IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-02084-COA ANITA WHITE, INDIVIDUALLY, AS THE GUARDIAN OF RASHAUN D. GARDNER, AND AS THE ADMINISTRATRIX OF THE ESTATE OF Z ELDA GARDNER, AND TAUREAN S. GARDNER, INDIVIDUALLY APPELLANTS

v. OMAR L. NELSON AND OMAR L. NELSON, PLLC APPELLEES

DATE OF JUDGMENT: 09/17/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: GREGORY MOREAU JOHNSTON ATTORNEYS FOR APPELLEES: JAMES W ILLIAM MANUEL MARY CLAY W ADLINGTON MORGAN KATHLEEN SHIELDS O’BEIRNE NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE TRIAL COURT DISPOSITION: GRANTED PARTIAL SUMMARY JUDGMENT IN FAVOR OF APPELLEES, AND FINAL JUDGMENT ENTERED IN FAVOR OF APPELLEES DISPOSITION: AFFIRMED - 01/05/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND ISHEE, JJ. BARNES, J., FOR THE COURT: ¶1. On April 14, 20 0 8 , A n i t a Wh i t e, on behalf of the wrongf ul-death b enef

iciaries f or Zelda Gardner, f

iled a c om

plaint against Om a r Nelson and Nelson PLLC ( collectively“Nelson”). 1 The com p laint alleged legal m alpractice b ased on negligence and breach of
f iduciary d u t y , f

r audulent m isrepresentation, gross negligence and reckless disregard, intentional conduct, a nd tortious i nterf erence w i t h a b u s i ness relationship. T he trial court granted p artial sum m ary j udgm en t a s to W hite’s claim s of tortious interf e rence with a business rela t ionship and legal m alpractice based on negligence, and the action p roceeded

to trial o n the rem aining claim s. A j ury verdict was r endered f or Nelson. W hite f

iled a

m otion f or a judgm ent n o t w i t h standing the verdict (JNOV) or, alternatively , a new trial, which the trial court denied. On appeal, we f ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Gardner, W hite’s sister, died in May 2003 of throm b otic throm

bocy topenic purpura (TTP), a rare but known side e f f e c t o f the drug Plavix. The autopsy report stated that
G a rdner’s death was “[ c]onsistent with [ a]ccident secondary to Plavix adm inistration producing [ T TP].” In M ay 2004, W hite consulted the law o f f ices of Sweet & Freese to seek legal representation f

or any potential claim s the wrongf ul-death b enef

iciaries had arising out of G ardner’s death. Om ar Nelson, an associate at Sweet & Freese at the tim e, discussed the case with W hite. ¶3. Nelson consulted with a n e x p ert, Dr. Charles Bennett, who inf orm e d him that he could

1 A lso in clu d ed as d ef

en d an ts w ere th e law o f

f i ce o f Win sto n T h o m

p so n III, N ich o n S h an n o n , Win sto n J. T h o m p so n , T h o m

p so n & A sso ciates P L L C , an d T

. M u r ry Wh alen

. T h e o th er d ef

en d an ts are n o t a p arty to th is ap p eal. Wh alen , an atto rn ey w ith T h o m p so n & A s so ciates, w as later d ism issed f ro m th e su it. A d ef

au lt j u d g m en t w as su b seq u en tly en tered ag ain st th e law o f

f ice o f Win sto n T h o m

p so n III, Win sto n J. T h o m p so n , an d T h o m

p so n & A s so ciates P L L C

. We w ill ref

er to th e A p p ellan ts co llectiv ely as “Wh i te.” 2n ot g ive any opinion against the treating p hy sicians, because he f elt t hey had acted i n accordance w i t h the standard of care. However, Dr. Bennett did state he would testif y against the Plavix m anuf

acturers. A ccording to Nelson, b ecause the law f irm could not assert

a claim against any Mississippi treating p hy sician, Ric h Freese, a m anaging partner, instructed Nelson t o r eject t h e c a s e , a s a f ederal case would be cost-prohibitive, and there

was a risk of losing the case based on the c ontent of the warning l abel. There is no evidence that the other partner, Dennis Sweet, was m ade aware of W hite’s case at that tim e. ¶4. Nelson inf

orm e d W hite t hat Sw e e t & F r e e s e c o u l d n o t t ake her case, and he

recom m ended other attorney s, including W inston Thom pson. W hite hired T h o mp s o n & Associates as counsel. On April 27, 2005, T. Murry W halen, an attorney w i th t he Thom pson law f irm , f iled suit in t he United States D istrict Court f or the Southern D istrict of Mississippi

on W hite’s behalf against the m akers o f P lavix. The suit alleged tha t “ D e f e n d a n t Manuf acturers B ristol-My ers and Sanof i f a iled to warn e ither M rs. Gardner or the m edical

com m unity of its pro p e n s i t y to induce TTP, leading to death.” Additionally , on May 12, 2005, Thom

pson f iled a m edical-m alpractice (m e d-m al) claim in the First Judicial District of Hinds County o n W hit e ’ s b e h alf against Central Mississippi Medical Center and Gardner’s treating phy sician. ¶5. In July 2005, Nelson lef t S weet & Freese to be a s ole p r a c t i t i o n e r , a n d Thom pson asked N elson to assist Thom pson with W hite’s c a se. In January 2006, Nelson and Thom pson participated in a m eeting with counsel f or Bristol-My ers r egarding possible settlem ent of the
f ederal case. O n February 22, 2006, Nelson and Thom pson traveled to Atlanta, G eorgia, to

3participate in m ediation with representatives of Bristol-My ers. Af ter a f u ll day of settlem ent negotiations, W hite accepted a settlem e nt of f er of $280,000. 2 A s she w as representing the

m inor children of Gardner, W hite was required to subm it the settlem ent to t he Hinds County Chancery Court f

or approval. W hite agreed in h e r t e s t i m o ny that “considering the uncertainties of litigation,” it was “f air and reasonable to dism i ss th [ e ] s u i t , ” and she also af f irm ed t hat her attorney s had done “a good j ob[ .]” Although W hite did express bef ore the chancellor that she thought the value of the case would be higher, W hite executed a sworn petition to settle the case f or $280,000 on March 29, 2006, stating the proposed settlem ent

was “a f air and reasonable settlem ent and that acceptance o f this settlem ent is in the best interest of the m inors.” The chancellor approved the settlem ent, and Bristol-My ers executed

a check f or $280,000. The proceeds were placed in a trust f or W hite’s nephews. Attorney ’s f ees were approved in t he am ount of $112,000 f or Thom pson & Associate s . Although Nelson requested a p o rtion of the f ee f rom Thom

pson, he never received any com pensation
f or representing W hite. ¶6. I n 2 007, while cleaning out f iles in h is of

f ice, Sweet f

ound som e do c u me n t a t i o n regarding W hite’s case, and he c ontacted her. A f ter m eeting w i th her, he ref erred her to an attorney , Gregory Johnston. W hite f iled a com

plaint o n April 14, 2008, against N elson and the o ther def

endants f or f raud and legal m alpractice, alleging the def endants had knowingly d i v e r ted the case away f

r om Sweet & Freese and settled the case f or an unreasonabl y l o w

am ount ($280,000). Nelson f iled a m otion to dism i ss the com plaint or, in the alternative, f or

2 T h e state m ed -m al claim w as d ism issed d u e to p ro ced u ral n o tice i ssu es, w ith N elso n sig n i n g th e ag reed o rd ers o f d ism issal d ated N o v em

b er 2 1 , 2 0 0 5 , an d A p r il 1 7 , 2 0 0 6

. 4sum m ary judgm ent on August 14, 2009. The trial court granted partial sum m ary j udgm ent

o n N ovem

ber 30, 2009, dism i ssing with prejudice W hite’s claim f or tortious inter f

e r e n c e with a business relationship. ¶7. W h ite m o ved to am end her com plaint in Septe m

b e r 2 0 1 0 , seeking to ref

erence the

state m ed-m al case in her claim s against Nelson. W h ite averred that she had only recently bee n m ade aware of the state m ed-m al claim f iled on her behalf and m oved f o r a partial

sum m ary judgm ent, contending that the “m i shandling and dism i ssal of the m e d i cal

m alpractice claim without consulting [ her]” was l e g al m alpractice a n d that she suf f ered dam ages as a result. On F ebruary 18, 2011, t he t rial court granted W hite’s m otion to am end the com plaint, but denied the m otion f or partial sum m ary

judgm ent. ¶8. O n A p r i l 7 , 2 0 1 1 , Wh i te f iled an am ended com

pla i n t , a s s e r t i n g f

r a u d u l e n t

m isrepresentation, legal ma l p r a ctice based o n a negligent breach of the duty o f care, and “gross neglige n c e , r e c kless disregard, [ and] intentional conduct” and requesting at least $10,000,000 in com

pensatory dam ages and an unspecif i ed am ount of punitive dam ages. She claim ed that N elson (and the others) had negligently handled the f e deral products-liability

case, as w ell as the state m ed-m a l claim

. Nelson m oved f or s u m m ary judgm e nt on February 13, 2012, arguing in part that because W hite had f ailed to p rovide r equired expert testim ony that G ardner’s treating phy sician breached a standard o f care, s he c ould not prove s he would have prevailed in the underly i ng m ed-m al claim

. ¶9. On April 13, 2012 , t h e t r i a l court g ranted partial sum m ary judgm ent on this issue, stating:

5[ F]or the [ P ]laintif f s t o recover f

or n egligence-based legal m alpractice or f or legal ma l p r a ctice based upon an allegation of breach o f f iduciary d

uty , the Plaintif f m ust show that such action was the p roxim ate caus e o f P laintif f s’ injury

. I n t h i s case, the P laintif f s have n ot a l leged any special dam a ges t hat they m a y have suf

f ered. Instead, they allege that t he d am age they suf f ered was the f ailure to successf

u lly prosecute their claim s a g ainst these state c o urt [ m edm al] def endants. That is t h e e s s ence of t he negligence-based legal[

- ]m alpractice claim . Accordingly , this [ c]ourt m ust apply the “trial-within-atrial” test to determ i ne whether the Plaintif f s can survive sum m ary j udgm ent as to the issue o f proxim a te cause. No af f idavit f rom a n e x p ert h as been presented to the [ c]ourt on the issue of m edical m alpractice f

or the breach of a standar d o f care as required to establish this claim

. . . .Theref o re . . .the [ c]ourt f inds that t he Plaintif

f s have f a iled to m eet their burden on this essential elem e nt of

this particular claim [ .] The trial court l ater granted N elson’s m otion in lim ine to exclude d iscussion of the state m edm al suit at trial by W hite’s l egal e xpert witness, Freese. On April 16, 20 1 3 , W hite f iled a

m otion to voluntarily dism iss w ith prejudice the negligence-based legal-m a lpractice claim

. The trial court granted the m otion, dism issing all “negligence-based legal[

- ] ma l practice” claim s against Nelson. ¶10. A trial was held Septem ber 10-13, 2 01 3 , o n t h e r e m a i n ing claim s of f raudulent

m isrepresentation a nd l egal m alpractice based on a breach o f f iduciary duty

. A jury verdict

was rendered in f

avor of Nelson , a n d t h e t r ial c ourt entered a f i nal judgm ent i n f

avor of Nelson on Septem

ber 18, 2013. ¶11. W h i t e f

i l e d a mo t i o n f

o r a JNOV or, in t he alternative, a new trial. The trial court denied W hite’s m otion, and she now appeals. F inding no error in the trial court’s holding, we af f irm the judgm ent. DISCUSSION
I. Whether the trial court erred in deny ing White’s m otion for a

6JNOV.

¶12. W h ite claim s t he trial court erred in deny ing her m o tion f or a J N OV, as she presented “indisputable evidence of the f raudulent acts and brea c h o f f iduciary d

uty of the Nelson Def endants[ .]” A m otion f

or a JNOV challenges the legal suf f iciency of the evidence. Mine Safety Appliance Co. v. Holmes , 171 So. 3d 442, 446 (¶8) (Miss. 2 0 1 5 ) ( c i t ing Adcock v. Miss. Transp. Comm’n , 9 81 So. 2d 942, 948 (¶25) (Miss. 2008)). The t rial court’s denial of

a JNOV is reviewed d e novo and will be af f irm e d if , “ viewing the evidence in a light m ost f avorable to the verdict, ‘there is substantial evidence to support the verdict.’” Id

. ¶13. The f

ollowing undisputed f

acts were presented at trial:
W h ite cam e to Sweet & Freese b ased on a recom m e n dation. W hite m et with Nelson a t Swee t & Freese; he reviewed Gardner’s m edical records and contacted Dr. Charles Bennett concerning issues with the drug Plavix. Nelson contacted W hite and told her that Sweet & Freese could not handle her case, and he ref

e rred her t o Thom

pson, an attorney w ith whom Nelson had no prof essional connection.
W h ite contacted the law of f ice of Thom pson & Associates m onths later, and she signed a retainer agreem ent with the f i r m . On April 27, 2005, a f ederal suit was f iled b y T hom

pson & Associates (T. Murry W halen) against BristolMy ers and Sanof

i on behalf

of Gardner’s wrongf

u l-death benef

iciaries. Nelson lef

t Sw e e t & F r eese in July 2005 and later assisted Thom pson with W h ite’s case. Nelson & Thom

pson m et with counsel f

or B ristol-My ers in February 2006 to negotiate a settlem ent. A settlement of $280,000 was reached, and W h ite agreed to the am ount, consulting with her aunt prior to accepting.
W h ite testif

i ed b e f o r e t he chancery court t hat while s h e f e lt uncom f

ortable with the am ount, she did not want to h i r e n ew counsel and t hought the settlem ent was f

air and r e a s o n a b le. S he also signed a sworn petition to t hat ef f ect.

7There was disputed testim ony that W hite was m a de t o b elieve that she was co-represented

by Sweet & Freese, as she claim ed she t hought Nelson still represented Sweet. Nelson said that h e saw W hite in Hinds County Chancery

Court in August 2005, and inf orm ed her that he was no longer working at S weet & Freese. W hite adm it t e d s h e never m et S weet until
2007. ¶14. W h ite contends, as she did bef ore the jury , that had another attorney , such as Sweet, represented her, she would have received a higher settlem ent. “In order to r ecover f or legal

m alpractice, a plaintif

f m ust prove by preponderan c e o f the evidence the existence of a lawy er-client r elationship, negligence on the part of the lawy er in handling his client’s af f airs

e n t r usted to him , and som e i njury proxim ately c a used by the lawy e r’s negligence.” Bake r Donelson Bearman & Caldwell P.C. v. Muirhead , 920 So. 2d 440, 449 (¶34) (Miss. 2006) (citations om itted). Specif ically , when the m a lpractice claim “is based on an allegation of breach of f

iduciary duty , the plaintif f m ust establ i s h ( 1) the existence of an attorney -client relationship; (2) the acts constituting a violation o f the attorney ’s f iduciary duty ; (3) that the breach proxim ately caused the injury ; and (4) t he f act and e xten t o f t h e i n

j u ry .” Crist v. Loyacono , 6 5 S o . 3 d 837, 843 ( ¶15) ( Miss. 2011). The proof of proxim ate cause in cases involving a claim of legal m alpractice based on a breach of f iduciary duty i s “to be tailored

to t he injury the client claim s and the rem edy he e lects.” I d. at 8 42 ( ¶14) (quoting Singleton v. Stegall , 580 So. 2d 1242, 1245 (Miss. 1991)). ¶15. W e f

ind there was s ubstan t i a l e v i d e n c e to support the jury ’s verdict. W hite’s only proof at trial of proxim ate cause of injury or dam ages was provided through a deposition by

8Freese, who m erely opined “that had this case been venued i n Hinds County with com petent lawy ers, the settlem ent value would have dwarf ed w hat t his case settled f o r” and a three to f our m illion dollar s ettlem ent “ would have been a reasonable am ount t o expect t o recover.” 3
But Freese adm itted he had never worked on a Plavix case; nor was he k nowledgeable of any verdict s concerning Plavix. Furtherm ore, Freese acknowledged that i n settlem ent negotiations, he inf

orm s a client that “we could either w in a signif icantly larger am ount than they are o f

f ering, or we could win zero and the case c ould end up being worth nothing. So that’s why y ou h ave settlem ents, because there is uncertainty in w hat the result would be. ” ( E mphasis added). He of f ered no testim ony o f what a reasonable settlem e nt would h a v e been, t a k i n g into account the costs and uncertainty of the case. Moreover, Nelson’s legal expert, W alter Morrison, testif ied that the warning label of Plavix specif ically warned that the d rug could cause TTP, which led h im to believe that sum m ary judgm ent in f avor of Bristol-My ers was “highly likely ” had W hite not settled the cas e . A c c o r d ingly , the jury verdict, f i n d i n g n o liability f

or Nelson’s recom m e nding the settlem ent, was based on substantial evidence. ¶16. W e additionally f

ind the jury ’s verdict w a s s u p p o r t e d a s t o the claim t hat Nelson
f raudulently m i sreprese nted that Sweet was w orking o n her case and t hat she suf f ered dam ages as a re s u l t o f t hat m i srepresentation. To establish f r aud, a plaintif

f is r equired to prove the f

ollowing:

3 F reese w as o rig i n ally in ten d ed to b e i n atten d an c e a t tr i a l as an ex p ert w itn ess in l e g a l m a t t e r s, b u t co n f

licts l ater a ro se, so th e trial co u rt allo w ed F reese’s d e p o sitio n to b e in tro d u ced an d read in t o ev i d en c e. N elso n o b j ected to th e in tro d u ctio n o f th is ev i d en ce an d to F reese’s q u alif

icatio n s as a leg al ex p ert, w h ich th e c o u rt o v erru l ed

. 9( 1) a representation, (2) its f alsity , (3) its m a teriality , (4) t he spe a k e r ’ s knowledge of its f

alsity or ignorance o f i ts truth, ( 5) his intent that it s h ould be acted on by the hearer and in the ma n n e r r e a sonably c ontem plated, (6) the hearer’s ignorance o f its f alsity , (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proxim ate injury

. Morgan v
. Green-Save Inc. , 2 So. 3d 648, 652 (¶10) (Miss. Ct. App. 2008) (quoting Mabus

v. St. J a mes Episcopal Church, 884 So. 2 d 747, 762 ( ¶32) (Miss. 2004)). W hite a d m itted that Nelson called her and said Sweet & Freese was too b usy a nd could not handle her case. As Nelson noted at t rial, W h ite paradoxically c laim s that h ad Sweet represented her, she would have received a higher settlem ent, y et also claim s that Nelson f r audulently m i srepresented

to her that Sweet was associated on her case the entire tim e. Regardless, all evidence showed that during the f

e deral litigation, the only a t torney s W hite discussed the case with were attorney s with Thom

pson & Associates and Nelson. W hite n ever m et or spoke to Sweet until 2007, when he contacted her regarding the f iles lef t in his of f ice. ¶17. Theref

ore, viewing the evidence in the light m ost f avorable to the jury ’s verdict, we
f ind it w as supported by substantial evidence, a nd the trial court did not e r r in deny ing the

m otion f or a JNOV. 4
II. Whether t he trial court should set aside the judgm ent and o rder a new trial. ¶18. W h ite also asserts a n a l t e r n a t i v e claim that the trial court should set a side the jury verdict and order a new trial. “Rule 59 o f the Mississippi Rules of Civil Procedure authorizes the trial court to set aside a jury verdict and grant a new trial whenever j u s tice

4 We d eclin e to a d d ress N e lso n ’s d ef en se o f j u d icial esto p p el, as i t is m o o t b ased o n o u r f in d in g s . 1 0requires.” Blossman Gas Inc. v. Shelter Mut. Gen. Ins. Co. , 920 So. 2d 422, 424 (¶10) (Miss.

2006) (citing W

hite v. Y ellow Freight Sys. Inc., 905 So. 2d 506 , 5 1 0 ( ¶7) (Miss. 2004)). However, a v e r dict w ill only be overturned “when i t is so contrary to the overwhelm ing weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So. 2d 836, 8 44 (¶18) (Miss. 2005). W h ite a sserts that a new trial was warranted f

o r the reasons discussed below.
A. Whether the g ranting of partial s um m ary judgm ent r egarding t he m ed-m al case w as im proper a nd, alternat i v e l y , a s s u m i n g s u m m ary judgm ent w as properly granted, w hether i t w as i mproper to ex clude evidence of the m ed-m al case at trial. ¶19. W h ite contends that genuine iss u e s of m aterial f act existed as to whether Nelson’s actions i n the state m e d-m al case constituted “ legal m alpractice, f raudulent

m isrepresentation, reckless d i s r e g ard and gross negligence.” She alternatively claim s that

even i f sum m ary judgm ent on her negligence-based legal-m alpractice claim s was warranted, the exclusion of evidence regarding the m e d -m al case at trial was im proper and “inconsistent with the trial court’s o t h e r r u l i n g s in the case.” W hite argues that the c ase a t trial was “signif icantly dim inished” because she was unable to ref erence the state m ed-m al case. ¶20. W e review a trial court’s decision to grant o r deny sum m ary judgm e n t d e novo. Crist , 6 5 S o . 3 d at 8 42 ( ¶12). “Sum m ary judgm ent is appropriate where ‘the p le a d i n g s , depositions, answers to interrogatories and adm i ssions on f ile, together with t he af

f idavits,
if any , show that there i s no g e nuine issue as to any m a terial f act and that the m oving party is entitled to a judgm ent as a m a tter of law.’” Id . (quoting M.R.C.P. 56(c)). The evidence is viewed “in the light m ost f avorable” to the nonm oving party

. Id

.

1 1¶21. The suprem e court stated i n Crist : “It is true – and well established

– that a plaintif f
in a negligence-based m alpractice action m ust establish proxim a t e c a u s e by the so-called ‘trial-within-a-trial’ test. T h at is to say , the client ‘m ust show that, but f

o r his attorney ’s negligence, he would have been successf ul in the prosecution or def ense of the underly ing action.’” Id

. a t ( ¶ 1 4 ) (quoting W ilbourn v. Stennett, W

ilkinson & W

ard , 687 So. 2d 1205,
1215 (Miss. 1996)). Also well established is our precedent t hat in a m edical-m a lpractice claim , the plaintif

f cannot survive a m otion f or sum m ary judgm ent “without m edical-expert testim o ny .” Jones v
. MEA Inc. , 160 So. 3d 241, 2 46 (¶19) (Miss. Ct. App. 2015) (citations

om itted). W ith regard to the state m ed-m al claim , the only injury alleged by W hite was that the c laim would have been successf ul on the m erits. N elson noted during a pretrial m otions hearing: “[ T]here’s no way f or the plaintif

f s here to establish that t hey w ould have recovered

m ore had any other attorney s h andled this case without proving the m erits o f the underly ing
case.” As W hite f

ailed t o d e s ignate a m edical expert w itness f or the m ed-m al claim , we cannot f ind error in the trial court’s grant of partial sum m ary

judgm ent on this issue. ¶22. W h ite f

urther claim s that t he trial c o urt should have allowed evidence of t h e s t a te

m ed-m a l claim to be presented at trial. She c ontends allowing this ev i d e n c e w ould have presented a stronger ca s e t h a t N elson and Thom pson were c onspiring to def raud W hite.
“W hen reviewing the tri a l c o urt’s decision t o a dm it or exclude evidence, we are bound by

an abuse-of

-discretion standard o f re v i e w . ” Vaughn v. Miss. Baptist Med. Ctr. , 20 So. 3d 645, 654 (¶28) (Miss. 2 009) (citing W ebb v
. Braswell , 930 So. 2d 3 87, 396-97 (¶15) (Miss. 2005)). M issis s i p pi Rule of Civil Procedure 403 allows a trial court to exclude evidence

1 2where the “probative value is substantially outweighed b y the danger of u nf air prejudice, conf usion of the issues, or m isleading the jury [

. ] ” ¶23. In r esponse t o N e l s o n ’ s m otion in lim ine to exclude Freese’s e xpert t estim ony , the trial court ordered that any ref erence to the m ed-m al claim s hould b e e x c l u d e d f r o m his

te s t i mony . During the trial, the court a lso restricted portions of letter prepared by W halen regarding an estim ate of dam ages that pertained to the m ed-m al suit. Yet we observe that the trial court did not sum m arily exclude any and all ref e r ences to the s tate m e d-m al suit. Freese

was perm itted to ref

erence the dam a g e e s t i m a te, a nd W halen was allowed to discuss the dam age estim ate i tself in m ore general term s. W hite was a lso able to introduce evidence that Thom p son and Nelson worked together af t er the case was turned down by Sweet & Freese.
As already noted, W h ite w a s u n able to p rove that the underly ing m ed-m al suit was

m eritorious, and we f

ind any probative v alue of this e v i d e n c e w as outweighed by the potential conf

usion of the issues and unf air prejudice that presenting the evidence m ay have caused. W hite suf

f e red no prejudice as a result of the exclusion of this evidence; theref ore,

w e f i n d n o a b use of discretion in the trial court’s ruling, and the trial court did n ot err i n deny ing W hite’s m otion f o r a new trial.
B. Whether White’s causes of action for gross n egligence and reckless disregard w ere v iable i ndependent claim s that s hould h a v e been presented to the jury at trial. ¶24. In her o riginal and am ended com plaints, W hite asserted claim s f o r gross negligence and reckless disregard a gainst Nelson. At t rial, W hite requested a j ury instruction on gross negligence. Nelson objected, arguing that all negligence claim s were voluntarily dism issed

1 3by W hite i n the Septem ber 4, 2013 petition. The trial court concluded that the claim s were not independent causes of action, stating:
As I indicated earlier when this was raised, t he question of whether or n ot the breach of those duties was grossly negl i g e nt or intentional so as to justif y punitive dam ages would be som ething I would take up af ter t h e jury ’s verdict[ ,] and I don’t believe those are, i n this case, u nder the f acts of this c ase and ruling previously by the court, that there is a separate cause t h a t i s s t ill viable to present to the jury [ .]
W h ite claim s that the court e rred in its ruling and the inability to present these claim s to the jury prejudiced her case and “contributed t o the jury verdict in f avor of [ Nelson].” Our
suprem e court has held: Regarding jury instructions, the trial court possesses considerable discretion. Bickham v. Grant, 861 So. 2d 2 99, 301 (¶8) ( Miss. 2003). A party i s entitled to a jury instruction if i t concerns a genuine issue of m aterial f act and t here is credible evidence t o support the instruction. M ariner Health Care, Inc. v. Estate of Edwards, 964 So. 2d 1138, 1156 ( ¶48) (Miss. 2007). W hile a p arty is entitled to jury instructions that present his the o r y o f the case, this ent i t l e m ent is lim ited; the trial court m ay r ef use an i nstruction which incorrectly states the law, i s covered f airly e lsewhere in the instructions, o r is without f oundation in t he e vidence. Ford v
. State, 975 So. 2d 859, 863 (¶11) (Miss. 2008).
Y oung v. Guild , 7 So. 3d 251, 259 (¶23) (Miss. 2009). ¶25. Wh i t e c i t e s S t ewart v. G ulf Guaranty Life Insurance Co. , 846 So. 2d 192 ( M i s s . 2002), to support her contention that the trial court erred in excluding a jury i nstruction on
gross n egligence as an independent cause of action. Upon review, we f ind Stewart actually lends support to the trial court’s ruling. In Stewa r t , t h e s uprem e c ourt held t hat the judge erred in granting a J

NOV as to punitive damages since “[ s]uf f icient evidence was presented

to the jury whereby the jury could have reasonably concluded gross negligence due to Gulf

1 4Guaranty ’s conduct.” Id

. at 195 (¶5). Consequently , w e f ind no abuse of d iscretion in the trial court’s ruling that the jury instruction on gross negligence should not ha v e b een presented as a separate c ause of action, but was m ore appropriate in t he context of determ ining punitive dama g e s only af ter a determ ination of liability against Nelson. See AmSouth Bank v. Gupta , 838 So. 2 d 2 0 5 , 2 24 (¶71) (Miss. 2002) (“The jury m ay consider punitive dam ages only where the plaintif f has shown by clear and convincing e vidence that the def e n dant ‘acted with actual m alice, gross negligence which evidences a willf ul, wanton

o r r e c k l e ss d isregard f

or the saf e ty of others, or com m itted actual f raud.’” (quoting Miss. Code Ann. § 11-1-65(1)(a) (Rev. 2002))). ¶26. W e also agree with N elson’s argum ent that W hite’s claim is “m eritless,” as these are sim ply higher degrees o f negligence and the n e g l i gence-based claim s were dism issed.
A d m i ttedly , the trial court did state in its order f or partial sum m ary judgm e n t , w h i c h dism issed W hite’s negligence-based legal-m alpractice c l aim , t ha t the cause of action f or

“ g ross negligence, r eckless disregard, and intentional conduct

. . . should be de c i d e d b y a jury .” Regardless, i t is well established that “gross negligence” a n d “reckless disregard” are sim ply higher degrees of negligence. See City of L aurel v
. W illiams , 21 S o. 3d 1170, 1174 (¶17) (Miss. 2009) (noting t hat reckless disregard is a higher standard than gross negligence); City of J ackson v. Brister , 838 S o. 2d 274, 280 (¶23) (Miss. 2003) (holding reckless disregard is m o re than ordinary n e gligence). T h u s , i n o rder t o establish a claim on these grounds,
W h ite would have to present her “ case within a c a se,” which she did not do. T hus, we f ind

no m erit to this issue raised by W hite.

1 5¶27. T H E J U D GMENT O F THE MADISON CO U N T Y C I R C U I T C O U R T I S

AFFIR M E D. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS. GRIFFIS, P.J., ISHEE, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. LEE, C.J., JAMES AND WILSON, JJ., NOT PARTICIPATING.

1 6