source: Caselaw Access Project

author: WALLER, Justice, for the Court. McRAE, Presiding Justice,

license: Public Domain

text:
    G.B. "BOOTS" SMITH CORPORATION v. Henry R. COBB, Jr. and Richard Cobb.
    No. 2002-CA-00525-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2003.
    Rehearing Denied Dec. 18, 2003.

      Tom T. Ross, Jr., Clarksdale, attorney for appellant.
    C. Kent Haney, Clarksdale, attorney for appellees.
   WALLER, Justice, for the Court.

¶ 1. Henry R. Cobb, Jr., and Richard Cobb filed suit in the Chancery Court of Coahoma County, Mississippi, against G.B. “Boots” Smith Corporation for damages resulting from an alleged breach of contract. After a bench trial, judgment was entered against Smith.

FACTS

¶ 2. Smith is a Mississippi corporation engaged in, among other things, the road construction business. Smith entered into a contract with the State of Mississippi to construct a bypass on U.S. Highway 61 in Coahoma County. The completion of this contract would require Smith to purchase a large amount of fill dirt. Smith entered into a contract with the Cobbs as follows: “The Sellers (the Cobbs) hereby sell to Buyer (Smith) all fill dirt for Project No. SDP-009-4(34) on Highway 61 Bypass South from the Sunflower River West to the end of said project, in Coahoma County, Mississippi.” The contract further stated that the quantity of fill dirt needed would be approximately 550,000 cubic yards, and that Smith would purchase the fill dirt at the rate of $.40 per cubic yard.

¶ 3. After Smith had removed 443,716.30 cubic yards from the Cobbs’ property, it began purchasing fill dirt from a third party. When the Cobbs discovered that Smith was acquiring fill dirt elsewhere, they filed suit alleging that the contract required Smith to purchase all fill dirt for the project solely from the Cobbs.

¶ 4. The chancery court found that, as a matter of law, the contract was unambiguous, was a mutual contract between the parties, required the Cobbs to provide all the fill dirt for the project, and required Smith to purchase all fill dirt for the project from the Cobbs. The chancery court then allowed the parties to put on testimony as to the amount of damages that the Cobbs suffered as a result of Smith’s breach of contract.

¶ 5. The chancery court awarded $105,134.80, which is the contractual value of the amount of fill dirt used on the project that was not purchased from the Cobbs at $.40 per cubic yard. The chancery court further found that, because Smith was receiving monthly checks from the State of Mississippi for supplies for the project, Smith was considered a contractor, and the Cobbs were considered subcontractors, a fifteen percent (15%) damages penalty pursuant to Miss.Code Ann. § 31-5-27 (Rev.2000) should be imposed against Smith. The total judgment entered against Smith was for $120,905.02. Smith appeals.

DISCUSSION

¶ 6. We will not interfere with or disturb a chancellor’s findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So.2d 67, 71 (Miss. 2003). Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder. Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002); Miss. State Hwy. Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993). The standard of review for questions of law is de novo. Parkerson, 817 So.2d at 532; Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997).

I. WHETHER THE CHANCERY COURT ERRED IN FINDING THAT THE CONTRACT BETWEEN SMITH AND THE COBBS REQUIRED SMITH TO PURCHASE FILL DIRT SOLELY FROM THE COBBS.

¶ 7. “In contract construction cases a court’s focus is upon the objective fact — the language of the contract. [A reviewing court] is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Turner v. Terry, 799 So.2d 25, 32 (Miss.2001); Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989). Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. “[T]he mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.” Turner, 799 So.2d at 32; Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987).

¶ 8. Here, Smith filed a motion in limine to prevent any parol evidence that would add terms to the contract upon which this suit was based. Smith, in essence, requested that the chancellor make his findings on the face of the contract alone. The chancellor then found that the contract was clear and unambiguous on its face and that he did not need to go beyond the text by having the parties testify to what was meant by the contract.

¶ 9. The Cobbs contend that the contract meant that they would sell all the fill dirt needed for the project to Smith and that Smith would buy all the fill dirt needed for the project exclusively from them. This type of contract is called a “requirements contract.” A requirements contract requires the buyer to purchase all his “requirements” for goods or services solely from one seller. Requirements contracts are recognized in Mississippi and are not void for indefiniteness. Miss.Code Ann. § 75-2-306(1) (Rev.2002). “An essential element of a requirements contract is the promise of the buyer to purchase exclusively from the seller either the buyer’s entire requirements or up to a specified amount.” Mid-South Packers, Inc. v. Shoney’s, Inc. 761 F.2d 1117, 1120 (5th Cir.1985) (applying Mississippi law).

¶ 10. A Missouri federal court has found that

an express promise by the buyer to purchase exclusively from the seller is not always required. In construing a contract in which only the seller has agreed to sell, a court may find an implied reciprocal promise on the part of the buyer to purchase exclusively from the seller, at least when it is apparent that a binding contract was intended.

Propane Indus., Inc. v. Gen. Motors Corp., 429 F.Supp. 214, 219 (W.D.Mo.1977). “Thus there is no requirements agreement where the buyer fails to make an express or implied promise to purchase solely from the seller.” 67A Am.Jur.2d Sales § 225, at 394 (2003) (footnote omitted). Had the formation of a requirements contract called for an express promise to purchase solely from the seller, then the contract at issue here would not be a requirements contract. The plain language of the contract provides an implied contract. While the contract does not contain the phrase “buyers agree to buy all fill dirt for the Project,” the wording that was used in the contract implied exactly that. There would be no reason to include the wording “all fill dirt for project” unless Smith intended to buy all the fill dirt needed for the project from these particular sellers.

¶ 11. The chancellor reviewed the contract and, from the words in the contract alone, found that it was clear and unambiguous on its face and that it was a requirements contract. We agree.

II. WHETHER DAMAGES WERE APPROPRIATE IN LIGHT OF THIS COURT’S FINDING IN ISSUE I.

¶ 12. After he found that Smith was required to purchase all fill dirt for the project from the Cobbs, the chancellor awarded damages to the Cobbs based on the amount of fill dirt purchased by Smith from third parties. Based on the parties’ testimony, the chancellor determined the amount of fill dirt needed for the project to be 706,553.3 cubic yards. He then found that the 262,837 cubic yards of dirt not purchased from the Cobbs multiplied by $0.40 per yard, the stated contract price, was the measure of damages and awarded such to the Cobbs.

¶ 13. Smith claims that the chancellor abused his discretion in awarding damages for the 262,837 cubic yards of dirt not purchased from the Cobbs, since the contract estimated the amount of dirt needed for the project to be 550,000 cubic yards. Smith contends that the chancellor’s award of damages essentially requires him to purchase 23% more dirt than anticipated under the contract which is unreasonably disproportionate to the stated estimate in the contract.

¶ 14. Smith relies on Miss.Code Ann. § 75-2-306(1) (Rev.2002), which states in part as follows:

A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate ... may be tendered or demanded.

¶ 15. Smith contends that the “unreasonably disproportionate” language refers to the volume of goods to be purchased under a requirements contract, not to damages for breach of a requirements contract. Smith incorrectly interprets the statute, which clearly refers to the terms of a contract and the performance of the contract. See, e.g., Chem. Distribs., Inc. v. Exxon Corp., 1 F.3d 1478, 1483 (5th Cir.1993).

¶ 16. Although Smith’s argument is without merit, we find that the chancellor’s award of damages was clearly erroneous. The principle governing breaches of sales contracts is to give the aggrieved party the benefit of the contract by putting the party in as good a position as the party would have been in had the breaching party performed the agreement. The appropriate measure of damages is found in Miss.Code Ann. § 75-2-708 (Rev. 2002), “Seller’s damages for nonacceptance of goods or repudiation of the sales contract.” See, e.g., Chem. Distribs., 1 F.3d at 1486. Subsection (1) provides for damages equal to the difference between the agreed price and the market value of the goods. If subsection (l)’s damages are inadequate, subsection (2)’s measure of damages, “the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages,” applies. The chancellor awarded the Cobbs the full sales price as damages. Because the Cobbs are still in possession of the dirt they were to sell and presumably could still sell, they are entitled only to the lost profits and any incidental damages under § 75-2-708.

¶ 17. Presiding Justice McRae, in his separate opinion, argues that the chancellor’s calculation of damages was correct and should be affirmed. Use of this calculation, however, would result in unjust enrichment because the Cobbs would receive lost profits and still be in possession of the fill dirt, which they could sell to another purchaser. The Cobbs would be paid almost double what the fill dirt was worth in the first place, making Presiding Justice McRae’s calculation of damages highly inequitable and contrary to well-established law.

¶ 18. We reverse the chancellor’s award of damages and remand this case for a recalculation of damages under these guidelines.

III. WHETHER A STATUTORY PENALTY SHOULD HAVE BEEN IMPOSED AGAINST SMITH.

¶ 19. The chancellor also imposed Miss.Code Ann. § 31-5-27’s penalty against Smith. This statute contemplates payment by contractors to suppliers and subcontractors while work is ongoing. When the contractor receives payment, the contractor shall “pay each subcontractor and material supplier in proportion to the percentage of work completed by each subcontractor and material supplier.” Miss.Code Ann. § 31-5-27 (Rev.2000). When Smith breached the contract, the contract was terminated, and the Cobbs were no longer entitled to the benefits under the contract. See, e.g., Restatement (Second) Contracts § 253 (a material breach by either party terminates a contract); see also Estate of Reaves v. Owen, 744 So.2d 799, 802 (Miss.Ct.App.1999). Therefore, after the breach, the Cobbs were no longer material suppliers under the public construction contract, and § 31-5-27 no longer applied to them. Their only recourse at that time was to file a breach of contract suit against Smith.

¶ 20. Thus, the chancellor’s imposition of the statutory penalty against Smith was erroneous.

CONCLUSION

¶ 21. The chancellor correctly found that the contract was clear and unambiguous on its face, and through its wording, required Smith to purchase fill dirt solely from the Cobbs. In failing to do so, Smith breached the contract. However, the chancellor erroneously awarded the Cobbs the full purchase price of the unused fill dirt instead of only the profits they may have reaped from the sale of the fill dirt. The chancellor also erroneously awarded a statutory penalty.

¶ 22. Wé therefore affirm the chancellor’s finding that the contract was a requirements contract, reverse and render the imposition of the statutory penalty, and reverse the award of damages and remand for a reassessment of damages in accordance with this opinion.

¶ 23. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. EASLEY, J„ CONCURS IN RESULT ONLY. GRAVES, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. PITTMAN, C.J., AND DIAZ, J„ NOT PARTICIPATING.

McRAE, Presiding Justice,

Concurring in Part and Dissenting in Part:

¶24. As for the merits, the majority correctly finds that this is a requirements contract that was breached by Smith, I agree. However, the majority errs when it orders reversal as to the issue of damages in favor of reassessment in the trial court below. The chancellor correctly assessed damages, and his ruling should be affirmed. This case was Justice Diaz’s case in which practically everyone voted when it originally circulated affirming in its entirety the learned chancellor’s decision. I agree with Justice Diaz’s original proposed opinion and hereby adopt those portions of his proposed opinion hereby recited in its entirety below since now the majority sees fit to reverse.

¶ 25. The contract specifically called for “all fill dirt for Project No. SDP-009-4(34) on Highway 61 Bypass South from the Sunflower River West to the end of said project, in Coahoma County, Mississippi.” Another portion dealt with estimated amount and the Cobbs were entitled to the total amount of fill dirt that was used. Smith had the opportunity to get all the dirt and chose not to do so. Therefore, it suffers the consequences including the 15% penalty. For the majority to say the Cobbs were no longer suppliers as a result of the breach of the contract by Smith and entitle Smith to be rewarded for this breach of the contract is disingenuous. The Cobbs were suppliers, Smith was the subcontractor, and Miss. Code Ann. § 31-5-27 (Rev.2000) applies as the learned chancellor found.

¶ 26. For the reasons stated above, I respectfully concur in part and dissent in part as I believe the chancellor’s entire judgment should be affirmed on this appeal.

      . But that should have been pursuant to the terms of the parties’ contract.

      . II. WHETHER DAMAGES WERE APPROPRIATE IN LIGHT OF THIS COURT’S FINDING IN ISSUE I.
      Smith argues, in the event the Chancellor’s decision was supported by the applicable law and the contract was a requirements contract pursuant to Miss Code Ann. § 75-2-306(1), then he is not required to purchase any quantity unreasonably disproportionate to the stated estimate in the contract. The Chancellor found correctly that Smith was to purchase all fill dirt for the project from the Cobbs. The Chancellor then awarded damages based on the amount of fill dirt purchased by Smith from a third-party, which should have been purchased from the Cobbs pursuant to the contract between said parties.
      At trial, the Chancellor determined the amount of fill dirt needed for the project to be 706, 553.3 cubic yards. This determination was based upon testimony from Smith’s own witness. The Chancellor found that the 262, 837 cubic yards of dirt not purchased from the Cobbs multiplied by $0.40 per yard, the stated contract price, was the obvious measure of damages, and awarded such to the Cobbs. Although the Chancellor did not reference Mississippi Code Annotated § 75-2-708 (Rev.2002), “Seller's damages for nonacceptance of goods or repudiation of sales contract," his/ her ruling appears to based thereon. This section provides in part, “(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this chapter ..., due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.” The Chancellor awarded the Cobbs the profits they would have received had Smith fully performed under the contract, which is in accord with Miss.Code Ann. § 75-2-708(2) (Rev.2002).
      Smith claims that the Chancellor abused his discretion in awarding damages for the 262, 837 cubic yards of dirt not purchased from the Cobbs, since the contract estimated the amount of dirt needed for the project to be 550, 000 cubic yards. Smith contends that the Chancellor's award of damages essentially requires him to purchase 23% more dirt than anticipated under the contract which is unreasonably disproportionate to the stated estimate in the contract.
      Smith relies on Miss.Code Ann. § 75-2-306 which states in part as follows:
      A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate ... may be tendered or demanded.
      The "unreasonably disproportionate” language refers to the volume of goods to be purchased under a requirements contract, not to damages for breach of a requirements contract. See e.g., Chemical Distributors, Inc. v. Exxon Corp., 1 F.3d 1478, 1483 (5th Cir.1993). The damages awarded by the Chancellor do not actually require a tender or demand of a specific quantity of dirt, instead money damages were awarded for breach of contract.
      Assuming, arguendo, that Smith’s argument is not misplaced, we find the Chancellor did not abuse his discretion in awarding damages based on the amount of dirt which was necessary to complete the project. As previously stated, the contract provided that the Cobbs would supply all fill dirt to Smith and implied that Smith would purchase all fill dirt needed for the project from the Cobbs. Furthermore, the contract originally stated 700,000 cubic yards of dirt was the estimate needed to complete the project. A line marked through that figure and 550,-000 was inserted instead. In addition, the pit permit application prepared by Smith and filed with the State of Mississippi contained a form styled "Request for Cultural Assessment” which provided that 800,000 cubic yards of dirt would be acquired for the project. In light of all the evidence, the Chancellor did not abuse his discretion in requiring Smith to comply with the contract for which he bargained. Looking at the facts and circumstances of this case, the amount of dirt Smith was required to purchase by the Chancellor was not unreasonably disproportionate to the amount estimated by the parties.


author: GRAVES, Justice, for the Court. CARLSON, Justice,

text:
    Christine Lauralene WOODELL and Carroll Dean Woodell v. Henry PARKER and Barbara Parker.
    No. 2001-CA-01679-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Woodrow W. Pringle, III, Gulfport, attorney for appellants.
    Walter L. Nixon, Jr., attorney for appel-lees.
   GRAVES, Justice, for the Court.

¶ 1. Christine Lauralene Woodell and Carroll Dean Woodell seek review of the ruling of the Harrison County Chancery Court, Second Judicial District, which granted the petition of Henry and Barbara Parker for grandparent visitation. The chancellor determined that Henry and Barbara Parker had a viable relationship with their granddaughter, that the Parkers had been unreasonably denied visitation rights, and that it was in the best interest of the grandchild to have contact with the Parkers. The Woodells appeal this ruling. We affirm the judgment of the chancellor.

FACTS

¶2. Shelby Marie Woodell (“Shelby”) was born on May 29,1995, to Laura Christine Woodell (“Laura”) and John Andrew Parker (“Andy”) who were not married. Laura was 18 years old and had just recently graduated from high school when Shelby was born. Andy was 20 years old. Both Laura and Andy, who had dated for three years, lived at home with their parents.

¶ 3. Three days after Shelby’s birth, Laura’s parents, Carroll and Christine Woodell (“Woodells”), filed a petition for adoption. Laura and Andy each signed a consent, waiver of process and joinder; an affidavit of surrender and consent; and an additional affidavit which stated in part the consents and surrenders were irrevocable. The adoption order was filed on June 19, 1995. Henry and Barbara Parker (“Par-kers”), Andy’s parents, were not made aware of the adoption until months later.

¶ 4. After the adoption, Laura and Shelby continued to live with her parents, and Andy continued to live with his parents. Laura and Andy both spent time with Shelby. Andy and his parents sent money to the Woodells for Shelby. At least six cashed checks from 1997 are contained in the record which substantiate the Parkers’ claims that they provided financial support to Shelby. However, eventually Mrs. Woodell refused to cash their checks. The Parkers also kept Shelby during the day while Laura attended community college. Early in life, Shelby had an established relationship with the Parkers. Laura even sent the Parkers birthday cards from Shelby in 1996 and 1997. Both Andy and his parents were allowed visitation and overnight visits with Shelby.

¶ 5. Ultimately, the relationship between Laura and Andy deteriorated, and the visits with the Parkers were restricted. Around Shelby’s third birthday, the Woo-dells began refusing both Andy and his parents visitation. At first, the Woodells provided what seemed to be legitimate excuses as to why Shelby could not come for visits. To quote Mrs. Woodell, Shelby was a “busy girl.” However, after repeated refusals by the Woodells to allow either Andy or the Parkers visitation, it became clear that the Woodells were in fact attempting to shut them out of Shelby’s life. Eventually, the Parkers were totally denied visitation after Shelby’s fourth birthday. The Parkers attempted to reason and negotiate with the Woodells to obtain visitation but their efforts were unsuccessful.

¶ 6. On March 5, 1999, the Parkers, as the biological paternal grandparents, filed a petition for grandparents’ visitation. The Woodells filed a motion to dismiss the action and for attorney fees. Attached to their motion were the adoption pleadings which indicated the Woodells’ adoption of the minor child of their daughter, Laura, and the Parkers’ son, Andy. The Woodells argued that as the “adoptive parents” of Shelby they had a fundamental right to choose with whom their granddaughter spent time and until proof was shown that they were unfit parents, the Courts could not take this right away from them. The chancellor denied the Woodells’ motion to dismiss.

¶ 7. Thereafter, the Woodells filed a second motion to dismiss on September 20, 2001, on the grounds that the Mississippi Grandparents’ Visitation Statute was unconstitutional. This motion was filed the Friday before the case was set to go to trial on Monday. The Parkers filed a motion to strike on the grounds that the motion was untimely and in derogation of the chancellor’s previous order.

¶ 8. A hearing was held on September 24, 2001, where the chancellor heard arguments on the motion to dismiss, the motion to strike and the merits of the petition for visitation.

Testimony at the hearing revealed:

(1) The Parkers were not aware of the adoption until months after its completion;
(2) The Parkers kept Shelby during the day while Laura attended school and kept Shelby overnight on several occasions;
(3) Laura sent the Parkers birthday cards from Shelby;
(4) The Parkers gave Shelby gifts for birthdays and other holidays;
(5) Mrs. Woodell acknowledged that the Parkers had sent financial support to Shelby, but that she did not cash most of the checks;
(6) On at least one occasion, Mrs. Woo-dell discussed with Mr. Parker their refusal to allow visitation;
(7) Mrs. Woodell acknowledged that Laura’s feelings toward Andy with regard to the deterioration of their relationship did play a role in the . determination to refuse visitation;
(8) The reasons cited by Mrs. Woodell with regard to why she believed it was not in the best interest of Shelby to visit with the Parkers included Mr. Parker’s gun collection; the confusion such visitations would cause Shelby; Shelby having ridden, on a four wheeler with Mr. Parker at their family farm; the Parkers judgments with regard to Shelby may differ from her own; and six-year-old Shelby is a “busy girl;”
(9)The Parkers testified that if given visitation they would not undermine the Woodells’ discipline of Shelby or the principles by which they require her to abide;
(10) The guns which the Parkers have in their home are antique collectibles which are locked in gun safes. The Parkers have also agreed that if requested, they would remove the guns from their home in order to reassure the Woodells;
(11) The Woodells are currently separated and living apart;
(12) Since Mrs. Woodell’s apartment flooded, Laura has been primarily keeping Shelby;
(13) Laura has married and as of the hearing was expecting another child;
(14) Shelby calls Laura “mom,” Andy “dad,” the Woodells “grandpa and grandma,” the Parkers “grandma and grandpa,” and Laura’s new husband “Mark and/or Dad;”
(15) The Parkers only live fourteen miles away from the Woodells and Laura; and
(16) The Parkers have eight other grandchildren besides Shelby and all are girls.

¶ 9. On September 26, 2001, the chancellor entered an order granting the Parkers’ petition for grandparent visitation. The chancellor found the Parkers qualified for visitation rights under Miss. Code Ann. § 93-16-3(2) because they had established a viable relationship with Shelby, they had been unreasonably denied visitation, and it was in Shelby’s best interest to maintain contact with the Parkers. The chancellor applied the Martin factors and ordered that the Parkers would have visitation with Shelby one weekend per month, every other Spring Break/Easter holiday, two weeks every summer, the Friday and Saturday following Thanksgiving and the four days after Christmas. From this judgment, the Woodells appeal.

DISCUSSION

¶ 10. This Court employs a limited standard of review in reviewing the decisions of a chancellor. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). The findings of a chancellor will not be disturbed unless this Court finds the chancellor abused his discretion, was manifestly wrong or made a finding which was clearly erroneous. Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). Additionally, deference is also given to the trial court’s determinations as to the weight and credibility of witnesses when there is conflicting testimony. See Scott Addison Constr., Inc. v. Lauderdale County Sch. Sys., 789 So.2d 771, 773-74 (Miss.2001); Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994); Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983).

¶ 11. As for questions of law, the standard of review is de novo. Zeman v. Stanford, 789 So.2d 798, 802 (Miss.2001). See also Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

I. WHETHER MISS. CODE ANN. § 93-16-3 (1994) IS CONSTITUTIONAL AND CONFLICTS WITH OTHER STATUTORY PROVISIONS.

¶ 12. The Woodells argue that the Mississippi Grandparents’ Visitation Rights Statute is unconstitutional under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). This Court finds that this issue has already been addressed in Stacy v. Ross, 798 So.2d 1275 (Miss.2001).

¶ 13. In Stacy, we held that the Mississippi Grandparents’ Visitation Rights Statute was constitutional even under the United States Supreme Court’s holding in Troxel. As we have already specifically rejected the Woodells’ arguments in Stacy, this issue is without merit.

II. WHETHER UNDER MISS. CODE ANN. §§ 93-16-3(2) & (3) THE PARKERS FAILED TO ESTABLISH A VIABLE RELATIONSHIP OR THAT THEY WERE UNREASONABLY DENIED GRANDPARENTS’ VISITATION RIGHTS.

¶ 14. The Woodells argue that the Parkers failed to show that they had established a viable relationship with Shelby or that they were unreasonably denied grandparents’ visitation rights under Miss. Code Ann. § 93-16-3(2) and (3).

¶ 15. Any rights the Parkers hold with regard to visitation with Shelby is statutory. The Mississippi Grandparents’ Visitation Rights Statutes, Miss. Code Ann. §§ 93-16-1 to 93-16-7, provide grandparents with visitation rights under certain circumstances. Without question, the Par-kers have met the criteria for invoking the statute as provided for in Sections 93-16-3 and 93-16-7. However, the question then becomes, whether the Parkers have met the applicable criteria and factors required for obtaining visitation which are provided for in Section 93-16-3(2) and (3). Section 93-16-3 provides, in relevant part,:

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (3) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child OR the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.

Miss.Code Ann. § 93-16-3(2) & (3) (emphasis added).

¶ 16. The record indicates that the Par-kers have established a viable relationship with Shelby. The Parkers had consistent and frequent visitation, including overnight visits, with Shelby for at least the first three years of her life. Also, the Parkers kept Shelby during the day while Laura attended school. The only impediment preventing the Parkers from having visitation with Shelby since her fourth birthday has been the Woodells’ refusal to allow such visitation.

¶ 17. Despite the Woodells’ contentions; the statute does not require that “frequent visitation ... of not less than one (1) year” to have occurred the year directly prior to the filing of the petition. The statute only requires “frequent visitation ... of not less than one (1) year,” and in this case, the Parkers have proven frequent visitation for at least three years.

¶ 18. Evidence at the hearing also showed that the Parkers have provided financial support for Shelby. During the year of 1997, at least six of the Parkers’ checks were cashed by the Woodells which provided support for Shelby and extra money to place in her savings account. The Woodells eventually refused to cash any more checks sent to them by the Parkers. The Parkers also bought Shelby gifts, toys, and necessaries for her to have at their home when she came to visit.

¶ 19. The record also indicates that the Parkers have been unreasonably denied grandparents’ visitation rights by the Woo-dells. Despite the Woodells’ argument that visitation with the Parkers was only incidental to Andy’s visitation, the record shows that not only did Andy enjoy visitation with Shelby, but the Parkers also exercised visitation with Shelby independent of Andy’s visitation. Separate from Andy’s visitations, the Parkers were allowed visitation and overnight visits with Shelby until sometime around her fourth birthday.

¶ 20. We conclude that the chancellor correctly found the Parkers to have a viable relationship with Shelby and that they were unreasonably denied visitation by the Woodells.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO GIVE ANY CONSIDERATION TO THE WOODELLS’ DETERMINATION OF WHAT WAS IN THE BEST INTEREST OF THE CHILD.

¶ 21. The Woodells argue that the chancellor did not give sufficient consideration as to their opinion of what is in the best interest of Shelby. The majority of their argument relies on Troxel and Stacy for the proposition that the custodial parents are in the best position to determine what is in the best interest of their child, therefore, they that contend great deference should be given to their opinion in this regard and some finding with regard to their fitness as a parent must be shown in order for visitation to be granted.

¶ 22. At the onset, it must be noted that Section 93-16-3(2)(b) requires the trial court in determining whether grandparents visitation should be granted to assess whether “visitation rights of the grandparent with the child would be in the best interest of the child.” Miss. Code Ann. § 93-16-3(2)(b). There is no language in the statute suggesting that the custodial parent’s opinion with regard to what is “in the best interest of the child” is to receive some sort of “deference” or that findings as to the fitness of a parent are to be made. However, under applicable case law, we find that “deference” is afforded to the opinion of a “natural parent” involved in a visitation dispute under this nature.

¶ 23. Returning to the Woodells’ arguments with regard to Troxel and Stacy a full reading of the applicable case law leads to the conclusion that neither case stands for the proposition that “adoptive parents” under the present circumstances receive deference with regards to their “opinion” that visitation would not be in the best interest of the child or that the custodial parent must be found to be unfit before visitation is proper. These cases and their holdings do not support the arguments made by the Woodells.

¶ 24. In Troxel, the paternal grandparents sought visitation from the natural mother of the child. 530 U.S. 57, 120 S.Ct. 2054. The Troxels were the parents of Brad Troxel and the paternal grandparents of Isabelle and Natalie Troxel. Id. at 60, 120 S.Ct. at 2057. After the death of their son, the Troxels continued to have regular visitation with the children. Id. Sometime thereafter, Tommie Troxel, the children’s mother, explained to the Trox-els that she wanted to “limit their visitation.” Id. at 61, 120 S.Ct. at 2057. The Troxels then commenced suit seeking grandparents visitation under a Washington Statute. Id. After a lengthy court battle, the case came before the United States Supreme Court on review. Id. at 61-63, 120 S.Ct. at 2057-59. The United States Supreme Court affirmed the Washington Supreme Court’s holding that the Washington statute allowing for grandparents’ visitation was unconstitutional. Id. at 63, 120 S.Ct. at 2058-59. In so finding, the Court placed much emphasis on the fundamental liberty interest of parents in the care, custody, and control of their children. Id. at 65, 120 S.Ct. at 2060.

¶ 25. In Stacy, the maternal grandparents sought visitation from the natural parents of the child. 798 So.2d 1275. The Rosses were the parents of Sandy Stacy (“Stacys”) and the maternal grandparents of Kevin Stacy (“Kevin”). Id. at 1276. We reversed the trial court’s grant of unsupervised visitation and overnight visits in favor of the Rosses. Id. at 1284. However, our finding was primarily based on the following:

1. The Stacys were the natural parents of Kevin;
2. The Stacys stipulated from the onset of the lawsuit that the Rosses have a viable relationship with Kevin and they did not intend to permanently deny visitation to them;
3. The Stacys conceded that they were willing to work with the Rosses and afford them “some” visitation with Kevin; and
4. The Stacys as natural parents enjoy a presumption in their favor as to their judgments with regards to how much time is appropriate for Kevin to spend with his grandparents.

Id. at 1279-82.

¶26. The most compelling differences between the cases presented above and the present case are the facts and circumstances surrounding the relationships among the parties. Unlike the “parent” defendants above, the Woodells are not the “natural parents” of Shelby. They are the adoptive parents of Shelby. Unlike the cases above, at least one of the “natural parents” of Shelby are still involved in her life and have maintained visitation with her throughout her life. In fact, Shelby calls her biological mother “mom;” her biological father “dad;” and her maternal and paternal grandparents “grandma and grandpa.” Shelby does not refer to Mrs. Woodell as “mom,” because Shelby knows that her real mother is Laura; just as she knows that her grandparents are the Par-kers. Unlike the natural parents in the cases above, the Woodells have completely and totally denied the Parkers visitation. Even in Troxel and Stacy, the “natural parents” conceded to affording the grandparents visitation and only wished to limit visitation; not like the Woodells who have chosen to deny visitation in its entirety.

¶ 27. Although we have deferred to the opinions and judgments of “natural parents” when it concerns the amount of visitation to be afforded grandparents, we have not provided that “custodial adoptive grandparents”, such as the Woodells, should be afforded the same presumptions under the grandparents’ visitation rights statutes. Despite the fact that the Woo-dells are the “adoptive parents” of Shelby, Shelby is not being misled to believe that they are her natural parents. Shelby is aware that they are her maternal grandparents, that Andy is her father, that Laura is her mother and that the Parkers are her paternal grandparents. Under the circumstances, the Woodells may be “custodial parents” by way of adoption, but they are not Shelby’s “natural parents.” Any deference that may be afforded the Woo-dells cannot necessarily be said to supersede the findings of the chancellor that it is in the best interest of Shelby to remain in close contact with her paternal grandparents.

¶ 28. In Martin, this Court stated that “the best interest of the child must be the polestar consideration.” 693 So.2d at 916. We also found that “[t]he visitation should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming dictate that the amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. Then, we provided a list of ten factors to be used in determining grandparent visitation:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10.The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Id.

¶ 29. In assessing and determining the visitation rights of the Parkers the chancellor used the above enumerated factors and made specific findings of fact with regard to each. In fact, the Woodells do not contest these findings but merely assert that visitation is not in the best interest of Shelby and is excessive. The chancellor’s findings with regard to each factor were as follows:

(1) Visitation will not unduly disrupt Shelby’s life. Currently, Shelby has nightly visitation with Laura, her biological mother, but still her legal sister. Periodic visitation by the grandparents would not be near this disruptive. The Woodells offered no other complexities, other than general family life, that would be burdened by visitation.
(2) The Parker home is suitable. The Parkers have a home, 70 acres, with other children and some of their nine grandchildren nearby. There are guns in the home (as in probably most Mississippi homes), but they are antiques and locked safely away. Mrs. Parker is primarily a homemaker.
(3) Shelby is six. Her age poses no problem for the Parkers.
(4) The Parkers are in their 50’s and have good physical and mental health. The Court is not concerned with Mrs. Parker’s medication for depression based on hormonal changes.
(5) The Court did not hear from Shelby, but the grandparents are attached to her. Cards from Shelby, even if written by Laura, indicate a relationship.
(6) There was no question presented as to moral fitness.
(7) The Parkers live within 15 miles of the Woodells.
(8) There is no evidence that the Par-kers would undermine or interfere with the general discipline of the child; whereas, the Parkers indicate a willingness to work with'the Woodells.
(9) Mr. Parker is a self employed plumber. Mrs. Parker is primarily a homemaker.
(10) The Parkers’ demeanor, as displayed from the stand, indicates that contact with them and Shelby would be in the child’s best interest. The Woodells seem intent on limiting contact with the Parkers and Andy, while allowing extensive contact with Laura; further, this appears more of an emotional repose to the deterioration of the relationship of the biological parents than something based on a definitive problem with the Parkers.

Thus, the chancellor did in fact properly analyze the facts presented under the Martin factors. His findings are supported by substantial evidence in the record and should not be disturbed unless manifestly wrong or clearly erroneous neither of which apply here. See Hollingsworth, 609 So.2d at 424.

V. WHETHER THE VISITATION GRANTED IS EXCESSIVE.

¶ 30. The Woodells argue that the visitation granted by the chancellor is excessive. They argue that three hours one day every month would be sufficient visitation and anything over such amount is excessive. However, in so arguing, the Woodells fail to challenge any of the chancellor’s findings with regard to the Martin factors and only argue generally that the visitation was not in the best interest of the child and is excessive.

¶ 31. The chancellor, after applying the Martin factors, awarded the Parkers visitation consisting of one weekend a month, every other Spring Break/Easter holiday, the Friday and Saturday following Thanksgiving, the five days following Christmas, and two weeks during the summer. The chancellor also ordered that the Parkers should have reasonable telephone and postal access to Shelby.

¶ 32. In assessing and determining the visitation rights of the Parkers, the chancellor used the Martin factors and made specific findings of fact with regard to each. In fact, the Woodells do not contest these findings but merely assert that visitation is not in the best interest of Shelby and is excessive. Thus, we find that the visitation awarded by the chancellor was not excessive.

IV. WHETHER THE WOODELLS WERE ENTITLED TO A DEPOSIT OF ATTORNEY FEES AND COURT COSTS PURSUANT TO MISS. CODE ANN. § 93-16-3(4).

¶ 33. The Woodells argue that under Miss.Code Ann. § 93-16-3(4), they are entitled to attorney’s fees. Section 93-16-3(4) states, in relevant part:

The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney’s fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

This Court has addressed an award of attorney’s fees in domestic cases:

An award of attorney’s fees in domestic cases is largely a matter entrusted to the sound discretion of the trial court. Poole v. Poole, 701 So.2d 813, 818 (Miss.1997); Arthur v. Arthur, 691 So.2d 997, 1004 (Miss.1997). Unless the chancellor is manifestly wrong, his decision regarding attorney fees will not be disturbed on appeal. Bredemeier v. Jackson, 689 So.2d at 778. Absent an abuse of discretion, the chancellor’s decision in such matters will generally be upheld. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993); Martin v. Martin, 566 So.2d 704, 707 (Miss.1990); Kergosien v. Kergosien, 471 So.2d 1206, 1212 (Miss.1985).

Zeman v. Stanford, 789 So.2d at 805. The Woodells provided no evidence tending to show any financial hardship. Therefore this assignment of error is without merit.

CONCLUSION

¶ 34. This case presents a non-traditional intra-family adoption consisting of complex relationships. The parties all know each other, and even the child is aware of the biological relationships she holds with each. The Parkers have clearly shown that they have established a viable relationship with the child and that they were unreasonably denied visitation by the Woodells. Using the principles and guidance of applicable law, the chancellor correctly found in favor of the Parkers as to visitation and granted their petition. Furthermore, the award of visitation was neither deficient nor excessive and is upheld. Under these facts, we affirm the chancellor’s judgment granting the Parkers grandparents visitation.

¶ 35. AFFIRMED.

McRAE, P.J., COBB AND EASLEY, JJ., CONCUR. CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., SMITH, P.J., AND WALLER, J. DIAZ, J., NOT PARTICIPATING.

CARLSON, Justice,

dissenting.

¶ 36. Because the plurality affirms the chancellor’s order granting grandparent visitation to Henry and Barbara Parker, I must respectfully dissent.

A. Miss.Code Ann. §§ 93-16-3(2) and (3)

¶ 37. “Natural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right, if any, must come from a legislative enactment.” Matter of Adoption of a Minor, 558 So.2d 854, 856 (Miss.1990) (citing Olson v. Flinn, 484 So.2d 1015, 1017 (Miss.1986)). In 1983 the Mississippi Legislature enacted the Grandparents’ Visitation Rights Statutes, Miss. Code Ann. §§ 93-16-1 to 7. Miss.Code Ann. § 93-16-3 states in pertinent part:

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (3) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child or the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.

(emphasis added). Section 93-16-7 states:

This chapter shall not apply to the granting of visitation rights to the natural grandparents of any child who has been adopted by order or decree of any court unless: (a) one (1) of the legal parents of such child is also a natural parent of such child; or (b) one (1) of the legal parents of such child was related to the child by blood or marriage prior to the adoption. This chapter shall apply to persons who become grandparents of a child by virtue of adoption.

¶ 38. According to the statute, to prove a viable relationship existed, the Parkers must offer evidence regarding financial support of Shelby or frequent visitation. From the record, I find no compelling evidence that the Parkers offered any testimony of any financial support, much less that they had provided financial support for Shelby for a period of six months before the filing of their petition. The plurality incorrectly states that Andy and his parents sent money to help with Shelby’s expenses; however, that money was only from Andy.

¶ 39. As to the frequent visitation requirement, the parties agree there has been no overnight visitation since 1998. However, the Parkers, through Andy’s visitation, maintained a relationship with Shelby for over three years which exceeds the statutory requirement. The Parkers testified they regularly visited with Shelby during the first three years of her life. They also testified that this visitation included at least five or six instances of overnight visits. The Parkers do not disagree that the visitation decreased after Shelby’s third birthday, but the Parkers maintain they were still able to see Shelby approximately every six weeks before the Woodells stopped visitation altogether in 1999.

¶ 40. The chancellor was correct in determining the Parkers established a viable relationship with Shelby through frequent visitations exercised by Andy. The visitation continued approximately three to four years. Although the overnight visits were contested by the Woodells and the chancellor never made a specific finding as to whether the overnight visitations occurred, the chancellor concluded that the Parkers had sufficient contact with Shelby for approximately three years. Although I agree with the chancellor that the Parkers had established a viable relationship with Shelby, the Parkers next had to prove whether they were denied reasonable visitation.

¶ 41. Sometime after Shelby’s fourth birthday, the Woodells sharply limited Andy’s visitation with Shelby. Andy was restricted to thirty minute visits, and finally, no visits at all. Mr. Parker testified that he attempted to approach Mrs. Woo-dell about the visitation but was unsuccessful. After no attempts could be made to negotiate an agreement regarding visitation, the Parkers felt they had no other choice but to file their petition.

¶ 42. From the record it appears that the Parkers never requested visitation of Shelby solely for themselves. Mrs. Woo-dell testified that, although she had one conversation with Mr. Parker concerning overnight visitation, the visitation request was for Andy. No requests for visitation were ever made by the Parkers when Andy was working out of state. There can be no unreasonable denial of visitation without a request.

¶ 43. It is clear that the Parkers had grown accustomed to sharing Andy’s visitation because Andy always brought Shelby home any time he was able to visit her. But it is not clear from the record that the Parkers made any effort to establish a visitation schedule of their own. The chancellor made the following comments as to the unreasonable denial of visitation:

a. The Parkers claim that they were denied visitation. Henry asserts that he talked with Mrs. Woodell about visitation and she never got back to him. Andy maintains that he wanted overnight visitation, that he threatened legal action, and that Mrs. Woodell told him visitation was not a good idea anymore.
b. The Woodells contend that the Par-kers never asked for visitation and Andy stopped asking.

Even if the Parkers did ask for visitation, the record shows they requested visitation only one time in 1999 and never requested again.

¶ 44. Throughout his order, the chancellor focused considerable attention on the Woodells’ adoption of Shelby and the rights of Andy as Shelby’s biological father, although the sole issue was the Par-kers’ petition for grandparent visitation rights. The chancellor noted both biological parents were minors at the time of the adoption petition (Laura was 18, Andy was 20), the Parkers were not made aware of the adoption when it was taking place, Andy was not represented by a guardian ad litem throughout this process, nor was process served on his parents.

¶45. Although both Andy and Laura were minors, they consented to the adoption pursuant to the statute. See Miss. Code Ann. § 93-17-5 (Supp.2003). Also according to Miss. Code Ann. § 93-17-5, it was not necessary to make the Parkers aware of the adoption. Although this Court has stated it is preferable for a guardian ad litem to be appointed in situations such as this prior adoption proceeding, it is not required. See In re Adoption of a Minor, 558 So.2d 854, 857 (Miss.1990). The Parkers express concerns that process was not served on them pursuant to Miss. R. Civ. P. 4. However, guidance can be found from the caveat contained in Miss. R. Civ. P. 81(a)(9), which provides that the Mississippi Rules of Civil Procedure have limited applicability in the actions described in Title 93 of the Mississippi Code, and that those actions are for the most part governed by statute. The last paragraph of Miss. R. Civ. P. 81(a) states that “[sjtatutory procedures specifically provided for each of the above proceedings shall remain in effect and shall control to the extent they may be in conflict with these rules; otherwise these rules apply.” Therefore, I would find that the Woodells properly complied with the statute.

¶ 46. Although the validity of the adoption is not before this Court, it must be mentioned that the language added to the Affidavit signed by both Laura and Andy, “should we desire to adopt the minor child of this proceeding, SHELBY MARIE WOODELL, back in the future, that is entirely dependent upon whether or not the adoptive parents agree” is mere sur-plusage. See In re Adoption of 822 So.2d 949, 953 (Miss.2002).

¶ 47. The Mississippi grandparents’ visitation statute was designed to afford grandparents the rights to visitation. It was not designed as a means for parents to file suits for their children who no longer have parental rights. Andy was obviously denied visitation by the Woodells after he requested overnight visitation. But after he consented to the Woodells’ adoption of Shelby, his rights as a parent were terminated. According to the laws of Mississippi, Carroll and Christine Woodell are the legal parents of Shelby. Although it may initially appear unfair that Laura is allowed to see Shelby on a regular basis while Andy may not, this arrangement seems to be evident of the true nature of the adoption. We must urge our chancellors to closely examine these intra-family adoptions and their true underlying motives. This type of convoluted arrangement will continue to occur when family members adopt the children of other family members. What this Court must make abundantly clear is that an adoption decree is final, no matter what other promises may be made behind closed doors.

¶ 48. It is clear that the chancellor chose to remedy Andy’s situation by awarding visitation rights to the Parkers. He relied heavily upon the fact that Shelby was allowed to spend a great deal of time with Laura instead of relying on the fact that the Parkers failed to meet the statutory requirements of section 93-16-3(2). But what I find most compelling is the fact that the Parkers relied solely on Andy’s visitation to serve as their own. There is no evidence that either Mr. Parker or Mrs. Parker ever requested visitation on their own behalf. Andy worked for long periods of time out of state, but the Parkers never requested visitation during those times when Andy was not at home. When the visitation decreased to only thirty minutes per visit which did not allow Andy the opportunity to take Shelby home for visits, the Parkers never approached the Woo-dells about visitation solely for their own benefit. It was not until Andy expressed concern and sought legal advice that the Parkers truly become involved.

¶ 49. It is my determination from the record that the Parkers are attempting to circumvent the adoption statutes by claiming their rights under the grandparents’ visitation rights statutes only to provide their son, who no longer has any legal rights to this child, with visitation rights. Because the Parkers were unable to prove they were unreasonably denied visitation, they have failed to meet the statutory requirements of Miss.Code Ann. § 93-16-3(2). I would, therefore, reverse and render the chancellor’s award to the Parkers of any and all visitation with Shelby.

B. Deference to Parents’ Determination of The Best Interest of The Child

¶ 50. Although I would find the chancellor erred in awarding grandparent visitation to the Parker’s because they failed to meet the statutory requirements pursuant to Miss.Code Ann. § 93-16-3(2) & (3), I would also find that the chancellor abused his discretion in failing to give any consideration to the Woodells’, as fit custodial parents, determination of what was in the best interest of their child. This issue has been addressed by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and by this Court in Stacy v. Ross, 798 So.2d 1275 (Miss.2001).

¶ 51. In Troxel, the United States Supreme Court declared a “breathtakingly broad” Washington statute unconstitutional because it allowed courts to “disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interest.” Troxel, 120 S.Ct. at 2056 (emphasis in original and emphasis added). The Supreme Court determined that the “Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children.” Id. at 2061.

The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained:
The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn’t the case here from what I can tell.
Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash.Super.Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report). The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the children would be “impact[ed] adversely.” In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later: “I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.”
The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.

Troxel, 120 S.Ct. at 2062.

¶ 52. The plurality incorrectly argues that this case is distinguishable because the parties involved in Troxel were the natural mother, who was the custodial parent, and the paternal grandparents. In the case sub judice, the parties involved are Shelby’s custodial parents, the Woo-dells, and Shelby’s paternal grandparents, the Parkers. These are the same parties as were involved in Troxel. Shelby’s biological mother and biological father relinquished all legal rights to her when they signed an agreement allowing the Woo-dells to adopt Shelby. Again, this is the problem with intra-family adoptions. Although Shelby may still call her biological mother, “mom”, her mother, pursuant to the laws of this State, is Christine Woodell, and her father is Carroll Dean Woodell. Therefore, Troxel, and its holding that custodial parents are presumed to be fit and will act in the best interest of their child, is directly on point, as the Woodells are Shelby’s custodial parents. I respectfully believe the plurality is incorrect in stating otherwise.

¶ 53. In Stacy, this Court reversed a chancellor’s award of grandparent visitation because there was no finding that the visitation was in the best interest of the child. 798 So.2d at 1282. This Court also discussed the fact that no finding had been made declaring the parents unfit. Id. at 1279.

The constitutionality of any standard for awarding visitation “turns on the specific manner in which that standard is applied.” Troxel, 120 S.Ct. at 2064 (emphasis added). As a strong presumption exists that fit parents act in the best interests of their children, the fact that there was no allegation and no judicial finding that the parents were unfit, was of great concern to the Troxel Court. Id. at 2061. No such finding has been made here either.

798 So.2d at 1279. This Court cited Trox-el, stating:

The Troxel Court said “as long as a parent adequately cares for his or her child, (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel, 120 S.Ct. at 2061. Whether it is beneficial to a child to have a relationship with a grandparent in any specific case, therefore, in the first instance is a decision for the parent to make, and when it becomes subject to judicial review, “the court must accord at least some special weight to the parent’s own determination.” Id. at 2062. In the case at hand, the Rosses have not alleged that the Stacys are unfit parents. Although the chancellor, in a subsequent judgment, commented that he had implicitly found the Stacys “unreasonably denied visitation,” the Stacys have stipulated from the beginning that the Rosses have a “viable relationship” with Kevin and that they did not intend to permanently deny visitation with him. The Stacys argue, therefore, that as in Trox-el, the chancellor’s application of the statute overruled their decision as to what would be the appropriate visitation with the Rosses, giving no special weight to their determination as parents of what is in their child’s best interest.

Stacy, 798 So.2d at 1279-80.

¶ 54. The chancellor made no finding that the Woodells were unfit custodial parents. Mrs. Woodell testified that if visitation were awarded, it should only be granted on a very limited basis. However, the chancellor disregarded their wishes and what they believed to be in the best interest of Shelby and awarded the Parkers excessive visitation.

¶ 55. In the case sub judice, the Par-kers argue the chancellor clearly found it was in the best interest of the child to be allowed visitation with her grandparents. In the chancellor’s order, he specifically stated:

The Parkersf’] demeanor, as displayed from the stand, indicate that contact with them and Shelby would be in the child’s best interest. The Woodells seem intent on limiting contact with the Parkers and Andy, while allowing extensive contact with Laura; further, this appears more of an emotional response to the deterioration of the relationship of the biological parents than something based on a definitive problem with the Parkers.

(emphasis added). Unlike the chancellor in Stacy, this chancellor specifically found, according to statute, that visitation with her grandparents would be in Shelby’s best interest. But, like the chancellor in Stacy, this chancellor made no specific finding, nor did the Parkers allege that the Woodells were unfit parents.

¶ 56. Again, the chancellor’s finding that visitation would be in the child’s best interest focuses on Andy’s rights as the biological parent and Laura’s extensive visitation which is allowed by Shelby’s custodial parents, and not on the fitness of the Woodells. The fact that seems to be forgotten throughout this entire proceeding is that, although Andy was Shelby’s biological father, he signed a document relinquishing all legal rights to her. His rights, as he has none, should not have been addressed by the chancellor during these proceedings.

¶ 57. It was of great concern to both the Troxel Court and to this Court in Stacy that there was no finding that the custodial parents were unfit parents. Because there is a presumption that fit parents act in the best interest of their children, I would find that the chancellor erred in failing to give any consideration to the Woodells’ determination of what was in the best interest of Shelby.

¶ 58. The plurality specifically holds that Troxel and Stacy do not “stand for the proposition that ‘adoptive parents’ under the present circumstances receive deference with regards to their ‘opinion’ that visitation would not be in the best interest of the child or that the custodial parent must be found to be unfit before visitation is proper.” (Plurality opinion at 787). With all deference, I firmly believe that this statement is not a correct statement of the holdings of these two cases. As previously stated, there is a presumption that fit custodial parents will act in their child’s best interest. In Troxel, the Superior Court gave no special weight to Gran-ville’s, the child’s mother and custodial parent, determination of what was in her daughter’s best interest when it awarded the grandparents visitation. 120 S.Ct. at 2056. The Supreme Court declared that visitation award to be unconstitutional as it infringed upon the custodial parent’s rights to make decisions in rearing her daughter. Id. The trial court in the case sub judice, likewise, afforded no special weight to what the Woodells believed to be in the best interest of their daughter. In Stacy, this Court determined a chancellor should not enter an order permitting grandparents visitation unless there is a showing of unfitness on the part of the custodial parents. “Parents with custody have a paramount right to control the environment, physical, social, and emotional, to which their children are exposed.” 798 So.2d at 1280 (emphasis added).

¶ 59. For the above-stated reasons, I respectfully, but vigorously, dissent.

PITTMAN, C.J., SMITH, P.J., AND WALLER, J., JOIN THIS OPINION.

      . Although not relevant to this appeal, Shelby was born with medical problems which Andy and the Parkers claim prompted the adoption. Andy claims that the adoption was primarily based on Shelby’s need for medical insurance which the Woodells were capable of providing.

      . There was contradictory testimony as to whether the Parkers had overnight visits with Shelby. However, the chancellor found that the Parkers had in fact kept Shelby overnight on several occasions.

      . There was contradictory testimony as to whether the Parkers gave Shelby gifts. The Woodells believe all the gifts given to Shelby came from Andy. However, both Andy and the Parkers assert that many of the gifts given to Shelby were from the Parkers.

      . Martin v. Coop, 693 So.2d 912, 916 (Miss.1997).

      . At this time, there is no need to discuss the validity of the adoption and the contentions of the Parkers as to the court's failure to appoint Andy a guardian ad litem and their failure to receive process with regard to the adoption. Such a discussion is not necessary for an analysis of the issues presented.

      . Miss.Code Ann. § 93-17-5(1) states:
      There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of said child: (a) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years ... [Note, the only difference in the current statute herein and the statute in effect at the time this case was tried is that in the current amended statute, the phrase "seventy-two (72) hours" has been substituted for the phrase "three (3) days.”]

      . Andy contends the adoption occurred only because the child needed extensive surgery which neither he, nor Laura could afford. Shelby was born with a bilateral cleft lip. Because Mr. Woodell was retired from the Air Force, the Woodells were able to obtain medical treatment for Shelby at Kessler Air Force Base. Mrs. Woodell testified Andy was unwilling to accept any of the responsibility involved in raising Shelby.


author: CARLSON, Justice, for the Court. McRAE, Presiding Justice,

text:
    Yoshino LOVE v. SUNFLOWER COUNTY SHERIFF'S DEPARTMENT, Ned Holder, in His Official Capacity as Sheriff of Sunflower County, Billy Weeks, in His Official Capacity as Jail Administrator of the Sunflower County Jail, and Harold Keyes, in His Official Capacity with the Sunflower County Jail.
    No. 2002-CA-01724-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Gloria Maria Gardner, Eduardo Alberto Flechas, James D. Bell, Madison, Gerald Gaggini, attorneys for appellant.
    Robert Joseph Mims, Jackson, attorney for appellees.
   CARLSON, Justice, for the Court.

¶ 1. Yoshino Love appeals from the Sunflower County Circuit Court’s summary judgment dismissing his suit against the Sunflower County Sheriffs Department, Sheriff Ned Holder, and other employees of the Sheriffs Department. In granting the Sunflower County defendants’ motion for summary judgment, the circuit court held that Love’s claims were barred under the Mississippi Torts Claims Act, Miss. Code Ann. § ll-46-9(l)(m). This case hinges on the question of whether Yoshino Love was an inmate at the time he was attacked by inmates within the Sunflower County Jail common room. We find that Love was indeed an inmate at the time of the incident in question and, therefore, Sunflower County is exempt from liability under Miss.Code Ann. § ll-46-9(l)(m).

FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

¶ 2. Love was arrested on April 30, 2000, for aggravated assault with a weapon for allegedly shooting and injuring Richard Carpenter. After being held in the Sunflower County Jail for several days, on May 3, 2000, Love met with a bail bondsman in an effort to secure his release. After meeting with the bondsman and while awaiting for his mother to arrive with the necessary funds, Love went to retrieve his personal items from his cell. Love claims that he reported to Deputy Harold Keyes that Love had been threatened by Carpenter’s brother, Elijah Shaver, who was a jail inmate. Deputy Keyes accompanied Love into the common area. There, Love was attacked by several inmates. Keyes broke up the fray and took Love back to the front of the jail where Love met with the bail bondsman. After Love’s mother arrived with the money, the necessary paperwork was completed, and Love was released from the Sunflower County Jail. Upon his release, Love was taken by his mother to the hospital where he was admitted. Love suffered from internal bleeding and, as a result of the attack, his spleen was removed. We find nothing in the record indicating that Love was subsequently indicted for the alleged aggravated assault upon Richard Carpenter or that he was ever called upon to answer to this charge.

¶ 3. Love filed this lawsuit in the Circuit Court of Sunflower County. The case was removed to federal court; however, the United States District Court for the Northern District of Mississippi remanded the matter to the Sunflower County Circuit Court. The Sunflower County defendants subsequently filed a Motion to Dismiss for Failure to State a Claim or, Alternatively, for Summary Judgment. Inasmuch as the circuit judge considered matters outside the pleadings, Miss. R. Civ. P. 12(b) and 56, he granted summary judgment due to a finding that the County was exempt from liability under Miss.Code Ann. § ll-46-9(l)(m). On appeal, Love argues that he was not an inmate since he was in the process of bonding out of jail and that since Deputy Keyes acted with reckless disregard for his safety and well-being, Sunflower County waived immunity. We disagree and, as a result, affirm the trial court.

STANDARD OF REVIEW

¶ 4. The crux of this appeal involves a legal question: whether the governmental entity is exempt from liability under the Mississippi Torts Claims Act, Miss.Code Ann. §§ 11 — 46—1, et seq. In reviewing a governmental entity’s exemption from liability on summary judgment, we have held:

[Ijmmunity is a question of law and is a proper matter for summary judgment under Miss. R. Civ. P. 56.
This Court reviews de novo a trial court’s summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988). All evidence is viewed in the light most favorable to the non-movant. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss.1983) and its progeny.

Mitchell v. City of Greenville, 846 So.2d 1028, 1029-30 (¶¶ 8-9) (Miss.2003). We will, therefore, review this matter de novo.

ANALYSIS

¶ 5. Love has raised two issues on appeal. He argues that he was not an inmate within the meaning of the MTCA and that Deputy Keyes’s alleged “wanton or reckless conduct” subjected the Sunflower County defendants to liability pursuant to the MTCA. For the following reasons, both arguments fail.

I. Miss.Code Ann. § ll-46-9(l)(m).

¶ 6. The circuit judge granted summary judgment in favor of the County, finding that under the MTCA, governmental entities are exempt from liability for claims filed by inmates. The Mississippi Legislature has provided:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution....

Miss.Code Ann. § 11^6-9(l)(m) (Supp. 2001). In 2002, this Court recognized that:

“Inmate” is defined as “a person confined to a prison, penitentiary or the like.” Black’s Law Dictionary 788 (6th ed.1990). There is no restriction that the inmate must remain confined to the prison. The inmate remains an inmate while being transported, while participating in public service work programs or while on leave if a pass is granted. See Miss.Code Ann. §§ 47-5^401 through 421 (2000 & Supp.2001).

Wallace v. Town Of Raleigh, 815 So.2d 1203, 1207-08 (¶ 16) (Miss.2002) (applying the inmate exemption to an inmate injured while working in a work release program.) In doing so, we held that “[t]he language of the statute is unambiguous, and the intent of the Legislature is clear. Inmates have been specifically excluded from bringing such actions against governmental entities.” Id. at 1209 (¶ 21). Later that year, we refused to distinguish between a person “convicted” and “non-convicted” in that the exemption applied to persons in both classifications. Liggans v. Coahoma County Sheriffs Dep’t, 823 So.2d 1152 (Miss.2002).

¶ 7. Love, however, argues that he was not an inmate but rather was a “civilian detainee in the process of being released.” While we agree that Love was “prepared” to bond out and had met with a bail bondsman, who, in turn, began to prepare the paperwork for Love’s release, we must remember that Love had been arrested for aggravated assault with a weapon (a felony offense) three days prior and was still being held in the Sunflower County Jail. The attack on Love occurred before Love’s mother arrived at the jail with the money to complete the bonding process.

¶ 8. Athough Love testified at his deposition that he had signed all of the required documents to complete the bonding process, this does not defeat summary judgment. Even considering the testimony in the light most favorable to Love, at the time of the jail incident, he was waiting for his mother to bring the bond money to the jail so that he could be released. We must also consider the deposition testimony of Deloris Landfair, the bonding company agent who was handling the bonding process for Love. Landfair testified that in the bonding process, she has to deliver to the appropriate jail employee the executed appearance bond and a power-of-attorney. In Love’s case, Landfair described Love’s status at the time Love returned to the jail area to retrieve his personal items:

Q. At that time that he went back there had he taken any of the formal steps to post bond and be released?
A. No.
Q. What I’m asking, to be more specific, had he given you any money?
A. No.
Q. Had he signed any paperwork?
A. No.
Q. Was he free to go at that point?
A. No.
Q. So the jail wouldn’t — he wasn’t free to walk out the jail at that point?
A. No, not at that time, because I hadn’t done any paperwork at that time.

Earlier in her deposition, bonding agent Landfair had testified that the jail personnel would certainly not release a detained individual on her verbal assurance that the individual had posted bond, but instead, she had to present the necessary bond to be approved by the Sheriff before an individual could be released. Indeed the appearance bond, which was received as an exhibit to Landfair’s deposition, reveals that the bond was in the amount of $15,000 and was a “day to day — term to term” bond on the charge of aggravated assault. The bond was signed by Love as principal and Landfair as attorney-in-fact for the surety/bonding company, and was approved by Sheriff Holder. All of this was done subsequent to the jail incident which is the subject of this litigation. Additionally, Love’s mother was furnishing the required funds to purchase the bail bond and as of the time of the incident in question, she had not arrived at the jail with the money. The cold hard facts are that until the money was paid and all paperwork complete, Love’s release was not “imminent.” At the time of the incident in question, Love was an inmate of the Sunflower County Jail and thus the Sunflower County defendants are exempt from liability under Miss.Code Ann. § ll-46-9(l)(m).

II. Miss.Code Ann. § ll-46-9(l)(c).

¶ 9. In the alternative, Love asserts that the actions of Deputy Keyes were taken with wanton and/or reckless disregard sufficient to waive governmental exemption from liability. In providing for certain exemptions of liability under the MTCA, the Legislature stated, inter alia:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11 — 46—9(l)(c). In setting out the 24 exemptions from liability under the MTCA, the conjunctive “or” is used. In Liggans, an 8-1 decision of this Court, we held that “[bjecause a governmental entity, under the MTCA, is immune from all claims arising from claimants who are inmates at the time the claim arises, the 1(c) reckless disregard section does not apply,” and we “conclude[d] that the circuit court’s dismissal of Liggans’s action is in keeping with the clear legislative intent of the Mississippi Tort Claims Act.” Liggans, 823 So.2d at 1156 (¶¶ 13 & 14).

¶ 10. Because we have found that the County is exempt from liability under Miss.Code Ann. § ll-46-9(l)(m), Love’s argument is without merit.

CONCLUSION

¶ 11. While we are not unsympathetic to Love’s injuries and resulting damages, we are on the other hand bound by our ease law and by clear legislative intent in the enactment of the MTCA, which provides, inter alia, that a governmental entity and its employees, when acting within the course and scope of their employment, shall not be liable for any claim made by one who at the time of the cause of action is a jail inmate. Love was without question an inmate of the Sunflower County Jail at the time of this unfortunate attack by fellow jail inmates.

¶ 12. Accordingly, we affirm the trial court’s summary judgment in favor of the Sunflower County defendants.

¶ 13. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB AND EASLEY, JJ„ CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

dissenting:

¶ 14. I have long voiced my displeasure with the Mississippi Tort Claims Act, because I believe that it denies certain rights to our citizens that are guaranteed by our state constitution. Thus, I take great exception to the majority opinion, which judicially amends this legislation in order to expand its coverage to the detriment of even more of this state’s citizens. In this case Love was a pretrial detainee and not a convicted person labeled an inmate. Because I believe that the actions taken by the majority today are incorrect, unwarranted, and within the province of the Legislature, I dissent.

WAS LOVE AN “INMATE” WHILE IN THE PROCESS OF BONDING OUT?

¶ 15. Love argues that since he was bonding out of jail when he was injured, he was not an “inmate” as is contemplated by the provision, but rather was civis pendens libertas — a civilian whose formal release is imminent. He was at best a “pretrial detainee”. Love contends that “the Tort Claim Exception was never intended to apply to a civilian who was virtually passing through the jail.” I agree.

¶ 16. In Wallace v. Town of Raleigh, 815 So.2d 1203 (Miss.2002), we held that an inmate performing his duties as an inmate of the Mississippi Department of Corrections through the County Correctional Work Center was indeed an inmate, thus barring his personal injury claim for injuries sustained in a truck accident. The majority offers the following quote from Wallace:

“Inmate” is defined as “a person confined to a prison, penitentiary or the like.” Black’s Law Dictionary 788 (6th ed.1990). There is no restriction that the inmate must remain confined to the prison. The inmate remains an inmate while being transported, while participating in public service work programs or while on leave if a pass is granted. See Miss.Code Ann. §§ 47-5-401 through -421 (2000 & Supp.2001). 815 So.2d at 1207-08. Subsequently in that case, we held that “[tjhere is no restriction that the inmate must remain confined to the prison. The inmate remains an inmate while being transported, while participating in public service work programs or while on leave if a pass is granted.” Id.

In Liggans v. Coahoma County Sheriff’s Dep’t, 823 So.2d 1152, 1154 (Miss.2002), we held that the key factor to the inmate exemption is “incarceration.” The Lig-gans plaintiff was injured while incarcerated in her cell, having fallen from a top bunk. She had not been convicted at the time but was being held on intoxication charges. Pursuing recovery for her injury, she argued that since she had not been convicted she was merely a pre-trial detainee and not an “inmate.” Citing Jones v. City of Jackson, 203 F.3d 875 (5th Cir.2000), we ruled that “convict” status was not controlling under the MTCA’s inmate exception, but instead, she was “incarcerated” at the time of her fall. Liggans, 823 So.2d at 1155.

¶ 17. The majority cites these cases as authority for the proposition that a person who has been arrested, yet not charged is within the definition of inmate. However, such a tremendous inferential leap is well outside the bounds of case law or basic logic. In Liggans, we were dealing with a person who had already been charged with an offense and in Wallace, we were dealing with a person who had already been convicted. However, in this case, we are dealing with a plaintiff who was merely arrested, but never charged, thus making the facts of either case easily distinguishable.

¶ 18. Notwithstanding, the factual differences here the majority employs the same faulty logic used in Liggans, i.e., that the Tort Claims Act uses the term “inmate” and, therefore since it did not exclude pre-trial detainees or, in this case, those temporarily held in custody yet never charged, that it applies to them as well. Therefore, the majority has simply assumed that the definition of “inmate” provided in Wallace, automatically includes these types of parties. However, that is not the case.

¶ 19. The notion that the term inmate includes one who has been arrested has been rejected already by at least two courts outside of this jurisdiction. The Seventh Circuit has noted, albeit indirectly, that there is a legal difference between a prison inmate and “a person confined following his arrest but not yet charged or convicted.” Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989) (noting that both prisoners and those arrested, but not yet charged are entitled to Eighth Amendment protection).

¶ 20. More directly on point Teter v. City of Newport Beach, 30 Cal.4th 446, 133 Cal.Rptr.2d 139, 66 P.3d 1225 (2003), which was recently decided by the California Supreme Court. In Teter, the plaintiff was arrested for public intoxication, but never charged. Id. at 1226. However, before being released, the plaintiff was severely beaten by a fellow inmate who was placed in the same cell as the plaintiff. Id. at 1227. When the plaintiff sued the city for negligence, the city invoked with California’s Tort Claims Act, which contained the following language:

As used in this chapter, ‘prisoner’ includes an inmate of a prison, jail, or penal or correctional facility. For the purposes of this chapter, a lawfully arrested person who is brought into a law enforcement facility for the purpose of being booked ... becomes a prisoner, as a matter of law, upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to penal processes.

Id. at 1227 (quoting California Government Code Section 844)(emphasis in original). Thus, for the purposes of California’s statute, the plaintiff was a prisoner at the time of his injury and, thus, was unable to pursue his claim against the city. Id. at 1229.

¶21. Together, these two cases make two things glaringly apparent. First, a post-arrest detainee who has not been charged with an offense is not within the traditional definition of inmate as cited by the majority. Second, our Legislature has not taken the appropriate steps to include this type of detainee within the definition of inmate in the Mississippi Tort Claims Act. Such an amendment is the job of the Legislature, not this Court.

¶22. Love was not an “inmate,” but still a citizen who was a pretrial detainee whose release from the jail was irretrievably in effect. Accordingly, the circuit court’s order granting summary judgment should be reversed and the cause remanded for further proceedings.

¶ 23. For these reasons, I dissent.

WALLER, J., JOINS THIS OPINION.

      . The amended complaint is styled “Yoshino Love v. Sunflower County Sheriff s Department, Ned Holder, In His Official Capacity As Sheriff of Sunflower County, Billy Weeks, In His Capacity As Jail Administrator of the Sunflower County Jail, Harold Keyes, In His Official Capacity With the Sunflower County Jail and John Does 1-3.”

      . While Love states in his brief that he had been threatened and refused to go back to the cell "for fear of bodily harm,” and that he went only because a deputy told him he had to go, we find nothing in the record to support these allegations, nor does Love cite us to that part of the record which would support such assertions. Indeed, Love’s deposition testimony reveals that Love requested Deputy Keyes to "escort me to the back to get my belongings.” Additionally, at his deposition, Love testified that until May, the day of his release, he had not been threatened by anyone, and in fact, Love never identified Shaver, Carpenter’s brother, as having threatened him. Love testified that a fellow inmate told him that day that "they fixing to try to jump you.” Also, Love never identified Shaver as his attacker.

      . Indeed, Liggans, itself was based on a similar assumption that was made by the Fifth Circuit in Jones v. City of Jackson, 203 F.3d 875 (5th Cir.2000). There, without any supporting authority, the Fifth Circuit interpreted the exemption in question as turning on "incarceration” despite the fact that the term is not used in the statute, itself.