author: SOUTHWICK, J„ MYERS, J.,

text:
    Patrick LIPPINCOTT, Appellant, v. MISSISSIPPI BUREAU OF NARCOTICS, Appellee.
    No. 2001-CA-01702-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied July 22, 2003.

      Jim Waide, Tupelo, attorney for appellant.
    Katherine S. Kerby, Columbus, attorney for appellee.
   SOUTHWICK, J„

for the court.

¶ 1. Patrick Lippincott brought suit against the Mississippi Bureau of Narcotics for injuries suffered while assisting in an undercover drug buy. Summary judgment was granted to the Bureau. On appeal, Lippincott argues that disputes of material fact remain on his claims. We affirm.

FACTS

¶ 2. In furtherance of undercover operations of the Mississippi Bureau of Narcotics, Patrick Lippincott purchased narcotics from street dealers and then assisted in resulting prosecutions. Before becoming so engaged, Lippincott and the Bureau entered into a written agreement.

¶ B. On March 16, 1999, Lippincott was accompanied by Agent Devon Younger in order to purchase drugs. During the course of one such buy, the dealer displayed a firearm. Agent Younger produced his weapon and the two exchanged shots. Lippincott, caught in the crossfire, was wounded in the upper left arm. He suffered nerve damage.

¶ 4. Lippincott filed suit against the Bureau on March 7, 2000, alleging a breach of contract and negligence. Specifically, he claimed that the Bureau was negligent in placing a poorly trained agent in the vehicle with him, who negligently alerted the neighborhood to the police presence, and who thereby placed him in unreasonable danger. This was alleged to have been a breach of the Bureau’s duty to provide a safe work environment. The Bureau’s motion for summary judgment was granted. The trial court found no contract term which had been breached, and the Bureau was shielded from liability by the discretionary function exemption of the Mississippi Tort Claims Act.

DISCUSSION

1. Contract claim

¶ 5. Lippincott argues that his written agreement with the Bureau contained two implied clauses: (1) to act pursuant to the implied duty of good faith and fair dealing; and (2) to provide a safe work environment. He contends that the Bureau’s negligence breached these implied terms. That, in turn, was a breach of the contract itself. The dissent speaks of an issue of fact of whether an oral contract existed. We do not find the pleadings, briefs or record present that issue. Instead, the matter raised for resolution concerns implied terms in a written contract.

¶ 6. On appeal, neither party disputes that a written agreement exists. There is a dispute about the effect of the agreement. The agreement itself states that only written terms between the parties are enforceable except for Lippincott’s right to receive payments. Central to this issue is the question of whether any implied terms to this apparently complete agreement exist.

¶7. Mississippi statutorily implies the duty of good faith and fair dealing into contracts affected by the Uniform Commercial Code. Miss.Code Ann. § 75-1-203 (Rev.2002). Certain other kinds of contracts have been found to have such a covenant, such as insurance contracts. Hartford Accident and Indem. Co. v. Foster, 528 So.2d 255, 281 (Miss.1988). Occasionally it has been stated that all contracts contain the covenant. UHS-Qualicare v. Gulf Coast Community Hospital 525 So.2d 746, 757 n. 8 (Miss.1987). The Supreme Court has receded from that view, though. For example, this implied duty has been said not to apply to employment contracts. Hartle v. Packard Electric, 626 So.2d 106, 110 (Miss.1993). In Hartle, the court may only have been addressing the question of whether an implied duty was relevant to wrongful discharge. To require good faith in the discharge of an at-will employee would essentially repeal the at-will doctrine. An explanation of that problem was later made by the Supreme Court.

There are numerous Mississippi contract cases that state that all contracts contain an implied duty of good faith and fair dealing, but this Court has never recognized a cause of action based on such a duty arising from an employment at-will relationship. This Court has specifically held that at-will employment relationships are not governed by a covenant of good faith and fair dealing which gives rise to a cause of action for wrongful termination.

Young v. North Mississippi Medical Center, 788 So.2d 661, 663 (Miss.2001).

¶ 8. We do not further examine Hartle or whether Lippincott was an employee or an independent contractor. That is because even presuming a good faith duty is applicable to the Lippincott-Bureau agreement, we cannot find that the duty was breached. “The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). Bad faith, in turn, requires a showing of more than bad judgment or negligence; rather, “bad faith” implies some conscious wrongdoing “because of dishonest purpose or moral obliquity.” Bailey v. Bailey, 724 So.2d 335, 338 (Miss.1998). Where Lippin-cott fails on this claim is in the absence of any evidence of bad faith.

¶ 9. Each factual allegation made by Lippincott to support his claim of breach of contract amounts to mere negligence. He does not claim the Bureau acted with “dishonest purpose or moral obliquity,” or any variation thereof. Rather, he claims the agency made a series of bad choices. This is insufficient on its face to constitute a breach of an implied covenant of good faith and fair dealing.

¶ 10. In addition, we imply into contracts only those terms as may be expected to fulfill the parties’ reasonable expectations. UHS-Qualicare, 525 So.2d at 755. Lippincott states repeatedly that the display of weapons during drug buys was common and even noted that acting as a confidential informant was work which routinely placed him in mortal danger. Having acknowledged the danger of the work that he undertook to perform, Lippincott’s claim that he had a reasonable expectation of a safe work environment is untenable. Such an environment cannot be made safe. It is true that Lippincott’s arguments could be recast as being that this workplace was more dangerous than it should have been. Yet that just places us back under an argument that the Bureau was negligent. That still does not show a violation of a good faith obligation.

¶ 11. Finally, each instance of negligence cited by Lippincott is a tort. Indeed, the claim of breach of the covenant of good faith itself asserts a tort, one flowing from tortious breach of contract. Braidfoot v. William Carey College, 793 So.2d 642, 651 (Miss.Ct.App.2000). Without the requisite showing of some form of bad faith, the torts Lippincott alleges cannot violate the implied- covenant. Their consideration properly belongs under the tort analysis, to which we now turn.

2. Tort claim

¶ 12. The Mississippi Tort Claims Act is a limited waiver of governmental immunity from civil tort suits. Miss.Code Ann. § 11^46-5(1) (Rev.2002). Partial immunity is retained, such as for governmental employees who are performing a discretionary function. Miss.Code Ann. § 11-46—9(d) (Rev.2002). The Supreme Court has not allowed “discretionary function” to override a different and tautological exemption that no liability for negligence exists for the acts “of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation-” Miss.Code Ann. § 11-46-9(b). That would mean that the immunity to a negligence suit provided under section ll-46-9(b) would apply only when there is no negligence, i.e., when “ordinary care” is exercised. See Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000); Robert F. Walker, Cmt., “Mississippi Torts Claims Act: Is Discretionary Immunity Useless?,” 71 Miss. L.J. 695, 704-10 (2001). It is not necessary to resolve these issues to determine the outcome of this case.

¶ 13. The trial court’s reliance on the discretionary function exemption was understandable. It was the only one argued at the hearing on the motion for summary judgment. It was not, however, the only one advanced in the pleadings. The Bureau also raised this exemption:

A governmental entity and its employees ... shall not be liable for any claim 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 the injury occurred.

Miss.Code Ann. § 11 — 46—9(c) (Rev.2002). Reckless disregard has been defined under this exemption as willful or wanton conduct, i.e., a wrongful act that is knowing and intentional. Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999). This is a much higher bar for the plaintiff to meet than mere negligence.

¶ 14. Having a dedicated exemption with a higher standard protects law enforcement from lawsuits which arise out of the performance of their duties. Maldonado v. Kelly, 768 So.2d 906, 909 (Miss.2000). Law enforcement and firefighters occupy important and unusual positions in the universe of state actors. Because they are far more likely to face dangerous situations, they are also far more likely to face claims of liability. Id. Public policy as expressed in the immunity provision indicates the legislature’s decision that such personnel are immune from negligence actions. They are to be held civilly accountable only for those acts amounting to recklessness as has been defined specifically under this exemption. Id. A legislative choice has been made that law enforcement officers need not prove that they first cooly considered all areas of possible negligence before responding. That this might cause more harm than it prevented was a possible conclusion.

¶ 15. Since a special standard exists for law enforcement, we believe it is the proper standard to be applied in this case under our de novo review. If the reckless disregard standard is not applied to tort claims against law enforcement officers, then it becomes meaningless.

¶ 16. Taking as true all of Lippin-eott’s assertions of negligence, it is apparent that he cannot establish that the Bureau acted with reckless disregard for his safety. As with the claim of breach of the duty of good faith, he cannot prove knowingly or intentionally wrongful acts. All he is able to show is that the Bureau and its agents made a series of challengeable choices, from the level of training before sending an officer on a drug buy, to the directions given that officer, and to the care in using a weapon at this buy. Bad judgment is insufficient for liability. Lip-pincott has offered no evidence to meet the evidentiary burden of the reckless disregard standard.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY GRANTING SUMMARY JUDGMENT TO THE MISSISSIPPI BUREAU OF NARCOTICS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., IRVING AND GRIFFIS, JJ., CONCUR. MYERS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., BRIDGES AND THOMAS, JJ. LEE AND CHANDLER, JJ., NOT PARTICIPATING.

MYERS, J.,

Dissenting.

¶ 18. I do not think that the facts presented by the majority provide more than a summary of the events. It is for that reason that I provide a more in-depth recitation of the facts.

¶ 19. Lippincott was an experienced cooperating individual (Cl) who had made over forty buys for the MBN, most if not all by himself. As a Cl, Lippincott signed an agreement with the MBN. The agreement outlined the rules that Lippincott had to follow while working with the MBN. Lippincott also signed an agreement to allow the MBN to wire him and tape conversations. Lippincott alleges that he agreed to make the drug buys for the MBN in exchange for $100 for each buy and that his pending drug charges would be “taken care of’ by the MBN.

¶ 20. On March 16, 1999, Lippincott was instructed to make a buy. The MBN assigned Agent Devon Younger to accompany Lippincott. Agent Younger was a recent law enforcement training academy graduate. Agent Younger had never been involved in a real life undercover situation. He was to go with Lippincott and learn from Lippincott how actual undercover drug buys were supposed to be handled.

¶ 21. Lippincott and Agent Younger first tried to buy drugs from one dealer. Someone called out, “Hey, that’s the police,” and the dealer snatched the drugs out of Lippincott’s hand and ran off before the transaction was complete. Lippincott and Agent Younger left the area and met with the other MBN agents.

¶ 22. Even though the earlier attempt to purchase drugs had failed, Lippincott and Agent Younger attempted to make another drug buy. This was done even though some of the surveillance equipment was malfunctioning. The two proceeded back to the same community where the earlier attempted buy had occurred. Lip-pincott alleges he instructed the agent that this particular drug dealer was apt to display a firearm when encountering a new buyer and that Agent Younger should not panic. He also alleges that Agent Younger instructed Lippincott to park the truck in which they were riding in a manner that was facing out of the driveway and leave the truck running. Lippincott questioned the instruction because he believed it would make them look suspicious.

¶ 23. The drug dealer was seated outside a house and called for Lippincott and Agent Younger to get out of the truck. Lippincott alleges Agent Younger instructed him to stay in the truck. The drug dealer approached the truck and began the transaction. The drug dealer then brandished his firearm. Agent Younger responded by pulling his firearm out of his holster. An exchange of gunfire erupted between the drug dealer, who was standing outside the driver’s side door, and Agent Younger, who was sitting in the truck’s passenger seat. During the exchange, Lippincott was shot in the arm. Agent Younger put the truck in drive and pressed the gas pedal causing the truck to speed away and run into a telephone pole guy wire before Lippincott could regain control of the truck. The two met with the other MBN agents and sought medical help.

¶ 24. An investigation determined that the MBN lacked sufficient evidence to conclude who shot Lippincott. The report also commended Agent Younger for his bravery and aggressive actions. Lippin-cott alleges that he suffered radial nerve damage to the wounded area.

ANALYSIS

¶25. Mississippi Rule of Civil Procedure 56(b) permits a defending party to seek a summary judgment in his favor as to any or all parts of the complaint filed against him. Summary judgment is appropriate only where there are no genuine issues of material fact; it is not a substitute for a trial of disputed fact issues. M.R.C.P. 56. A trial court is not permitted to try issues of fact on a Rule 56 motion. Rather, it may only decide whether there are issues to be tried. Id. Furthermore, this Court conducts a de novo review of summary judgments awarded by trial courts. Canizaro v. Mobile Comm. Corp. of Am., 655 So.2d 25, 28 (Miss.1995).

¶ 26. Consequently, summary judgment should be granted only where the pleadings, discovery materials, and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. M.R.C.P. 56. If the appellate court finds beyond any reasonable doubt that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law, it will affirm the trial court’s decision to grant summary judgment, otherwise reversal is the only recourse. Yowell v. James Harkins Builder, Inc., 645 So.2d 1340, 1343 (Miss.1994).

¶ 27. Moreover, once a motion for summary judgment is filed, the opposing party “must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial. This burden of rebuttal arises, however, only after the moving party has satisfied its burden of proving that no genuine issue of material fact exists....” Foster v. Noel, 715 So.2d 174, 180(¶ 35) (Miss.1998) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Russell v. Orr, 700 So.2d 619, 622(¶ 8) (Miss.1997). The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990).

1. THE LOWER COURT ERRED IN FINDING AN ABSENCE OF MATERIAL FACT DEMONSTRATING A CONTRACT BETWEEN LIPPINCOTT AND THE MBN; AND

2. THERE WERE ISSUES OF MATERIAL FACT AS TO WHETHER THE MBN BREACHED THE CONTRACT.

¶ 28. Because these two issues are so interconnected, I shall address the two as one. These issues are founded in a contract claim by Lippincott against the MBN. Lippincott argues that there was an issue of material fact as to if an oral contract existed and whether the contract was breached by the MBN when Agent Younger shot Lippincott.

¶ 29. For a contract to exist, there must be (1) two or more contracting parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) legal capacity to contract; (5) mutual assent; and (6) no legal prohibition against the contract formation. Hunt v. Coker, 741 So.2d 1011, 1015(¶ 9) (Miss.Ct.App.1999). In addition to the written agreement, Lippincott alleges that in exchange for making drug buys for the MBN, he would receive $100 and not face drug charges pending against him. It does not appear that the MBN ever denied these allegations.

¶ 30. The appellant argues that the trial court was not clear as to whether the summary judgment as to the contract claim was based upon the non-existence of a contract or the absence of a breach of contract. The majority opinion states that the trial court found no contract term which had been breached. In actuality, the trial court stated that “[t]he Court finds no contract or contract term existed between the parties which has been breached in any way by the defendant.” (emphasis added). The MBN argues, and the majority agrees, that the trial court properly found that the only contract was the written agreement between the MBN and Lippincott and that there was no breach of the agreement. I do not read that much from the trial court’s opinion.

¶ 81. The majority criticizes my analysis of the contract issue relating to the possibility of an oral contract. The majority states that the pleadings, briefs, and records do not present that issue. The appellant’s first issue in his brief deals with whether or not a contract existed and the appellee responded with a discussion of unwritten implied contracts. Because of the perceived ambiguity of the trial court’s order by counsel, I address the issue of whether an oral contract could be found to exist in addition to the written agreement. Oral Contract

¶ 32. There was an actual written agreement and according to the MBN, it read “[a]ny agreements with the MBN are null and void unless reduced to writing and signed by the district lieutenant.” The MBN contends that because of this language in the agreement signed by Lippin-cott, there are no oral contracts and since the specific sections of the agreement signed by Lippincott do not contain any provision dealing with what Lippincott is seeking, thus the summary judgment is proper. Further, the MBN argues that the agreement signed by Lippincott acknowledges that he is not an employee or agent of the State; therefore, no employee contractual relationship could exist.

¶ 33. After reviewing the written agreement, I discovered that the section quoted by the MBN actually reads “[ejxcept payments for services rendered, any agreements with the MBN are null and void unless reduced to writing and signed by the district lieutenant.” (emphasis added). The agreement also closes with a section that provides that if the Cl fails to meet the required conditions, “all written or oral agreements ” with the MBN are null and void, (emphasis added). Because of this, I think that a jury could have determined an oral contract existed in addition to the written agreement.

Written Contract

¶ 34. The majority focuses its attention on the written agreement and implied duties. The majority seems to think that this was a suit alleging a wrongful discharge. It spends much time dealing with the implied duty of good faith and fair dealing regarding at-will employment contracts. I agree with the case law cited by the majority and the principles set forth concerning at-will employment contracts. I do not think anyone on this Court would disagree with the fact that the supreme court has settled the rule that to inject an implied duty of good faith and fair dealing into an employment contract in order to give rise to a cause of action for wrongful termination would effectively destroy the at-will doctrine.

¶ 35. Unless Agent Younger was attempting to discharge Lippincott from MBN service when he discharged a bullet into Lippincott’s arm, I have to question the majority’s reasoning for discussing this legal principle. I think that the implied duties of good faith and fair dealing can exist in employment contracts if not related to wrongful termination.

¶ 36. The majority continues by presuming that even if the good faith duty is applicable to the agreement, there was no breach. I think that the majority is wrong in deciding whether or not a breach existed. I believe that this is a jury issue and the majority has allowed the power of the jury to be usurped.

¶ 37. The majority concludes its discussion of the contract issue by discussing the reasonable expectation of a safe work environment and how it is inapplicable in Lip-pincott’s case. The majority makes the statement that such an environment can not be made safe. Safe is a variable term. There are varying degrees of safe. While I do not think any environment can be entirely safe, an environment can be made as safe as possible. Some occupations carry with it a greater risk of danger. Agent Younger was warned of the drug dealer’s method of operation but failed to heed the cautionary words of Lippincott. Lippin-cott had successfully made over forty buys himself without major incident. Drug deals occur all the time without people being shot. One only needs to look at the number of drug cases that come before this Court to see that. Accordingly, I think this was a jury issue.

¶ 38. I think that there were questions for the jury to decide concerning contractual matters. Those questions are whether there was an oral contract and if there was, did the MBN breach the terms of the contract, and did the written agreement between Lippincott and the MBN give rise to any implied terms and were those terms breached. Accordingly, I would reverse the granting of summary judgment as to the contract issue.

3. THERE ARE ISSUES OF MATERIAL FACT AS TO LIABILITY UNDER THE MISSISSIPPI TORT CLAIMS ACT.

¶ 39. Lippincott’s next assertion of error deals with tort liability. The MBN charges that the trial court properly found that summary judgment was applicable. Tort immunity is granted to the State statutorily. This immunity from tort suits is waived in part.

Notwithstanding the immunity granted in Section 11-46-3 ... the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived ... provided, however, immunity of a governmental entity in any such case shall be waived only to the extent of the maximum amount of liability provided for in Section 11-46-15.

Miss.Code Ann. § 11-46-5(1) (Rev.2002).

¶ 40. The trial judge stated in his ruling of summary judgment that this case fell squarely within the discretionary exemption of Miss.Code Ann. § 11 — 46—9(l)(d). It reads:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

Miss.Code Ann. § 11 — 46—9(l)(d) (Rev. 2002).

¶ 41. To determine if an act was discretionary, this Court must first answer two questions: (1) whether the activity involved an element of choice or judgment, and if so, (2) whether the choice or judgment in supervision involved social, economic, or political policy alternatives. Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588(¶ 15) (Miss.2001). The trial court made no determination of this. I think that the summary judgment was erroneous because the determination of ordinary care rests squarely with a jury.

¶ 42. The majority states that the discretionary exemption was the one relied on by the trial judge as evidenced in his order because it was the only one argued at the hearing. I agree, but the majority relies on Miss.Code Ann. § 11^16-9(c) (Rev. 2002) to affirm the granting of the summary judgment. This exemption was raised in the pleadings of the MBN but not argued at the hearing nor evidenced as being relied on by the trial judge. The order lacks any reference to Miss.Code Ann. § ll-46-S(c) (Rev.2002).

¶ 43. I agree with the majority that this exemption should be discussed in our de novo review. I think that with the facts in this case, there was a genuine issue of material fact as to if the MBN agent acted with reckless disregard when shooting Lippincott, whether the MBN acted in reckless disregard when placing an inexperienced agent with Lippincott, and whether the MBN acted in reckless disregard when sending Lippincott and Younger, with malfunctioning equipment, back to the same community where an earlier attempted buy had failed. Accordingly, I would reverse the granting of summary judgment on the tort issue.

CONCLUSION

¶44. Although summary judgment is important in our legal system, I do not think it is applicable in this case. It is unfortunate that this situation occurred, but at least no one was killed in the melee. I think if an MBN agent, rather than a Cl had been shot, the issue would have gone before a jury, rather than summary judgment being granted in favor of the defendant.

KING, P.J., BRIDGES AND THOMAS, JJ., JOIN THIS SEPARATE OPINION.


source: Caselaw Access Project

author: LEE, J., SOUTHWICK, P.J.,

license: Public Domain

text:
    CITY OF WAYNESBORO, Mississippi, Appellant, v. Robert M. McMICHAEL and Pauline McMichael, Appellees.
    No. 2001-CA-01426-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied Aug. 12, 2003.
    Certiorari Denied Dec. 11, 2003.

      John Ray Gunn, Waynesboro, attorney for appellant.
    Terry L. Caves, Laurel, attorney for appellee.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In February 1996, Steve Morris and the City of Waynesboro (“City”) filed a joint application for a temporary restraining order and preliminary injunction, wherein the City sought to remove a fence, which appellees Robert and Pauline McMi-chael had erected, from across Katherine Street. Morris, who purchased the property in 1994, used the road to access his otherwise landlocked residence, and the McMichaels claimed a portion of the road was their private property. A Wayne County chancellor granted the application for temporary restraining order, and the parties signed an agreed order granting preliminary injunction, agreeing that the street would remain open until the matter of the injunction and issue of ownership of the property was tried on the merits.

¶ 2. In an amended application for preliminary injunction and complaint, the City asked the chancellor to issue a preliminary injunction concerning the following: (1) prohibiting the McMichaels from impeding, blocking, or interfering with the City’s ownership and use of Katherine Street; (2) cancellation of clouds on title to all lands depicted as Katherine Street on the plat of Hudson Park Subdivision;. (3) an adjudication that the City had legal title to the lands known as Katherine Street by virtue of statutory dedication by grant and/or common law dedication based on adverse possession and usage; (4) confirmation of title to Katherine Street in the City pursuant to § 11-17-29; and (5) as alternative relief, an adjudication that Morris was entitled to an easement over and across Katherine Street under the doctrine of equitable estoppel. In response, the McMichaels denied the allegations in the City’s complaint and filed a counterclaim asserting ownership of the portion of Katherine Street lying west of the fence erected by the McMichaels. In their counterclaim, the McMichaels requested the court to set the land line and to quiet and confirm title or, in the alternative, to confirm title due to abandonment and non-use by the City.

¶ 3. After a trial on the merits in October 2000, the chancellor established the boundary line and found that Morris would be landlocked per the boundary; thus, the chancellor treated the case as an inverse condemnation situation finding the City had “taken” a portion of the McMichaels’s property. The chancellor further awarded attorney’s fees, survey costs, expert witness fees and appraisal fees to the McMi-chaels. Thereafter,, the City filed a motion to alter and amend final judgment or, in the alternative, motion for reconsideration, which was denied. The McMichaels filed a motion to alter or amend final judgment, which the chancellor granted. In so doing, the chancellor vacated his prior judgment in which he had awarded $500 damages to the McMichaels and had found the City had inversely condemned the property, and he confirmed title to the land in the McMichaels.

¶4. On appeal, the City contests the chancellor’s finding that the City did not hold fee simple title to Katherine Street, and that the chancellor erred in awarding damages in the absence of any specific request for such fees and in contradiction of established statutes and caselaw. We review these issues and find no error in the chancellor’s decision; thus, we affirm.

DISCUSSION OF THE ISSUES

I. DID THE CHANCELLOR ERR IN RULING THAT THE CITY DID NOT HOLD FEE SIMPLE TITLE TO KATHERINE STREET?

¶ 5. In its first argument, the City argues the chancellor was clearly erroneous in adjudicating the boundary line, resulting in the McMichaels’s owning fee simple title to a portion of the disputed roadway known as Katherine Street. We look to our standard of review:

In boundary disputes, a determination of the legal boundary between properties is a question of fact for the chancellor. The same standard applies to questions involving the accuracy of a survey. The chancellor’s decision in this regard will not be disturbed on appeal unless we find that the chancellor committed manifest error.

Kleyle v. Mitchell, 736 So.2d 456(¶8) (Miss.Ct.App.1999) (citations omitted).

¶ 6. The City claims the chancellor misinterpreted the testimony and evidence in setting the boundary line, and in failing to recognize an old fence line as the proper boundary. Several surveys were conducted on the McMichaels’s property, all reaching different conclusions as to the proper boundary line. The City chooses to rely most heavily on the testimony of Spencer Hudson, the son of H.S. and Katherine Hudson who dedicated the land to the City in 1959. Spencer Hudson was a practicing but not licensed surveyor when the plat was dedicated to the City, and he used an old wire fence as the dividing line between the Hudson property and the McMichael property. The City also refers us to adjoining landowner Gene Barnett’s testimony. Barnett testified that when he purchased his property in 1962, a fence line on the east side of his property lined up with the north/south fence line bordering Katherine Street, and he recognized the fence as the boundary line. The McMichaels rely on the testimony of surveyor James Saul who established the section line between sections one and two, as described on his plat, and concluded that the McMichaels’s property was east of the section line.

¶ 7. The 1959 dedication included a metes and bounds description, which did not encompass the area west of the iron pipe the chancellor used to mark the boundary, and which also made no reference to the fence line the City alleges is the true boundary. The McMichaels argue that the plain language of the subdivision plat clearly shows where the boundary line is to be, without reference to any fence, and they cite to Biloxi Dev. Comm’n v. Frey, 401 So.2d 716 (Miss.1981), which states “[a] call for natural or artificial monuments will prevail over courses and distances in discrepancies in deeds.... ” Id. at 720. Here, no natural or artificial monuments, including the fence, are referenced in the deed; thus, the City’s argument that the fence is the proper boundary does not prevail over the specific metes and bounds language set forth in the deed itself.

¶ 8. The City also alternatively argues that they acquired title to Katherine Street via adverse possession. To prove entitlement to land via adverse possession, “the property must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.... The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met.” Ellison v. Meek, 820 So.2d 730(¶ 13) (Miss.Ct.App.2002).

¶ 9. During the trial, the City made a very feeble argument that it was entitled to the strip of land via adverse possession. The City claims that Spencer Hudson’s and Gene Barnett’s testimony are sufficient to support a finding of ownership by adverse possession, and the City cites Roebuck v. Massey, 741 So.2d 375 (Miss.Ct.App.1999), as authority.

¶ 10. In Roebuck, the evidence showed that the fence in question had existed since 1928, timber was cut on the land in the 1940s, cattle grazed on it in the 1950s, and the would-be adverse possessors exclusively used the land from 1928 through 1974. Id. at (¶ 42). Additionally, the chancellor reviewed the testimony of four different neighbors, all of whom testified that an old fence had been recognized as the boundary between adjoining property. Id. at (¶¶ 42-44). The chancellor recognized the rule that the existence of an old fence, including disputed land in with the land of the claimant, has previously been held to constitute strong evidence of the elements required to prove adverse possession, and he concluded that substantial evidence existed to show the appellees acquired the land through adverse possession, which this Court affirmed. Id.

¶ 11. The present case is distinguishable from Roebuck. In contrast to the numerous neighbors who testified in Roebuck and vast evidence of activity through the years, in the present case only one neighbor testified, and the evidence from all of the surveys was conflicting. Plus, the only evidence the City presented concerning activity on the property was that the City bushhogged the area once or twice during a thirty-five year period. The City made no improvements to the road nor erected any signs or repaired the fence, and any use by the City was sporadic at best, failing to meet the “continuous” or “exclusive” element of the adverse possession test. The chancellor was not provided clear and convincing evidence concerning the use of or activity on the land in question as would pass title through adverse possession. Thus, we find no merit to the adverse possession argument.

¶ 12. This decision concerned a preliminary injunction and fees and damages related thereto; thus, the chancellor did not order relief concerning Morris’s dilemma of accessing his property. With our decision to affirm the chancellor, however, Morris is left with at least three alternatives concerning access to his property: he can seek an easement from the McMicha-els to use the portion of the road which includes their property, he can purchase the McMichaels’s land which makes up part of the road, or, since the City assured Morris at the time he bought his lot that the access road was City property, he could urge the City to “take” the property by eminent domain since Morris is landlocked. Regardless of how Morris proceeds from this point, we find no clear error in the chancellor’s decision concerning the boundary line, and we affirm.

II. DID THE CHANCELLOR ERR IN AWARDING ATTORNEY’S FEES AND DAMAGES TO THE MCMICHA-ELS?

¶ 13. The City argues that since the preliminary injunction was an agreed order approved by the parties, the award of damages was improper, since the injunction was merely incidental to the greater dispute of the boundary line.

If the relief sought is for an injunction alone, attorneys fees for dissolution must be allowed. However, where the prayer for injunction is ancillary to the main relief sought and the entire case is heard finally, and not separately on any preliminary motion to dissolve, attorneys fees should not be allowed.... But, where the entire relief sought is controlled by the injunction, attorneys fees are allowable, even though there is no preliminary motion to dissolve the injunction and the injunction is not dissolved until the final hearing on the merits.

Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1270-71 (Miss.1987) (citations omitted). As we addressed in the first issue, although it may appear to be the case, ownership of the land was not the issue in this case. The deed was clear and specific with regard to the metes and bounds description, and the City raised what amounted to be a meritless argument of adverse possession. Rather, the issue in this case is the City’s acquiring the injunction to prevent the McMichaels from using what was clearly and unambiguously their own land, and the City’s intimidating the McMichaels to cover for the erroneous opinion it rendered to Morris concerning the City’s supposed ownership of the street. In light of Rice Researchers, we find attorney’s fees were altogether reasonably awarded to the McMichaels.

¶ 14. The City also argues that the McMichaels were required to submit a written request for damages. The City refers to the following authority in support of this claim:

Where the party claiming damages shall desire, upon the dissolution of an injunction, to have the same ascertained and decreed by the chancellor or the chancery court, he shall suggest in writing, on the hearing of the motion to dissolve the injunction, the nature and amount of the damages; and the chancellor or court shall hear evidence, if necessary, and assess the damages....

Miss.Code Ann. § 11-13-37 (Supp.2002). In the McMichaels’s counterclaim, they did request attorney’s fees specifically, the same as they did in their motion to dismiss and several other motions. As the chancellor noted, the City initiated this action to have the McMichaels remove the fence from their own property, and the McMi-chaels were forced to hire attorneys, hire surveyors and incur expenses, while doing nothing to violate the City’s rights; thus, the chancellor found the City was responsible for the expenses the McMichaels incurred, and we affirm. As the McMichaels point out, the injunction remained in force for six and a half years, during which time they were forced to allow their land to be used or “taken” by the City to benefit Morris. Rule 65(c) of the Mississippi Rules of Civil Procedure states in part:

No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney’s fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained....

M.R.C.P. 65(c) (emphasis added). We find that in light of the City’s actions in essentially restraining or “taking” the McMicha-els’s property without due compensation, the chancellor was well within his authority to award attorney’s fees as damages to the McMichaels. Thus, we affirm on this issue.

¶ 15. THE JUDGMENT OF THE WAYNE COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY PENALTIES AND INTEREST ARE ASSESSED AGAINST THE APPELLANT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

BRIDGES, THOMAS, MYERS AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., KING, P.J., IRVING AND CHANDLER, JJ.

SOUTHWICK, P.J.,

dissenting:

¶ 16. This case involves the effect of a 1959 subdivision dedication when the western boundary description may have been erroneous. The chancellor and the majority on appeal rely on evidence that the section line, which in the legal description marks the western boundary of the subdivision, has after a recent survey been found to lie about fifteen feet east of where it had long been thought to be. Another survey discussed in the record placed the section line still farther east. Since the City cannot show adverse possession since the dedication in 1959, the decision that is here affirmed alters the subdivision. Now the boundary is in the middle of a subdivision street since that was shown by a present-day survey to be the actual location of the section line.

¶ 17. With respect, I find that the chancellor made findings on the wrong legal question. We should not be trying to determine who has possessed this westernmost property in the subdivision since 1959. Instead, we should determine whether there is persuasive evidence that a particular fence line had long been considered before the subdivision was dedicated to be the dividing line between the owners of adjacent tracts. If that fence was recognized as the boundary, then once it is discovered that the fence is not actually on the section line, then it is the legal description that must be altered on paper, not the actual boundary on the ground. Thus, I respectfully dissent.

¶ 18. The central question in this case is the effect of a dedication of property when an improper description is used. There was evidence that the subdivision plat, when corrected for the mistake about the location of the section line, is properly laid out on the ground. In other words, correcting for what may be an historical misunderstanding of the location of the section line, the subdivision is correctly laid out but the lots and streets are shifted on the ground fifteen feet west from where the legal descriptions would have them be. Though our case focuses on one street and one owner, the question affects the whole subdivision. Perhaps the dedication is of what the subdivider thought was the physical property that he was dedicating. That would require adjusting the legal description of the whole subdivision by shifting in the direction that corrects for what the subdivider actually owned. This ownership would include what the subdivider owned as a result of prior adverse possession to the actual, though wrongly described, boundary; such a description correction might also excise an equivalent area on the opposite side of the subdivision, but that factual matter is not before us. Alternatively, the dedication might be only of the property found on the ground by a careful survey using the legal description of the subdivision. Any omissions would have to be supplied by adverse possession after the date of dedication.

¶ 19. I examine each of the following issues in reaching my conclusions about this appeal:

1. Did the subdivider Hudson hold record title up to the boundary of an old fence in 1959?
2. If not, had Hudson acquired title up to the old fence through adverse possession by 1959?
3. What property did the City acquire upon Hudson’s dedication of this subdivision?
4. Has the City acquired title up to the old fence through adverse possession to date?

1.Did Hudson hold record title to all property east of the old fence in 1959?

¶20. A present-day survey indicates that the true location of the section line is not at an old fence, but instead is about fifteen feet east of the fence. I do not question the validity of the survey nor that the legal descriptions in old deeds and on the subdivision plat itself used the section line as the boundary. Another survey acquired by the McMichaels referenced in the record would have placed the section fine still farther east, such that the entire width of the platted street was on their land. Yet no one has argued that this case is solely about resolving the vagaries of surveys using legal descriptions and then declaring current ownership. Land does not bend to such easy rules.

¶ 21. As to the first step, then, I agree that there was usable evidence from one survey accepted by the chancellor that the section line as located, and the subdivision as laid out, left part of the street in question west of the section line. But this is only the first step.

2.Did Hudson acquire title prior to 1959 by adverse possession?

¶ 22. I find no meaningful dispute in the record that Hudson and his predecessors thought they owned west to the section line, and that farther west was the property owned by the McMichaels and their predecessors. The City offered three significant pieces of evidence to suggest that an old fence was thought to be on that section line and therefore to mark the property boundary:

1. Spencer Hudson, son of the grantor and surveyor of the Hudson Park plat, testified that his family claimed all lands east of a fence that had been in existence since before Hudson Lane was created in 1943. He was convinced the old fence was the section line. Even if he was in error on where a proper survey would place the section line, his testimony on where owners thought it was is not undermined by that.

2. The Hudsons granted Mississippi Power Company a fifty foot utility easement in 1959, the centerline being twenty-five feet east of the corner of their property, running north parallel to the section fine. The multiple surveys performed all substantially agree that a power pole in that location is approximately twenty-five feet from the old fence. That suggests that the fence was the erroneously recognized section line in 1959.

3. Gene Barnett is a resident south of Hudson Lane, which is the southern boundary of Hudson Park subdivision, and west of the disputed boundary. He bought his land in 1962. Barnett testified that the old fence line has been recognized as the property dividing line.

¶ 28. I find no contrary evidence regarding the recognized boundary prior to 1959. The recent surveys have established the section line on the ground as being east of the old fence and either in the middle of the platted road or even crossing the western edge of the subdivision lots.

¶ 24. There was some evidence that the owners to the west, the McMichaels, have claimed the land up to an iron pipe that has been placed east of the old fence. Some witnesses who lived in the community were aware of the McMichael claim. But I find no evidence that the claim arose until after the subdivision was dedicated. What slight evidence there was on the date that the claim started was that McMicha-el’s grandfather believed the iron pipe was set by a surveyor whose work was performed in 1966, seven years after the Hudson Park subdivision plat was submitted.

¶ 25. Thus I find that the only evidence in the record is that the old fence was thought in 1959 to be the section line. The effect on the subdivision dedication when there is an error about the location of a property boundary will be discussed below. Prior to considering that issue, though, it should be understood that if in 1959 the property owners were in agreement that the fence line was their boundary, then it becomes the actual legal boundary if the owners had acquiesced in that location for the ten year period of adverse possession. Coastal States Ltd. v. City of Gulfport, 480 So.2d 1113, 1114 (Miss.1985). There is strong evidence that, prior to 1959, such acquiescence occurred. A discovery much later that the actual section line was elsewhere does not alter prior title.

¶ 26. Acquiescence is a form of adverse possession, which requires possession to be “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992). Other than the strong possibility that the boundary was recognized as being the fence, there was not much useful evidence on use. Hudson testified that the land was used for agricultural purposes, such as for a pea patch and for cattle grazing. McMichael also testified that he had never seen the Hudsons graze cattle on the property and that it was largely covered in brush and grass.

¶ 27. As to possession or acquiescence, I find substantial evidence that prior to 1959, the old fence was thought to be the boundary. Therefore, there was evidence on which the chancellor could rely that in 1959, the fence was the western boundary of the Hudson property. However, no findings by the chancellor as to that time period were made. Whether that is the proper time to be considering acquiescence is answered by the next issue.

3. What property was dedicated to the City in 1959?

¶ 28. This case is resolved by determining what property was dedicated to the City. Is it only the property that fits within the legal description as determined by a survey almost forty years later, or is it the property that the subdivider and adjacent landowners agreed was owned and which they would have thought was being dedicated, even if that understanding including an error about the location of a section line used as a boundary?

¶ 29. The dedication that occurred here was controlled by an earlier codification of this statute:

The governing authorities of municipalities may provide that any person desiring to subdivide a tract of land within the corporate limits, shall submit a map and plat of such subdivision, and a correct abstract of title of the land platted, to said governing authorities, to be approved by them before the same shall be filed for record in the land records of the county. Where the municipality has adopted an ordinance so providing, no such map or plat of any such subdivision shall be recorded by the chancery clerk unless same has been approved by said governing authorities. In all cases where a map or plat of the subdivision is submitted to the governing authorities of a municipality, and is by them approved, all streets, roads, alleys and other public ways set forth and shown on said map or plat shall be thereby dedicated to the public use, and shall not be used otherwise unless and until said map or plat is vacated in the manner provided by law, notwithstanding that said streets, roads,, alleys or other public ways have not been actually opened for the use of the public.

Miss.Code Ann. § 21-19-63 (Rev.2001) (emphasis added).

¶ 80. Certainly the dedication did not extend to lands not owned by the grantor. If streets were laid out and houses built on lots that the subdivider did not own, only adverse possession after such actions were taken could oust the prior owner. We are looking at a potentially different set of facts, namely, that due to prior possession and acquiescence, the subdivider may have owned the land between the fence and the section line as now surveyed. If Hudson did own that land west of the now-surveyed section line and east of the then-existing fence, and if the City received by the dedication the right to place a street on the land, the City’s rights were impervious to erosion through abandonment or disuse. Nettleton Church of Christ v. Conwill, 707 So.2d 1075, 1077 (Miss.1997). Thus, whatever property the City got in 1959 when it accepted the dedication remains the property that it may use for a street today.

¶ 31. Our case concerns a street that was not constructed until almost forty years after the dedication. What I find puts the legal issue in better focus is to examine the hypothetical situation of a description error discovered much sooner. If there was error in the description, it should not matter when the error is discovered insofar as deciding what actual land was dedicated.

¶ 32. The City could have constructed this street almost immediately after the 1959 dedication. Assuming no survey was done then and instead the street was built with the fence line considered to be the western boundary of the subdivision, the street would have straddled what the survey introduced in the present case indicated was the section line. If the street had remained in place with no dispute for over ten years, then possession would have removed the issue that we face. However, what would have occurred if five years after street construction a survey discovered the description error? Would the City have been a trespasser on the part of the street that extended west into the next section but was still within the land that Hudson and his neighbors thought was east of the section line? If it was shown that Hudson had, prior to filing the subdivision plat, owned the property up to the fence line because of prior possession, then the real choice in the litigation would have been whether Hudson or the City owned the property. Upon accepting proof of Hudson’s prior possession, a court would have determined that McMichael was not a contender for title.

¶ 33. As between the City and Hudson, probably principles of estoppel would have come into play. Yet putting that aside, I find that this would be the same situation that arises with some frequency between private landowners. If the evidence is accepted that in 1959 the landowners acquiesced to the fence line as being their boundary, making all legal descriptions that referred to the section line as intending to refer to the fence line, then any deed in which the parties were operating under that misapprehension would have been based on a mutual mistake. When the correct description of a tract’s boundary is misunderstood, a court of equity should reform the instrument and make it conform to the real agreement of the parties. Veterans Administration v. Bullock, 254 Miss. 562, 570, 180 So.2d 610, 614 (1965).

¶ 34. The legal description used to dedicate a subdivision should be subject to the same rules of reformation. The City would not be a traditional grantee. Yet when a city approves a subdivision, its acquisition of the “public ways” on the filed plat is sufficiently similar to the actions of a grantee that I would apply the principle. The City has argued that what Hudson and the community understood to be the boundary was the fence. Post-1959 actions by the City and private owners in the subdivision, including the City’s construction of other streets and the building of houses, must at times have relied on the mistaken belief of the location of the westernmost boundary.

¶ 35. In its application for a preliminary injunction to have the McMichaels stop interfering with the building of the street, the City argued that either the planned street lay entirely east of the section line, or else the City and its predecessors in title had acquired title by adverse possession. In its appeal brief, the City argued that the location of the section line is not the issue for determination, but “the location of the property division line on the ground by the parties and their predecessors in title” is what settles the rights of the parties. Without using the words, the City has been arguing a mutual mistake and that it actually received what Hudson thought he owned. A mutual mistake of fact must be proven beyond a reasonable doubt. APAC-Mississippi, Inc. v. JHN, Inc., 818 So.2d 1213, 1217 (Miss.Ct.App.2002) (reviewing conflicting precedents on standard of proof).

¶ 36. What was dedicated was what the Hudsons actually owned in 1959, which may take a correction of description today to reflect that ownership. Thus, the City has sought to focus the court on the time prior to 1959, when the subdivision was platted. I agree with that focus.

¶ 37. In my view, a City through a dedication receives all property lying within the platted subdivision street rights-of-way, subject to the rules of reformation for correcting the description if an error should later be discovered. I think there was evidence of such mutual mistake that, if accepted by the chancellor, entitled to the City to a reformation of the description on the plat.

¶ 38. Let me also state that if Hudson owned other contiguous property as a result of adverse possession, and if the failure to describe it in a plat was not the result of a mutual mistake of fact as to the proper description, then the dedication would not include that additional property. Stallings v. Bailey, 558 So.2d 858, 861 (Miss.1990). What was dedicated here was any property that Hudson thought he was dedicating but failed to include because of a mistake as to the description.

A Has the City acquired title to the old fence through adverse possession to date?

¶ 39. This is the issue analyzed by the majority on appeal. I find the majority’s conclusion that the City’s possession since 1959 would not have acquired title is convincing, but as already indicated, the issue does not appear relevant. The City did not have to show possession. It only had to show that the land dedicated for the subdivision has, from the beginning, extended to the old fence line that apparently was mistakenly believed in 1959 to be the true section line.

¶40. Insofar as the McMichaels reacquiring title by possession since 1959, that is not possible here for two reasons. First, adverse possession against a city is barred by the state constitution. Miss. Const. art. 4, § 104 (1890). If the City got it, the City kept it. Secondly, though the chancellor did not find meaningful possession by the City so as to gain it title had that been necessary, neither was there evidence of significant use by the McMi-chaels. At best, there was what has at times been referred to as “scrambling possession” of an infrequent and noncontinuous manner. Stallings, 558 So.2d at 861. When one owner acquires title by adverse possession, the former owner may certainly reacquire title if all the necessary elements then exist in reverse for a new ten year period. Cole v. Burleson, 375 So.2d 1046, 1049 (Miss.1979). I do not find any evidence that the McMichaels had actual or hostile, open, notorious, and visible possession under a claim of ownership, continuously, exclusively, and peacefully, and without interruption for a period of ten years after 1959.

¶41. There was evidence presented that would support that the Hudsons had acquired before 1959 title to all land in this location east of the old fence. There was also evidence that the Hudsons and the community believed that the section line was both the property boundary and was marked by the fence. I would remand the case to the fact-finder to make the controlling determinations.

MCMILLIN, C.J., KING, P.J., IRVING AND CHANDLER, JJ„ JOIN THIS SEPARATE WRITTEN OPINION.

      . Morris and the City of Waynesboro were co-plaintiffs throughout the course of the proceedings. However, as recited in the chancellor’s oral opinion which was incorporated into the final judgment by reference, Morris relied upon representations made by the attorney for the City; thus, Morris was not held liable for any costs, fees or expenses, which the chancellor ordered be entirely borne by the City.

      . See Roy v. Kayser, 501 So.2d 1110, 1112 (Miss.1987), for a listing of cases dating back to 1890 where the supreme court has found that the presence of a fence helped to demonstrate title to land by adverse possession.


author: CHANDLER, J.,

text:
    Daniel L. DAVIS, Appellant, v. MISSISSIPPI STATE DEPARTMENT OF HEALTH, Appellee.
    No. 2001-SA-01914-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Rehearing Denied July 15, 2003.

      Darold L. Rutland, attorney for appellant.
    Romaine Levean Richards, Jackson, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Daniel Davis was terminated by the Mississippi State Department of Health (MSDH). The Employee Appeals Board (EAB) reversed and reinstated Davis. The Circuit Court of the First Judicial District of Hinds County reversed the decision of the EAB and reinstated Davis’ termination. Davis appeals, arguing that the decision of the circuit court was not supported by substantial evidence, that he was denied due process by MSDH, and that he is entitled to attorney’s fees and costs under 42 U.S.C.A. § 1988.

¶ 2. Finding error, we reverse and render judgment reinstating the judgment of the EAB.

FACTS

¶ 3. Davis was hired by MSDH in 1992. He worked for MSDH as a disease intervention specialist at the Five Points Clinic in the Jackson Medical Mall. The Five Points Clinic diagnosed and treated patients with sexually transmitted diseases. Davis’ duties included informing patients of their test results, counseling patients in order to prevent disease recurrence, and going into the field to locate and counsel patients’ sexual partners. Davis’ duties did not include physical examination of female patients.

¶ 4. On July 21, 1999, a sixteen-year-old female patient, K.J., called the clinic to report that she had been treated inappropriately by a staff member. K.J. came to the clinic and dictated a statement to Mary Jane Coleman, the division supervisor, and Grant Loftin, the clinic director. K.J. did not know the staff member’s name, but provided a physical description that indicated Davis.

¶ 5. The statement alleged the following. K.J. came to the clinic to receive the results of STD tests conducted the previous week. K.J. was referred to Davis, who escorted her into a small interview room. After informing K.J. she had tested positive for gonorrhea and chlamydia, Davis told K. J. to take off her shorts and panties so he could check her lymph glands for infection. She did so, and he felt along her bikini line. Then, he told her he needed to check for discharge, and he inserted his hand into her vagina, said everything was “O.K.,” and removed his hand. He said he needed to check for lumps and reinserted his hand. At this point, K.J. asked Davis why he was not wearing gloves. Davis told her that nothing was wrong with her, and she began dressing. Then, Davis grabbed K.J., hugged her tightly, and told her that she needed a man to take care of her instead of little boys. K.J. pushed Davis away, and he grabbed her breasts and told her that she must “know some stuff’ because of the size of her breasts. K.J. squeezed past Davis and out the door. As K.J. was walking home from the clinic, Davis drove up to her twice and made harassing comments. When K.J. arrived home, Davis stopped outside and began blowing his car horn.

¶ 6. On July 23, 1999, Davis received written notice that he had been placed on administrative leave with pay, pending an investigation of a charge of malfeasance. On September 7, 1999, he received a pre-termination notice stating that his termination was being considered based on K.J.’s statement. The notice also stated that investigation of the charge had revealed that, in 1992, a minor female patient had filed a criminal charge against Davis for simple assault, but that the charge had been dropped when Davis reimbursed the girl’s mother for the filing fee.

¶ 7. Davis provided his version of the events at a pre-termination hearing on September 23, 1999. Davis’ testimony alleged the following. Davis escorted K.J. to the interview room. K.J. was wearing an extremely short dress that revealed the “top of her panties” when she was sitting down. Davis recited the test results. K.J. stated that she had two sexual partners, a thirty-year-old and a nineteen-year-old. Davis told K.J. that she should refrain from sex or get a more mature man that would not give her any diseases. Then, Davis verbally admonished K.J., telling her that if he was her father, he would “whoop her butt” for dressing inappropriately. K.J. responded that Davis was not her father and could not tell her how to dress, and Davis repeated that if he was her father he would “whoop her butt.” K.J. left the room. Davis left the clinic to perform field work, and spotted K.J. walking down the street.

¶ 8. After the hearing, Davis received notice that he was terminated as of October 15, 1999. Davis appealed to the EAB and a bifurcated hearing was held before Hearing Officer William H. Smith, III. Davis presented character witnesses who opined that Davis would never do such a thing. Several coworkers testified that disease intervention specialists routinely tailored counseling techniques to the individual patient to discourage participation in at-risk behavior. Davis testified as to his version of the events, and stated that he admonished K.J. about her clothing and the maturity of her sexual partners in an effort to counsel K.J. K.J. testified, and adopted her statement as her version of events. Dr. Ginger Smith, K.J.’s personal friend and Youth Court counselor, testified that, in her opinion, K.J. was a habitual liar who could not be believed without corroborating evidence.

¶ 9. On September 11, 2000, the hearing officer entered an order reversing the termination. The order was affirmed by the EAB en banc. The MSDH applied for certiorari to the circuit court. The circuit court granted certiorari, reversed the decision of the EAB and reinstated the termination.

¶ 10. On appeal, Davis raises four assignments of error:

I. WHETHER THE EMPLOYEE APPEALS BOARD’S HEARING OFFICER’S DECISION AND THE BOARD’S EN BANC DECISION ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.
II. WHETHER THE APPELLANT WAS DENIED DUE PROCESS PRIOR TO HIS TERMINATION WHEN A PRE-TERMINATION CONFERENCE WAS NOT TIMELY CONDUCTED AND THUS VIOLATED THE MISSISSIPPI STATE PERSONNEL BOARD POLICY MANUAL, RULES AND REGULATIONS.
III. WHETHER APPELLANT IS ENTITLED TO ATTORNEY’S FEES AND COSTS PURSUANT TO 42 U.S.C.A. § § 1988 AND 1988.
IV. WHETHER THE HINDS COUNTY CIRCUIT COURT’S DECISION BELOW IS ARBITRARY AND CAPRICIOUS, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
LAW AND ANALYSIS
I. WHETHER THE EMPLOYEE APPEALS BOARD’S HEARING OFFICER’S DECISION AND THE BOARD’S EN BANC DECISION ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.
II. WHETHER THE HINDS COUNTY CIRCUIT COURT’S DECISION BELOW IS ARBITRARY AND CAPRICIOUS, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 11. These issues require our review of Davis’ termination and will be determined together. An employee governed by the Statewide Personnel System may not be dismissed except for inefficiency or other good cause shown. Miss.Code Ann. § 25-9-127(1) (Rev.1999). On hearing or appeal of a dismissal, an employee is required to furnish evidence that the reasons stated in the notice of dismissal are not true or are not sufficient grounds for the action taken. Id. An employee may appeal dismissal to the EAB. Miss Code Ann. § 25-9-131(1) (Rev.1999).

¶ 12. Though under Mississippi Code Annotated § 25-9-131(1), the EAB conducts hearings de novo, our supreme court has found that language from the State Personnel Board Rules limits the EAB’s de novo review. “Rule 20(b) mandates that the EAB shall not alter the action taken by the agency, if the agency has acted in accordance with the published rule and if the personnel action taken by the agency is allowed under the guidelines.” Johnson v. MDOC, 682 So.2d 367, 370 (Miss.1996). The EAB does not take it upon itself to make the employment decision, but must affirm the agency unless the employee meets the burden of proof to show that the agency’s action was “arbitrary, capricious, against the overwhelming weight of the evidence and merits the relief requested.” S.P.B. Rule 10.40.19 (B) (Rev.1999).

¶ 13. On review, the circuit court must affirm unless the EAB’s decision was:

(a) Not supported by any substantial evidence;
(b) Arbitrary and capricious; or
(c) In violation of some statutory or constitutional right of the employee.

Miss.Code Ann. § 25-9-132(2) (Rev.1999). This Court applies the same standard of review as the circuit court. State Tax Comm’n v. Vicksburg Terminal, Inc., 592 So.2d 959, 961 (Miss.1991).

¶ 14. We will reverse the circuit court if the EAB’s reversal of the termination was supported by substantial evidence and was not arbitrary and capricious. “Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991) (quoting State Oil & Gas Bd. v. Mississippi Min. & Roy. Own. Ass’n, 258 So.2d 767, 779 (Miss.1971)). “An administrative agency’s decision is arbitrary when it is not done according to reason and judgment, but depending on the will alone. An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Mississippi State Dept. of Health v. Natchez, 743 So.2d 973, 977 (¶ 13) (Miss.1999).

¶ 15. We review the decision of the hearing officer that was affirmed by the EAB. After four days of testimony, the hearing officer found that MSDH had acted arbitrarily and capriciously when it terminated Davis. The hearing officer found that the testimony of K.J. was “evasive and unconvincing,” and that K.J. was not a credible witness. Based on this conclusion, the hearing officer did not accept the facts alleged in KJ.’s statement. The hearing officer further found that MSDH insufficiently investigated the charge prior to its termination of Davis. At the hearing, the compliance officer in charge of the MSDH investigation testified that he never interviewed K.J. prior to the termination because he was unable to locate K.J. The hearing officer concluded that MSDH acted too hastily in terminating Davis, and that had MSDH reinterviewed K.J. prior to the termination decision, “a different result would have occurred.”

¶ 16. We find that the hearing officer’s conclusion was supported by substantial evidence. The hearing officer was confronted with two diametrically opposed versions of the incident, one presented by Davis and one presented by K.J., and there were no eyewitnesses to confirm either story. It was within the discretion of the hearing officer to evaluate the demean- or of the witnesses and to make a credibility determination. “[WJitness credibility is largely a matter for the hearing officer.” Wilburn v. Mississippi Highway Safety Patrol, 795 So.2d 575, 578 (¶ 10) (Miss.Ct.App.2001). K.J.’s statement was the basis for Davis’ termination. Once the hearing officer rejected K.J.’s statement, it was reasonable for him to infer that the reasons given for Davis’ termination were not true. The hearing officer’s conclusion was supported by his finding that MSDH’s failure to reinterview K.J. constituted insufficient agency fact-finding prior to the termination decision.

¶ 17. The hearing officer further found the 1992 charge insufficient to warrant termination because it was dismissed without a finding against Davis. As evidence of the charge, MSDH relied on a memorandum written by one of Davis’ coworkers. The eoworker wrote that Davis’ then supervisor personally investigated the 1992 charge and arranged to have the charge dismissed. At the hearing, MSDH stated that Davis’ termination was not due to the 1992 charge, rather, the charge was included in the pre-termination and termination notices to indicate the 1999 charge had been thoroughly investigated. The hearing officer’s decision that the evidence regarding the 1992 charge was insufficient to support dismissal was not arbitrary and capricious.

¶ 18. MSDH also argues that, even without KJ.’s statement, the EAB should have affirmed Davis’ dismissal based on his admitted statements to K.J., that she should “get a more mature man” and that if he was her father he would “whoop her butt” for dressing inappropriately. We are unable to consider this argument. State Personnel Board Rule 9.20.6(B) (Rev.1999) prescribes the process an agency must afford an employee regarding an adverse employment action:

The written notice presented to an employee prior to a conference shall list all of the reason(s) for the appointing authority’s consideration of the adverse action, and the written notice of the appointing authority’s final decision to take adverse action shall restate all of the reason(s) for the action. The reason(s) listed in these notices shall be specific by setting forth the particular group offense(s) violated and the charge(s) or ground(s) upon which the disciplinary action is predicated. The reason(s) listed in these notices shall be the only reason(s) to be addressed throughout the appeals process.

Id. (emphasis added).

¶ 19. Davis’ pre-termination notice and termination notice stated that the termination decision was based on KJ.’s statement and on thel992 charge. According to its published rules, MSDH must state all reasons for an adverse action in the pre-termination notice and the termination notice. Id. MSDH may not raise alternate theories supporting a termination decision during the appellate process. Id. We reverse the decision of the circuit court because the EAB’s reversal of Davis’ termination was supported by substantial evidence and was not arbitrary and capricious.

II. WHETHER THE APPELLANT WAS DENIED DUE PROCESS PRIOR TO HIS TERMINATION WHEN A PRE-TERMINATION CONFERENCE WAS NOT TIMELY CONDUCTED AND THUS VIOLATED THE MISSISSIPPI STATE PERSONNEL BOARD POLICY MANUAL, RULES AND REGULATIONS.

¶20. Davis argues he was denied due process regarding the conduct and timing of the pre-termination hearing. Davis argues he was denied due process at the pre-termination hearing because he was unable to defend himself within the meaning of Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Davis contends the hearing did not comport with the Loudermill requirements because he was not allowed to call witnesses and his attorney was not allowed to speak.

¶ 21. Loudermill requires that, prior to termination, a public employee must have an opportunity to present his side of the story. Id. at 546, 105 S.Ct. 1487. Davis had the opportunity to present his side of the story at the hearing, and he did so. This Court has found that due process does not require that a pre-termination hearing be “a full-blown formal adversarial proceeding.” MSDH v. Hogue, 801 So.2d 794, 797 (¶11) (Miss.2001). There is no authority to compel the presence of witnesses at a pre-termination hearing. This is because the employee has the right to a full adversarial proceeding before the EAB. Id. at (¶ 12). Further, the Mississippi Supreme Court recently stated that a de novo hearing before the EAB cures “any deficiencies that may have occurred in the lower levels of the grievance review process.” Harris v. Mississippi Department of Corrections, 881 So.2d 1105, 1108 (¶ 11) (Miss.2002). Davis had the opportunity to make arguments, put on witnesses, and cross-examine witnesses at the EAB hearing. This issue is without merit.

¶22. Davis also argues he was denied due process because the pre-termi-nation hearing was untimely. Davis contends that the written notice of July 23, 1999, resulted in his suspension with pay. Personnel Board Rule 9.20.6 states that “in extraordinary circumstances an employee may be suspended immediately with pay. Such employee must be given an opportunity for a hearing within twenty working days of the suspension.... ” Davis argues that he was denied due process because he was not afforded an opportunity for a hearing until September 23, 1999, over twenty days from the suspension.

¶23. MSDH contends that Davis was not suspended with pay and, therefore, there was no twenty day requirement. The MSDH argues that, in actuality, Davis was placed on administrative leave pursuant to Rule 7.22. 4(B). That rule adopts the language of Miss.Code Ann. § 25-3-92(2), which states, “ ‘administrative leave’ means discretionary leave with pay, other than personal leave or major medical leave.” Id. .

¶24. The written notice of July 23, 1999, stated,

[y]ou are hereby notified that effective immediately, you are placed on Administrative Leave with pay, pending further notice. Your employment, including your salary, and all rights as an employee of this agency will remain in effect during this period. The above action is needed pending the completion of a review by the agency into a charge of malfeasance....

¶ 25. According to the written notice, MSDH placed Davis on administrative leave. The Personnel Board Rules define administrative leave as discretionary leave, in other words, leave that the agency may grant at its discretion. S.P.B. Rule 7.22.4(B). Pursuant to Rule 9.20.6, MSDH could have chosen to suspend Davis with pay. However, MSDH acted within the scope of its rules by placing Davis on administrative leave pending investigation of the charge. Davis continued to receive full pay and benefits for the duration of the leave. MSDH was not required to afford Davis the opportunity for a hearing within twenty days. Davis was not denied due process.

III. WHETHER APPELLANT IS ENTITLED TO ATTORNEY’S FEES AND COSTS PURSUANT TO 42 U.S.C.A. §§ 1983 AND 1988.

¶ 26. Davis premises this argument on the conclusion that he was denied due process. We have found that Davis was not denied due process; therefore, we will not address the merits of this argument.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND RENDERED AND APPELLANT IS REINSTATED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.

      . The notice charged Davis under Mississippi State Personnel Board Policy Manual Rule 9.10(C)(11) (Rev.1999), under which the State may dismiss employees for "acts or conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency's duties to the public or to other state employees.” The charge is a Group III offense, the most serious level of offense provided by the Personnel Board Rules.


author: THOMAS, J.,

text:
    John Clayton FIELD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00307-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.
    Rehearing Denied July 15, 2003.
    John Clayton Field (pro se), attorney for appellant.
    Office of the Attorney General by: Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. John Clayton Field, pro se, appeals an order of the Circuit Court of Harrison County denying his motion to vacate guilty plea. Aggrieved, he asserts fifty assorted issues on appeal. Due to our disposition of the case, we need not list them or discuss them here. The chief question is instead as follows:

I. DID THE TRIAL COURT ERR IN DISMISSING FIELD’S MOTION AS PROCEDURALLY BARRED BY STATUTE AS A SUCCESSIVE MOTION?

Finding no error, we affirm.

FACTS

¶ 2. John Clayton Field was indicted on November 20, 1998, for the commission of sexual battery against two children under the age of fourteen and for gratification of lust against another child under the age of fourteen. Field entered a plea of guilty to Count I, a charge of sexual battery against one of the children, on March 8, 2000, and was sentenced to serve a term of twenty years without parole. Field filed a motion to vacate guilty plea on August 18, 2000, based on grounds that the court failed to advise him of the minimum sentence he was facing, that his plea was induced by fear and deception, and that he was denied effective assistance of counsel. This motion was denied for failing to comply with the requirements of Miss.Code Ann. § 99-89-9 on October 20, 2000. The trial court held that Field’s motion did not contain a separate statement of specific facts either within or not within his personal knowledge, how the facts would be proven, had no attached affidavits of witnesses and copies of documents, and was not verified by the oath of the prisoner.

¶ 3. On December 15, 2000, Field again filed his motion along with a statement of facts, list of proceedings, a verification of petitioner, two affidavits, and a request for information that he did not currently have. On April 2, 2001, the trial court again denied Field’s motion. In doing so, the trial court found that Field gave a sworn statement in which he acknowledged that he could receive between zero and thirty years in prison, and that the affidavits from Field’s sister and brother were not made on personal knowledge and consisted virtually entirely of hearsay. Field’s brother’s affidavit provided no information and basically claimed that he did not know anything regarding the questions Field had posed. The trial court found that neither affidavit was acceptable evidence nor demonstrated any probative value on Field’s issues. The trial court also found that Field’s claim that he received ineffective assistance of counsel did not meet the standard. Based upon its findings, the trial court denied the relief and dismissed the motion on April 2, 2001.

¶ 4. Field filed another motion to vacate guilty plea on November 20, 2001. The trial court found that in this motion Field acknowledged that he previously filed a motion to withdraw plea which was denied and dismissed. Therefore, pursuant to Miss.Code Ann. § 99-39-23(6), the trial court found Field’s motion barred as a successive motion. Since Field had acknowledged that he had previously filed for and been denied the relief requested in the motion, the court went on to find the filing frivolous, thereby triggering the forfeiture provisions of Miss.Code Ann. § 47-5-138(3). This order was entered on January 16, 2002, and Field filed a notice of appeal on February 15, 2002.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DISMISSING FIELD’S MOTION AS PROCEDURALLY BARRED BY STATUTE AS A SUCCESSIVE MOTION?

¶ 5. Field asserts fifty issues in his brief. Most of them, however, were not contained in the motion filed with the trial court. Issues not raised at the trial court level may not be raised for the first time on appeal. Gardner v. State, 531 So.2d 805, 808-9 (Miss.1988). The central issue at bar is whether the trial court erred in dismissing Field’s motion as procedurally barred by statute as a successive motion. The trial court found that the issues put forth by Field in his last motion were contained in his previous motion which was dismissed by order on April 2, 2001. Field failed to appeal this order, and the judgment was final and conclusive.

¶6. The law supporting the successive writ bar is statutory and states as follows:

The' order as provided in subsection (5) of this section or any order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict’s supervening insanity prior to the execution of a sentence of death. A dismissal or denial of a motion relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Miss.Code Ann. § 99-89-23(6) (Rev.2000). As stated in the statute, there are exceptions to the second or successive writ bar. Field asserts none of them in his brief nor do any apply to the case at bar. Lacking a demonstration that the facts in Field’s case are excepted from the procedural bar, the trial court did not err when it denied relief and dismissed Field’s motion.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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