source: Caselaw Access Project

author: WALLER, J., for the Court. PITTMAN, C.J.,

license: Public Domain

text:
    Willie L. WILLIAMS, Jr., and the Minor Child, Marcus A. Williams, By and Through his Next Friend, Willie L. Williams, Jr. v. Angela G. WILLIAMS, Willie L. Williams, Jr., and Dan Hubbard.
    No. 2001-CA-01666-SCT.
    Supreme Court of Mississippi.
    April 24, 2003.
    Walter Kevin Colbert, Natchez, attorney for appellants.
    Stanley N. Merritt, Natchez, attorney for appellees.
   WALLER, J., for the Court.

¶ 1. Willie L. Williams, Jr., appeals a judgment of the Adams County Chancery Court which dismissed his and Marcus A. Williams’ petition to determine Marcus’ paternity, thereby effectively requiring Willie to continue paying child support for someone who is not his child. Finding that result fundamentally unfair, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Willie L. Williams, Jr., and Angela G. Williams married in 1988 and divorced in 1996. The couple separated in October of 1993, and Angela gave birth to Marcus A. Williams on August 22, 1994. When Marcus was approximately one month old, he and Angela moved from their home in Dallas, Texas, to Natchez, Mississippi. Willie and Angela were subsequently divorced on November 25, 1996. In the divorce decree, both Angela and Willie swore that Marcus was their son. Willie was never ordered to pay child support until 1999, when the Mississippi Department of Human Services instituted a support action against Willie in Texas on Marcus’ behalf.

¶ 3. Willie and Marcus never really had much of father/son relationship, for they had only visited each other no more than four times in seven years. On one of these visits, Willie noticed a lack of similarity of physical features between Marcus and himself. Suspecting that Marcus might not be his son, Willie had a paternity test conducted in September of 1999 which concluded that Marcus was, in fact, not his son.

¶ 4. Willie filed a motion in Adams County Chancery Court to modify his and Angela’s divorce decree to reflect Willie’s nonpaternity of Marcus. The motion was denied on the grounds of res judicata and collateral estoppel because of Willie’s attestation of paternity in the divorce decree. The chancellor also concluded that public policy prohibited the bastardizing of. a legitimate child and that it was in Marcus’ best interest that Willie continue support payments. Willie never appealed this ruling.

¶5. Instead, Willie filed a petition as next friend of Marcus against himself, Angela, and Dan Hubbard, a man whom Willie thought was Marcus’ biological father. The chancellor ordered Willie, Angela, Marcus, and Hubbard to undergo DNA testing. The chancellor also appointed Eileen Maher to serve as guardian ad litem.

¶ 6. The DNA testing confirmed the earlier test that Willie was not Marcus’ father. However, the test also excluded Hubbard. The chancellor found that the testing conclusively excluded Hubbard as Marcus’ father and consequently dismissed him.

¶ 7. At the hearing, Angela testified that she had engaged in a one-time sexual encounter with a man other than Willie and Hubbard around the time that Marcus was conceived but could not remember his name. She could, however, remember where he worked and where he lived. The chancellor was convinced that Angela was not withholding Marcus’ biological father’s name.

¶ 8. The guardian ad litem, on the other hand, was convinced that Angela knew the biological father’s name. She recommended that Willie be relieved of his support obligation because Marcus clearly had a right to know his biological father and concluded that forcing Willie to continue paying was a perpetration of fraud upon Marcus.

¶ 9. Notwithstanding the clear scientific evidence of nonpaternity and the guardian ad litem’s recommendations, the chancellor dismissed Willie’s petition and imposed court costs and the cost of DNA testing on him. Willie appeals, arguing that the results of the DNA testing rebutted the presumption of paternity.

STANDARD OF REVIEW

¶ 10. We will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous. Cox v. F-S Prestress, Inc., 797 So.2d 839, 843 (Miss.2001); Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996).

DISCUSSION

¶ 11. The chancellor justified his holding on the grounds that maintaining the status quo was in Marcus’ best interest and that allowing Marcus to bastardize himself would only benefit Willie’s interests. We agree with Willie that the presumption of paternity has been effectively rebutted and that it would be unjust and unfair to require him to continue paying child support.

¶ 12. Our recent decision in M.A.S. v. Mississippi Department of Human Services, 842 So.2d 527 (Miss.2003), is on point and dispositive of this case. In M.A.S., M.A.S. agreed in a paternity decree when he was seventeen years old that he was the father of S.M. and agreed to pay child support. 842 So.2d at 528. He later married another woman and had another child. Id. That child subsequently died and, to determine the child’s wrongful death heirs, a Lawrence County chancellor ordered DNA testing. Id. The tests concluded that M.A.S. was not S.M.’s biological father. Id.

¶ 13. With these results, M.A.S. sought to have the prior paternity order set aside. The chancellor refused to grant M.A.S. relief because he had waited nine years to contest paternity, and res judicata precluded review of that prior stipulation of paternity. Id. The Court of Appeals affirmed. Id.

¶ 14. On writ of certiorari, we reversed the Court of Appeals and held that M.A.S.’s failure to contest paternity until S.M. was nine years old did not prejudice S.M.’s mother because she received child support payments from the wrong person. We also stated:

In our opinion, finality should yield to fairness here. M.A.S. has paid child support for someone else’s child for over ten years. He will be obligated to support that child for many more years unless the flawed paternity and child support order is vacated. The chancellor’s refusal to withdraw the paternity order in the face of unrefuted proof that M.A.S. is not the child’s father, was an abuse of discretion.

Id. at 531. We concluded that forcing M.A.S. to continue making child support payments when S.M. was shown not to be his child would result in a manifest injustice.

¶ 15. This conclusion of allowing men to be relieved of prior support obligations upon a showing of irrefutable proof of nonpaternity finds support in other jurisdictions. In NPA v. WBA, 8 Va.App. 246, 380 S.E.2d 178 (1989), the wife, NPA, became pregnant during the couple’s separation. She told her husband, WBA, that she had sexual intercourse with another man during that time. Id. at 179. The couple later reconciled, and, at the child’s birth, the wife told her husband that if he had any doubts about his paternity he should take a blood test. He accepted her statement that he was the father, did not take the blood test, and treated the child as his own throughout the couple’s marriage. Id.

¶ 16. When the wife filed for divorce four years later, the husband alleged that he was not the father of that child and a later-born child. Id. at 180. Tests revealed that he was not the father of the first child. In affirming the trial court’s holding that the husband was not liable for support, the Virginia Court of Appeals noted:

We are mindful that the child, who well may have an affinity for the husband as his father, is an innocent victim of his parent’s problems. However, in the absence of consanguinity, legal adoption, or a knowing and voluntary assumption of the obligation to provide support, the law will not compel one who has stood in the place of a parent to support the child after the relationship has ceased.

Id. at 181. NPA demonstrates that courts will terminate support obligations even when the child and his purported father have established a relationship infinitely more substantial than the one between Marcus and Willie. See, e.g., In re Bethards, 526 N.W.2d 871 (Iowa Ct.App.1994) (finding sufficient change in circumstances to warrant modification of divorce decree and cease child support obligation when testing established nonpaternity). See also Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L.Rev. 547, 577-82 (2000).

¶ 17. The dissent discounts the binding force of M.A.S. by distinguishing it solely on procedural grounds. However, M.AS. clearly addresses the merits by recognizing the inequity of requiring child support where paternity is clearly not established: “A manifest injustice will result if M.A.S. is required to continue making child support payments for a child which unquestionably is not his.” 842 So.2d at 581. M.A.S. clearly held that a man is not hable and should not be required to provide support payments for a child that is not his. We believe that the best interest of the child, in the factual scenario presented, is to know the identity of the natural father. See Dep’t of Human Servs. v. Smith, 627 So.2d 352, 353 (Miss.1993) (holding that “[pjublic policy dictates that a determination of paternity is in a child’s best interest”).

CONCLUSION

¶ 18. As in M.AS., we refuse to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his. Therefore, the judgment of the Adams County Chancery Court dismissing the petition to determine paternity filed by Willie L. Williams, Jr., and Marcus A. Williams is reversed given the conclusive scientific proof of nonpaternity, and this case is remanded for further proceedings in accordance with this opinion and our prior opinion in M.A.S. v. Mississippi Department of Human Services.

¶ 19. REVERSED AND REMANDED.

SMITH, P.J., COBB, DIAZ, EASLEY AND GRAVES, JJ„ CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. PITTMAN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, J.

PITTMAN, C.J.,

Dissenting:

¶ 20. This Court’s opinion in M.A.S. v. Mississippi Department of Human Services, 842 So.2d 527 (Miss.2003), does not control the outcome of this case. I fear that the majority’s error in relying upon this case for support of its conclusion will work irreparable damage to our standard of review and the presumption of legitimacy found in our case law. In my view, the majority fails to demonstrate how the chancellor erred. Therefore, I must respectfully dissent.

¶ 21. Two things distinguish the instant case from M.A.S.: (1) in MAS., the father attacked the child support judgment directly, using M.R.C.P. 60(b)(6) and its broad powers in equity in an attempt to gain untimely relief from an earlier judgment; and (2) in M.A.S., the father was not married to the mother at the time of conception or birth. In the instant case, Willie Williams ultimately sought release from his child support payments under the theory that he could prove the identity of the biological father; a venture which he failed to complete. Willie Williams was also married to Angela Williams at the time of Marcus’s conception and birth, a fact which entitles Marcus to a presumption of legitimacy in our courts. Here, unlike MA.S., Willie gains access to the courtroom not because he challenges his divorce decree or child support judgment, but because this Court has previously held that a child is not subject to procedural limitations which bind his presumed parents once a judgment is final. These differences should not be overlooked by the majority given the importance of this case. Each difference is substantial enough to forsake any reliance upon MA.S. in the discussion of the merits of this case, as I will explain below. What must first be discussed is the correct standard of review.

¶ 22. The majority does not mention it, but there can be little doubt that the controlling standard we employ when reviewing paternity challenges involving children born to a marriage is the best interest of the child. Baker ex rel. Williams v. Williams, 503 So.2d 249, 252 (Miss.1987). See also Rafferty v. Perkins, 757 So.2d 992 (Miss.2000); R.E. v. C.E.W., 752 So.2d 1019 (Miss.1999); Karenina ex rel. Vronsky v. Presley, 526 So.2d 518 (Miss.1988). Neither case cited by the majority as its source for its “abuse of discretion, application of erroneous legal standard, manifestly wrong, or clearly erroneous” standard of review concerns child custody, support, or paternity. Nor does the majority pay much service to its stated standard in its opinion, reversing instead because the judgment below sanctions a fundamentally unfair result. Maj. Op. at ¶¶ 1, 17. Given the nature of the parties and the potential financial impact of the majority’s determination, it is imperative to apply the correct standard of review. It is the foundation of the chancellor’s correct judgment.

¶ 23. Beginning, with the first reason why M.A.S. should not be relied upon by the majority as controlling authority here, it is important to note this case began as a suit to establish the paternity of Dan Hubbard; similar in procedure to that discussed in Baker ex rel. Williams and the other cases mentioned above. The majority correctly relates that Willie Williams has abandoned his appeal from the judgment against him when he challenged the admission of paternity found in the divorce decree pursuant to M.R.C.P. 60(b)(6). See Maj. Op. at ¶ 4. No relief from that ruling can be granted here. In this case, the question below was not whether Willie Williams had rebutted the presumption of paternity, but whether it was in Marcus’s best interests to have Hubbard declared his father in the face of overwhelming evidence that Hubbard was not his father. The answer is clearly no. Having dismissed Hubbard as a party, the chancellor was left without statute or precedent to guide his next move. See Miss.Code Ann. §§ 93-9-1 to -75 (Rev.1994 & Supp.2002). The chancellor recognized this, and in his order dismissing the suit he utilized the correct standard of review and found that no such creature as a suit to disestablish paternity existed, especially one brought in the child’s name by the presumed father where the identity of the biological father was not known. Even using the majority’s own standard of review to answer the true question before the court below, I cannot see how the chancellor abused his discretion, utilized an incorrect legal standard, was manifestly wrong or clearly erroneous. Therefore, using either standard discussed above, the chancellor got it right. Since the majority relies so heavily upon M.A.S. as controlling authority, I will discuss the standard employed there and explain why it does not control the analysis of the instant case.

¶ 24. In M.A.S., the stated standard of review was as follows:

A trial judge’s refusal to grant relief under Rule 60(b) is subject to review under an abuse of discretion standard. Telephone Man, Inc. v. Hinds County, 791 So.2d 208, 210 (Miss.2001); Moore v. Jacobs, 752 So.2d 1013, 1015 (Miss.1999). This Court has stated that “[rjelief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances,” and that the Rule is a “grand reservoir of equitable power to do justice in a particular case.” Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998). But “Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 986 (Miss.2001). “Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984).

M.A.S., 842 So.2d at 530. The last three sentences bear emphasis. M.A.S. itself represents an alternate procedural opportunity for attacking paternity by a presumed or putative father. This is the first method by which Willie Williams sought relief, but he mysteriously failed to pursue this method beyond the chancellor’s ruling against him. The instant case represents precisely the situation discussed in the last sentence from the above standard of review. That sentence cautions against granting relief in these circumstances. This is Willie Williams’s second bite at the apple, disguised as a suit to establish paternity. Therefore, these circumstances are not nearly as extraordinary or compelling as required to reverse the chancellor below. The facts, given the true question before the trial court as I have explained above, do not support a finding the chancellor abused his discretion, nor do they support the contention that M.AS. is controlling authority.

¶ 25. Furthermore, where the standard of review from Rule 60(b) has intersected with the best interest of the child standard, the best interests of the child has been found to be preeminent. As eloquently explained in Mississippi Depart ment of Human Services v. Helton, 741 So.2d 240, 242 (Miss.1999):

Protecting the best interests of a child is the paramount concern in actions to which a child is a party. Lauderdale County Dept. of Human Services v. T.H.G. and L.D.G., 614 So.2d 377, 383 (Miss.1992). It is “the goal of utmost import in any judicial proceeding.” Dept. of Human Services v. Jones, 627 So.2d 810, 811 (Miss.1993).
In Dept. of Human Services v. Jones, 627 So.2d at 810, this Court considered the failure of the DHS to file timely motions for blood testing. The Court discussed the “inflexible public policy” of protecting a child’s best interests, id. at 811, and held that “protection of the children’s best interests as expressed in this state’s policy statutes must override any concern over timeliness.” Id. at 812.

The chancellor in Helton did indeed abuse his discretion when the best interest of the child took a back seat to Rule 60(b)’s abuse of discretion standard. Even if the majority insists upon using the incorrect standard of review found in M.A.S., it must acknowledge that the best interest of the child carries the day.

¶ 26. Therefore, I must conclude that the best interest of the child is the primary and controlling standard of review to be employed here. Since Willie Williams is not presently attacking the child support judgment or the divorce decree, he is not entitled to have this Court exercise its broad equitable powers to meet his ends. Thus, M.A.S. is neither controlling nor on point on this matter. Marcus, on the other hand, is entitled to all the protection due him considering his best interests. As this was the standard employed by the chancellor, his judgment is correct and should be affirmed.

¶ 27. The second reason why M.A.S. does not control here is the majority inadvertently erodes the common law presumption that a child born during a marriage is a product of that marriage absent proof beyond a reasonable doubt to the contrary. M.A.S. was not married to the mother of the child; Willie Williams was. Although the majority in M.A.S. used beyond a reasonable doubt language, it was not necessary as no presumption of legitimacy ever attached to the child. M.A.S., 842 So.2d at 531. M.A.S. never had to show beyond a reasonable doubt that he was not the child’s father; all he needed to demonstrate was that he was entitled to relief under Rule 60(b). Willie Williams must go further. Baker ex rel. Williams, 503 So.2d at 253.

• ¶28. Since the question before the chancellor below was not whether Willie Williams rebutted the presumption of paternity, this proposition was not tested by the adversarial process. This Court does not have to state at the present time whether there is sufficient evidence in the record to support Willie’s claim of nonpa-ternity. All that is' necessary is to reverse and remand this case with instructions to the chancellor as to what question he is to answer: for example, whether it is in Marcus’s best interest to have Willie’s nonpa-ternity adjudicated in this suit or whether Willie has proven his nonpaternity beyond a reasonable doubt. This can and should be done without reference to M.A.S. because of the effects such a reference would have upon our presumption of legitimacy. Therefore, M.A.S. is not controlling authority here.

¶ 29. As illustrated in this case, a child can intentionally declare himself illegitimate and forfeit his support payments at the instigation of his father whose monetary interests are radically different from his own. I realize that our law has seen fit to allow the first, but in those eases allowing the child to be declared illegitimate, the child’s best interest was scrupulously guarded. The chancellor acted similarly below, but the majority does not do so now. I cannot find any support in the record for the conclusion that it is in Marcus’s best interest to have Willie Williams’s nonpaternity adjudicated under the circumstances of this case. Such would result in the loss of his child support. I conclude that the majority’s reversal of the chancellor implicitly sanctions the use of a procedural gimmick to acquire standing to challenge paternity, and I cannot support such result. I would affirm the chancellor.

CARLSON, J„ JOINS THIS OPINION.

      . We do not hold that a man who is not a child's biological father can be absolved of his support obligations in all cases. Those who have adopted the child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so. See NPA, 380 S.E.2d at 181.

      . I pause to note that both cases cited by the majority from sister jurisdictions involve a presumed father challenging paternity in a divorce proceeding or seeking relief from a divorce decree.

      . It is noteworthy that a bill died in committee in our House of Representatives this year which would have strengthened the presumption of legitimacy despite genetic testing. See H.B. 1319, 2003 Regular Legislative Session.


author: DIAZ, J., for the Court. McRAE, P.J.,

text:
    Lori ALLRED v. Stephen M. YARBOROUGH, Reliance Insurance Company, Mississippi Institutions of Higher Learning and Delta State University.
    No. 2000-CA-01559-SCT.
    Supreme Court of Mississippi.
    April 24, 2003.
    David Lee Robinson, John Booth Farese, Ashland, attorneys for appellant.
    Patricia R. Williams, J. Stephen Wright, Ridgeland, attorneys for appellees.
   DIAZ, J., for the Court.

¶ 1. In April 1997, Stephen M. Yarbor-ough was an employee of the Mississippi Institutions of Higher Learning serving as an assistant baseball coach for Delta State University. On April 19, 1997, Yarbor-ough was operating a vehicle provided by Cliff Colbert Chevrolet for use by the Delta State baseball team in Union County, Mississippi, within the course and scope of his employment. He and his passenger, David Montgomery, also an assistant baseball coach for Delta State, were traveling westbound on Highway 30 when Yarbor-ough attempted to pass a slower vehicle in front of them and collided with a vehicle driven by Lori Allred and also occupied by Stephanie Windham and Dixie Medlin, the owner of the vehicle. Allred, Windham, and Medlin all suffered personal injuries, and Medlin suffered property damage to her car. The personal injury claims, individually and collectively exceed $50,000.00. Also, the vehicle owned by Cliff Colbert Chevrolet and driven by Yarborough at the time of the accident was a total loss.

¶ 2. Allred filed a personal injury action in Union County against the Mississippi Department of Transportation, Delta State University, and Yarborough. The Mississippi Institutions of Higher Learning, Yar-borough and the insurer, Reliance Insurance Company, instigated an interpleader and declaratory judgment proceeding against Cliff Colbert Chevrolet, Medlin, Windham and Allred in Hinds County. This action sought a declaration of the rights of the parties under the Mississippi Tort Claims Act, Miss.Code Ann. § § 11-46-1 to -23 (Rev.2002), and an insurance policy issued by Reliance to the Mississippi Institutions of Higher Learning and inter-pled $50,000.00 into the registry of the court. Reliance Insurance Company issued to the Mississippi Institutions of Higher Learning a commercial insurance policy in effect September 1, 1996, through September 1, 1997, with Delta State University as one of its named insureds. In accordance with statutorily mandated limits found in Miss.Code Ann. § 11-46-15, the policy limited the amount which Reliance would pay for any one accident or loss occurring in the State of Mississippi to $50,000.00

¶ 3. After the transfer of the Hinds County action to the Union County Circuit Court, the Union County action and the Hinds County action were consolidated. On August 23, 2000, the Union County Circuit Court entered a Joint Memorandum Opinion and Order and Final Judgment granting summary judgment on behalf of the Mississippi Institutions of Higher Learning, Delta State, Yarbor-ough, and Reliance Insurance Company declaring that the maximum amount of liability provided in Miss.Code Ann. § 11-46-15 is $50,000.00. The Final Judgment enjoined claimants from further efforts to recover in any way from Reliance, Mississippi Institutions of Higher Learning, Delta State, and Yarborough because $50,000.00 was interpled into the court's registry.

¶ 4. Allred appeals, raising the following issue:

I. Whether the trial court erred in holding the Mississippi Tort Claims Act limits recovery to $50,000.00 “per occurrence” and in granting summary judgment.

DISCUSSION

¶ 5. The circuit court found that Miss. Code Ann. § 11-46-15(1) limits liability to $50,000.00 per occurrence, not per claimant. Allred argues that the circuit court erred in its interpretation of the statute. This Court’s standard of review in this case is de novo. Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991).

¶ 6. Allred asserts § 11^46-15 is ambiguous. Therefore the intent of the Legislature must be ascertained. This Court, “in construing a statute will not impute an unjust or unwise purpose to the legislature when any other reasonable construction can save it from such imputation.” Baker v. State, 327 So.2d 288, 291 (Miss.1976).

In considering a statute passed by the legislature, ... the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction, [citations omitted]. Whether the statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent.

City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992).

¶ 7. Miss.Code Ann. § 11-46-15(1) provides in part that

(1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising form acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00).

(emphasis added). This statute repealed the previous “Accident Contingency Fund Act” (Miss.Code Ann. §§ 37-41-37, 37-41-39, 37-41-41), which provided in part that

Compensation on any claim shall be disbursed to such school district, junior college or state agency from the Accident Contingency Fund to cover any accident arising as provided in Section 37-41-37, ... No claim shall be paid from any fund other than the Accident Contingency Fund.
No Claim arising from such accident shall exceed the total amount of Ten Thousand Dollars ($10,000) exclusive of court costs for any one (1) person sustaining such injuries or damages, and no more than Fifty Thousand Dollars ($50,-000) shall be paid in any one (1) accident. When it appears that claims in more than the amount of Fifty Thousand Dollars($50,000) will be made because of one (1) accident, the chancellor ... shall prorate said claims as in his opinion are just and equitable.

Allred argues that the Legislature could have, in repealing the Accident Contingency Fund Act, used the same “proration” language. Since it did not, Allred argues that the legislative intent was to provide for recovery of damages by persons sustaining injuries through negligent acts of the state and its employees and agents.

¶ 8. Allred also argues that the Mississippi Legislature surely examined other states’ tort claims acts and did not use the more restrictive language found in some other states’ statutes. See, e.g., Ala.Code § 11-93-2 (recovery limited to $300,000 in the aggregate where more than two persons have claims); Ga.Code Ann. § 50-21-29 (state’s aggregate liability per occurrence shall not exceed $3 million); N.C. GemStat. § 143-299.2(a) (liability limited to $500,000 for all claimants per occurrence); S.C.Code Ann. § 15-78-120(2) (liability limited to $600,000 regardless of the number of agencies or political subdivisions or claims or actions involved).

¶ 9. Finally, Allred argues that this Court should use the same method of interpretation the Nevada Supreme Court used in State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). There, a wife brought an action against the state for her husband’s wrongful death and her own personal injuries an auto accident. The statute limited any claimant’s recovery to $25,000 in one action. The court found that it did not limit a claimant’s recovery to $25,000 regardless of how many actions he or she may have.

¶ 10. In response to Allred’s arguments, the defendants argue that the Legislature clearly intended to establish a per occurrence cap on governmental liability. They also argue that this Court cannot restrict or enlarge the meaning of an unambiguous statute.

¶ 11. Since briefs were submitted in this case, this Court has had occasion to interpret the liability limitation found in the Mississippi Tort Claims Act in Prentiss County Board of Education v. Beaumont, 815 So.2d 1135 (Miss.2002). There, several people were injured in a auto accident involving a school bus. The school board had an automobile liability insurance policy with aggregate limits of $1,000,000 per occurrence. Several claimants settled their claims for a total of $449,304.47, but Beaumont chose to go to trial where he won a judgment of $800,000. The trial court refused to reduce the judgment to the remainder of the policy limits ($550,-695.52). This Court reversed the trial court, finding that Mississippi is a “single occurrence” state and Lability per occurrence is limited to a statutory amount or the policy limits for any excess coverage purchased to cover such claims. Since Mississippi is a “single occurrence” state, and given the explicit and unambiguous language of § 11-46-15(1), we must affirm the trial court’s decision here.

CONCLUSION

¶ 12. For these reasons, the circuit court’s judgment is affirmed.

¶ 13. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.

McRAE, P.J.,

Dissenting:

¶ 14. I dissent to the majority’s finding that Allred is limited to the statutory $50,000.00 recovery under the Mississippi Tort Claims Act. “The longstanding rule in Mississippi is that the insurer for the owner of the vehicle involved in the accident is the primary insurer.” U.S. Fid. & Guar. Co. v. John Deere Ins. Co., 830 So.2d 1145, 1148 (Miss.2002) (citing State Farm, Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 797 So.2d 981, 983 (Miss.2001); Travelers Indem. Co. v. Chappell, 246 So.2d 498, 505 (Miss.1971)). I find that Cliff Colbert Chevrolet had a primary insurance liability policy on the vehicle driven by Yarborough. This policy should be available to satisfy any judgment obtained by Allred, leaving this State’s $50,000.00 tort liability cap as a means of secondary recovery to be collected after Cliff Colbert’s policy. Therefore, I would reverse and remand for further proceedings. Accordingly, I dissent.

EASLEY, J., JOINS THIS OPINION.


author: BRIDGES, J., for the court.

text:
    Jessie R. EDWARDS, Appellant, v. WORLD WIDE PERSONNEL SERVICES, INC. and Broome Construction Co., Appellees.
    No. 2001-WC-01240-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2002.
    Rehearing Denied Oct. 29, 2002.
    Certiorari Denied April 24, 2003.

      Kenneth R. Watkins, Gulfport, attorney for appellant.
    David C. Goff, Jackson, attorney for ap-pellees.
    Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.
   BRIDGES, J., for the court.

¶ 1. This case reaches this Court on appeal from the Circuit Court of Forrest County. Edwards petitioned the Mississippi Workers’ Compensation Commission for benefits after he suffered an alleged on-the-job injury. The administrative law judge denied the claim based on the employer’s defense of intoxication. Edwards appealed to the Full Commission which affirmed the administrative law judge’s decision. Edwards appealed to the circuit court, which also affirmed the administrative law judge’s decision. Aggrieved, Edwards is now before this Court citing four issues for our review:

I. Whether or not the finding of the Mississippi Workers’ Compensation Commission barring injuries suffered by Jessie Ralph Edwards due to the defense of intoxication is supported by substantial evidence?
II. Whether or not the finding of the Mississippi Workers’ Compensation Commission that Jessie Ralph Edwards did not reasonably seek employment after reaching maximum medical improvement?
III. Wfhether or not the finding of the Mississippi Workers’ Compensation Commission committed reversible error in not finding that Jessie Ralph Edwards sustained a compensable injury as a result of his on the job injury while working for Broome Construction, Inc., due to their failure to file a response to claimant’s petition to controvert?
IV. Whether or not the finding of the Mississippi Workers’ Compensation Commission committed reversible error in finding that Jessie Ralph Edwards was not entitled to recover for temporary total disability, total permanent disability, total loss of wage earning capacity, medical expenses, and/or permanent and partial disability plus penalties and interest due to his on the job injury against appellee World Wide Personnel Service, Inc. and/or Broome Construction, Inc.?

¶ 2. Finding sufficient evidence based on the defense of intoxication to support the administrative law judge’s decision, we affirm that decision with no evaluation of the remainder of the issues.

STATEMENT OF THE FACTS

¶ 3. On September 29, 1994, Jessie Edwards was an employee of World Wide Personnel Services, Inc. Edwards was working a job with Broome Construction, Inc., on Gordon’s Creek located in Hatties-burg, Mississippi. His job consisted of trimming trees with a chainsaw once the trees were pushed over by the track hoe operator.

¶4. On the particular day in question, the track hoe operator pushed a tree over which extended out over the creek bed. Testimony revealed that Edwards walked out on the tree trunk over the creek bed to trim the tree instead of waiting for the tree to be pulled onto the creek bank. Edwards testified that when he trimmed one limb off of the tree, the tree rolled and his foot slipped, causing him to fall several feet to the creek bed.

¶ 5. Edwards’s supervisor, Doug Clark, immediately carried him to the Urgent Care Center of Hattiesburg for treatment. At the clinic, Clark requested a drug screen on Edwards, which showed canna-binoids or marijuana in Edwards’s body.

STANDARD OF REVIEW

¶ 6. Our scope of review on appeal is limited to a determination of whether the Commission’s findings of fact and order are supported by substantial evidence. Marshall Durbin Co. v. Warren, 633 So.2d 1006, 1009 (Miss.1994). We will reverse an order of the Workers’ Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994).

LEGAL ANALYSIS

¶ 7. Our first issue for review is the defense of intoxication submitted by the employer, World Wide Personnel Services, Inc. “No compensation shall be payable if the intoxication of the employee was the proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.” Miss. Code Ann. § 71-3-7 (Supp.2001). As such, the defense of intoxication is a bar to recovery.

¶ 8. Shortly after the accident, Edwards’s supervisor, Doug Clark, took Edwards to the Urgent Care Clinic for attention to his injuries. While at the clinic, a urine sample was taken which was tested for alcohol and drugs. Marijuana was found in Edwards’s system, registering a concentration level of 111 nanograms per milliliter, where the cutoff level is 100. Edwards claims that he was passively subjected to marijuana smoke and that is how he tested positive for the drug. He has served two prison terms for drug related crimes, specifically marijuana. Edwards’s testimony relating to his personal drug use is convoluted. He claimed to have re-framed from using drugs for a long period of time prior to his injury. At one point in his testimony, he said it had been thirty days. Later in his testimony, Edwards claimed it had been sixty days. Edwards then testified that it had actually been six years since he had used marijuana.

¶ 9. Dr. William George testified as an expert in the field of drugs. He testified that Edwards was a “trim little man with little body fat” and, if Edwards was not a habitual user, that drug residue would only remain in his body for a couple of days or a short period of time. However, George testified that the level of drugs in Edwards’s urine sample was indicative that he actively used marijuana, either repeatedly or chronically. George further opined that Edwards had smoked marijuana within six to eight hours of the time of the drug test. George also testified that the results of the test would not have been positive if Edwards had not smoked marijuana in several years, as Edwards claimed, or the level of the marijuana would not have registered as high as it did if he had only been passively exposed to marijuana smoke.

¶ 10. No lay witness could testify that they actually saw Edwards fall. One coworker testified that Edwards kept to himself during the several breaks the workers had had on the day in question. The coworker further testified that Edwards would walk down to the creek bed alone during these breaks. Edwards’s supervisor testified that Edwards did not trim the fallen tree that caused the injury according to their normal tree trimming practice.Edwards climbed out-onto the tree, which was extended out over the creek, and proceeded to trim the top of the tree out first, contrary to the normal mode of tree trimming. Edwards did not wait for the track hoe operator to drag the tree onto the bank for safe trimming.

¶ 11. The burden is on the employer to show that the employee’s intoxication was the proximate cause of his injury. Murphy v. Jac-See Packing Co., 208 So.2d 773, 777 (Miss.1968). This Court has not found Mississippi precedent that addresses the idea of illegal substances in the bodies of workers at the time of the on-the-job injury.

¶ 12. We have found persuasive case law from Louisiana appellate courts which have heard similar cases to the case at bar. Although that jurisdiction is governed by a different statute requiring a distinguishable burden of proof, nonetheless, the rulings are persuasive. A Louisiana First Circuit Court of Appeals case holds that it was “not necessary for an employee to be intoxicated to the point of helplessness in order to be deprived of compensation” in response to the lack of testimony from coworkers that the claimant appeared intoxicated. Johnson v. EnviroBlast, 804 So.2d 924, 928 (La.App. 1st Cir.12/28/01). A Louisiana Second Circuit Court of Appeals case is factually similar to the case at bar. Deal v. Bancroft Bag, Inc., 671 So.2d 1264, 1265-66 (La.App. 2nd Cir.04/03/96). The employee fell, causing injury to himself. Id. at 1265. A urine sample was obtained which indicated the use of marijuana with a cannabinoid level of forty-five nanograms per milliliter. Id. The employee cited passive exposure two weeks prior to the fall as the cause of the positive test results. Id. However, the expert testified that the cannabinoid concentration was too high for “mere passive exposure two weeks prior to testing.” Id. at 1266-67. Therefore, the employee was denied benefits. Id. at 1267.

¶ 13. These cases are persuasive in our decision on the case at bar. It is this Court’s opinion that the employer met its burden to prove intoxication as the cause of the accident. Edwards’s cannabi-noid level was extremely high, indicating recent use of marijuana. Edwards’s coworker testified that he was by himself during the crew’s breaks and would walk down by the creek bed away from others. Furthermore, Edwards trimmed the tree in an unsafe manner, unlike the normal tree trimming procedures. The administrative law judge was correct in denying benefits to Edwards. We affirm.

¶ 14. There was some question of who the actual employer of Edwards was, either World Wide Personnel Services, Inc. or Broome Construction Company, the company actually doing the job but employed by World Wide. This issue was alluded to by Edwards but was not specifically raised for our review. However, the traditional test of the employer-employee relationship is the right of the employer to control the details of the work. Ray v. Babcock & Wilcox Co., Inc., 388 So.2d 166, 168 (Miss.1980). The dual employment capacity and/or the “borrowing employer” typically is applicable to the tort liability spectrum. “This Court has held that when an employee is engaged in the service of two (2) employers in relation to the same act (dual employment), both employers are exempt from common law liability, although only one of them has actually provided workmen’s compensation insurance.” Id. at 167 (citing Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965)).

¶ 15. Edwards made his application for employment at the work site, directly to the supervisor. He was hired “on the spot” and was provided workers’ compensation insurance and hourly wages by World Wide. He was an employee of World Wide Personnel Services, Inc., and not Broome Construction, Inc.

CONCLUSION

¶ 16. We are of the opinion that the Commission’s decision was supported by substantial evidence and therefor affirm such decision. Since Edwards’s intoxication is a bar to recovery, it is not necessary for us to review the remaining issues.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J., for the court.

text:
    Frederick W. NOBLES, Jr. a/k/a Freddie Nobles, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-00734-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.
    Certiorari Denied April 17, 2003.
    Nathan Henry Elmore, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ON MOTION FOR REHEARING

MYERS, J., for the court.

¶ 1. The motion for rehearing is granted as the case was improvidently dismissed.

¶ 2. Frederick W. Nobles was indicted as a habitual offender for armed robbery and aggravated assault by the Coahoma County Circuit Court. He pled guilty on both counts and received concurrent sentences of thirty and twenty years, respectively. He has filed two motions with the trial court for post-conviction relief. Both of these motions were denied. Nobles appeals to this Court, asking us to decide the following issues:

I. WHETHER NOBLES’ CLAIMS ARE PROCEDURALLY BARRED.
II. WHETHER NOBLES’ TRIAL COUNSEL WAS INEFFECTIVE SINCE COUNSEL DID NOT OBJECT TO THE HABITUAL OFFENDER PORTION OF THE INDICTMENT.
III. WHETHER NOBLES’ GUILTY PLEA WAS ENTERED KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

Statement of the Facts

¶ 3. Nobles was indicted for armed robbery and aggravated assault as a habitual offender in 1984. He pled guilty to this indictment.

¶ 4. Nobles then petitioned the Mississippi Supreme Court for permission to file for post-conviction relief in the Coahoma County Circuit Court. The supreme court denied Nobles’ application in a memorandum order. Ever persistent, Nobles continued his quest for post-conviction relief by filing a petition with the Coahoma County Circuit Court. The court denied this petition. Nobles appealed this denial.

Legal Analysis

¶ 5. We find that Nobles’ appeal is procedurally barred. He raised the same three issues he raises now with the supreme court in 1997. The supreme court denied his application for post-conviction relief. Miss.Code Ann. § 99-39-27(9) (Rev.2000) states, “The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter.” Therefore, the supreme court’s 1997 ruling acts as res judicata and bars us from hearing this appeal.

¶ 6. Additionally and alternatively, this appeal is time barred. Nobles pled guilty on January 22, 1985. He had three years from the entry of his judgment of conviction to seek post-conviction relief. Miss. Code Ann. § 99-39-5(2) (Rev.2000). Nobles failed to do so within that limit.

¶ 7. THE APPEAL OF THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT DISMISSING THE MOTION TO VACATE CONVICTION IS DISMISSED WITH PREJUDICE. ALL COSTS OF THE APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


author: KING, P.J., for the court.

text:
    In the Matter of the DISSOLUTION OF the MARRIAGE OF Angela Beth SMITH and Randall Sawyer Smith: Randall Sawyer Smith, Appellant, v. Angela Beth (Smith) LITTLE, Appellee.
    No. 2002-CA-00092-COA.
    Court of Appeals of Mississippi.
    April 22, 2003.

      John W. Christopher, Ridgeland, attorney for appellant.
    James A. Bobo, Florence, C. Jason Womack, attorneys for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J., for the court.

¶ 1. In February 2000, the Rankin County Chancery Court granted Randall Sawyer Smith and Angela Beth Smith (Little) a divorce on the ground of irreconcilable differences and approved the agreed-upon division of marital property. In August 2001, Angela Smith Little filed a motion for contempt, alleging that Randall Smith failed to comply with certain provisions of the property settlement agreement. The chancellor found Randall Smith in contempt for failure to comply with the provisions of the agreement. Aggrieved by the chancellor’s decision, Randall Smith has appealed and raised the following issues:

I. Whether the chancellor erred in finding Randall Sawyer Smith in contempt of court.
II. Whether the chancellor erred in awarding Angela Beth Smith Little attorney’s fees.

FACTS

¶ 2. On February 14, 2000, Randall Sawyer Smith and Angela Beth Smith Little were granted a divorce based on irreconcilable differences in the Rankin County Chancery Court. The parties entered into a property settlement agreement which was incorporated into the final judgment. The agreement contained a provision at paragraph six regarding the use of a Jaguar automobile, which said:

Husband will maintain the exclusive use, possession, and ownership [sic] 1985 21-foot Bayliner, 1995 Yamaha Jet Ski 700, 1995 Acura Legend, 1998 Jaguar XJ-8, and 1999 Chevrolet Z-71 pickup and be responsible for any and all payments, maintenance, upkeep, and insurance for said vehicles. However, the 1998 Jaguar XJ-8 shall remain in the possession of wife until husband sales [sic] or turns in on lease or until lease expiration on October 2001. At such time as husband chooses to exercise one of the three options listed above, he then shall begin to pay the sum of $400 per month until December the 31st of 2005 or extended until December 31st of 2007 if she is not married. The 1998 19-foot Sea Ray shall be sold for no less than $15,000 unless agreed to by the parties, and the monies received from said sale shall be equally divided by the parties.

¶ 3. Mrs. Little, who had been in possession of the Jaguar automobile, indicated that her impression was that “I would drive it until the lease expired or until he turned it in, if he wanted to turn it in early on the lease, or if it was sold. And after one of the three happened, then I would be given a car allowance to put toward another car.” Mr. Smith testified that it was his “original intent” to terminate the lease on the vehicle.

¶ 4. In April 2001, Smith retrieved the vehicle, but did not make any payments to Mrs. Little for the car allowance. In August 2001, Little filed a motion for contempt against Smith for failure to make the required monthly payments as stated in the .property settlement agreement. Little asked the court to award her attorney’s fees as well.

¶ 5. The court determined that Smith was in contempt for his failure to pay beginning in April and continuing through November. The court awarded Little “the sum of $3,200 plus $500 as reasonable attorney’s fees and all costs of this court.”

ISSUES AND ANALYSIS

I.

Whether the chancellor erred in finding Randall Sawyer Smith in contempt of court.

¶ 6. Randall Smith contends that the chancellor erred in finding him in contempt of court for failure to abide by the provisions in the property settlement agreement. He asserts that the payments at issue were “in fact periodic alimony,” and that his “obligation to make those payments terminated upon Angela’s remarriage, four (4) days after the divorce was entered.”

¶ 7. Randall Smith presented this same issue to this Court upon direct appeal in Smith v. Little, 834 So.2d 54 (Miss.Ct.App.2002). In an opinion issued December 10, 2002, this Court found no error in the chancellor’s determination that the provision related to the Jaguar automobile represented a division of marital property, rather than periodic alimony.

¶ 8. While the chancellor did not have the benefit of this Court’s December 2002 opinion in addressing the contempt motion, he properly determined that the automobile and related payments were matters of property division. Having so determined, the chancellor also deemed it appropriate to hold Randall Smith in contempt for failure to abide by the marital property division portion of his decree.

¶ 9. The Mississippi Supreme Court has stated that “contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Mixon v. Mixon, 724 So.2d 956 (¶ 8) (Miss.Ct.App.1998).

¶ 10. Randall Smith claims that his attorney advised him that he should not send the monthly car allowance to Angela Smith Little. The Mississippi Supreme Court has held that “where a con-temnor defendant claims that he was acting upon the advice of counsel in violation of a solemn decree of the chancery court, this is no defense to a proceeding for contempt, although such fact may be taken into consideration by the chancellor in mitigation of the offense.” Matter of Estate of Hollaway, 631 So.2d 127, 134 (Miss.1993).

¶ 11. We find that the chancellor did not abuse his discretion in this issue.

II.

Whether the chancellor erred in awarding Angela Beth Smith Little attorney’s fees.

¶ 12. Randall Smith contends that Angela Smith Little did not offer sufficient evidence to justify an award of attorney’s fees. He maintains that the chancellor ignored the controlling decisions on this matter beginning with McKee v. McKee, 418 So.2d 764 (Miss.1982).

¶ 13. However, “the establishment of the McKee factors are not necessary for a contemnee to recover attorney fees related to pursuing actions where a contemnor has wilfully violated a lawful order of the court. To hold otherwise would cause no peril to those restrained from certain conduct if they violate the orders of a court.” Gardner v. Gardner, 795 So.2d 618 (¶ 4) (Miss.Ct.App.2001).

¶ 14. The transcript contains the following testimony regarding attorney’s fees:

Q. Now, let’s talk about the attorney’s fees. How much attorney fee have you incurred to bring this action here to date?
A. $1,000.
BY MR. CHRISTOPHER (for Randall Smith): I object to the form of the question, Your Honor. I don’t believe he can use this witness to establish reasonable and necessary attorney’s fees and hours expended under the McKee case.
BY THE COURT: Overruled. She can state how much she’s paid. That’s the question on the table; is it not?
BY MR. WOMACK (For Angela Smith Little): Yes, sir.
BY THE COURT: Overruled. You can answer.
(By Mr. Womack:) How much have you paid?
A. $1,000.
Q. And that was in attorney’s fees?
A. Attorney’s fees.
Q. Have you also incurred an $85 filing fee and a $25 service of process fee?
A. Yes.
Q. Are you asking the Court to reimburse you for those fees?
A. Yes.

¶ 15. An award of attorney fees is generally left to the discretion of the chancellor. Gray v. Pearson, 797 So.2d 387(¶ 34) (Miss.Ct.App.2001). The chancellor awarded Angela Smith Little $500 as “reasonable attorney’s fees.” We find that the chancellor did not abuse his discretion in awarding attorney’s fees.

¶ 16. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.

      . In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) (citation omitted).


text:
    James R. MAYO, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KM-01975-COA.
    Court of Appeals of Mississippi.
    April 22, 2003.

      John Denver Fike, Raymond, Attorney for Appellant.
    Office of the Attorney General, By: Charles W. Maris, Attorney for Appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J., for the court.

¶ 1. James R. Mayo was originally convicted of DUI-first offense and possession of paraphernalia in the Justice Court of Copiah County, Mississippi. He appealed this conviction to the Copiah County Circuit Court which affirmed the justice court’s conviction of the DUI charge but dismissed the possession charge in a de novo bench trial. Aggrieved by his conviction, Mayo has appealed and raised the following issue which we quote verbatim:

Whether the trial court erred in finding that sufficient probable cause existed for the discovery of Appellant’s Driving Under the Influence violation, where the underlying charge for Possession of Beer, which led to the revealing search and seizure, was dismissed.

FACTS

¶ 2. On June 11, 2000, at approximately 10:30 p.m., deputies with the Copiah County Sheriffs Department had set up a routine roadblock on Highway 18 in Copiah County to check licenses and look for alcohol and drugs. When Mayo approached the roadblock, his driver’s license was checked. Officer Tommy Rials indicated that Mayo had an open container of beer in plain view in his vehicle. Mayo was then asked to pull to the shoulder of the road. Rials stated that Mayo admitted that he had been drinking and smoking marijuana earlier. Mayo consented to a search of his vehicle. Rials stated that “the paper with a little marijuana in it” was located inside the vehicle.

¶ 3. Mayo was placed under arrest. Rials asked Mayo if he would consent to a series of field sobriety tests, but Mayo refused. After observing Mayo, Rials determined that he was a little disoriented and had alcohol on his breath. Rials transported Mayo to the sheriffs department where an intoxilyzer test was performed. The test results indicated that Mayo’s blood-alcohol content was .126 percent at the time of the test.

¶ 4. On June 12, 2000, Mayo was charged with DUI-first offense, possession of beer, and possession of drug paraphernalia in the Justice Court of Copiah County. On July 13, 2000, Mayo was convicted of DUI First Offense and possession of paraphernalia. He was ordered to pay a fine and other court costs. The beer possession charge was dismissed.

¶ 5. Mayo appealed to the Circuit Court of Copiah County where the case was tried de novo. The circuit court affirmed the DUI conviction, but reversed the paraphernalia possession conviction.

ISSUE AND ANALYSIS

Whether the trial court erred in finding that sufficient probable cause existed for the discovery of Appellant’s Driving Under the Influence violation, where the underlying charge for Possession of Beer, which led to the revealing search and seizure, was dismissed.

¶ 6. Mayo contends that the trial court erred in finding that probable cause existed for a DUI violation where the underlying charge of possession of beer was dismissed. Determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Floyd v. City of Crystal Springs, 749 So.2d 110(¶ 11) (Miss.1999).

¶ 7. Mayo does not question the constitutionality of the roadblock itself, but asserts the police lacked sufficient probable cause for the subsequent arrest for DUI since the beer possession charge was dismissed. Upon approaching the vehicle, Officer Rials noticed an open container of alcohol in plain view and asked Mayo had he been drinking. Mayo indicated that he had in fact been drinking. Mayo was then asked to step out of the vehicle. There is a long line of precedent in Mississippi which holds the smell of alcohol emanating from a car is enough to provide an officer with probable cause to make an arrest. Dale v. State, 785 So.2d 1102(¶ 16) (Miss.Ct.App.2001).

¶ 8. Officer Rials testified that Mayo stuttered when answering questions, acted a little disoriented, and had the odor of an “intoxilyzing substance” on his breath. The officer determined that Mayo should be arrested and given an intoxilyzer test. The trial judge determined that sufficient probable cause existed for this action stating:

THE COURT: [TJhere’s been no contest made or [sic] validity of the roadblock and there’s undisputed testimony that Mr. Mayo had the beer in his vehicle. And at that point we’ve had, you know, testimony from at least one, maybe two officers, it’s difficult to tell, maybe two officers that Mr. Mayo had possession of beer in his vehicle. Now, whether or not he’s guilty of that offense, you know, beyond a reasonable doubt, the justice court for some reason dismissed the cause, and I’m certainly not questioning that or I don’t doubt it, but that does not mean the proof, the facts, and the truth of what happened at the stop are not valid.
THE COURT: I don’t believe that anything that’s happened in justice court has done anything to diminish the probable cause that the police officers had to stop Mr. Mayo, and I find in ruling at this point that there was probable cause to stop Mr. Mayo.

¶ 9. Even though the beer possession charge was dismissed, it is not necessary that the information the officer had at the time of the arrest be sufficient to sustain a conviction of the crime charged, Jones v. State, 461 So.2d 686, 695 (Miss.1984), nor does the arrest have to have been on the charge ultimately brought. Goforth v. City of Ridgeland, 603 So.2d 323, 326 (Miss.1992).

¶ 10. Officer Rials indicated he observed an open container of beer in Mayo’s vehicle, and that Mayo admitted that he had been drinking. The officer smelled an intoxilyzing substance on Mayo’s breath and noticed that Mayo appeared disoriented. Although the charge of possession of beer was later dismissed, the presence of beer provided sufficient probable cause to conduct a search of Mayo and his vehicle. Northington v. State, 749 So.2d 1099(¶ 9) (Miss.Ct.App.1999). This Court finds no merit in this issue.

¶ 11. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE-FIRST OFFENSE AND FINE OF $500.00 IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, J., for the court.

text:
    Hartie MAPP, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00105-COA.
    Court of Appeals of Mississippi.
    April 22, 2003.
    Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Hartie Mapp lived next door to the victim in this case. On March 9, 2001, Hartie went to his neighbor’s house to use the phone, but the two ended up in her bedroom where they had sex. Hartie’s recount of events leading to the intercourse differs from the victim’s account. Hartie claims that his neighbor consented in exchange for money, and her claim of rape is revenge for Hartie’s failure to pay her after the act. In contrast, the victim claims that Hartie locked her inside the bedroom and forced her at knife point to have sex with him; she denies having been promised money in exchange for the sex.

¶ 2. After the alleged rape, the victim went to the hospital for an examination. The police arrested Hartie the next day and read him his Miranda rights. Hartie gave the officer different versions of what happened, as later discussed.

¶ 3. Hartie was convicted of rape by a Leake County jury and was sentenced to serve twenty-five years in jail. His motion for new trial was overruled, and he now appeals to this Court raising the following issues: (1) Did the trial court err in permitting Deputy Turner to testify concerning the victim’s telling him of the alleged rape; (2) did the trial court err in admitting his oral confession into evidence; and (3) was the verdict against the overwhelming weight of the evidence? We review each of these issues and find no merit; thus, we affirm.

DISCUSSION OF THE ISSUES

I. DID THE TRIAL COURT ERR IN PERMITTING DEPUTY TURNER TO TESTIFY CONCERNING THE VICTIM’S TELLING TO HIM OF THE ALLEGED RAPE?

¶ 4. Hartie Mapp first argues that the judge erred in allowing Deputy Cornelius Turner to testify concerning Turner’s visit with the victim at the hospital. Deputy Turner testified that he went to the hospital where he saw the victim sitting on a bed. A nurse was consoling her because she apparently had been crying. Deputy Turner asked the victim what had happened, and she told him Hartie Mapp had raped her. Hartie objected at trial, but the judge overruled the objection, reasoning that the victim was making a report to an investigating officer, and this evidence was an exception to the hearsay rule. Hartie argues that the judge erred in overruling this objection because it was inadmissible hearsay under Mississippi Rule of Evidence 802 which states, “Hearsay is not admissible except as provided by law.” The State argues that the victim’s comments to the officer were admissible under the hearsay exception for excited utterances, which is provided for in M.R.E. 803(2). Rule 803(2) provides that a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible. Here, the victim testified that, immediately after the incident, she drove herself to the hospital. Shortly thereafter the officer arrived, and while she was being consoled by the nurse, she told the officer what had happened.

Spontaneity is “the essential ingredient” to the underlying theory supporting admission of an excited utterance.... However, “under the excited utterance exception the fact that questions are asked, while relevant to spontaneity, does not ipso facto demonstrate a lack of spontaneity in every case.” Where the excited utterance is prompted by a simple question, even from an officer, such as “What happened?” or “What’s wrong?” we have still found the statement to fall under the exception.

Carter v. State, 722 So.2d 1258(¶ 10) (Miss.1998) (citations omitted). The victim was clearly still under the stress of the situation, and according to Carter, the victim’s statement to Deputy Turner does qualify as an excited utterance.

¶ 5. The decision to admit or refuse admission under M.R.E. 803 is within the discretion of the trial court. Davis v. State, 611 So.2d 906, 914 (Miss.1992). We find the trial court did not abuse its discretion in allowing Deputy Turner’s testimony concerning the victim’s statements to him at the hospital. This issue has no merit.

II. DID THE TRIAL COURT ERR IN ADMITTING HARTIE’S ORAL CONFESSION INTO EVIDENCE?

¶ 6. Hartie next argues that his oral confession should not have been admitted because it described an incident of consensual sexual intercourse, and he was not afforded a hearing concerning admissibility of this oral statement. Hartie claims that he only adopted his written statement, not the oral version to which Officer Mark Wilcher also testified.

¶ 7. The afternoon Hartie was arrested, he told Officer Wilcher he wanted to talk with him. Officer Wilcher advised Hartie a second time of his Miranda rights, and Hartie told the officer his version of the events. With this version, Hartie admitted going to his neighbor’s home to use the telephone, but he did not rempmber what happened because he was under the influence of cocaine and whiskey at that time. What he did recall was going with his neighbor to her bedroom to engage in consensual intercourse. She changed her mind once they were in the bedroom, but Hartie forced himself on her. After Har-tie’s confession, Officer Wilcher proceeded to put the confession in writing for Hartie to sign. As he wrote, Officer Wilcher orally confirmed the words he was writing with Hartie; however, when Officer Wil-cher asked Hartie about forcing himself on the victim, Hartie changed his story from the previous version. Hartie explained that he had offered his neighbor money in exchange for sex and that he stopped when she asked him to stop.

¶ 8. “A trial judge’s admission of a confession will only be overturned where an incorrect legal standard was applied, manifest error was committed, or the decision was contrary to the overwhelming weight of the evidence.” Kircher v. State, 753 So.2d 1017(¶ 27) (Miss.1999). Hartie’s second statement, which he signed, did not act to cancel out the prior oral statement, and the fact that the first statement was not reduced to writing has no effect on its status as a voluntary confession. Both Officer Wilcher and a nurse were present when Hartie made both statements. At the suppression hearing, both witnesses testified that Officer Wilcher read Hartie his Miranda rights, and Officer Wilcher testified that he did not promise Hartie any leniency nor did he threaten him. Having reviewed the testimony brought forth at the hearing, we cannot find the trial judge erred in allowing both the oral and written confessions into evidence. This issue is without merit.

III. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 9. Hartie finally argues that the verdict was against the weight of the evidence.

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Cross v. State, 759 So.2d 354(¶ 9) (Miss.1999) (citations omitted). The evidence in the present case was abundant, and viewing the evidence which is favorable to the verdict, we cannot find an abuse of discretion. The victim says she was threatened with a knife and was forced into the intercourse; Hartie says intercourse was consensual. Both admit they had sex, but whether or not the victim consented is a question the jury was left to decide. The jury’s verdict reflected the victim’s version of events; thus, we cannot find an unconscionable injustice results. This issue has no merit.

¶10. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF RAPE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., AND CHANDLER, J., CONCUR IN RESULT ONLY.

      . See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: LYONS, Justice.

text:
    Ex parte John W. HALL. (In re John W. Hall v. City of Mobile).
    1010415.
    Supreme Court of Alabama.
    April 19, 2002.
    Robert H. Smith and Thomas M. Galloway of Galloway, Smith, Wettermark & Everest, Mobile, for petitioner.
    Carol Carr Little, asst, city atty.; and William R. Lauten, chief asst, city atty., City of Mobile, for respondent.
   LYONS, Justice.

John W. Hall was found guilty of failure to obtain a land-disturbance permit for site construction as required by a municipal ordinance of the City of Mobile (“the City”). Hall was sentenced to serve 10 days in jail; the court suspended that sentence and he was placed on one year’s probation. The Court of Criminal Appeals affirmed Hall’s conviction, in an unpublished memorandum. (CR-00-1255, Oct. 19, 2001) - So.2d - (Ala.Crim.App. 2001) (table). We granted certiorari review only as to Hall’s argument that his conviction should be reversed because the City failed to introduce into evidence a copy of the ordinance it accused Hall of violating.

Facts

On August 28, 1997, John Hall obtained a “Land Disturbing Activity Permit”; the permit allowed him to place fill dirt “less than two feet deep, over an area of approximately acre” of his property at 3839 Riviere du Chien Road in Mobile. A hand-drawn map submitted with the permit application clearly indicated the portion that was approved as the “fill site.”

On July 14, 2000, City engineering technician Dudley Mask III went to Hall’s property in response to a complaint. Mask saw loads of new fill material on the property, although he did not see any dumping activity. Mask had been told by City engineer John Crawford that a land-disturbance permit had not been issued for the property, so he issued a ticket charging Hall with the municipal offense of “failure to obtain land disturbance permit for site construction,” a violation of the City’s “storm water management ordinance.” The following day, Mask returned to the property, accompanied by Crawford. Hall was using a bulldozer to move large amounts of dirt. At trial, defense counsel produced the 1997 permit issued to Hall. Crawford and Mask testified that the filled area they saw when they visited Hall’s property on July 15 went “way beyond” the area approved in the permit and that the level of the fill material also was well above the approved level of two feet.

It is undisputed that the City did not formally introduce into evidence the storm water management ordinance Hall was convicted of violating. During the trial the City prosecutor showed a copy of the ordinance to the trial judge. Hall’s attorney volunteered that he also had a copy of the ordinance. However, the City did not introduce a copy of the ordinance into evidence; the ordinance is therefore not included in the record.

After a bench trial, Hall was convicted for failure to obtain a land-disturbance permit as required by the City of Mobile ordinance. On December 15, 2000, Hall was sentenced to imprisonment for 10 days; the execution of the sentence was suspended. On January 12, 2001, Hall filed a postjudgment motion for a judgment of acquittal or, in the alternative, for a new trial. In his motion, Hall stated 14 grounds. One of these grounds stated as follows:

“The defendant moves the Court to enter a judgment of acquittal ... for the offense of ‘failure to obtain land disturbance permit for site construction’ because insufficient evidence has been presented to support a finding that the defendant is guilty beyond a reasonable doubt.”

The trial court denied the motion. Hall appealed to the Court of Criminal Appeals. In his brief to that court, Hall argued that the City did not introduce into evidence a copy of the ordinance he was convicted of violating. The Court of Criminal Appeals affirmed the judgment of the trial court in an unpublished memorandum. That court reasoned that Hall had waived the City’s failure to introduce the ordinance into evidence when he asserted specific grounds in his motion for a judgment of acquittal but did not state as a ground the City’s failure to introduce the ordinance into evidence.

Discussion

In Ex parte Maxwell, 439 So.2d 715, 716 (Ala.1983), a case involving the City of Mobile’s failure to introduce into evidence the ordinance Maxwell was charged with violating, this Court held:

“[I]t is well established that in a criminal prosecution for violation of a city ordinance the city must plead and prove the ordinance. And it has been held when the city does not introduce the ordinance into evidence, it has failed to make out its case against the defendant and the trial court has erred in pronouncing the judgment of conviction.”

(Citations omitted.) In Ex parte Townsend, 793 So.2d 835 (Ala.2000), another case arising out of an alleged violation of a Mobile municipal ordinance, we held that a municipal prosecutor has the burden of proving the entire ordinance under which a defendant is prosecuted. In that case, we held that because the municipal prosecutor had introduced into evidence only a portion of the ordinance, Mobile had failed to establish a prima facie case. Although the City points out that in this case it showed the court a copy of the ordinance during the trial, it does not dispute that it failed actually to introduce into evidence the ordinance under which Hall was convicted. Thus, because it failed to prove the ordinance and thereby to make it a part of the record before us, the City did not establish its prima facie case.

The only remaining issue is whether Hall preserved for review the issue of the City’s failure to prove the ordinance. Hall was sentenced on December 15, 2000; he filed his motion for a judgment of acquittal, asserting, among other grounds, the ground of “insufficient evidence,” on January 12, 2001. Rule 20.3, Ala. R.Crim. P., states as follows:

“(a) Generally. After a verdict or the entry of a judgment of conviction, the defendant may move for a judgment of acquittal, or the court on its own motion, may grant a judgment of acquittal. It shall not be necessary to the making of the motion after a verdict or judgment of conviction that a similar motion have been made prior to the submission of the case to the factfinder.
“(b) Time for Making Motion.
(1) In General. After the return of a verdict or after a judgment of conviction, but no later than thirty (SO) days after the pronouncement of sentence, a defendant may move to have the judgment of conviction and any sentence thereon ... set aside and to have a judgment of acquittal entered

(Emphasis added.) Rule 20.3 explicitly permits a defendant to file a motion for a judgment of acquittal within 30 days after sentence is pronounced and to raise a ground for the first time in that motion. Thus, Hall’s motion for a judgment of acquittal complied with Rule 20.3, Ala. R.Crim. P.

Nevertheless, the Court of Criminal Appeals held that Hall did not preserve for review the City’s failure to introduce into evidence the ordinance under which Hall was charged. That court concluded that Hall raised several grounds in his oral and written motions for a judgment of acquittal, but that Hall waived the City’s failure to introduce into evidence the ordinance because, it reasoned, he had not specifically stated that ground. It is well established that a defendant who states specific grounds in his motion for a judgment for acquittal waives all grounds not stated. Ex parte Frith, 526 So.2d 880, 882 (Ala.1987); R.K.D. v. State, 712 So.2d 754, 757 (Ala.Crim.App.1997); Washington v. State, 555 So.2d 347, 348 (Ala.Crim.App.1989). However, those cases are inappo-site here if Hall, under settled caselaw, has by his objection preserved for review the City’s failure to introduce the ordinance into evidence.

In Maxwell, the defendant asserted three grounds on which he sought to exclude the evidence, including the ground that the City had “failed to prove a prima facie case,” and that the City had failed to prove the allegations in the indictment. 439 So.2d at 717. Regarding the City’s failure to introduce into evidence the ordinance the defendant was charged with violating, this Court held:

“To preserve the issue for appeal it is necessary for [the] defendant to state his grounds upon moving to exclude evidence; however, it is not necessary to draw the trial court’s attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make out a prima facie case.”

439 So.2d at 717. In Hanson v. City of Trussville, 539 So.2d 1082 (Ala.Crim.App.1988), the City of Trussville had failed to introduce into evidence the ordinance at issue in that case. The defendant made several arguments seeking to exclude the evidence, including the argument that the city had “not proven that [the defendant] is guilty of driving while revoked or suspended through the evidence.” 539 So.2d at 1084. However, the defendant did not specifically state that the city had failed to introduce into evidence the ordinance under which he was charged. The defendant argued that, under Maxwell, to preserve the error for review the defendant need state only that the prosecution failed to make a prima facie case. Addressing the sufficiency of the defendant’s statement quoted above to preserve the ground that the city had failed to introduce the ordinance into evidence, the Court of Criminal Appeals held:

<rWhile this statement is not exactly the statement that the Maxwell court held was necessary to preserve the issue in that case, we find it is sufficient, in this case, to put the trial court on notice of a defect in the city’s ease and, therefore, sufficient to preserve the issue for review.”

Hanson, 539 So.2d at 1084. Thus, that court reversed the trial court’s judgment and rendered a judgment in the defendant’s favor on that charge. This Court endorsed the reasoning in Hanson in Ex parte Woodson, 578 So.2d 1049, 1051 (Ala.1991).

In his written motion for a judgment of acquittal, Hall stated as one of his grounds that “insufficient evidence has been presented to support a finding that the defendant is guilty beyond a reasonable doubt.” This statement is almost identical to the statement in Hanson that the city had not “proven that [the defendant] is guilty of driving while suspended or revoked through the evidence.” Thus, although Hall’s statement here, like the statement in Hanson, is not as perfectly phrased as the statement this Court endorsed in Maxwell, it was nevertheless “sufficient ... to put the trial court on notice of a defect in the city’s case, and, therefore, sufficient to preserve the issue for review.” Hanson, 539 So.2d at 1084. Because Maxwell and Hanson, where multiple grounds of objection had been stated, compel the conclusion that an objection to a city’s failure in a case where the defendant is charged with violating a municipal ordinance to introduce the ordinance is sufficiently preserved by a challenge to the sufficiency of the evidence, the Court of Criminal Appeals’ reliance on cases holding that a specific objection waives other grounds is misplaced.

The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to that court for the entry of an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

      . "Rightly or wrongly, the terms 'motion for a judgment of acquittal' and 'motion to exclude the evidence and discharge the accused’ are used interchangeably.” Ex parte Johnson, 620 So.2d 665, 668 n. 3 (Ala.1993).


author: McMILLAN, Presiding Judge.

text:
    John W. HALL v. CITY OF MOBILE.
    CR-00-1255.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Robert H. Smith, Mobile, for appellant.
    Carol Carr Little, Mobile, for appellee.
   After Remand from the Alabama Supreme Court

McMILLAN, Presiding Judge.

The Alabama Supreme Court, in Ex parte Hall, 843 So.2d 746 (Ala.2002), reversed the prior judgment of this court. Therefore, we reverse the judgment of the trial court and remand this cause to the trial court for proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.