for the Court:
¶ 1. Kerri Parmenter appeals the Marshall County Circuit Court’s order granting summary judgment in favor of McDonald’s Corporation Inc. (McDonald’s) and the circuit court’s order granting a directed verdict in favor of J & B Enterprises Inc. Finding no error, we affirm the circuit court’s order granting summary judgment and the circuit court’s order granting a directed verdict.
FACTS AND PROCEDURAL HISTORY
¶ 2. On August 11, 2000, Parmenter and her cousin, Dana Churchill, ordered food at the drive-thru window of McDonald’s in Holly Springs, Mississippi. Because their order was taking longer than they expected, Parmenter and Churchill entered the establishment to inquire about the status of their food. At some point, a verbal altercation occurred in the lobby between Parmenter and Kesha Jones, a cashier. Parmenter admitted stating, “Bitch, you need to get out of my face” to Jones. Other witnesses testified Parmenter yelled a racial slur toward Jones. In any event, after this verbal altercation occurred, Jones left the lobby and returned to the kitchen, where she retrieved a spatula. Thereafter, Jones returned to the lobby and proceeded to beat Parmenter with the spatula. Parmenter was struck on her cheek, head, and arm.
¶ 8. On September 20, 2003, Parmenter filed a complaint against McDonald’s and J & B Enterprises.
That [Parmenter’s] cause of action arises in tort as a result of injuries and damages proximately caused by the Defendants, [McDonald’s and J & B Enter*211 prises], in Holly Springs, Mississippi, on or about August 11, 2000.
That the Defendants ... [are] liable to [Parmenter] for the actions of the [e]m-ployee[,] Kesha Jones[,] under the doctrine of [r]espondeat Superior. In addition to said responsibility, [Parmenter] would further allege that the Defendant[s][are] liable to [Parmenter] in the following manner:
A. Negligently hiring a person (Ke-sha Jones) whom the Defendants knew or should have know[n] was a person of violent propensities;
B. Negligence in failing to adequately train the personnel employed and on duty at said McDonald’s in Holly Springs, Mississippi on or about August 11, 2000;
C. Negligence in failing to adequately supervise and control the premises and employees at said McDonald’s in Holly Springs, Mississippi on or about August 11, 2000;
D. Negligence in failing to have adequate security present and on duty at said McDonald’s in Holly Springs, Mississippi on or about August 11, 2000.
Nowhere within Parmenter’s complaint did she allege assault, battery, or any intentional tort, and she did not name Jones as a defendant.
¶ 4. On December 19, 2007, the circuit court granted summary judgment in favor of McDonald’s. The order stated, in pertinent part, as follows:
This dispute arose over an incident at the Golden Arches (McDonald[’]s) in Holly Springs, Mississippi. Apparently [p]laintiff, Kerri Parmenter, became upset over her victuals order and made inquiry about its condition. It is unclear to the [c]ourt the exact cause for [plaintiffs displeasure, whether the Big Mack was soggy, the fries limp, or the coffee cold, but in any event, [p]laintiff was unhappy and apparently voiced her annoyance to an employee who was engaged as a cashier. Apparently[,] harsh words were exchanged, the exact nature of which are unknown to the [e]ourt at this time. It appears the employee took serious exception to [p]laintiff s inquiry, retreated to the recesses of the restaurant, retrieved a long cooking utensil which was referred to as a metal spatula[,] and used this instrument in a fashion contrary to its intended use or for which it was designed, but a use with which all mothers of young children are acquainted.
Byrd Management, Inc. is a franchise of the McDonald[’]s Corp. Plaintiff contends that McDonald[’]s is vicariously liable to [p]laintiff for her injuries. McDonald[’]s has no right to hire or fire; to direct the franchise how to conduct its day-to-day business; to direct the hours the employees work; to direct who should be or should not be hired; to prescribed the details of the kind and character of the work to be completed by the individual employees, nor to direct the details of the manner in which the day-to-day work of each employee was completed.
McDonald[’]s shares in the success of the business in that the higher the gross receipts the more McDonald[’]s receives and of course is concerned with the results of the franchisees’ efforts but not with the details of the work of the individual employees.
THEREFORE, the [m]otion for [s]um-mary [j judgment on behalf of Me-Donald[’]s Corp. should be and is hereby sustained, the [c]ourt hereby finding that there is no vicarious liability on McDonald[’]s Corp. to cause it to be*212 liable for the actions complained of by [pjlaintiff, and therefore the claim against McDonald[’]s Corp[.] is hereby dismissed with prejudice.
¶ 5. After the entry of summary judgment in favor of McDonald’s, Parmenter and J & B Enterprises proceeded to trial. Parmenter called various witnesses, and their testimonies will be discussed more fully herein as needed. After Parmenter rested her case-in-chief, J & B Enterprises moved for a directed verdict, which was granted by the circuit court. That order read as follows:
This cause came on to be heard by the [cjourt, upon the [mjotion by [djefen-dant, J & B Enterprises, for [djirected [vjerdict, after [pjlaintiff rested on her case[-]in[-]chief. The [cjourt, after hearing argument of counsel, a review of the record[,j and due consideration thereof, was of the opinion that said [mjotion was well taken and should be granted. Specifically, this [cjourt finds that [pjlaintiff has failed to meet the elements of any of her claims against [djefendant.
Plaintiff failed to present any evidence that [djefendant knew or should have known of the violent propensity of its employee, Kesha Jones. Plaintiff failed to present evidence that the actions of Kesha Jones arose in the course and scope of her employment with [djefen-dant. Additionally, [pjlaintiff failed to present any evidence that Kesha Jones was not properly trained in accordance with the [djefendant’s practices and procedures. Further, there is no evidence presented that [djefendant’s policies, practices[,j and procedures are improper or inadequate, much less that such caused or contributed to [pjlaintiffs alleged damages.
Further, [pjlaintiff failed to present any medical evidence to a reasonable degree of certainty that [pjlaintiffs injuries were caused by or contributed to by [djefendant. Even if Dr. Robert Cooper had provided such testimony, he is not qualified to provide opinions as to the causation of his [p]ost[-][t]raumatic[-][s]tress[-][d]isorder diagnosis. He testified that he is not familiar with the standard of care of a psychologist or psychiatrist. His methodology for diagnosing PTSD and/or relating it to the subject incident has not been the subject of peer review, nor did he testify that it is a commonly accepted methodology by qualified physicians/counselors. Additionally, he admitted that he did not take a social history of [pjlaintiff prior to making the diagnosis, nor did he obtain any records of medical or other treatment/counseling [pjlaintiff received for her pre-existing mental/emotional condition before and after the subject incident. Dr. Cooper’s opinions are not reliable. Further, in light of the lack of expert proof on the issue, this [cjourt finds that it would be impossible for the jury to allocate damages, and any effort to do so would be mere speculation. Finally, [pjlaintiff did not properly plead the claim for intentional tort under the doctrine of respondeat superior. Defendant made a proper motion to dismiss in its [ajnswer. To the extent [pjlaintiff did properly plead this claim, it is barred by the applicable one[-]year statute of limitations. To the extent necessary, [djefendant’s Rule 15(a), (b) motion is granted. It is, accordingly, ORDERED that [djefendant’s [mjotion for [djirected [vjerdict is granted and this case is dismissed, with prejudice. This is a final [ojrder.
¶ 6. Parmenter appeals the circuit court’s order granting summary judgment and the circuit court’s order granting a directed verdict. Finding no error, we affirm both orders.
I. Whether the circuit court erred in granting summary judgment in favor of McDonald’s.
¶ 7. “We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment.” Holmes v. Campbell Props., Inc.,
¶ 8. “The nonmoving party must diligently oppose summary judgment.” Holmes,
¶ 9. An “employer is responsible for the torts of its employee only when the torts are ‘committed within the scope of the employment.’” Favre v. Wal-Mart Stores, Inc.,
Our cases in the field revolve around the idea of control. The right to control is as important as de facto control at the tortious moment, for the right to control the work of another “carries with it the correlative obligation to see to it that no torts shall be committed” by the other in the course of the work. Therefore, one who controls, or has the right to control,*214 the work of another may be liable as the master of that party. However, the potential control does not create liability unless the alleged master had the right to control the means as well as the ends. “There is another fact premise sometimes pointing to non-liability: If the party ... is concerned only with the ultimate results and not the details of the work.”
Allen v. Choice Hotels Int’l,
(1) Whether the principal master has the power to terminate the contract at will;
(2) whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment;
(8)whether he furnishes the means and appliances for the work;
(4) whether he has control of the premises;
(5) whether he furnishes the material upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output;
(6) whether he has the right to prescribe and furnish the details of the kind and character of work to be done;
(7) whether he has the right to supervise and inspect the work during the course of the employment;
(8) whether he has the right to direct the details of the manner in which the work is to be done;
(9) whether he has the right to employ and discharge the subemployees and to fix their compensation; and
(10) whether he is obliged to pay the wages of said employees.
Allen,
¶ 10. Applying these factors, we find that McDonald’s did not act as the master or employer of the Holly Springs McDonald’s franchise owned and operated by J & B Enterprises. James Byrd, the owner, testified McDonald’s did not own the subject location, and the franchise agreement did not dictate the day-to-day operations of the franchise. As noted in David Barlett’s affidavit, McDonald’s did not control the day-to-day operation of the franchise, it did not have the authority to hire or fire employees, and it did not own or operate the franchise at issue. Specifically, Barlett’s affidavit reads as follows:
1. My name is David Barlett. I am employed by McDonald’s Corporation as [s]enior [cjounsel, and I am authorized to give this affidavit on behalf of McDonald’s Corporation.
2. The plaintiff brought a lawsuit against McDonald’s Corporation alleging damages for an injury sustained at the McDonald’s restaurant located at Highway 7 and Highway 78 (Clarice Drive), Holly Springs, Mississippi on August 11, 2000.
3. McDonald’s Corporation does not own the business specified above.
4. McDonald’s Corporation does not operate the business specified above.
5. McDonald’s Corporation does not, nor does it have the right to, hire, discharge!,] or discipline employees of the business specified above.
*215 6. McDonald’s Corporation does not pay the utilities for the business specified above.
7. McDonald’s Corporation does not sell any products at the business specified above.
8. McDonald’s Corporation does not supply any products to the business specified above.
9. McDonald’s Corporation does not own or operate any business which supplies products to the business specified above.
10. McDonald’s Corporation does not, nor does it have the right to, control the day-to-day activities necessary to carrying on the business operations of the restaurant specified above.
11. At the time of the alleged incident, the restaurant business specified above was owned and operated by James F. Byrd, Jr. pursuant to the terms of a franchise agreement dated September 15,1993.
¶ 11. Parmenter failed to produce any evidence contradicting the contents of this affidavit or McDonald’s witnesses which would support her assertion that McDonald’s controlled the daily operation of the franchise. Instead, Parmenter merely argues that the McDonald’s logo on the building and on the employees’ uniforms, the franchise agreement between J & B Enterprises and McDonald’s, and the fact that customers visit McDonald’s due to its reputation for good food warrant a finding that McDonald’s should be liable under the doctrine of respondeat superior. However, Parmenter fails to cite any relevant authority to support her position. Thus, under Mississippi Rule of Appellate Procedure 28, her argument is procedurally barred. Notwithstanding the procedural bar, we find that these allegations are without merit.
¶ 12. We find that McDonald’s was not an employer of Jones. McDonald’s did not control the day-to-day operations of the franchise. McDonald’s had no right to hire or fire employees, to direct the hours the employees worked, or to direct the details of the manner in which the day-today work of each employee was completed. Based on the facts of this case, McDonald’s cannot be held liable for the actions of Jones under the doctrine of respondeat superior because McDonald’s was not a master or employer of Jones. Therefore, there was no genuine issue of material fact to be submitted to a jury regarding McDonald’s liability. As such, we affirm the circuit court’s order granting summary judgment in favor of McDonald’s.
II. Whether the circuit court erred in granting a directed verdict in favor of J & B Enterprises.
¶ 13. We employ a de novo standard of review in reviewing a trial court’s grant of a motion for directed verdict. Fred’s Stores of Tennessee, Inc. v. Pratt,
A. Respondeat Superior
¶ 14. An “employer is responsible for the torts of its employee only when the torts are ‘committed within the scope of the employment.’ ” Favre, 820
¶ 15. In Adams,
¶ 16. In Favre,
[The co-worker] was employed as an attendant in the auto service center. Nothing in [the co-worker’s] job description required him to involve himself in altercations with other employees or patrons. [The co-worker] was clearly acting for his own purposes and not incidental to his employment with Wal-Mart when he involved himself in the altercation with [the employee]. Wal-Mart is not responsible or liable for [the co-worker’s] actions during his alterca*217 tion with [the employee]. Accordingly, this issue does not present a genuine issue of material fact for a jury to determine. Summary judgment was proper on this issue.
Id. at 774 (¶ 6).
¶ 17. In the instant case, Jones was employed as a cashier at the time of her altercation with Parmenter, and nothing within her job description required her to involve herself in an altercation, whether verbal or physical, with patrons of the restaurant. As in Fame, Jones was clearly acting for purposes unrelated to her employment when she beat a customer with a spatula in the lobby of the restaurant, as nothing within her job description required her to engage in such behavior. And similar to Adams, Jones’s act of hitting Parmenter was motivated by personal animosity and anger, presumably from Parmenter calling Jones a “bitch,” and Jones was never vested with any duty on that day other than working the cash register. Clearly, Jones was not acting within the scope of her employment or performing duties incidental to her employment when she engaged in the altercation with Parmenter. Therefore, J & B Enterprises is not liable for Jones’s actions under the doctrine of respondeat superior. As such, there is no genuine issue of material fact for the jury to consider, and the directed verdict in favor of J & B Enterprises was proper.
B. Negligent Hiring and Negligent Training
¶ 18. Parmenter also raised a claim for negligent hiring. In Mississippi, “an employer will be liable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness.” Doe v. Pontotoc County Sch. Dist., 957 So.2d 410, 416-17 (¶ 16) (Miss.Ct.App.2007) (citing Eagle Motor Lines v. Mitchell,
¶ 19. In the instant case, Katina Daugherty, the former manager and supervisor, testified that criminal background checks are conducted on all applicants before the interview. If an applicant had a criminal record or a history of violence, that applicant would not be hired. Daugherty also testified that Jones was “not a violent person at all,” and she never saw Jones assault, attack, or curse at anyone. Upon review of the record, we find Parmenter failed to produce any evidence to show Jones had a criminal record or any violent tendencies, and there is nothing to indicate actual or constructive knowledge by J & B Enterprises. Therefore, the issue of negligent hiring is without merit.
¶ 20. Parmenter also raises a claim for negligent training. This Court has previ
¶ 21. James Byrd, the owner of J & B Enterprises, testified that his employees are trained to “satisfy the customer, fix the problem” and “[i]f they can’t fix the problem, they are instructed to get the manager on duty.” Daugherty testified all employees are trained prior to the first day of work during orientation. After orientation, the employees go through another period of training on the floor by working with another employee. Daugherty verified that all employees are trained to apologize and call a manager if a customer had a complaint. The manager would then handle the complaint and attempt to make the customer happy. She further stated that if there was a customer cussing and threatening an employee, the employee is trained to call the police. Daugherty also testified that if an employee fought with a customer, such an altercation would be outside the scope of the employment and the employee would be fired because such behavior would violate what the employee was taught in training. Finally, Daugherty testified Jones properly went through all of the practices and procedures.
¶22. Upon review of the record, we find Parmenter failed to produce any evidence, other than the mere fact of the altercation occurring, to support a genuine issue as to her negligent-training claim. Therefore, this issue is without merit.
III. Whether the circuit court erred in disqualifying Parmenter’s witness, Dr. Robert Cooper, as an expert witness.
¶ 23. “The standard of review for the admission or suppression of evidence, including expert testimony, is an abuse of discretion.” Utz v. Running & Rolling Trucking, Inc.,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Further, it is well established that “the trial judge is considered the gatekeeper and determines the value of the expert testimony.” Utz,
¶ 24. “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. “All relevant evidence is admissible, except as otherwise provided by the Constitution of
¶ 25. In the instant case, Par-menter argues the circuit court erred in initially allowing her expert, Dr. Robert Cooper, to testify as an expert and later disqualifying him as an expert witness. Parmenter called Dr. Cooper in support of her alleged mental damages. Dr. Cooper testified he was board certified in bariatric medicine (weight control), and he did his fellowship in family medicine. Dr. Cooper further stated he was not board certified in psychiatry or psychology. As previously noted, the circuit court disqualified Dr. Cooper as an expert witness, reasoning as follows:
Further, [pjlaintiff failed to present any medical evidence to a reasonable degree of certainty that [pJlaintifFs injuries were caused by or contributed to by [djefendant. Even if Dr. Robert Cooper had provided such testimony, he is not qualified to provide opinions as to the causation of his [p]ost[-][t]raumatic[-][s]tress[-][d]isorder diagnosis. He testified that he is not familiar with the standard of care of a psychologist or psychiatrist. His methodology for diagnosing PTSD and/or relating it to the subject incident has not been the subject of peer review, nor did he testify that it is a commonly accepted methodology by qualified physicians/counselors. Additionally, he admitted that he did not take a social history of [pjlaintiff prior to making the diagnosis, nor did he obtain any records of medical or other treatment/eounseling [pjlaintiff received for her pre-existing mental/emotional condition before and after the subject incident. Dr. Cooper’s opinions are not reliable. Further, in light of the lack of expert proof on the issue, this [cjourt finds that it would be impossible for the jury to allocate damages, and any effort to do so would be mere speculation.
We agree with the circuit court’s finding. It was well within the circuit court’s discretion to disqualify Dr. Cooper in light of his testimony at trial. This issue is without merit.
IV. Whether the circuit court erred in refusing to admit the deposition testimony of Trudi Porter.
¶ 26. Parmenter argues that the deposition testimony of Trudi Porter, a clinical psychologist, should have been admitted into evidence. Rule 32(a) of the Mississippi Rules of Civil Procedure states:
At the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof]
(Emphasis added). Rule 804(b)(1) of the Mississippi Rules of Evidence provides:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony. Testimony given as a witness at another hearing of the same or a differ*220 ent proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(Emphasis added). The comment to Rule 804(b)(1) explains that “[a]n essential ingredient of the former testimony exception has always been the unavailability of the declarant.”
¶ 27. In the instant case, Parmenter failed to subpoena Porter, and she failed to properly designate Porter as a witness. Most importantly, however, Parmenter failed to prove Porter’s unavailability as required under Rule 804(b)(1). Therefore, the circuit court properly excluded Porter’s deposition from evidence. This issue is without merit.
¶ 28. THE JUDGMENTS OF THE MARSHALL COUNTY CIRCUIT COURT ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
Notes
. Parmenter and Churchill were originally plaintiffs in this action, but Churchill was later dismissed from the suit. McDonald’s, McDonald’s Restaurants of Mississippi Inc., Byrd Management Inc., J & B Enterprises, James F. Byrd d/b/a McDonald’s in Holly Springs, Mississippi, and XYZ Corporation were originally named as defendants. McDonald’s Restaurant of Mississippi Inc., James Byrd, and Byrd Management Inc. were eventually dismissed from the case, and no party was ever substituted for XYZ Corporation.