author: BRIDGES, P.J.,

text:
    Elizabeth ERICSON Executrix of the Estate of Richard Spang, Deceased, Appellant/Cross-Appellee, v. Debra Sue TULLOS, Appellee/Counter Claimant (Cross-Appellant), v. Elizabeth Ericson, Executrix of the Estate of Richard Spang, Deceased.
    No. 2002-CA-00200-COA.
    Court of Appeals of Mississippi.
    June 22, 2004.

      Debra Lynn Allen, Jackson, Attorney for Appellant.
    B. Ruth Johnson, Attorney for Appellee.
    Before BRIDGES P.J., IRVING and GRIFFIS, JJ.
   BRIDGES, P.J.,

for the Court.

¶ 1. This appeal comes from a divorce case heard in the Chancery Court of Rankin County. On May 8, 2000, Richard Spang filed his complaint for divorce alleging habitual cruel and inhuman treatment as grounds for the divorce and, in the alternative, irreconcilable differences. The parties agreed to execute a voluntary consent to divorce on the grounds of irreconcilable differences and the only issues presented to the court for resolution were financial in nature. Each party sought an equitable distribution of the assets, with Richard seeking a finding that certain assets were non-marital in nature. In addition, Richard sought alimony from his former wife, Debra Sue Tullos.

¶ 2. A trial was held after which the court requested, and each party presented, extensive proposed findings of fact and conclusions of law. On November 30, 2001, the court issued its own detailed findings of fact and conclusions of law and on January 8, 2002, the court entered its final judgment of divorce.

¶ 3. Richard appealed to this Court on the sole issue of alimony. However, Debra filed a motion to dismiss the appeal, along with a cross-appeal, alleging that dismissal was proper since no post trial motions had been filed. After reviewing Debra’s motion to dismiss, this Court denied the motion and now addresses the appeal on the merits.

¶ 4. Following the perfection of the appeal in this case, Richard Spang died and an order was entered in this Court on March 22, 2004 substituting the executrix of said deceased’s estate as a party in his place and stead.

ISSUE ON APPEAL

I. WHETHER THE CHANCELLOR ERRED IN DENYING AN AWARD OF ALIMONY TO RICHARD.

ISSUE ON CROSS-APPEAL

I. WHETHER THE CHANCELLOR’S DECISION WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WHETHER HE COMMITTED MANIFEST ERROR IN DETERMINING MARITAL ASSETS AS EITHER NON-MARITAL OR MARITAL.

FACTS

¶ 5. Richard was seriously injured and disabled on January 30, 1990. He suffers a C-5, C-6 compression leaving him a complete quadriplegic with no use of his legs, limited use of his right arm and limited lung capacity. He is severely disabled, confined to a wheelchair, and rendered a quadriplegic. He also requires attendant care assistance for help in his daily and nightly activities. The assistance he requires includes: bathing, dressing, physical exercise, massage, help in using his standing device, getting in and out of bed, turning nightly, transportation, meal preparation, and maintaining his home and medical equipment. Richard also uses a catheter and requires assistance to cleanse his bowels.

¶ 6. In December 1991, Richard and Debra began living together. On October 21, 1991, they were married in Tupelo, Mississippi, and there were no children born of the marriage. On May 8, 2000, Richard filed his complaint for divorce alleging habitual cruel and inhuman treatment as grounds for the divorce and, in the alternative, irreconcilable differences; however, the parties voluntarily entered a valid consent to divorce on the grounds of irreconcilable differences and also agreed to allow the court to decide certain issues. The three issues before the lower court for resolution were the equitable distribution of marital property, whether Richard should be awarded alimony, and attorneys fees. Richard was awarded the majority of his remaining settlement proceeds in the court’s equitable distribution, but was denied an award of alimony.

¶ 7. It is from this judgment of divorce that Richard appealed and Debra cross-appeals.

STANDARD OF REVIEW

¶ 8. In Mississippi, the standard of review employed in domestic relations cases is limited by the substantial evidence/manifest error rule.

This Court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his findings. Our scope of review in domestic relations matters is limited under the familiar rule that this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.

Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citations omitted).

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN DENYING AN AWARD OF ALIMONY TO RICHARD.

¶ 9. In the area of domestic relations, the division of marital assets is governed under the law as stated in Hemsley and Ferguson.

First, the character of the parties’ assets, marital or nonmarital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmarital assets, will adequately provide for both parties, no more need be done.

Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1995) (citations omitted).

¶ 10. Whether to award alimony is governed under the law as stated in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). The Mississippi Supreme Court stated that “alimony awards are within the discretion of the chancellor and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion. In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Id. at 1280 (citations omitted). The guidelines to be used in determining if alimony is appropriate in a particular case were established in Armstrong. They are:

(1) The income and expenses of the parties;
(2) the health and earning capacities of the parties;
(3) the needs of each party;
(4) the obligations and assets of each party;
(5) the length of the marriage;
(6) the presence or absence of minor children in the home;
(7) the age of the parties;
(8) the standard of living of the parties, both during the marriage and at the time of the support determination;
(9) the tax consequences of the spousal support order;
(10) fault or misconduct;
(11) wasteful dissipation of assets by either party; or
(12) any other factor deemed just and equitable.

Id. at 1280. In examining these factors, the chancellor may consider them as an “overall combination” and need not individually list each one. Hoggatt v. Hoggatt, 766 So.2d 9 (¶ 9) (Miss.Ct.App.2000). Unlike propei’ty division, an on-the-record analysis of the Armstrong factors is not necessary. Thompson v. Thompson, 816 So.2d 417, 420(¶ 9) (Miss.Ct.App.2002).

¶ 11. The court applied these factors to the evidence presented and determined that an award of alimony was not appropriate. The evidence established (1) Debra currently earns $87,084 gross income per year as an executive at State Farm Insurance Company and she is in reasonably good health, although she has had back surgery; (2) Richard’s current monthly income is derived solely from Social Security and consists of $1,190 and long term disability payments of $1,064.08 for a total of $2,254.08; however, his long term disability payment of $1,064.08 ends in 2006, at the time when Richard will have by that time depleted his assets, therefore, reducing his interest income; (3) Richard is obviously disabled and limited in his earning capacity; (4) the marriage is of moderate length; (5) there are no minor children of the parties; (6) Debra was born March 11, 1957, and is forty-seven years of age and Richard was born June 30, 1941, and is sixty-three years of age; (7) the parties enjoyed a reasonably comfortable standard of living in that they owned their own home and have generally done so since they were married; (8) neither party wasted or dissipated assets; and (9) since Richard is disabled, he will need to pay personnel to help in his daily activities and will need to do so every day of his life.

¶ 12. In the present case, the chancellor, in his findings of facts and conclusions of law, properly analyzed and applied the Armstrong factors in this case with respect to alimony. Upon reviewing the detailed analysis taken by the court of the position and needs of the parties, we find that the chancellor in no way abused his discretion in finding that Richard was not entitled to an award of alimony. Therefore, we find this issue is without merit and we can not say the chancellor abused his discretion.

ISSUE ON CROSS-APPEAL

I. WHETHER THE CHANCELLOR’S DECISION WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WHETHER HE COMMITTED MANIFEST ERROR IN DETERMINING MARITAL ASSETS AS EITHER NON-MARITAL OR MARITAL.

¶ 18. Debra argues that the chancellor erred in his determination that the personal injury proceeds and other assets (including the adjacent lot, the AmSouth CD, and the Met Life insurance policy (f/k/a New England Mutual Life) were non-marital property. She also claims that the chancellor erred in his refusal to award Debra pre-marital and post-marital agreed upon temporary order contributions to the State Farm Insurance Company Incentive and Thrift Plan.

¶ 14. This Court must look to the chancellor’s application of the Ferguson factors when reviewing questions of equitable distribution. Ferguson, 639 So.2d at 928; see also Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1995); Hemsley v. Hemsley, 639 So.2d 909, 914-15 (Miss.1994). In Ferguson, the Mississippi Supreme Court held that chancery courts should consider the following guidelines when “attempting to effect an equitable distribution of marital property.”

(1) Substantial contribution to the accumulation of property
a) direct or indirect economic contribution
b) contribution to stability and harmony of the marital relationship measured by quality, quantity of time spent on family duties and duration of marriage
c) contribution to the education, training or other accomplishment bearing on the earning power of spouse accumulating assets
(2) Degree to which each spouse has expanded, withdrawn, or otherwise disposed of marital assets and any prior distribution of assets.
(3) Market value and emotional value of assets subject to distribution.
(4) Value of assets not ordinarily absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift or by an individual spouse.
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
(6) Extent to which property division may be utilized to eliminate periodic payments and other potential sources of friction.
(7) Needs of the parties.
(8) Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 15. This Court has also held that “the chancellor is not required to address each and every factor and may consider only the factors which he finds applicable to the marital property at issue.” Burnham-Steptoe v. Steptoe, 755 So.2d 1225, 1233(¶ 24) (Miss.Ct.App.1999) (citing Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997)). “All property acquired during marriage is considered marital property, and subject to equitable distribution, unless it is clearly shown to be a separate estate apart from the marriage.” Cork v. Cork, 811 So.2d 427, 430 (¶ 13) (Miss.Ct.App.2001) (citing Hemsley, 639 So.2d at 914).

¶ 16. In his findings of fact and conclusions of law, it is clear that the chancellor equitably disposed of all of the property, including various investment accounts, IRA accounts, ESOP accounts, the marital home with its accompanying lot and accrued value of certain “whole life” insurance policies, in accordance with the Ferguson factors and applicable case law. This Court is not at liberty to disturb that decision.

¶ 17. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT AND CROSS APPEAL. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE APPELLANT AND ONE HALF TO THE APPELLEE.

KING, C.J., SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).


source: Caselaw Access Project

author: BRIDGES, P.J., IRVING, J., GRIFFIS, J.,

license: Public Domain

text:
    Jack RIVERS, Appellant v. BOARD OF TRUSTEES, FORREST COUNTY AGRICULTURAL HIGH SCHOOL, Appellee.
    No. 2003-CC-00943-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      Jerry A. Evans, Hattiesburg, attorney for appellant.
    Moran M. Pope, Hattiesburg, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. This is an appeal by Jack Rivers from the decision of the chancery court affirming the decision of the Board of Trustees of the Forrest County Agricultural High School (Board, FCAHS) terminating the employment of Rivers, a teacher at the school. This action began when Kyle Noble, superintendent of the school, dismissed Jack Rivers by written notification. As statutorily provided, Rivers requested a hearing, and such hearing was started before a hearing officer procured by the Board. The hearing was held on June 10, August 7, and concluded on August 30, 2002. The hearing officer filed his report on October 8, 2002, which was duly considered by the Board of Trustees. On October 11, 2002, the Board unanimously voted to accept and uphold the recommendations of the hearing officer. Rivers appealed to the Chancery Court of Forrest County and on March 18, 2002, the chancellor affirmed the decision and order of the Board.

STATEMENT OF THE ISSUES

I. WHETHER THE PROCEDURES FOLLOWED BY THE BOARD OF TRUSTEES, FORREST COUNTY AGRICULTURAL HIGH SCHOOL, IN MAKING ITS DECISION TO TERMINATE THE EMPLOYMENT OF JACK RIVERS, UNDER STIGMATIZING CIRCUMSTANCES, WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

II. WHETHER THE DECISION, TO TERMINATE THE EMPLOYMENT OF JACK RIVERS, WAS ARBITRARY OR CAPRICIOUS AND NOT FOUNDED UPON SUBSTANTIAL EVIDENCE.

FACTS

¶ 2. On March 20, 2002, M.C., a fifteen year old ninth grader at Forrest County Agricultural High School and two other female students went to see Charles Lewis, the principal of FCAHS. M.C. told Lewis that Jack Rivers, a teacher at FCAHS, had “touched her in the wrong way” earlier that day while she was in his class. After further inquiry, M.C. added that Rivers “put his hand on her leg, and then he started to move his hand up her leg, and then that is when she jumped up and went to get a journal.” Lewis immediately sent M.C. to Reesa Parker (also referred to in the briefs as Resa), the school counselor, to talk about the incident further. Lewis then had Rivers brought to his ofñce and proceeded to tell Rivers what had been alleged against him. Rivers immediately denied the allegations and explained that he sat beside M.C. and that he sat straddling a chair with the back of the chair to his chest. He additionally explained that he did not put his hand on M.C.’s leg but that when he got up from the chair he could have possibly touched her. Lewis then told Rivers to write down his version of what happened. After Parker’s meeting with M.C., Parker went to Lewis and explained that the touching of Rivers which M.C. described “was not a brush type-brush by type of thing.” She added further that the “touching” would have been a deliberate .placement and movement from what M.C. demonstrated while in Parker’s office. Additionally, M.C.’s subsequent written statement and her testimony at the hearing are consistent with what she told Lewis and Parker.

¶ 3. The following day Lewis started conducting an investigation into what happened. He started first with the students that sat near M.C. in River’s classroom. After interviewing numerous students, male and female, three other female students, L.W., L.E., and E.C., told Lewis and Parker about similar incidents involving Rivers that they felt were inappropriate and each student gave a signed, written statement regarding the same.

¶ 4. On March 28, 2002, Kyle Nobles, Superintendent of FCAHS, met with Rivers and his wife and inquired about his side of the story. Rivers denied touching M.C. except to say that he might have brushed up against M.C.’s leg when he got up to leave. He did volunteer that M.C. had on a low-cut blouse on the day in question.

¶ 5. After talking with the students, Lewis and Rivers, Nobles decided to terminate Rivers’s employment if he did not resign voluntarily. On April 2, 2003, when Rivers did not resign voluntarily, Nobles notified him that he was being dismissed from employment, subject to his right to a hearing.

¶ 6. At the same time Rivers requested a formal hearing, he also requested discovery of information and documents, some of which included:

(1) A detailed listing of all allegations made against Rivers that underlined the Board’s decision to terminate, including the names, addresses, and telephone numbers of the persons who made the allegations,
(2) A complete copy of any minutes of meetings held by the Board regarding the termination of Rivers,
(3) A complete copy of the personnel file of Rivers,
(4) A complete copy of the student file of the person or persons who made the allegations against Rivers,
(5) A complete copy of the investigation of the allegations made against Rivers, including any and all statements (oral or written), reports, investigative notes, affidavits, or otherwise,
(6) The name, address, and telephone number of any person interviewed during the investigation of the allegations made against Rivers, and
(7) The name, address, and telephone number of any person or persons the School Board intends to subpoena or call as witnesses at the hearing.

¶ 7. Also requested, but separately, was Rivers’s classroom files of individual students contained in a locked file cabinet, which contained test results and other related matters pertaining to individual students and a copy of his grade book.

¶ 8. FCAHS, through its attorney, refused to provide any of the requested discovery, but did provide ‘the names of the adult witnesses and a brief summary of the proposed testimony of the four unidentified, minor, female students. In response to this denial, Rivers requested that the hearing officer direct the Board to provide the requested discovery. To this, the hearing officer denied Rivers’s request stating that he had no authority to order such discovery.

¶ 9. A hearing on this case was conducted on June 10, 2002, over the objections of Rivers, who moved to exclude the testimony of the four minors and further objected that bifurcation of the hearing would not satisfy the problem. At the hearing, the Board called seven witnesses including: Charles Lewis, principal; Reesa Parker, counselor; M.C., minor female student; L.W., minor female student; L.E., minor female student; E.C., minor female student; and Kyle Nobles, superintendent.

¶ 10. On August 7, 2002, the hearing reconvened at which time Rivers called six witnesses including himself. At the conclusion of the hearing, the hearing officer affirmed the decision made by the Board.

STANDARD OF REVIEW

¶ 11. The standard of review of administrative agency decisions is “[a]n agency’s conclusions must remain undisturbed unless the agency’s order (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4). violates one’s constitutional rights.” Maxwell v. Miss. Employment Sec. Comm’n, 792 So.2d 1031, 1032(¶ 7) (Miss.Ct.App.2001).

¶ 12. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency. Lewis v. Miss. Employment Sec. Comm’n, 767 So.2d 1029, 1030-1(¶ 9) (Miss.Ct.App.2000). Factual findings of the Commission’s Board of Review, if supported by substantial evidence, will be upheld on appeal. Miss.Code Ann. § 71-5-531 (Rev.2000).

ANALYSIS

I. WHETHER THE PROCEDURES FOLLOWED BY THE BOARD OF TRUSTEES, FORREST COUNTY AGRICULTURAL HIGH SCHOOL, IN MAKING ITS DECISION TO TERMINATE THE EMPLOYMENT OF JACK RIVERS, UNDER STIGMATIZING CIRCUMSTANCES, WAS IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

¶ 13. The trial court referred to Mississippi Code Annotated section 37-9-109 which governs non-renewals and also lays down initiating requirements for actions of non-renewal. It provides in pertinent part:

An employee who has received notice under Section 37^-9-105, upon written request from the employee received by the district within ten days of receipt of the notice by employee, shall be entitled to:
(a) Written notice of the specific reasons for non-employment, together with a summary of the factual basis therefor, a list of witnesses and a copy of documentary evidence substantiating the reasons intended to be presented at the hearing....

However, it is clear that the case sub judice is not a non-renewal action but is in fact a dismissal action, which is governed by Mississippi Code Annotated section 37-9-59. There is a clear and distinct difference, that is readily apparent, between section 37-9-109 and section 37-9-59 when examining the initial procedure required as to each. In dismissal actions, section 37-9-59, the clear and concise requirement as to initiating the action is that:

“Before being so dismissed or suspended any licensed employee shall be notified of the charges against him and he shall be advised that he is entitled to a public hearing upon said charges.” (emphasis added).

If the employee avails himself of the option of a hearing, section 37-9-59 provides that such hearing shall be as prescribed in section 37-9-111 of the Mississippi Code. However, actions involving non-renewal, under section 37-9-109, do not specifically reference section 37-9-59.

¶ 14. The learned chancellor in this case aptly stated the meaning of the law when he opined in his ruling the following:

The Legislature of this State framed and enacted both the cited and quoted statutes, and the differing language of the two as to mandates is readily apparent. The plain language utilized in the two statutes, each dealing with a different action, is clear and unambiguous. Simply because the requirements in the non-renewal action are undeniably more stringent than in the dismissal action, it does not logically follow that the Legislature intended that the more stringent requirements of non-renewal be also applicable to the dismissal action. It is obvious that had the Legislature intended, or desired, the more stringent requirements of the non-renewal action to be also applicable to the dismissal action then the language to accomplish such intent or desire was available for use.

¶ 15. Since this Court cannot legislate or change those statutes already applicable to the subject matter in question, we can only decide cases on the law as written. Therefore, to resolve the confusion faced in this case, it is suggested that the state legislature make appropriate and necessary provision or amendment to the present statute, or by additional statute for disposition of “dismissal actions,” so as to clarify this ambiguity.

¶ 16. The dissent, while telling of the majority’s simplicity, confuses the reader by going through two more sections to achieve their desired result. However, the dissent fails to inform the reader that the end result involves the section for non-renewals. If it was not mentioned before, please let us mention it now — this case is not a non-renewal case but is in fact a dismissal. While we agree that for non-renewal cases the accused should get certain discovery and that section does provide for it, while the section on dismissals does not provide such for a hearing. If, as previously stated, the legislature wanted those evidentiary measures, they would have provided such in section 39-9-59, or at the very least referred the reader to the non-renewal section specifically.

¶ 17. In summary, the dissent cites certain sections under Title 37 which apply to non-renewal rather than dismissal which applies to the case sub judice. Such recitals of those sections circumvents the appropriate section which applies to dismissals, being section 39-9-59. The two procedures are totally different in nature and do not require the same procedures to be followed in order to achieve the appropriate result.

¶ 18. After careful consideration of the record in this case, and in light of the statutory requirements of Mississippi Code Annotated section 37-9-59 (dismissal actions), as well as the statutory requirements of Mississippi Code Annotated section 37-9-109 (non-renewal actions), together with case law cited by both parties, this Court is of the opinion that Rivers’s assertion that his statutory and constitutional rights were violated is without merit.

II. WHETHER THE DECISION TO TERMINATE THE EMPLOYMENT OF JACK RIVERS WAS ARBITRARY OR CAPRICIOUS AND NOT FOUNDED UPON SUBSTANTIAL EVIDENCE.

¶ 19. In the case sub judice, the two principal actors have statements and testimony that are contradictory. M.C.’s testimony accuses Rivers of acting in a deliberate manner by placing his hand on her leg and proceeding to move his hand upward. She also stated that not only did she feel surprised and upset by Rivers’s actions, but also uncomfortable as well. To escape the situation, M.C. quickly got up to retrieve a notebook and waited until Rivers left her module. M.C.’s story never changed in its description, and she continued to be forthright in the telling of her version of what occurred.

¶ 20. On the other side, Rivers, the accused, adamantly denied the allegations made against him and admitted that any touching that may have been made by him was unintentional and may have occurred in the normal course of his work, i.e., in assisting students at their respective work stations in the technology course he teaches.

¶ 21. Although there were no other witnesses to the incident in question, there was testimony in the record by other students, L.W., L.E., and E.C., that was corroborative of the testimony of M.C., specifically that Rivers has been observed by other witnesses in a physical posture near other female students where the appearance to the witness was that Rivers was looking, or attempting to look, down in the blouse or shirt of females and toward their breasts. There was also testimony of Rivers’s touching or rubbing a female student on her neck and down onto the area of the collarbone.

¶ 22. It is clear that the decision of the Board of Trustees was supported by the evidence and that the Board met its burden of proving by substantial evidence, to satisfy the standard of review as set forth herein, that Rivers’s actions constituted misconduct.

¶ 23. This Court, having reviewed the record, finds that the decision of the Board was supported by substantial evidence and will not be disturbed.

¶ 24. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS AFFIRMED. COST OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

THOMAS, LEE, AND MYERS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., SOUTHWICK, P.J., AND CHANDLER, J.

IRVING, J.,

specially concurring.

¶ 25. The majority, finding that Jack Rivers was not entitled to certain discovery requested by him, affirms the decision of the Board of Trustees of Forrest County Agricultural High School District terminating Rivers’s employment with the school district. The dissent, finding that Rivers was entitled to the requested discovery that was not produced by the school district, would reverse and remand. It is my view that Rivers was entitled to limited discovery and that the discovery which he did receive substantially satisfied the due process and right of confrontation entitlements in employee dismissals under Mississippi Code Annotated section 37-9-59 (Rev.2001); therefore, I agree that the school district’s termination of Rivers should be affirmed.

¶ 26. Both the majority and the dissent agree that the case before us is a dismissal under section 37-9-59 and not a nonreem-ployment under the Education Employment Procedures Law of 2001 (EEPL), Mississippi Code Annotated section 37-9-101 to 37-9-113 (Rev.2001). It is the view of the dissent that Rivers was wrongfully denied discovery since (1) dismissal hearings are required to be conducted pursuant to a section of EEPL, section 37-9-111, and (2) a nonrenewed employee under EEPL is entitled to certain discovery by virtue of section 37-9-109. On the other hand, it is the majority’s view that the discovery mandated by section 37-9-109 applies only to nonreemployment cases.

¶ 27. Section 37-9-109 provides in pertinent part:

An employee ... shall be entitled to:
(a) Written notice of the specific reasons for nonreemployment, together with a summary of the factual basis therefor, a list of witnesses and a copy of documentary evidence substantiating the reasons intended to be presented at the hearing, which notice shall be given at least fourteen (14) days prior to any hearing ...;
(b) An opportunity for a hearing at which to present matters relevant to the reasons given for the proposed nonreemployment, including any reasons alleged by the employee to be the reason for nonreemployment;
(c) Receive a fair and impartial hearing before the board or hearing officer; (d)Be represented by legal counsel, at his own expense....

Section 37-9-111(3) provides in part:

The employee shall be afforded an opportunity to present matters at the hearing relevant to the reasons given for the proposed nonreemployment determination and to the reasons the employee alleges to be the reasons for nonreem-ployment and to be represented by counsel at such a hearing. Such hearing shall be conducted in such a manner as to afford the parties a fair and reasonable opportunity to present witnesses and other evidence pertinent to the issues and to cross-examine witnesses presented at the hearing.

¶ 28. In my view, if we were to substitute the word “dismissal” for the word “nonreemployment” in the statute quoted above, we would identify the measure of due process and the level of confrontation which a school district must afford a dismissed employee, whether mandated to do so by EEPL, as the dissent contends, or by constitutional or decisional law not discussed in either the majority or dissenting opinion. Consequently, it seems to me that a school district is obligated to provide such discovery as is necessary to ensure that the dismissed employee enjoys the requisite due process and right of confrontation which are circumscribed by the quoted statutes.

¶ 29. I now look to see what information and opportunity were in fact provided to Rivers. In the dismissal letter sent to Rivers, Superintendent Kyle Nobles advised:

Pursuant to Miss.Code Ann. section 37-9-59 I am dismissing you for immoral conduct and other good cause. Specifically, you improperly touched female students, and you engaged in conduct such as looking down female students’ blouses and went into the audio visual room with a single female student and closed the door.

¶ 30. In response to a letter from Rivers’s counsel requesting a hearing and certain information, the district, through its counsel, advised that the minors, who made the allegations, would testify at the hearing. The district refused to give the names, as well as the written statements of the minors involved, but provided the following excerpts of what the minors would testify to:

(A) Student A, a female student, will testify that she was seated at her computer module when Mr. Rivers came over to the module and pulled up a chair to sit beside her. He was talking to her and put his hand on her leg and moved his hand up and down on her leg. Feeling very uncomfortable, she got up to get her notebook, and then waited until he left and went back to her seat. He then came over again. Another student needed help and he went to help that student. He then came back to Student A’s module, but it was time to leave the class. She reported this incident to the principal, and she was permitted to stay with the school counselor during Mr. Rivers’s subsequent classes until he left the school.
(B) Student B, a female student, will testify that on more than one occasion Mr. Rivers has rubbed her neck with his hand, down to and including her collarbone, while she was seated at her computer module. She will testify that this action frightened her. She will also testify that she saw Mr. Rivers rub other girls’ necks in a similar manner on at least two other occasions. In addition, she will testify that she saw Mr. Rivers go into the audio-visual room with a female student (Student D) by herself.
(C) Student C, a female student, will testify that while Mr. Rivers has never touched her in an inappropriate way, he gets too close when talking to her and makes her feel uncomfortable. Mr. Rivers “bends over as if he is looking down my shirt,” and she has seen him looking down other girls’ shirts at least twice. Also, she has seen him looking at her legs in a way that makes her feel uncomfortable.
(D)Student D, a female student, will testify that Mr. Rivers would touch girls while reaching around and over them as they were seated at the computer module when they asked for help with the computer. This has happened to her and at least five other female students that she knows in his classes. She will testify that rather than reaching around and over them, he could easily have asked them to get out of their chairs while he showed them on their computers what needed to be done. She will also testify that on more than one occasion she has seen him drop things on the floor (not accidentally) and would then try to look at girls’ legs or skirts in an inappropriate manner. She will also testify that she has been with him in the audio-visual room by herself, and that while there he would rub against her arm while he was demonstrating how to do something on the module there.

The district did provide the names, title or position, address and telephone numbers of the other witnesses who the district said it might call at the hearing. These were the superintendent, building principal, and counselor.

¶ 31. In addition to refusing to provide the names and statements of the minor children involved, the district refused to provide files, addresses, and telephone numbers of the students who made the allegations. The district also refused to provide the grade book along with the classroom files of the students in Rivers’s class.

¶ 32. Rivers’s counsel also asked for “a complete copy of the investigation of the allegations made against Mr. Rivers, including any and all statements (oral or written), reports, investigative notes, affidavits, or otherwise.” While the district responded that it would not turn over this information, the record reflects that the district’s investigative file contained only the oral and written statements of the minor children, the summaries of which were given to Rivers.

¶ 33. During the dismissal hearing, the district presented seven witnesses: the four minor females, the principal, the counselor, and the superintendent. As already pointed out, the names, titles, telephone numbers and addresses of all of these witnesses, except for the minor females, were given to Rivers’s counsel prior to the hearing.

Notwithstanding the election by an employee for a public hearing, any testimony by minor witnesses must be held in executive session and considered confidential personnel records and confidential student records, subject to an expectation of reasonable privacy and confidentiality. Public disclosure of these records may be by court order only.

Miss.Code Ann. § 37-9-111(2) (Rev.2001).

¶ 34. It seems to me that, although the quoted portion of subsection (2) of section 37-9-111 deals with the treatment of the testimony of minors during an actual hearing, it is persuasive authority for the proposition that school districts are prohibited from providing, even for hearing purposes under section 37-9-111(2), the personnel files of students who have accused a teacher of misconduct. And on the matter of disclosure of student personnel files, I note that section 37-15-3 of the Mississippi Code of 1972 as annotated and amended prohibits the disclosure of student cumulative folders to the public. Further, I find nothing in EEPL which requires or permits a school district to disclose the files of non-accusing students to a person facing dismissal under 37-9-59 for improper conduct with other students. Nor do I find that the district’s failure to turn over such files, or the legislature’s failure to require that such files be disclosed in termination hearings, offends notions of fair play, due process, or the right of confrontation.

¶ 35. I do believe, however, that Rivers was entitled, prior to the hearing, to the names of his student accusers, as well as a copy of the statements that they gave to school officials. Yet, at the same time, I find that, based on the detailed summaries of the witnesses’ testimony which were provided, Rivers could determine the identity of the students involved if in fact he was guilty of the allegations made against him, and if he were not guilty, I fail to see how prior knowledge of the names of his accusers would have aided his defense that he was innocent of the allegations. On this point, it is noteworthy that Rivers does not show how his defense was negatively impacted, if indeed it was, as a result of his not being provided the names of his student accusers before the hearing, nor does he state what he would have been able to do to his advantage had he been provided their identities prior to the hearing. He certainly was able, to confront and cross-examine them during the hearing.

¶ 36. In summary, I find that Rivers was provided, prior to the hearing, everything that he was entitled to receive except the names of the student witnesses, along with a copy of their statements. However, I do not believe that he has shown any prejudice flowing from the school district’s refusal to provide this information prior to the hearing inasmuch as he was able to determine the identity of the students from the information that was provided. Further, the statements were made available during the witnesses’ testimony prior to cross-examination by Rivers’s counsel. I find nothing in the record which remotely suggests that Rivers’s cross-examination of the student witnesses was abridged or hampered as a result of the tardy submission of the students’ statements to him. Under these circumstances, I do not believe Rivers was denied due process or his right of confrontation. Therefore, I see no basis for disturbing the decision terminating Rivers’s employment.

¶ 37. My view, that Rivers was not denied his right to due process and his right to confront and cross-examine his accusers, should not be taken to mean that I approve of the district’s refusal to divulge the names and statements of Rivers’s accusers to him prior to trial. The district certainly erred in this regard, but its error did not result in Rivers’s being denied a fundamentally fair hearing.

GRIFFIS, J.,

dissenting.

¶ 38. Because I am of the opinion that Jack Rivers’ statutory right to a fair hearing was violated, I respectfully dissent.

¶ 39. The majority correctly notes that this is a dismissal action. Dismissal actions are governed by Mississippi Code Annotated Section 37-9-59 (Rev.2001), which provides in pertinent part:

For incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil or other good cause the superintendent of schools may dismiss or suspend any licensed employee in any school district. Before being so dismissed or suspended any licensed employee shall be notified of the charges against him and he shall be advised that he is entitled to a public hearing upon said charges.... The school board, upon a request for a hearing by the person so suspended or removed shall set a date, time and place for such hearing which shall be not sooner than five (5) days nor later than thirty (30) days from the date of the request. The procedure for such hearing shall be as prescribed for hearings before the board or hearing officer in Section 37-9-111_

(emphasis added). Here, we are called upon to decide whether the proper procedure was followed.

¶ 40. In Merchant v. Bd. of Trustees of the Pearl Mun. Separate Sch. Dist., 492 So.2d 959, 961 (Miss.1986), the supreme court recognized that Section 37-9-59 dismissal hearings must comply with Section 37-9-111. The court held that Section 37-9-111(4) required the school board to provide the employee with written notification of its decision and the reasons supporting the decision. The court further determined that appeals were to be taken based on the procedure established in Mississippi Code Annotated Section 37-9-113, which limited appellate review to a review of the record of the hearing to determine whether the decision was (a) not supported by any substantial evidence; (b) arbitrary or capricious; or (c) in violation of some statutory or constitutional right of the employee. Merchant, 492 So.2d at 961.

¶ 41. To determine the proper construction of statutes, our supreme court outlined the following procedures for us to follow:

We construe such a statute according to familiar principles. We give the statute that reading which best fits the legislative language and is most consistent with the best statement of policies and principles justifying that language. Warren County v. Culkin, 497 So.2d 433, 436 (Miss.1986). We seek no historical fact. ‘We do not inquire what the legislature meant; we ask only what the statute means.” Holmes, Collected Legal Papers 207 (1920). We afford the statute the best fit reading it may be given today. We seek the best statement of policies and principles which may justify the statute today, not in 1970 when it was originally enacted. We also afford the statute that reading most coherent in principle, given the entire statutory scheme and the other valid rules in the field. McIntire v. Moore, 512 So.2d 687, 689 (Miss.1987).

Mississippi Ins. Guar. Ass’n v. Vaughn, 529 So.2d 540, 542 (Miss.1988). Thus, we look to the language used in the statute to determine its meaning, and we must apply the statute in a logical and reasonable manner consistent with the statutory structure. Id.

¶ 42. The majority finds that it was not error for the board and the hearing officer to refuse to provide Rivers the minimal discovery he requested. After a proper request and a motion to compel the production of such information, the hearing officer concluded that Section 37-9-111 did not authorize him to order the production of information by the school district. Rivers contends that this was error because he was entitled to certain discovery under Section 37-9-109. Thus, Rivers correctly argues that the hearing officer’s decision violated his statutory rights. The majority concludes that since Section 37-9-59 does not specifically refer to Section 37-9-109, then Rivers is not entitled to the information that is required to be provided to employees under Section 37-9-109.

¶ 43. Likewise, my conclusion is equally simple. However, my conclusion requires that we logically consider the specific language of Section 37-9-111 that refers to the rules and procedures that govern a dismissal hearing.

¶ 44. The majority and I agree that Section 37-9-59 is the proper statute for dismissal actions. Section 37-9-59 specifically provides that “[t]he procedure for such hearing shall be as prescribed for hearings before the board or hearing officer in Section 37-9-111.” Thus, we look to Section 37-9-111 to determine the type of hearing that is to be held and, more importantly, what rules or procedures are to be followed.

¶ 45. Section 37-9-111(6) provides:

In conducting a hearing, the board or hearing officer shall not be bound by common law or by statutory rules of evidence or by technical or formal rules of procedure except as provided in Sections S7-9-101 through 37-9-113, but may conduct such hearing in such manner as best to ascertain the rights of the parties; however, hearsay evidence, if admitted, shall not be the sole basis for the determination of facts by the board or hearing officer.

(emphasis added). Thus, according to the express language of Section 37-9-111, the hearing must follow the procedural rules the legislature codified under the Education Employment Procedures Law of 2001, Mississippi Code Annotated Sections 37-9-101 through 37-9-113.

¶ 46. Section 37-9-109 is one of the procedural rules under the Education Employment Procedures Law of 2001. In relevant part, Section 37-9-109 provides:

An employee who has received notice under Section 37-9-105, upon written request from the employee received by the district within ten (10) days of receipt of the notice by the employee, shall be entitled to:
(a) Written notice of the specific reasons for nonreemployment, together with a summary of the factual basis therefor, a list of witnesses and a copy of documentary evidence substantiating the reasons intended to be presented at the hearing, which notice shall be given at least fourteen (14) days prior to any hearing; if the district fails to provide this information to the employee, then the recommendation for nonreem-ployment shall be null and void, and the board shall order the execution of a contract with the employee for an additional period of one (1) year;
(b) An opportunity for a hearing at which to present matters relevant to the reasons given for the proposed nonreemployment, including any reasons alleged by the employee to be the reason for nonreemployment;
(c) Receive a fair and impartial hearing before the board or hearing officer;
(d) Be represented by legal counsel, at his own expense.

¶ 47. Since a dismissal under Section 37-5-59 obligates the school district to provide the employee with a hearing under Section 37-9-111, and Section 37-9-111 specifically provides that the procedural rules include a provision (Section 37-9-109) that obligates the school district to provide certain minimal information to the employee prior to the hearing, then there is no reason or need for the legislature to amend Section 37-5-59 to make a direct reference to Section 37-9-109. The express language of Section 37-9-59, by requiring a Section 37-9-111 hearing, accomplished the same feat.

¶ 48. Applying this statutory structure to Rivers’ dismissal, I offer the following analysis. Section 37-9-59 allows the board to dismiss Rivers for cause, after a hearing is held in accordance with Section 37-9-111. Section 37-9-111 sets forth how the hearing will be held, including the procedure to be followed. Section 37-9-111(6) provides that Section 37-9-109 is one of the procedural rules that apply to the hearing. Section 37-9-109 provides that Rivers is entitled to certain information prior to the hearing. This information was not provided to Rivers, after his timely request.

¶ 49. The hearing officer conducted the Section 37-9-111 hearing in compliance with only part of the statutory scheme. The hearing officer and the board denied Rivers the information he had requested. The result was that the hearing began before Rivers received the information he was statutorily entitled to receive. Indeed, he was not even aware of the identity of the four primary witnesses who would testify against him.

¶ 50. Further, Section 37-9-111(3) provides in pertinent part:

The employee shall be afforded an opportunity to present matters at the hearing relevant to the reasons given for the proposed nonreemployment determination and to the reasons the employee alleges to be the reasons for nonreem-ployment and to be represented by counsel at such a hearing. Such hearing shall be conducted in such a manner as to afford the parties a fair and reasonable opportunity to present witnesses and other evidence pertinent to the issues and to cross-examine witnesses presented at the hearing.

(emphasis added). This statutory language clearly contemplates that the hearing will be conducted with, at a minimum, the disclosure of the information required under Section 37-9-109.

¶ 51. Prior to the hearing, Rivers submitted a request for discovery of relevant information and documents. The board refused to produce the information and documents. The board did, however, provide Rivers with a brief summary of the proposed testimony of four unidentified minor students who accused him of wrongdoing.

¶ 52. Rivers asked the hearing officer to compel the discovery that he had requested. The hearing officer refused, concluding that Section 37-9-111 did not authorize him to order the requested discovery. As a result, Rivers now complains that he was not able to properly defend himself through the immediate cross-examination of the witnesses who accused him of wrongdoing. The board’s response is that Rivers could have subpoenaed the witnesses when the hearing resumed two months later. The hearing officer’s failure to order the production of the information and documents, statutorily required under Section 37-9-109, unduly prejudiced Rivers’ ability to defend himself against these serious charges.

¶ 53. While I certainly do not condone the conduct that is alleged, I am of the opinion that Rivers was denied his statutory rights. Contrary to the majority’s assertion, I do not consider this to be judicial legislation or an attempt to change the law enacted by the Mississippi legislature. Instead, I am of the opinion that the chancellor and the majority simply failed to require the board to follow the clear and simple statutory structure that was enacted in Section 37-9-59, which by specific reference was to be conducted under the procedures included in the Education Employment Procedures Law of 2001, codified in Sections 37-9-101 through 37-9-113.

¶ 54. For these reasons, I would reverse the chancery court’s decision and remand for further proceedings.

KING, C.J., SOUTHWICK, P.J., AND CHANDLER, J„ JOIN THIS SEPARATE OPINION.

      . The dissent says that the "hearing officer's failure to order the production of the information and documents, statutorily required under section 37-9-109 unduly prejudiced River's ability to defend himself. However, the dissent does not specify which documents were required to be produced that were not produced. Clearly, section 37-9-109 does require the production of much of what Rivers requested.

      . Section 37-9-109(a) specifically describes the information that Rivers was legally entitled to receive from the board. Thus, Rivers should have been provided some, but not all, of the information that he requested. Indeed, I do not find that Rivers should have been provided a copy of the student file of the person who made the allegations against Rivers.

      . In his special concurring opinion, Judge Irving agrees with me that, "Rivers was entitled to the names of his student accusers, as well as a copy of the statements that they gave to school officials, prior to the hearing.” Nevertheless, Judge Irving finds that the summaries should have been sufficient for Rivers to determine the identity of the accusers. Surely, if Rivers was guilty of the conduct they accused him of, he may have been able to identify the accusers. Assuming, however, that he was innocent of the charges, these descriptions would not be sufficient to identify the accusers since they do not indicate a certain date, time, or place when these events purportedly occurred. Rivers was prejudiced because he lacked the opportunity and ability to conduct a thorough cross-examination of his accusers.


author: MYERS, J.,

text:
    Johnny TURNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00831-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Johnny Turner, Appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court.

¶ 1. Johnny Turner pled guilty in the Circuit Court of Pike County to two counts of burglary in 1984. He received a four year suspended sentence and was placed on probation for five years. In 2003, Turner filed a petition for expungement which was denied by the sentencing court. Turner, pro se, appeals the lower court’s decision and requests our review of the following issue:

I. DID THE TRIAL COURT ERR IN DENYING THE APPELLANT’S PETITION FOR EXPUNGEMENT OF HIS CRIMINAL RECORD?

STATEMENT OF FACTS

¶ 2. On March 21, 1984, Turner was indicted by a Pike County Grand Jury on two counts of burglary pursuant to Section 97-17-33 of the Mississippi Code Annotated (Rev.2000). On October 12, 1984, Turner was arraigned and pled not guilty. Five days later, however, Turner changed his plea to guilty. The Circuit Court of Pike County accepted Turner’s plea and sentenced him to four years in the custody of the Mississippi Department of Corrections which the court suspended. Turner was also placed on probation for five years.

¶ 3. On February 13, 1990, a petition for termination of probation was filed with the Circuit Court of Pike County. An order terminating Turner’s probation was entered that same day.

If 4. On February 4, 2003, Turner filed a petition for expungement of his criminal record in the Circuit Court of Pike County. The petition .requested the court to enter an order requiring all official records and recordations relating to his arrest, indictment, and plea of guilty to be expunged.

¶ 5. On April 11, 2003, the Circuit Court of Pike County entered its order denying the petition. Ten days later, Turner filed a notice of appeal with the supreme court which then transferred the case to this Court. Finding no error, we affirm.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING THE APPELLANT’S PETITION FOR EXPUNGEMENT OF HIS CRIMINAL RECORD?

¶ 6. Mississippi Code Annotated Section 99-15-26 (Supp.2003), provides:

(1) In all criminal cases, felony and misdemeanor, other than crimes against the person, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. No person having previously qualified under the provisions of this section or having ever been convicted of a felony shall be eligible to qualify for release in accordance with this section. A person shall not be eligible to qualify for release in accordance with this section if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), Mississippi Code of 1972, except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marihuana; (b) with an offense pertaining to the possession of one (1) kilogram or more of marihuana as provided in Section 41-29-139(c)(2)(D), Mississippi Code of 1972; or (c) with an offense under the Mississippi Implied Consent Law.
(2) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(a) Reasonable restitution to the victim of the crime.
(b) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(c) Payment of a fine not to exceed the statutory limit.
(d) Successful completion of drug, alcohol, psychological or psychiatric treatment or any combination thereof if the court deems such treatment necessary.
(e) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
(6) This section shall take effect and be in force from and after March 31, 1983.

¶ 7. Under this section, a circuit or county court has the power to expunge a felony conviction pursuant to a guilty plea under certain conditions. Caldwell v. State, 564 So.2d 1371, 1373 (Miss.1990). Section 99-15-26 is an “extraordinary provision” that allows circuit or county court judges in limited circumstances to receive a criminal defendant’s guilty plea, but withhold acceptance of the plea, and defer sentencing. Brown v. State, 533 So.2d 1118, 1123 (Miss.1988). If the defendant successfully completes certain court-imposed conditions, the cause against him is dismissed and the case closed. Id. As a result, a conditional dismissal pursuant to § 99-15-26 is different than a suspended sentence pursuant to Mississippi Code Section 47-7-33 (Rev.2000). Id.

¶ 8. In conjunction with the preceding statute, Mississippi Code Annotated Section 99-15-57 (Supp.2003), provides:

(1) Any person who pled guilty within six (6) months prior to the effective date of Section 99-15-26, Mississippi Code of 1972, and who would have otherwise been eligible for the relief allowed in such section, may apply to the court in which such person was sentenced for an order to expunge from all official public records all recordation relating to his arrest, indictment, trial, finding of guilty and sentence. If the court determines, after hearing, that such person has satisfactorily served his sentence or period of probation and parole, pled guilty within six (6) months prior to the effective date of Section 99-15-26 and would have otherwise been eligible for the relief allowed in such section, it may enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or indictment. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.
(2) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.

¶ 9. This section allows a circuit or county judge, in his or her discretion, to expunge the criminal records of criminal defendants who pled guilty six months prior to the effective date of § 99-15-26 and who would have otherwise been eligible for relief under § 99-15-26. Smith v. State, 869 So.2d 425, 428(¶ 8) (Miss.Ct.App.2004).

¶ 10. Turner admits that he does not qualify for expungement under the applicable statutes. However, Turner asks this Court to create a judicial power of ex-pungement because he was unaware of the fact that he was eligible for non-adjudication pursuant to § 99-15-26 at the time he pled guilty. In addition, Turner wants his criminal record expunged because he wants to run for the office of county supervisor.

¶ 11. Our supreme court has previously held that a circuit court lacks the inherent power to order the expungement of a criminal record. See Caldwell, 564 So.2d at 1373. Turner requests that we review Caldwell because “some have been allowed to have a status of non-adjudication since 1983 and others have not.” We agree with Turner’s claim, but we find the decision in Caldwell to be a correct interpretation of §§ 99-15-26 and 99-15-57. As noted above, “[s]ection 99-15-26 is an extraordinary provision which allows certain misdemeanor and first-time felony offenders to be sanctioned for their offenses by means other than incarceration.” Brown, 533 So.2d at 1123. A conditional dismissal under this statute is a matter of legislative grace, and it is granted in the first instance at the discretion of the court. Wallace v. State, 607 So.2d 1184, 1189 (Miss.1992). In other words, a request to be sentenced pursuant to § 99-15-26 can be offered during plea negotiations, but it is within the circuit or county judge’s discretion to accept such a request.

¶ 12. In the instant case, the Circuit Court of Pike County did not withhold acceptance of Turner’s guilty plea. Instead, it accepted Turner’s guilty plea and adjudicated him accordingly. Turner received a four year suspended sentence and five years of probation pursuant to Mississippi Code Annotated Section 47-7-33. In addition, a person convicted of burglary cannot hold any office until he is pardoned for that crime. Miss.Code Ann. 99-19-35 (Rev.2000).

¶ 13. After a careful review of the facts presented along with the provisions of §§ 99-15-26 and 99-15-57, we find that the Circuit Court of Pike County did not err in denying Turner’s petition for ex-pungement. As a result, the decision is affirmed.

¶ 14. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT DENYING EXPUNGEMENT IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, CHANDLER AND GRIFFIS, JJ, CONCUR. THOMAS, J., NOT PARTICIPATING.


author: SOUTHWICK, P. J„

text:
    In the Matter of the ESTATES OF Armine B. GATES and C.V. Gates, Deceased. Roland Dear and Lottie S. Causey, Appellants v. George Glynn Boggan, Sr., et al. (Heirs of Armine B. Gates) and Ruth B. Lewis, et al. (Heirs of C.V. Gates), Appellees.
    No. 2002-CA-01711-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      David Ringer, attorney for appellants.
    Terrell Stubbs;, David Sessums, attorneys for appellees.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P. J„

for the Court.

¶ 1. The Chancery Court of Simpson County found that two individuals did not establish an effective trust prior to their deaths. We agree and affirm.

FACTS

¶ 2. Armine and C.V. Gates expressed a desire to create a trust for the plaintiffs, Roland Dear and Lottie Causey. Dear transported Mr. Gates for medical care and took care of other needs. Dear testified that he often took food to the Gates couple and visited them when they were hospitalized. Dear claims that in February 1997, Mr. Gates informed him that he would be favored upon their deaths because of his service in taking care of them. No one else heard that statement.

¶ 3. Causey, a first cousin of Mr. Gates, also states that she had a special relationship with him and his wife. They would visit each other on average at least once every two weeks. It was during one of these visits that Causey claims Mr. Gates informed her that he “got a trust started” and requested that she serve as a trustee. It is alleged that Mrs. Gates had no living relatives and that among Mr. Gates’s first cousins, it was only towards Causey that he felt any closeness.

¶ 4. Mr. and Mrs. Gates were killed in an automobile accident on October 8, 1997. They died intestate. A claim was filed in their estate proceedings that a trust had been created by the Gates to benefit Roland Dear, Lottie Causey, and two community churches. The trust document, which was never approved nor signed by either Gates, is dated November 18, 1997 — after their deaths. There was testimony about the origins of this document. In the spring of 1997, Mr. Gates and Roland Dear attended a trust seminar sponsored by an attorney, Sylvia Owen. Some time after the seminar, Mr. Gates visited Owen’s office to discuss the terms of the trust. Mr. Gates gave Owen handwritten documents outlining the provisions of the trust. One of the documents was allegedly written by Mrs. Gates. The third and final visit that they had was on September 30, 1997. Owen never met Mrs. Gates. Owen drafted the trust document from the handwritten notes. Even though Owen had prepared a draft trust document in April 1997, neither Gates saw, approved, or signed the document prior to their deaths on October 8, 1997.

¶ 5. The chancellor found that no trust existed, whether express or implied.

DISCUSSION

¶ 6. There is no question that, prior to their deaths, Armine and C.V. Gates had not executed any documents creating a trust to benefit the plaintiffs in this case. An inventory of the estate revealed substantial real and personal property that would be the subject of the trust. We analyze below the several allegedly adequate substitutes for an executed trust document.

1. Express trust from handwritten notes or unexecuted draft trust document

¶ 7. Dear and Causey claim that the lower court erred in refusing to admit into evidence hand-written notes allegedly written by Mrs. Gates. They claim that these notes represent declarations by Mrs. Gates as to what should be included in the written trust agreement. The attorney Owen testified that the notes were delivered to her by Mr. Gates and that she had never met or talked with Mrs. Gates. She stated that she believed the notes were written by Mrs. Gates, even though she did not witness the writing or discuss the notes with Mrs. Gates.

¶ 8. A person testifying for purposes of authenticating a writing need not witness the writing. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a). The chancellor found that these notes were not adequately proven to have been written by Mrs. Gates, nor that they were a true indication of her desires for the trust. We find no abuse of discretion in that ruling, as Owen’s only information was hearsay from Mr. Gates.

¶ 9. Even had the notes been admitted, they would not have been sufficient to impose a trust. An express trust may be oral, but only if real property is not involved. Alvarez v. Coleman, 642 So.2d 361, 367 (Miss.1994); Miss.Code Ann. § 91-9-1 (Rev.1994). If the corpus of the purported trust estate consists both of real and personal property, an express oral trust is ineffective to impose a trust on either. Wells v. Brooks, 199 Miss. 327, 24 So.2d 533, 535 (1946) (“where the agreement includes both realty and personalty, the transaction is not separable” for purposes of the statute of frauds).

¶ 10. Finally on the issue of the notes, we conclude that they are not evidence of an express oral trust. A clear oral declaration that a trust is being created is needed for an express oral trust of personal property. There is no evidence that either of the would-be creators of the trust ever declared that they were by oral statement creating an express trust. There may have been assertions of a desire to create a written one. In fact, the written but unsigned proposed trust agreement in the record is an indication that neither of the deceased intended orally to create an express trust. The notes similarly indicate that no declaration of oral trust was intended. There is no evidence that the Gates couple intended to have any of their oral statements constitute an effective trust. We address below whether a constructive trust arose from some of these statements, but no express trust did so.

¶ 11. Dear and Causey also claim that the draft trust agreement itself, not signed by the Gates couple before their deaths, created an express trust. As already indicated, an express trust must be in writing if it involves real property. Chichester v. Chichester, 209 Miss. 628, 630, 48 So.2d 123, 124 (1950). The trial court was presented with a document prepared by an attorney which was a writing. An express trust also must be signed. Triplett v. Bridgforth, 205 Miss. 328, 349, 38 So.2d 756, 762 (1949). The trust document was not signed. The trust document was prepared on November 18, 1997, over a month after the car wreck that took the lives of Mr. and Mrs. Gates.

¶ 12. A person’s initial handwritten explanation of her desires for a will or a trust, no matter how clearly and conclusively expressed, do not take on the character of the final executed document should the person die or become incapacitated prior to completion of the document. There are formalities for the execution of either document, which bring to the attention of the person the significance of the interests being created. Though either kind of document often may after execution be amended, until such amendment, the original terms remain in effect. On the other hand, until execution, the thoughts and written notes and drafts remain merely possibilities, subject to alteration or total abandonment by the creator of the interests.

2. Implied Trust

¶ 13. In the alternative, we examine whether an implied trust was created. Both constructive and resulting trusts are concepts of equity. A person claiming that either type of trust exists has the burden of proving the elements of those trusts by clear and convincing evidence. Allgood v. Allgood, 473 So.2d 416, 421 (Miss.1985).

¶ 14. A constructive trust arises in order to prevent unjust enrichment by a person gaining property which rightfully belongs to someone else. McNeil v. Hester, 753 So.2d 1057, 1064 (Miss.2000). The attorney who prepared the trust document testified that she had no knowledge that either Armine or C.V. Gates had any indebtedness to the plaintiffs. She knew of no fraud practiced by the couple against those seeking to impose the trust. She was not aware of any unconscionable conduct by them towards the plaintiffs.

¶ 15. The plaintiffs, Causey and Dear, had no contrary evidence. They testified that Mr. and Mrs. Gates did not owe them any money, did not benefit financially at their expense, and were not holding any property that was rightfully owned by Causey and Dear. Dear testified that he had changed his financial position in reliance on an oral promise made by Mr. Gates regarding a trust, a promise that no one else heard. An examination of Dear’s tax returns did not support this assertion.

¶ 16. There was no clear and convincing evidence of a constructive trust that should be imposed on the property that was in the estate.

¶ 17. In the alternative, a resulting trust arises in a transaction when one person is granted a legal title but is required to hold this title for the benefit of another.

A resulting trust arises from the acts of the parties, or may be deducible from the nature of the transaction, although not expressed by the words of the parties. While a constructive trust is designed to prevent fraud, overreaching or the like, by which one person has obtained legal title to property rightfully belonging to another, a resulting trust is “designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.”

Robert E. Williford, Trusts, in 8 Encyclopedia of Mississippi Law § 73:2 (Jackson & Miller 2001), at 422 (footnotes omitted). The trustee and beneficiary of a resulting trust must have mutually agreed to the manner in which title to property was to be held and subsequently an inequity occurs when the trustee is unwilling to fulfill the original agreement. Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss.Ct.App.1998). Here, there is no proof whatsoever of that.

S. Default Judgments

¶ 18. Dear and Causey argue that the trial court erred in setting aside default judgments against some defendants who failed to file responsive pleadings in a timely manner. Three of the approximately thirty Gates heirs did not timely file answers. Whether a default judgment is set aside is left to the discretion of the trial court. King v. Sigrest, 641 So.2d 1158, 1162 (Miss.1994). Dear and Causey suffered no prejudice from the exercise of the chancellor’s discretion to set aside the default. There was no valid trust. “Prejudice” does not include the loss of rights that were obtainable only by default.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF SIMPSON COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.

KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: THOMAS, J.,

text:
    Pheliphae COLEMAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-01357-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.
    Raymond L. Wong, Cleveland, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before BRIDGES, P.J., THOMAS and IRVING, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Pheliphae Coleman was convicted in the Bolivar County Circuit Court of deliberate design murder of his girlfriend, Natasha Hampton, and sentenced to a term of life imprisonment. He appeals asserting two errors: the State failed to prove him guilty beyond a reasonable doubt, and the circuit court erred in denying his motion for a judgment notwithstanding the verdict (JNOV). Finding no error, we affirm.

FACTS

¶ 2. Coleman and Hampton lived together in an apartment in Cleveland, Mississippi. Jo Atkins lived in the same apartment complex as did Coleman and Hampton. Atkins testified that on the evening of May 26, 2002, he was standing in a parking lot, across the street from the building in which Coleman and Hampton resided, having a conversation with his niece. Atkins heard two gunshots followed by the sound of a door shutting from the direction of the building. He told his niece that he was going to investigate, and as he started across the street, he saw Coleman come from behind the building, running along the building’s side. Atkins asked Coleman what happened. Coleman told him that his girlfriend had been shot. Coleman then turned and ran away, back in the direction from which he had come.

¶ 3. Atkins entered the building by its front door. He again encountered Coleman in a central hallway. The two men entered Coleman and Hampton’s apartment together and found Hampton lying on the floor with a gunshot wound to the head. Atkins asked Coleman who shot the woman, but Coleman did not answer. Atkins testified that he saw Coleman pick up a gun shell casing from the floor, and Atkins asked Coleman why he was removing evidence, but Coleman did not answer him and left the apartment. Atkins also testified that he observed the imprint of a handgun in the back pocket of Coleman’s pants.

¶ 4. Maralyn Lloyd lived in the same apartment complex as Coleman and Hampton. She testified that she had been outside her apartment taking out the trash, when Atkins told her a woman had been shot and to call the police. She also testified that Coleman left the scene at the same time as the Bolivar County Sheriffs Department arrived at the scene, and she also testified that she observed the outline of a handgun in Coleman’s back pants’ pocket. Coleman was arrested the next day.

ANALYSIS

¶ 5. As both assignments of error address the single issue of sufficiency of evidence, they will be addressed together. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” McClain, 625 So.2d at 778. This occurred when the lower court denied the motion for JNOV.

¶ 6. In this case, no direct evidence linked Coleman to the murder, and Coleman contended that he merely happened upon his girlfriend after she had been fatally shot by herself or some unknown person. The test to be applied in considering the sufficiency of the proof based on circumstantial evidence is “whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged.” Shields v. State, 702 So.2d 380, 382 (Miss.1997) (citing Deloach v. State, 658 So.2d 875, 876 (Miss.1995)). “Circumstantial evidence need not exclude every ‘possible doubt,’ but only every other ‘reasonable’ hypothesis of innocence.” Neal v. State, 805 So.2d 520(¶20) (Miss.2002) (quoting Tolbert v. State, 407 So.2d 815, 820 (Miss.1981)). Dr. Steven Hayne performed an autopsy, and his testimony rebutted the contention of suicide. He testified that Hampton died of a small caliber gunshot wound, and that the gun was at least a foot away from her head when it was fired. Further, Hampton was right-handed, and the wound was to the left side of her head. So, it was unlikely that she would attempt suicide by holding a handgun in her less dominant hand and firing the gun from a foot away. The testimony of two witnesses that Coleman’s pants pocket showed the outline of a handgun on the evening of the shooting, his suspicious behavior in removing a shell casing, and his refusal to answer the question of a bystander as to who shot Hampton, as well as his leaving the scene upon the appearance of law enforcement, created an inference of Coleman’s guilt. Additionally, Atkins’ testimony of how he initially encountered Coleman could be interpreted as showing Coleman attempted to flee the scene even before the body was discovered. We find the contentions of suicide and/or innocent happenstance were not reasonable in light of the evidence introduced at trial. There is no merit to this assignment of error.

¶ 7. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    Sidney P. BOTELER, Appellant, v. STATE FARM CASUALTY INSURANCE COMPANY, Appellee.
    No. 2003-CA-00687-COA.
    Court of Appeals of Mississippi.
    June 29, 2004.

      Jay Max Kilpatrick, Jackson, attorney for appellant.
    Roeehelle Ryann Morgan, Tupelo, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Sidney P. Boteler filed suit in Rankin County Circuit Court against State Farm Casualty Insurance Company for breach of contract. The court granted a motion for summary judgment in favor of State Farm and entered an order of dismissal. Boteler appeals, arguing that there is a genuine issue of material fact. We find that there is not and affirm.

¶2. Sidney Boteler had a policy with State Farm that insured his Rankin County residence. In August 1998, after his foundation shifted and damage to the interior occurred, Boteler discovered that a pipe beneath his house was leaking water. He sent a claim to his insurance agent.

¶ 3. State Farm hired GeoScience Engineers to investigate the damage. GeoScience found that the structural damage had a direct correlation with the unpredictable shrinking and swelling movements of clay. It was also found that there would have been increased moisture in the soil from a leak in plumbing. The policy contained an exclusion for damages caused by “earth movements.” State Farm concluded that this exclusion applied to the damages. Bo-teler filed suit. The circuit court granted summary judgment in favor of State Farm. Boteler has appealed.

DISCUSSION

1. Genuine issue of material fact

¶ 4. This case has simple facts, but that does mean that there are no disputed material facts. To examine for such a dispute, we must compare the possible explanations for the damage to the Boteler home with the language of the insurance policy.

¶ 5. The foundation of Boteler’s home shifted. A broken pipe that was leaking water when the damage was discovered may have been the cause of the shifting, or the damage to the pipe may have been the result of shifting that arose from other causes. State Farm argues that the relevant policy provisions on exclusions are the following:

1. We do not insure for any loss to the property described in Coverage A which consists of, or is directly and immediately caused by, one or more of the perils listed in items a. through m. below, regardless of whether the .loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
1. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings.
2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
b. Earth Movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not.

¶ 6. The earth movement exclusion applies to damage arising from natural or external forces. State Farm’s expert, GeoScience, determined the damage resulted from unpredictable shrinking and swelling of the clay lying under the home. Boteler argues that there were other, equally plausible causes that could not be resolved on summary judgment. That may be, but the “earth movement” exclusion in Section 2 makes the cause of the movement irrelevant: “We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss....”

¶ 7. Despite the clear language, Boteler argues that a Supreme Court precedent that permitted recovery for earth movement “addressed the precise issue” before us, on “facts strikingly similar to the facts of the present case.” Appellant’s Brief, at 8, citing New Hampshire Ins. Co. v. Robertson, 352 So.2d 1307 (Miss.1977). In Robertson, a homeowner suffered damages to the home’s foundation when a pipe ruptured. The Robertson policy had this “earth movement” exclusion:

THIS COVERAGE GROUP DOES NOT INSURE AGAINST LOSS (a) by wear and tear, deterioration, rust, mold, wet or dry rot, contamination, smog, smoke from agricultural smudging or industrial operations, mechanical breakdown; settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; ... (b) caused by, resulting from, contributed to or aggravated by earthquake, volcanic eruption, landslide, or any other earth movement....

Robertson, 352 So.2d at 1309.

¶ 8. Since the earth movement exclusion was part of a provision that addressed earthquakes, volcanic eruption, and landslides, the court found that the only “earth movement” damages that were excluded were those resulting from natural forces. Damage from a water leak would not be excluded. Id. at 1310. Whether the exclusion was found to be inapplicable or simply ambiguous, the policy was construed in favor of the homeowner and coverage for damage that resulted from a leaking pipe was provided. Id. at 1311.

¶ 9. With respect for the best efforts of Boteler’s counsel, we conclude that the policy language in the case we resolve today and that in the 1977 Robertson appeal are strikingly dissimilar. Ambiguities in insurance contracts are read to favor the insured, but that principle does not permit the creation of ambiguity where there is none.

¶ 10. Homeowner policies traditionally exclude certain specific categories of events that lead to damage to property. See Jeffrey Jackson, Insurance, in 5 Enoy. of Miss. Law § 40:106 (Jeffrey Jackson & Mary Miller eds.2001). The State Farm policy purchased by Boteler excluded all damages as a result of earth movement. The same policy language was interpreted by United States District Judge William Barbour. He reached the same conclusion as have we. Rhoden v. State Farm Fire and Cas. Ins. Co., 32 F.Supp.2d 907, 913 (S.D.Miss.1998). Boteler’s counsel acknowledges that result but argues that the state Supreme Court’s Robertson decision controls. A federal court interpretation of Mississippi law is simply persuasive and is not binding on the state courts. Even so, we find Rhoden to be consistent with our analysis of the policy and to be persuasive about the inapplicability of the Robertson outcome.

¶ 11. In Rhoden, damage was caused to a home as a result of earth movement and the homeowners filed suit against the insurance company seeking compensation for their damages. Rhoden, 32 F.Supp.2d at 909. Though the homeowners relied on Robertson as does Boteler here, the court concluded that Rhoden’s policy contained a clause that was not present in Robertson. Id. The qualifying clause made it clear that the insurance company would not insure for damages resulting from earth movement, whether the movement was the result of natural causes — the limit of the exclusion in Robertson — or from any other causes. Id. at 913.

¶ 12. An insurance contract is to be interpreted as are other contracts, consistent with a reasonable understanding of the terms. Robertson analyzed a specific contract provision relating to earth movements. That precedent does not then become a barrier to exclusion of damages from earth movements if a different contract uses different language that adequately creates the exclusion. Unambiguous language of exclusion was used by State Farm in the present case. The circuit judge found that there was no liability for damages regardless of whether nature-caused or human-source earth shifting was the reason for the damage. We agree. Summary judgment was proper.

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

KING, C.J., BRIDGES, P.J., THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. LEE, J., NOT PARTICIPATING.