would not have been able to independently judge each claim for a single beneficiary independently of the beneficiary's other claims. Instead, Dr. Haller believed the sampling unit should have been based on beneficiaries, not claims. The administrative hearing officer rejected Dr. Haller's opinion noting the auditor still "would be in the same position of judging multiple claims for a single beneficiary." On appeal, Genesis points to Dr. Haller's rejected solution as proof that Dr. McComb's sampling methodology was fatally flawed because independence was impossible. But the administrative hearing officer expressly found, based on subsequent testimony, that each claim had been audited independently of other claims. Because the administrative hearing officer supported his finding of statistical independence with substantial evidence, we find no abuse of discretion in accepting Medicaid's extrapolation as statistically proper.

¶40. Therefore, we affirm Medicaid's administrative decision that Genesis must repay $ 1,941,285 for unsubstantiated hospice claims.

¶41. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Medicaid is a federal and state program of medical assistance to qualified individuals. The Mississippi Division of Medicaid is the state agency designated to administer the Medicaid program in Mississippi. Miss. Div. of Medicaid Provider Policy Manual (PPM) § 14.01 (June 1, 2005).

      PPM § 7.03 (July 1, 2000). Though now replaced by the Mississippi Administrative Code, the PPM controlled during the relevant time period.

      Two of these rejected claims had no documentation at all.

      Excluded from its analysis were beneficiaries diagnosed with cancer or acute liver failure.

      Medicaid contracts with consulting firm Health Systems of Mississippi to conduct further audits when Medicaid's initial audit reveals potential billing violations.

      For healthcare privacy reasons, this patient's name is withheld.

      Genesis had been paid $ 2,096,053 total, leaving $ 154,768 in approved claims.

      While this appeal was pending, Genesis' sole member and administrator, Charlene Brandon, pleaded guilty to one count of conspiracy to commit federal healthcare fraud.

      Unlike a voluntary dissolution, which is initiated by a company itself, an administrative dissolution is initiated by the Secretary of State when a company makes one of the enumerated missteps in Mississippi Code Section 79-29-821 (Rev. 2013).

      The hospice benefit is divided into distinct enrollment periods. The first period lasts up to 90 days. The second period is also for 90 days. After that, each benefit period is for 60 days. The beneficiary must be recertified as terminally ill for each period. PPM § 14.02 (June 1, 2005).