text:
    Christopher Q. HUNTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00035-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

MODIFIED OPINION

¶ 1. This Court on its own motion withdraws the original opinion in this case and substitutes this opinion therefor.

¶ 2. Christopher Q. Hunter was tried before a jury and was convicted of burglary on December 11, 2002. The Circuit Court of Newton County sentenced Hunter to seven years in the custody of the Mississippi Department of Corrections, but suspended three years. Hunter was also ordered to pay $651.44 in restitution. Hunter appeals his conviction citing four issues.

STATEMENT OF THE ISSUES

I. WHETHER THE LOWER COURT ERRED IN OVERRULING HUNTER’S MOTION TO QUASH THE INDICTMENT BECAUSE THERE WAS VARIANCE IN THE PROOF OFFERED AT TRIAL AND THE NAMES LISTED ON THE INDICTMENT?

II. WHETHER THE LOWER COURT ERRED IN FAILING TO SUPPRESS HUNTER’S STATEMENT?

III. WHETHER THE LOWER COURT ERRED IN GRANTING JURY INSTRUCTION S-l?

IV. WHETHER THE JURY VERDICT WAS AMPLY SUPPORTED BY THE WEIGHT AND CREDIBILITY OF THE EVIDENCE? '

FACTS

¶ 3. Hunter was convicted of burglary by a jury trial before the Newton County Circuit Court. Hunter was indicted and convicted under Mississippi Code Annotated section 97-17-33, which deals with burglary; breaking and entering a building other than a dwelling; railroad car; vessels; and automobiles. Hunter’s conviction results from events that took place March 9, 2002, when Union High School was burglarized. A separate, but linked burglary of the high school also occurred on March 23, 2002. Devan Amos was implicated in both burglaries and was convicted by the Newton County Youth Court. Amos gave the Newton County authorities a written statement in which he implicated Hunter in the March 9th break-in.

¶ 4. According to the statement, Hunter aided Amos in entering the high school through a library window and Hunter gave Amos a shirt and left. Amos called Hunter a few hours later for help and Hunter returned to the high school entering through a cafeteria door. Hunter removed the glass from the cafeteria office window and washed off the finger prints. Then Hunter, Amos and a third party put the school back in order and left.

¶ 5. At the time of the conviction Hunter was seventeen, weighed four hundred and seventy-four pounds and had difficulty walking and moving. Hunter’s defense to the charges is that he was at a card game with friends at the time the robbery took place and had several witnesses. It was Amos’s testimony that he was alone when he committed the robbery, which is in conflict with his written statement.

ANALYSIS

I. WHETHER THE LOWER COURT ERRED IN OVERRULING HUNTER’S MOTION TO QUASH THE INDICTMENT BECAUSE THERE WAS VARIANCE IN THE PROOF OFFERED AT TRIAL AND THE NAMES LISTED ON THE INDICTMENT?

¶ 6. “[T]his Court conducts de novo review on questions of law. The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this court.” Simmons v. State, 784 So.2d 985, 987(¶ 7) (Miss.Ct.App.2001).

¶ 7. The indictment of Hunter listed the high school as property of Mrs. Bobbie McElroy, Mrs. Mattie Boler, Dr. L.B. Atkins, Mr. Rex Germany and Mr. Wayne Welch, and their successors, as county board members. However, this body of people were known collectively as the Board of Alderman of the Town of Union, not the county board like the indictment suggested. Also, Mississippi Code Annotated section 37-7-301 appoints the school board, not the board of alderman and not the county board, as custodian of real and personal property belonging to a school. Therefore, Hunter claims the municipal school board members should have been listed in the indictment.

¶ 8. There weré several inconsistencies in the indictment; the Union Public School District is a municipal school district; the indictment referred to the county governing body; and the names listed were members of the municipal governing body. Hunter made this objection in court after the prosecution had Don Brantly, a superintendent of education with the Union Public School District, testify. Hunter claimed the State mounted its defense and centered its witnesses around the fact that a “county school of Union High School could not have possibly been burglarized in that no such school exists.” Hunter believed from the indictment it appeared the county was claiming ownership and dominion over the property at issue in this case.

¶ 9. This objection was overruled by the trial judge after reading Rule 706 of the Uniform Circuit and County Court Rules requiring the indictment to intelligently inform the defendant of the charges against him. The judge held that the defect was not a substantive one in that there was only one Union High School in either the county or the city and that the defendant would certainly be aware of what school he was charged with burglarizing. The case was not dismissed because of a variance in the indictment like Hunter requested and the indictment was not corrected.

¶ 10. “It is fundamental that courts may amend indictments only to correct defects of form, however, defects of substance must be corrected by the grand jury.” Mitchell v. State, 739 So.2d 402, 404(¶ 5) (Miss.Ct.App.1999). “[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense ... as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Id. “The test ... is whether the defense as it originally stood would be equally available after the amendment is made.” Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995).

¶ 11. The indictment was never amended by the prosecution as this Court in Mitchell allows the trial judge to direct. Therefore, the indictment upon which Hunter was convicted was never complete and accurate. It was error for the trial judge not to amend the indictment and list the correct owners of the school. This error, however, is harmless in nature because the defense was able to prepare their defense based on the indictment as issued since there was no confusion as to which high school to which, it referred. There was no defect of substance requiring the grand jury to correct. Therefore, the decision of the trial court not to dismiss the case on the basis of a variance in the indictment was without error.

II. WHETHER THE LOWER COURT ERRED IN FAILING TO SUPPRESS HUNTER’S STATEMENT?

¶ 12. In his appeal Hunter claims the statement he gave the police was inaccurate. He claims some of the descriptions of the events and people involved relate to the March 23, 2002 break-in not the March 9, 2002 break-in for which he was indicted. Hunter signed this statement on March 25, 2002, and believes it was written before he gave his statement based on the information provided by Amos. Hunter attempted to have this statement suppressed, offering testimony of the policeman who wrote the statement, Michael Bryant. Bryant testified that Hunter would not say the name of someone out loud but, rather, underlined the name on the statement. Bryant’s explanation is that they were talking about the March 23, 2002 break-in and Hunter used the statement regarding the March 9, 2002 break-in, to underline the name.

¶ 13. The trial court’s determination that Hunter’s confession was admissible was a finding of fact which this Court cannot disturb unless the trial court committed manifest error, applied an incorrect legal standard, or the decision was contrary to the overwhelming weight of the evidence. Wright v. State, 730 So.2d 1106 (¶ 11) (Miss.1998). In Morris v. State, 798 So.2d 603, 605(¶ 5) (Miss.Ct.App.2001), Morris claimed his statement was inaccurate due to his being high on drugs, and in that case this Court considered the volun-tariness of the statement. The trial court must look at the totality of the circumstances in making the factual inquiry into the voluntariness of a statement or confession. O’Halloran v. State, 731 So.2d 565 (¶ 18) (Miss.1999). “ ‘The applicable standard for determining whether a confession is voluntary is whether, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice.’ ” Herring v. State, 691 So.2d 948, 956 (Miss. 1997) (quoting Porter v. State, 616 So.2d 899, 907-08 (Miss.1993)). The defendant bears a heavy burden in attempting to reverse a trial court’s decision that a confession is admissible. Smith v. State, 737 So.2d 377 (¶ 11) (Miss.Ct.App.1998).

¶ 14. When a defendant challenges the voluntariness of his statement, the trial court must hold an evidentiary hearing outside the jury’s presence to determine the admissibility of the confession. Millsap v. State, 767 So.2d 286 (¶ 14) (Miss.Ct.App.2000). The State must prove the voluntariness of the statement beyond a reasonable doubt. Id. The State establishes a prima facie case of voluntariness when the officer, or other person having knowledge of the facts, testifies that “the confession was voluntarily made without any threats, coercion, or offer of reward.” Id. When the State establishes its prima facie case of voluntariness, the defendant must then rebut the State’s assertion of voluntariness. Sykes v. State, 749 So.2d 239 (¶ 15) (Miss.Ct.App.1999). A defendant’s mental condition will not itself render a confession inadmissible; indeed, it is “but one factor to consider among the totality of the circumstances of a confession and interrogation.” Kircher v. State, 753 So.2d 1017 (¶ 37) (Miss.1999). Intoxication or illness will not automatically render a confession involuntary. The confession’s admissibility depends upon the degree of intoxication. Id.

¶ 15. It appears from the testimony that the police officer did not have the statement pre-written and honestly and accurately wrote down the statement given by Hunter. Hunter offered no credible evidence that the statement he signed was inaccurate and related to more than one burglary. Hunter also cited to only one general aspect of a Fifth Circuit Court case to support his claim and no relevant law at all. From the transcripts of the motion to suppress it appears Hunter’s statement was voluntary when considered among the totality of the circumstances. Hunter’s appeal on this issue is without merit.

III. WHETHER THE LOWER COURT ERRED IN GRANTING JURY INSTRUCTION S-l?

¶ 16. Hunter’s appeal on this issue is procedurally barred by his failure to object contemporaneously during trial. There is evidence in the record that in Hunter’s closing arguments he commented on the relevance of jury instruction S-l but that is not an objection. It is the burden of the appellant to make sure the record contains sufficient evidence to support assignments of error on appeal. Jackson v. State, 684 So.2d 1213, 1224 (Miss.1996). “Errors based on the granting [or denying] of an instruction will not be considered on appeal unless specific objections stating the grounds are made in the trial court.” Oates v. State, 421 So.2d 1025, 1030 (Miss.1982).

IV. WHETHER THE JURY VERDICT WAS AMPLY SUPPORTED BY THE WEIGHT AND CREDIBILITY OF THE EVIDENCE?

¶ 17. Hunter argues that the trial court erred by denying his motion for directed verdict based upon the weight and credibility of the evidence. Hunter’s motion for JNOV or, in the alternative, new trial was denied. The standard of review for denial of a judgment notwithstanding the verdict (JNOV) and directed verdict are the same. Grihim v. State, 760 So.2d 865, 866(¶ 6) (Miss.Ct.App.2000). An appellant challenges the sufficiency of the evidence when he appeals from an overruled motion for JNOV or directed verdict. Noe v. State, 616 So.2d 298, 302 (Miss. 1993).

¶ 18. Our state’s supreme court offered guidance on this issue in McClain v. State, 625 So.2d 774 (Miss. 1993). In McClain, the court stated that, in appeals from a denied JNOV, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. Id. at 778. The credible evidence consistent with the defendant’s guilt must be accepted as true. Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Matters regarding the weight and credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984). “We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Wetz, 503 So.2d at 808; McClain, 625 So.2d at 778.

¶ 19. The jury heard two witnesses testify that Hunter admitted to committing the burglary. Hunter claims the prosecution failed to prove his intent to steal as required in a conviction of burglary. Miss. Code Ann. § 97-17-33 (Rev.2000). Hunter’s statement to the police did not indicate any intent on his part to take property from within the school. The evidence presented to the jury included the statement that he did enter the school illegally and assist others in entering the school. It also included the testimony of Amos who was with Hunter inside the school. Amos’s testimony and the statement placing Hunter inside the school are sufficient evidence presented to the jury for it to reasonably find Hunter guilty. The jury is the ultimate finder of fact and Hunter failed to prove that no rational jury could find him guilty on the evidence presented.

¶ 20. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A SCHOOL AND SENTENCE OF SEVEN YEARS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED AND THREE YEARS PROBATION, AND PAYMENT OF $651.44 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE NEWTON COUNTY.

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


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Catherine GIVENS, Appellant v. Todd NICHOLSON, Appellee.
    No. 2002-CA-01582-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.
    Deedy Boland, Tupelo, attorney for appellant.
    Todd Nicholson, appellee, pro se.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court.

¶ 1. Catherine Givens’ motion for rehearing is granted. The original opinion of this Court is withdrawn and the following opinion substituted therefor.

¶ 2. Catherine Givens appealed from an order of the Union County Chancery Court modifying visitation to include a monthly visit with Todd Nicholson’s parents who reside in Memphis. Givens appealed, arguing that the chancery court judge abused his discretion in altering the visitation schedule to include grandparent visitation. In our original opinion handed down March 2, 2004, this Court affirmed the trial court, finding that no visitation had been conferred upon the grandparents. In her motion for rehearing, Givens correctly points out that this Court misapprehended Mississippi law in not requiring the chancellor to make specific findings of fact when modifying the visitation to include time with Nicholson’s parents. We hold that the chancellor’s order requiring Givens to surrender her son once a month to Nicholson’s parents constitutes grandparent visitation; therefore, the chancellor erred in granting the visitation.

FACTS AND PROCEDURAL HISTORY

¶ 3. Givens and Nicholson were granted a divorce by the Circuit Court of Shelby County, Tennessee on December 8, 1993. Givens was awarded primary custody of their minor child, Todd Aaron Nicholson, born on December 19, 1990. Nicholson was granted visitation and ordered to pay child support to Givens.

¶ 4. Aaron has lived with his mother and older half-sister in a number of residences since the divorce. The family first lived in Bartlett, Tennessee, where they were residing when Givens and Nicholson divorced.

¶ 5. When Aaron was three, he began medicated treatment for attention deficient hyperactivity disorder. While in preschool, Aaron began to exhibit violent behavior, began having night terrors, and suffered from depression. After Aaron’s behavioral problems continued in preschool and kindergarten, Givens decided to move the family to Mumford, Tennessee where Aaron completed first grade. In the middle of his second year in Mumford, Aaron began to have serious behavioral problems in school and his grades fell dramatically. By the end of Aaron’s third grade year, Givens decided to move to Vicksburg. Givens married again and the blended family of Givens and her two children, her new husband, and his son did, in fact, move to Vicksburg. After only nine months in Vicksburg, the family moved to New Albany. In a period of three years, Aaron lived in four different cities.

¶ 6. In the fall of 2001, while in fifth grade at New Albany Middle School, Aaron drew a picture of his classmate with an arrow through his head that said, “you are dead.” After this incident Aaron was admitted to Parkwood Hospital in the pre-adolescent psychiatric unit, and remained there about two weeks. During his stay at Parkwood, Aaron was diagnosed as having bipolar disorder, with symptoms of attention deficit disorder with hyperactivity.

¶ 7. Because Aaron had extreme difficulty getting along with other children, upon his discharge from the hospital, his doctors advised Givens that she should home school Aaron. The doctors felt that if Aaron, who is dyslexic, could learn to read at his age level it would help curb his frustration and lower his anxiety. In addition to being home schooled, Aaron saw a reading tutor three times a week.

¶ 8. Nicholson moved to Connecticut before the divorce was finalized and has since remained there. Nicholson has also remarried but has no other children. He is a senior customer service agent with Federal Express and has been employed there for twelve years. Since the divorce, Nicholson has maintained regular contact with Aaron, calling him on Sunday nights. However, he has only seen Aaron an average of three times per year since the divorce. Nicholson received about three weeks of vacation per year and spent the majority of that time in Memphis visiting with his parents, where he would also see Aaron on the weekends.

¶ 9. Prior to September 11, 2001, as an employee of Federal Express, Nicholson was able to “jump seat” from Connecticut, to Memphis, Tennessee free of charge. After September 11, the Federal Aviation Agency ended all jump seating.

¶ 10. On October 12, 2001, Nicholson filed a petition in the Chancery Court of Union County seeking permanent custody of Aaron and the discontinuation of child support paid to Givens. Givens answered the petition and filed for modification of Nicholson’s summer visitation and for an increase in child support paid by Nicholson. Following a hearing on February 14, 2002, the chancellor ordered that Aaron reside with his father in the State of Connecticut during the summer months of 2002, and held all other matters in abeyance. Nicholson’s parents were not a party to the litigation.

¶ 11. On August 1, 2002, a second hearing was conducted in the matter. The chancellor’s opinion and judgment entered on August 19, 2002, denied Nicholson’s request to modify custody and Givens’ request for an increase in child support. However, the chancellor modified visitation. Included in this order was the following excerpt regarding a monthly visit with Nicholson’s parents.

This Court further finds that the prior Orders of this Court are hereby modified in that the Mother shall deliver the minor child to the home of the paternal grandparents at 7:00 p.m. on the second (2nd) Friday of each month and the child shall be returned to the home of the Mother at 6:00 p.m. on the following Sunday in order to give the Father a definite monthly visitation period to see the child if he is able to travel to Memphis and to allow the child the opportunity to maintain ties with his extended family when the Father is unable to travel to Memphis.

ISSUES AND ANALYSIS

I. DID THE CHANCELLOR CONFER VISITATION TO THE GRANDPARENTS?

¶ 12. The first issue to be determined is whether the chancellor effectively granted the grandparents visitation with the child. This Court agrees with Givens that the chancellor granted the grandparents visitation. The effect of the chancellor’s ruling is that on the second Friday of each month, Givens must transport her son to the paternal grandparents’ house in Memphis. The last clause of the paragraph indicates that the purpose of this monthly trip to Memphis is to grant to the child an opportunity to interact with his extended family “when the Father is unable to travel to Memphis.” The inclusion of this clause leads this Court to the understanding that the monthly Memphis visits will occur by order of the court regardless of Nicholson’s ability to join his family in Memphis.

¶ 13. Visitation rights afford the noncustodial parent the opportunity to maintain a healthy relationship with his or her child. Porter v. Porter, 766 So.2d 55, 58

(¶ 13) (Miss.Ct.App.2000). Visitation allows interaction between the child and the non-custodial parent, and allows the noncustodial parent to exercise his rights as a parent. In Cox v. Moulds, 490 So.2d 866 (Miss.1986), the supreme court discussed the inherent authority a non-custodial parent possesses when exercising visitation.

We are afraid that by labeling the rights of the non-custodial parent “visitation” we imply an inordinate subordination of those rights in quality. That there will be no misunderstanding in the future the chancellor should approach the fixing of visitation rights with the thought in mind that, absent extraordinary circumstances militating to the contrary, the non-custodial parent will during the periods of visitation have broad authority and discretion with respect to the place and manner of the exercise of same, subject only to the time constrictions found reasonable and placed in the decree.

Id. at 870.

¶ 14. A parent exercising visitation has discretion in determining with whom the child will associate during that visitation. See, e.g., Harrington v. Harrington, 648 So.2d 543 (Miss.1994) (noncustodial father’s cohabitation did not per se warrant restrictions on visitations). A non-custodial parent may determine which extra-curricular activities the child participates in during visitation, including certain activities of which the custodial parent disapproves. See, e.g., Mord v. Peters, 571 So.2d 981 (Miss.1990) (absent any showing that flying with father would be dangerous or that father was acting without concern for children’s well being, neither mother nor court had right to restrict children’s activities during visitation). In short, visitation allows the caretaker extreme latitude in determining how to care for the child, as long as the visitation is within the child’s best interests.

¶ 15. In the case sub judice, the chancellor requires Givens to leave her child with the paternal grandparents in Memphis by 7:00 p.m. on the second Friday of each month. Nicholson may or may not be present during the visit. Because the mother will not have her child returned until Sunday at 6:00 p.m. and because the father may not be able to travel to Memphis, the chancellor has effectively surrendered the child’s care and control to the grandparents during the second weekend of each month when the father is absent. Requiring Givens to relinquish the care, physical custody and control of her child to the grandparents for a period of time is nothing less than visitation.

II. DID THE CHANCELLOR ERR IN GRANTING GRANDPARENT VISITATION?

¶ 16. It is well settled that natural grandparents have no common-law “right” to visitation with their grandchildren. Such right, if any, must come from a legislative enactment. In re Adoption of a Minor, 558 So.2d 854, 856 (Miss.1990) (citing Olson v. Flinn, 484 So.2d 1015, 1017 (Miss.1986)). In 1983 the Mississippi Legislature enacted the grandparents’ visitation rights statutes, found at Mississippi Code Annotated Section 93-16-1 to 7 (Rev. 1994). These statutes outline how a grandparent may seek the opportunity to secure visitation with a child.

¶ 17. Although a grandparent has standing to petition for visitation, a natural grandparent’s statutory right to visit her grandchild is not as comprehensive as a parent’s visitation rights. Settle v. Galloway, 682 So.2d 1032, 1035 (Miss.1996). As always, the best interests of the child are the paramount consideration when determining visitation. Morgan v. West, 812 So.2d 987(¶ 13) (Miss.2002). In Martin v. Coop, 693 So.2d 912, 916 (Miss.1997), the Mississippi Supreme Court listed ten factors which should be considered in determining grandparent visitation. The factors are as follows:

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

Id. The Martin court acknowledged that this list was not all-inclusive, and stated that the chancellor should weigh “all circumstances and factors he feels to be appropriate.” Id.

¶ 18. In the case sub judice the chancellor committed error at two points. First, the grandparents did not petition the court for visitation as provided for in Mississippi Code Annotated Section 93-16-3 (Rev. 1994). The grandparents were never parties to the litigation, and they never sought visitation from the court. Second, the chancellor heard no evidence concerning the grandparents as required under Martin. There was no testimony regarding the grandparents’ fitness, character, home life, emotional ties to the child, employment or even their desire to care for the child in the event Nicholson is unable to make the monthly trek to Memphis.

¶ 19. Although this Court understands and appreciates that contact with extended family may be of great benefit to a child, the Legislature has clearly outlined the steps a grandparent should take to pursue visitation. This is in no way a denial of the grandparents’ ability to seek visitation, which may be pursued by a separate process if they so desire. Furthermore, because the child’s best interest is the fundamental concern, a chancellor must review all relevant factors as outlined in Martin before granting grandparent visitation. The Martin requirements provide more than a mere formality; they protect the interests of the parents, the grandparents, and, most importantly, the child. Accordingly, the chancellor erred in granting visitation to the grandparents.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF UNION COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPEL-LEE.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT A SEPARATE WRITTEN OPINION.


text:
    Carlos JACK, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01531-COA.
    Court of Appeals of Mississippi.
    July 20, 2004.
    Gary Goodwin, Columbus, attorney for appellant.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   LEE, J.,

for the Court.

FACTS

¶ 1. On October 23, 2001, an armed man robbed Jennifer Simmons, a bank teller at the National Bank of Commerce in Lowndes County. Witnesses described the perpetrator of the crime as a “heavyset black male wearing a baseball cap.” He was described as driving an older model brown car, accompanied by another black male. Deputy Greg Porter received information regarding the armed robbery over his police radio and proceeded towards the bank. En route to the bank, Deputy Porter spotted a vehicle matching the description of the suspected vehicle heading in the opposite direction. Deputy Porter only saw one black male driving the car; however, as he approached the vehicle, another black male sat up suddenly from the back seat of the car and ducked down quickly when he spotted Deputy Porter. The car swerved off the road to circumnavigate another vehicle, and sped down the road. Deputy Porter reported the vehicle and the evasive action over his radio and proceeded to pursue the car. The vehicle was apprehended by the sheriff and another deputy who had blocked off the road in response to Deputy Porter’s broadcast. Smith and the other passenger were arrested, and a duffel bag filled with cash was obtained from the car.

¶2. Jack was convicted of armed robbery; however, the jury was unable to agree on a sentence. The trial judge, Judge Howard, sentenced Jack to twenty-five years. Aggrieved, Jack has filed this appeal.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN FAILING TO RECUSE HIMSELF DUE TO THE FACT THAT HIS WIFE WAS EMPLOYED BY A BANK HOLDING COMPANY AS A MARKETING OFFICER AND THE HOLDING COMPANY WAS THE SOLE OWNER OF THE BANK THAT WAS THE VICTIM OF THE ROBBERY?

¶ 8. Jack argues that the trial judge erred in refusing to recuse himself from the case. Jack argues that recusal was proper because Judge Howard’s wife, Mary, is employed by a holding company which operates a number of banks throughout Mississippi and Alabama.

¶ 4. Canon 3(C)(1) of the Code of Judicial Conduct requires disqualification of a judge when his or her “impartiality might be questioned by a reasonable person knowing all the circumstances.... ” Code of Judicial Conduct, Canon 3(C)(1). The proper standard is that recusal is required when the evidence produces a reasonable doubt as to the judge’s impartiality. Dodson v. Singing River Hosp. Sys., 839 So.2d 530, 533(¶9) (Miss.2003). This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. Id. To overcome the presumption, the evidence must produce a “reasonable doubt” about the validity of the presumption. Turner v. State, 573 So.2d 657, 678 (Miss.1990). This Court reviews a judge’s refusal to recuse himself using the manifest error standard. Davis v. Neshoba County Gen. Hosp., 611 So.2d 904, 905 (Miss.1992).

¶ 5. In denying the motion, Judge Howard reasoned that he was not obligated to recuse himself from the case because Mrs. Howard was not employed by the bank which was the victim of the robbery, instead his wife worked for NBC Capital Corporation, a holding company which operates a number of banks. The judge ruled:

The holding company administers certain functions of all those banks on a broad basis, but does not have anything to do on a day to day operation. My wife works as a vice president of marketing at the holding corporation in Starkville, Mississippi. Her jobs have nothing to do with the operations of the bank other than marketing functions.

Because his wife had nothing to do with the day-to-day affairs of the bank which was robbed, and because neither he nor his wife had an interest which would be substantially affected by the outcome of the trial, Judge Howard denied the motion to recuse himself.

¶ 6. Jack argues that “Judge Howard seemed more concerned about financial impacts to the bank or financial connections to his family, than in recognizing the appearance of a partiality.” Jacks then broadly states that “[t]he presumption of partiality therefore disappeared and Judge Howard should have recused himself.” This argument lacks merit. The party seeking a recusal is responsible for presenting evidence which questions a judge’s impartiality. The presumption of impartiality does not dissolve merely because in making his determination not to recuse himself Judge Howard considered his wife’s relationship to NBC Capital Corporation.

¶ 7. Jack points out that Judge Howard does not preside over civil matters affecting the NBC Capital Corporation, especially matters involving corporate officers and complex civil litigation. Judge Howard’s recusal in civil matters bears little weight in determining whether he should hear a criminal case regarding a bank owned by NBC. Clearly the outcome of a civil matter involving the NBC Capital Corporation would fall squarely within Cannon 3 E(l)(c), which requires recusal if a judge knows that the judge or the judge’s spouse “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding....” As a vice president of marketing, Mrs. Howard could have an interest which might be affected by some civil litigation; however, that is not the scenario before this Court. Mrs. Howard has no interest — financial or otherwise — in the outcome of Jack’s criminal prosecution.

¶ 8. Jack argues that Judge Howard’s bias was evidenced by Jack’s sentence of twenty-five years in the state penitentiary. This argument lacks merit as well. Mississippi Code Annotated Section 97-3-79 (Rev.2000) specifically calls for a life sentence if the jury so determines; however, in the event a jury is unable to fix the penalty, the court shall fix the penalty “for any term not less than three years.” Id. A judge clearly has discretion in determining a sentence for armed robbery when a jury has been unable to decide on a sentence. Lawson v. State, 748 So.2d 96, 99 (¶¶ 8-10) (Miss.1999). By statute the judge may have sentenced Jack up to one year less than a life sentence. Lenox v. State, 727 So.2d 753, 760 (¶¶51, 52) (Miss.Ct.App. 1998). The sentence of twenty-five years was within the statutory guidelines and does not evidence bias on behalf of Judge Howard.

¶ 9. Jack has failed to present a reasonable doubt as to Judge Howard’s impartiality. Mrs. Howard was not the victim of the robbery, Mrs. Howard was not affected by the robbery, Mrs. Howard was not involved in the robbery, and Mrs. Howard has no interest which would be affected by the outcome of this criminal prosecution. Judge Howard did not abuse his discretion in refusing to recuse himself.

II. DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS CERTAIN PHYSICAL EVIDENCE PURSUANT TO A STOP OF THE DEFENDANT’S AUTOMOBILE AND THE STATE-' MENTS MADE AFTER THE POST-STOP ARREST?

¶ 10. Jack argues that the court erred in denying his motion to suppress certain evidence that was obtained after he and the other suspect fled from the police and were subsequently stopped by a roadblock. The record reflects that Greg Porter, a Lowndes County deputy sheriff, was on normal patrol when he received a report of the robbery via his radio. The report included the description of an older model brown car. A second report included a description of two black males, one with a baseball hat. As Deputy Porter approached the bank with his lights flashing and siren blaring, he spotted an older model brown car driven by a black male traveling in the opposite direction.

¶ 11. Deputy Porter testified that as he approached the car another black male sat up suddenly from the back seat and then quickly ducked down on the seat. Instead of yielding to the sheriffs lights and siren, the car swerved off the road in an attempt to drive around another car which had pulled to the side of the road in response to the blue lights. Deputy Porter then called in a description of the vehicle and turned around to pursue the car in question. Deputy Nelson and Sheriff Howard formed a road block in response to Deputy Porter’s radio report that an older model brown car had taken evasive action. Once the vehicle was stopped, Deputy Porter spotted in plain view an open duffle bag filled with rolls of cash.

¶ 12. Jack argues that this was nothing more than a random stop of a vehicle with black males inside; therefore, the stop lacked probable cause and the resulting evidence should have been suppressed. Jack cites Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961), in support of this contention. In Smith, a sheriff noticed a Chevrolet Impala driving slowly down a street. The Impala stopped, and the driver signaled for the sheriff to pull up next to him. When the sheriff drew close to the car, the driver sped away. The sheriff immediately began pursuing the car. The sheriff and another patrolman caught the Impala and arrested Smith, who was driving. Smith was convicted for the possession of burglary tools which were discovered in the car after Smith was arrested and placed in jail. The Mississippi Supreme Court overturned the conviction, finding that the evidence in the case disclosed that the officer had no reason to believe that the person driving the Impala had committed a crime. Id. at 743, 128 So.2d 857, 859.

¶ 13. For an officer to have legal authority for an investigative stop, he need not have probable cause to make an arrest. He need only have a reasonable suspicion that the accused is involved in a felony. Haddox v. State, 636 So.2d 1229, 1233 (Miss.1994) (citing Floyd v. State, 500 So.2d 989, 993 (Miss.1986)). The case sub judice is clearly distinguishable from Smith because, unlike the officer in Smith, Deputy Porter knew that an armed robbery had just occurred, that the suspects were fleeing in an older model brown car, and that the suspects were heavy-set black males. Deputy Porter clearly had information sufficient to constitute reasonable suspicion that the men in the car had been involved in the bank robbery; therefore, Deputy Porter clearly had reasonable suspicion sufficient to make an investigative stop.

¶ 14. Once Jack refused to yield to the lights and siren and fled, Deputy Porter, who already possessed a reasonable suspicion, also obtained probable cause. Mitchell v. State, 792 So.2d 192, 204(¶ 46) (Miss.2001), relying on Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Supreme Court has found that fleeing from law enforcement is a factor to be considered in making an arrest.

[Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.

Sibron, 392 U.S., at 66-67, 88 S.Ct. 1889. The description of the suspect’s car, the description of the suspects, and Jack’s flight combined to constitute probable cause for his arrest; therefore, the arrest was valid and the trial judge did not err in refusing to suppress the evidence obtained therefrom. This assignment of error is without merit.

¶ 15. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO LOWNDES COUNTY.

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


author: CHANDLER, J.,

text:
    Amanda THORNTON, a Minor, by and through her Next Friend, for and on behalf of Herself and all Others Entitled to Recover for the Wrongful Death of David Patrick THORNTON and on behalf of other Interested Parties, Appellants, v. W.E. BLAIN & SONS, INC., a Mississippi Corporation, Appellee.
    No. 2003-CA-00244-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Brett Woods Robinson, Christopher Brian McDaniel, J. Robert Sullivan, James Robert Sullivan, Laurel attorneys for appellants.
    John David Price, Jackson, Gretchen W. Kimble, attorneys for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. This appeal arises from an order of the Covington County Circuit Court granting summary judgment to W.E. Blain & Sons, Inc., a general contractor, in a wrongful death action. David Patrick Thornton, an employee of Magco, Inc., which had subcontracted with Blain for the milling work on a highway project, was crushed to death when the construction equipment on which he was riding was struck by a baekhoe owned by Blain and operated by a Blain employee. Thornton’s heirs assert that the circuit court erred in granting Blain’s motion for summary judgment based on the exclusivity provision of the Mississippi Workers’ Compensation Act. We decline to adopt the Thorntons’ construction of the workers’ compensation statutes and affirm the decision of the circuit court.

FACTS

¶ 2. W.E. Blain & Sons, Inc., a Mississippi corporation domiciled in Covington County, entered into a prime contract with the Mississippi Department of Transportation to widen and re-pave a section of Highway 84 in Franklin County, Mississippi. On February 4, 2002, Blain entered into a subcontract with Magco, Inc. to mill the old asphalt from the roadway. The contract between Blain and Magco required Magco to carry workers’ compensation insurance for its employees. Magco provided Blain with a certificate of liability insurance, indicating that the requisite coverage was in effect prior to the contract date.

¶ 3. On April 10, 2002, David Thornton, a Magco employee, was riding on a Broce Broom Sweeper, operated by a Blain employee, at the Highway 84 construction site. The machine was sideswiped by a Caterpillar baekhoe, owned by Blain and driven by a Blain employee. Thornton was thrown from the broom sweeper by the impact and crushed. The baekhoe operator had attempted to reverse his machinery “due to no brakes,” but the backhoe “went dead” and veered into the broom sweeper. Blain subsequently was cited and fined by the Occupational Safety and Health Administration of the United States Department of Labor (OSHA) for a willful violation of its requirement that all earthmoving equipment have a braking system capable of stopping and holding the equipment when fully loaded. The OSHA report further found that neither the backhoe nor the broom sweeper was equipped with operational horns and the baekhoe did not have a back-up warning signal device.

¶ 4. A wrongful death action was filed on behalf of Thornton’s minor daughter and other relatives on April 24, 2002, in the Circuit Court of Jones County. Blain’s motion to transfer venue was granted and the case was transferred to Covington County. Blain filed a motion for summary judgment on November 12, 2002. Finding that there were no genuine issues of material fact and that Blain, as a prime contractor, was afforded tort immunity by the Mississippi Workers’ Compensation Law, the circuit court granted summary judgment for Blaine by order dated January 24, 2003.

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING BLAIN’S MOTION FOR SUMMARY JUDGMENT

¶ 5. At issue in the circuit court as well as on appeal is whether Blain, as the primary contractor, was Thornton’s statutory employer, thus immunizing it from tort liability, or whether it is “an other party” subject to a third-party action against it. In granting Blain’s motion for summary judgment, the circuit court found that there were no issues of material fact and as a matter of law, the case was controlled by the Mississippi Supreme Court’s decision in Salyer v. Mason Technologies, Inc., 690 So.2d 1183 (Miss.1997). The circuit court further declined to adopt Thornton’s proposed “substantial certainty” exception to the exclusivity provision of the Mississippi Workers’ Compensation Law, stating that the Legislature “would be the proper body to effect a change.” Aggrieved by the circuit court’s decision, Thornton asserts that the circuit court erred in granting Blain’s motion for summary judgment, arguing that the law unfairly limits the right of an injured party to recover from the party actually responsible for the injury.

¶ 6. The Mississippi Workers’ Compensation Law provides that “[i]n the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.” Miss.Code Ann. § 71-3-7 (Rev. 2000). The exclusivity provision of the Law further states that “[t]he liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee ...” Miss.Code Ann. § 71-3-9 (Rev.2000). Construing these statutes together, the Mississippi Supreme Court reiterated in Salyer the well-established principle that “where the subcontractor provided compensation coverage to its employees pursuant to its contract with the prime contractor, the prime contractor qualified as a statutory employer and was immune from a common law tort suit by the injured employee.” Salyer, 690 So.2d at 1184 (citing Doubleday v. Boyd Constr. Co., 418 So.2d 823, 826-27 (Miss.1982)). However, making a claim against an employer or accepting workers’ compensation benefits therefrom does not preclude the injured party from bringing a negligence action against “any other party.” Miss.Code Ann. § 71-3-71 (Rev.2000).

¶ 7. In Doubleday, as in the case sub judice, Boyd Construction Company was the prime contractor on a road construction project for the Mississippi Highway Department. Doubleday, 418 So.2d at 824. The injured worker, David Doubleday, was employed by W.T. Ratliff Co., Inc., which had subcontracted with Boyd to perform some of the construction work. Id. The contract between Boyd and Ratliff, like the contract between Blain and Magco, required that the subcontractor carry workers’ compensation insurance for its employees. Id. Ratliffs insurer paid benefits to Doubleday for his injuries. Id. Doubleday, however, brought suit against Boyd, alleging that the general contractor negligently failed to provide proper warning to traffic approaching the construction site, which caused him to be hit by a car. Id. The circuit court found that Boyd, as the prime contractor, was the statutory employer of Ratliffs employees and not “any other party.” Thus, workers’ compensation was his exclusive remedy. Id. The Mississippi Supreme Court agreed. Id. at 827.

¶ 8. The contract between Blain and Magco required the subcontractor to carry workers’ compensation insurance for its employees. Thornton, therefore, argues that Blain should not be able to enjoy the immunity afforded a statutory employer because it did not “secure” compensation since Magco, in compliance with its statutory obligations under § 71-3-7, had carried workers’ compensation insurance for its employees for many years prior to subcontracting with Blain. The same argument was raised and rejected in Salyer. Turning again to Doubleday, the court stated:

[W]e see no reason to draw a distinction between prime contractors who contractually require subcontractors to provide compensation coverage on one hand, and prime contractors who hire subcontractors who already provide compensation coverage on the other hand. We believe the legislative intent of the workers’ compensation statutes would not be effectuated based upon such a superficial, technical distinction. Rather, “[a] sounder result would seem to be the holding that the overall responsibility of the general contractor for getting subcontractors insured, and his latent liability for compensation if he does not, should be sufficient to remove him from the category of ‘third party.’ ” Doubleday, 418 So.2d at 826 (quoting Larson, Workmen’s Compensation Law, § 72.31(b) (1982)). We find that hiring subcontractors who comply with the act by providing compensation coverage to its employees satisfies this “overall responsibility.”

Salyer, 690 So.2d at 1185 (emphasis in original).

¶ 9. Thornton cites Nash v. Damson Oil Corp., 480 So.2d 1095 (Miss.1985) and Falls v. Mississippi Power & Light Co., 477 So.2d 254 (Miss.1985) for the proposition that a contractor could not gain tort immunity simply “by voluntarily electing to say it had compensation obligations which in fact and law it did not have.” Nash, 480 So.2d at 1100. Thornton’s reliance is misplaced. In those cases, Damson Oil and Mississippi Power & Light, by virtue of their interest, use and activities with respect to the premises were found to be outside the meaning of “general contractor” or “prime contractor” as contemplated by § 71-3-7 and Doubleday. Nash, 480 So.2d at 1100; Falls, 477 So.2d at 258. Damson Oil was the lessee of an oil producing unit, which had contracted with Nash’s employer, Trigger Contractors, to periodically perform work on its oil and gas wells. Nash, 480 So.2d at 1096. Similarly, Mississippi Power and Light held a permit for land along the Natchez Trace and had contracted with the Deviney Company, for whom Falls worked, to keep its right-of-way clear of brush and trees. Falls, 477 So.2d at 255-56. However, Blain, like Boyd, “occupied the position persons of common understanding would label general or prime contractor.” Nash, 480 So.2d at 1100.

¶ 10. This Court conducts a de novo review of the lower court’s grant or denial of summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237(¶ 6)(Miss.2002); Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). A trial court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” There are no genuine issues of material fact in .the present. The circuit judge correctly found that Blain, as a general or prime contractor, was Thornton’s statutory employer, and not “any other party” subject to a negligence action pursuant to § 71-3-71. As a matter of law, therefore, Blain was entitled to summary judgment.

II. WHETHER MISSISSIPPI SHOULD ADOPT THE “SUBSTANTIAL CERTAINTY” STANDARD AS AN EXCEPTION TO THE EXCLUSIVITY PROVISION OF THE WORKERS’ COMPENSATION ACT

¶ 11. Thornton also urges this Court to adopt the “substantial certainty” standard, which allows an injured worker to circumvent the exclusivity provision of the Workers’ Compensation Law in those instances where the employer engages in misconduct knowing that death or serious injury is “substantially certain to occur.” Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 228 (1991). As Blain points out, the Mississippi Supreme Court already has declined to create a “substantial certainty” exception to the exclusivity provision of the Act, stating:

There is nothing novel about the approach suggested by the appellants of enlarging the scope of the exemption test. We have stated consistently our position on this issue. The legislature has had every opportunity to include into the Act such a liberal exception suggested by the appellants, yet failed to do so. If this Court were to include what the legislature did not, we would violate the “purpose, spirit and philosophy of the Workmen’s Compensation Act.”

Peaster v. David New Drilling Co., Inc., 642 So.2d 344, 349 (Miss.1994) (quoting Brown v. Estess, 374 So.2d 241, 242 (Miss. 1979)).

¶ 12. Despite the unfortunate circumstances of Thornton’s death, this Court is bound to follow the dictates of the Mississippi Workers’ Compensation Law. Blain was entitled to summary judgment as a matter of law. Accordingly, we affirm the judgment of the circuit court.

¶ 13. THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

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


author: GRIFFIS, J.,

text:
    Sandra Kazery LITTLE (Davis), Appellant, v. Henry Stephen LITTLE, Appellee.
    No. 2003-CA-02078-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      John Robbins, Brandon, attorney for appellant.
    David Earl Rozier, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Henry Little sued Sandra Davis, his former wife, in the Chancery Court of Hinds County seeking to terminate child support payments because both children had reached the age of majority. Davis counterclaimed seeking support for the children while in college. The trial court granted Little’s motion for summary judgment, finding that both children were over the age of twenty-one and there was no agreement between the parties providing for post-emancipation child support payments. Davis now appeals. Finding no error, we affirm.

FACTS

¶2. Little and Davis were granted a divorce on the grounds of irreconcilable differences on September 19, 1995. The parties entered into a valid written agreement regarding child custody and support which gave Davis custody of the two minor children and required Little to pay $600 per month in child support. Little also agreed to continue providing medical and dental insurance for the children.

¶ 3. On March 5, 2003, Little filed a petition to modify the final judgment of divorce. Little asserted that there had been a material change in circumstances in that both children were twenty-one years of age or older, as of February 18, 2003, and that he should be relieved of his obligation to pay child support and provide insurance. On March 10, 2003, Davis answered Little’s petition and counterclaimed for additional support for the children, asserting that the children’s needs had increased because they were in college.

¶ 4. On March 13, 2003, Little answered Davis’ counterclaim. Little asserted that the Merrill Lynch account awarded to Davis during the divorce was to be used for the children’s education. Little also asserted that the parties intended that account to constitute Little’s contribution toward the children’s educational expenses and that it was understood that he would be under no future obligation for his children’s education.

¶ 5. On July 10, 2003, Little moved for summary judgment which was granted by order dated August 26, 2003. The chancellor found (1) that the children were twenty-one years old or older; (2) that courts have no authority to require a parent to continue child support payments post-emancipation without a written agreement to the contrary; (3) that no written agreement providing for post-emancipation child support payments exists; and (4) that Little is relieved of his duty to make child support payments as of February 18, 2003, the date of the youngest child’s twenty-first birthday. Aggrieved by this order, Davis now appeals asserting as error the following issues: (1) the fact that the minor children have now reached an age of twenty-one is irrelevant if there is a written document wherein the parties consented and agreed that child support would remain in full force and effect until further order of the court; and (2) that the trial court made an ex post facto ruling in applying its ruling retroactively to the date of the youngest child’s twenty-first birthday.

STANDARD OF REVIEW

¶ 6. This Court reviews the grant or denial of summary judgment de novo. Hardy v. Brock, 826 So.2d 71, 74 (¶ 14) (Miss.2002) (citing Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 314 (¶ 11) (Miss.1999)). The burden of demonstrating that no genuine issue of fact exists is on the moving party. The non-movant is therefore given the benefit of the doubt. Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001). In conducting the de novo review, the Court considers all evidentiary matters before the trial court, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847(¶ 5) (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)).

ANALYSIS

¶ 7. Absent an agreement to the contrary, a parent is not required to provide for the care and maintenance of his child after that child reaches the age of majority. Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989). In Mississippi, for purposes of child care and maintenance orders issued pursuant to Miss.Code Ann. §§ 93-5-23 (Supp.2003) and 93-11-65 (Supp.2003), the age of majority is twenty-one. Nichols, 547 So.2d at 771.

¶ 8. The record indicates that the parties did not have a written agreement providing for post-emancipation child support payments. The “Agreement for the Custody and Maintenance of Minor Children and Settlement of Property Rights” which was incorporated into the final decree of divorce made no provision for such payments. We also find that both children are twenty-one years of age or older. As such, the chancellor was correct in finding that Little no longer had an obligation to make child support payments.

¶ 9. Davis next asserts that the chancellor’s ruling was an impermissible ex post facto ruling in that it relieved Little of his obligation to make child support payments as of February. 18, 2003, which was prior to the date of the order. The chancellor’s ruling did not violate the ex post facto doctrine, because no child support payments were due past the children’s twenty-first birthdays which occurred on February 18, 2003. This was true even before the chancellor issued her ruling, because Little’s obligation terminated once the children reached the age of majority.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellant v. Yolanda NOIL, Appellee.
    No. 2003-CC-02074-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Albert B. White, Madison, attorney for appellant.
    Yolanda Noil, pro se.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Yolanda Noil was terminated from her job as a shift manager for Hardee’s. Noil filed a claim for unemployment benefits with the Mississippi Employment Security Commission. The claims examiner granted her claim for benefits. On appeal, the referee affirmed. Thereafter, the Commission’s Board of Review reversed the referee’s decision. Noil then appealed to the Circuit Court of Lowndes County, where the Commission’s decision was reversed, and Noil’s benefits were reinstated. Finding the circuit court employed an improper standard of review and that the Commission’s determination that Noil’s actions constituted disqualifying misconduct was supported by credible evidence, we reverse and render.

FACTS

¶ 2. From November of 2000 until January 2, 2003, Noil was employed as a shift manager at the Hardee’s restaurant in Columbus. In November of 2002, a new general manager, Holly Skinner, took over the management at Hardee’s. At that time, Skinner realized that a company policy requiring all shift managers to work at least one closing shift per week was not being enforced. Skinner then notified all managers that the policy would be enforced. All managers except Noil agreed to work at least one closing shift per week.

¶ 3. Thereafter, Noil was scheduled to work the closing shift on December 15 and December 20. On December 15, Noil left before closing. On December 20, Noil called in sick, but also refused to work any closing shifts. Noil informed her boss that she had never been required to work closing shifts in the past, and that she would not do so in the future. Based on her actions, George Jones, Hardee’s district manager, suspended Noil for one week. On January 2, 2003, Noil met with Jones and continued to refuse to work any closing shifts. As a result, Noil’s employment was terminated.

¶ 4. After her termination, Noil filed her claim for unemployment benefits. The claims examiner interviewed Noil and Skinner. Noil told the claims examiner that she refused to work closing shifts because she had never been required to do so before the new manager took over. Skinner stated that the company policy required every shift manager to work at least one closing shift per week, and that when she took over as manager of the Columbus store, she simply began enforcing the policy.

¶ 5. Based on this information, the claims examiner considered the issue to be whether Noil had refused suitable employment thereby making her ineligible for benefits. The claims examiner found that the employer failed to establish Noil had refused suitable work and granted Noil benefits.

¶ 6. The employer appealed and a hearing was held before an appeals referee in which Noil, Skinner, and Jones testified. The referee concluded that Noil should be awarded benefits because the employer failed to offer testimony establishing that its policy was strictly and fairly enforced.

¶ 7. The employer then appealed to the Commission’s Board of Review. The Board concluded that Noil’s actions in refusing to follow company policy constituted misconduct, and reversed the referee’s award of benefits.

¶ 8. Noil then appealed to the Circuit Court of Lowndes County. The circuit court reversed the Commission and reinstated Noil’s benefits. The Commission now appeals asserting as error: (1) whether the circuit court ignored the provisions of Miss.Code Ann. § 71-5-523 (Rev.2000), and acted arbitrarily and capriciously, by reversing the Board of Review’s decision simply because it differed from the decisions of the claims examiner and the appeal’s referee; (2) whether the circuit court erred by finding the Board of Review’s decision was not supported by substantial evidence and the applicable law in that it conflicts with the decisions of the claims examiner and the appeals referee; (3) whether the board of review decision was supported by substantial evidence, finding that Noil committed disqualifying misconduct by repeatedly refusing to comply with the employer’s policy; and (4) whether the circuit court abused its discretion by substituting its opinion for that of the Board of Review.

STANDARD OF REVIEW

¶ 9. “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev. 2000). The Mississippi Supreme Court explained this standard of review in Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994), where it held:

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights, (citations omitted). A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise, (citations omitted). Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

¶ 10. As an appellate court, we give substantial deference to an administrative agency’s decision; here, deference is given to the Board of Review’s decisión. Typically, our review is based on whether the agency’s decision was supported by substantial evidence or was arbitrary or capricious.

¶ 11. Unfortunately, Noil failed to provide this Court with a brief setting forth her argument and authorities. In W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932), the Mississippi Supreme Court recognized that there is no uniform rule or procedure to guide the reviewing court when an appellee fails to file a brief. The court discussed the two schools of thought on the appropriate procedure. First, the appellee’s failure could be considered a default and as a confession of the errors assigned by the appellant, requiring automatic reversal. Id. Second, the reviewing court could disregard the appellee’s failure to file a brief, but would not be obligated to undertake an exhaustive search to substantiate the ap-pellee’s positions. Id. The court concluded:

when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

Id. at 528.

¶ 12. The record in this appeal is such that we can conveniently examine it. With this in mind, we proceed with a discussion of the merits of the case and examine this appeal according to the applicable standard of review.

ANALYSIS

¶ 13. The Commission asserts that the circuit court abused its discretion and acted arbitrarily and capriciously by reversing the Board of Review’s decision, which found that Hardee’s proved Noil had committed disqualifying misconduct by violating its policy requiring all shift managers to work at least one closing shift per week.

¶ 14. The circuit court’s order concluded:

And the Court having read the record in detail and being fully advised, is of the opinion that the decision of the Board of Review of the Mississippi Employment Security Commission rendered and entered on the 29th day of April, 2003, is arbitrary, capricious and not supported by substantial evidence and the applicable law in that it conflicts with the decisions of the claims examiner and the appeal’s referee.

(emphasis added.) The circuit court used an improper standard of review. The fact that the Commission’s decision conflicted with the decisions of the claims examiner and the appeal’s referee does not, in and of itself, make the Commission’s decision “arbitrary, capricious and not supported by substantial evidence and the applicable law.” Furthermore, neither the circuit court nor this Court can reweigh the facts of the case or insert its judgment for that of the Commission. Allen, 639 So.2d at 906.

¶ 15. Regardless of the standard of review used by the circuit court, on appeal, this Court still has an obligation to determine whether the Commission’s decision was supported by credible evidence. The Commission found that Noil was disqualified from receiving benefits because her actions in refusing to comply with the company policy constituted misconduct. Mississippi Code Annotated Section 71-5-513(A)(1)(b) (Rev.2003) provides:

An individual shall be disqualified for benefits:
(b) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.

¶ 16. In Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), the Mississippi Supreme Court defined the meaning of misconduct:

[t]he term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

¶ 17. The question we must now consider is whether Noil’s actions rose to the level of misconduct defined in the statute. Noil repeatedly refused to follow the employer’s policy which required her to work at least one closing shift per week. On December 15, Noil was scheduled to close, but left work early. On December 20, Noil was again scheduled to close and called in sick. At that time Noil informed her boss that she would not work any closing shifts, whether she was sick or not, even if she was scheduled to do so. Noil was suspended for one week, and at the end of that time met with the district manager.

¶ 18. During the meeting that resulted in her suspension, Noil once again expressed her unwillingness to work any closing shifts. It was at that point that she was terminated. Noil argued that she was not previously required to work a closing shift so she should not be required to do so in the future. The fact that previous managers had not enforced this pre-existing policy does not mean that the policy may not be enforced in the future. Indeed, upon assuming her managerial role, Skinner announced that the policy would be enforced in the future. Noil refused to comply, which resulted in her termination.

¶ 19. The Commission’s decision that Noil’s conduct evinced a willful and wanton disregard of the employer’s interest that amounted to disqualifying misconduct was supported by credible evidence. Noil’s repeated refusal to comply with company policy constituted a deliberate violation or disregard of the standards of behavior which her employer had the right to expect from its employee. Therefore, the judgment of the circuit court is reversed and the Commission’s decision is reinstated.

¶ 20. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED AND THE COMMISSION’S DECISION IS REINSTATED.

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


text:
    Robert E. CURTIS, Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2003-CC-01647-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.
    Robert E. Curtis, appellant, pro se.
    John Wesley Garrett, Clinton, B. Ray Therrell, attorneys for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Robert E. Curtis was employed as a vocational training instructor at Juvenile Rehabilitation in Brookhaven. He tested positive for marijuana during a random drug test and was terminated from his position. His claim for unemployment benefits was denied on the grounds that he was discharged for misconduct. Curtis appealed this decision. The appeals referee, the board of review, and the circuit court affirmed the denial of benefits. Finding sufficient evidence in the record to support the Commission’s findings, we affirm.

STANDARD OF REVIEW

¶ 2. Mississippi Code Annotated Section 71-5-531 (Rev.2000) provides the appropriate standard of review when reviewing a board of review’s decision regarding employee benefits. This statute reads “[i]n any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Id. The Mississippi Supreme Court explained this standard of review in Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994) when it stated:

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights, (citations omitted). A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise, (citation omitted). Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency. (citation omitted).

ANALYSIS

I. Whether there ivas substantial evidence to conclude that Curtis committed disqualifying misconduct.

¶ 3. Mississippi Code Annotated Section 71-5-513(A)(l)(b) (Rev.2000) establishes that an individual shall be disqualified for acts of misconduct connected with his work. Section 71-7-13(3) (Rev.2000) provides that “[a]n employee discharged on the basis of a confirmed positive drug and alcohol test in accordance with this chapter shall be considered to have been discharged for willful misconduct.”

¶ 4. The evidence and testimony contained in the record clearly shows that Curtis tested positive for marijuana on the random drug test administered to him on February 14, 2003. Randy Boyd, the Director of Residential Living at Juvenile Rehabilitation, testified at the hearing before the appeals referee that Curtis tested positive. A copy of Curtis’ drug test results showing that he tested positive is also contained in the record.

¶ 5. Nonetheless, Curtis suggests that he was “set up” and that proper testing procedures were not followed. Curtis complains that he was the only person tested from his shift that day. He asserts that he was administered two tests within fifteen minutes and that he feels his urine was switched.

¶ 6. The record contradicts such claims. Nothing in the record suggests that Curtis was singled out or treated differently from any other employees. In fact, the record indicates that several other employees were also tested on the same day. The testimony and record establish that Curtis was not administered two tests as he claimed, but that he was merely asked to submit a new urine sample because the first sample had fallen below the temperature required for proper testing. Nothing in the record supports Curtis’ claim that he was “set up” or that his urine was switched.

¶ 7. In addition, Curtis alleges post-testing procedural flaws. Curtis argues that his request for a hair test was improperly denied. He asserts that a subsequent drug test that he got the facility doctor to perform was negative. Under Juvenile Rehabilitation’s employment policy, a confirmed drug test shall result in termination. Nothing in the policy provides for a hair test or a second drug test. Moreover, the subsequent drug test was administered on April 4, 2003, nearly two months after Curtis tested positive for marijuana.

¶ 8. Curtis cites Southwood Door Co. v. Burton, 847 So.2d 833 (Miss.2003) as authority that he should have been awarded unemployment benefits. However, South-wood is distinguishable and inapplicable to our facts.

¶ 9. In Southwood, a truck driver was terminated from employment for testing positive on a random drug test. The court held that “if an employer wishes to disqualify an employee for unemployment benefits because of a positive result on a federally-regulated drug test, the employer must at least produce clear and convincing evidence that the testing comported fully with the federal regulations.” Id. at 842. The court found that the driver was not informed of his right to request within 72 hours the testing of his urine specimen. Id. Based on this finding, the court affirmed the circuit court’s decision to award the driver benefits. Id.

¶ 10. Although, as Curtis notes, the driver in Southwood did have subsequent drug tests taken that yielded negative re-suits, this was not the basis for the court’s decision to award benefits. The court based its decision on the fact that the federal ■ procedures were not followed in the administration of the drug test. Unlike Southwood, federal drug testing procedures are inapplicable here. Southwood is not authority, as Curtis claims, for the proposition that a negative subsequent drug test requires the awarding of benefits.

¶ 11. Applying the standard of review as stated in Allen, we find the record contained sufficient evidence to support the conclusion that Curtis’ actions constituted disqualifying misconduct. Therefore, we affirm the decisions below.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY IS AFFIRMED.

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


text:
    John F. SELLERS, Sr., Appellant v. TINDALL CONCRETE PRODUCTS, INC. and Liberty Mutual Insurance Company, Appellees.
    No. 2003-WC-01401-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Bobby G. O’Barr, Biloxi, attorney for appellant.
    Benjamin U. Bowden, Gulfport, attorney for appellees.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. John F. Sellers was injured when he slipped and fell while working at Tin-dall Concrete Products, Inc. The Mississippi Workers’ Compensation Commission found that Sellers reached maximum medical improvement on May 19, 1998, and limited his permanent loss of wage-earning capacity to twenty-five percent. Sellers appealed to the Circuit Court of Harrison County, and the Commission’s decision was affirmed. Finding substantial evidence to support the Commission’s findings, we affirm.

FACTS

¶ 2. Sellers worked at Tindall as a production worker producing pre-stressed concrete products. Sellers described his job at Tindall as involving the pouring and spreading of cement into large molds on an outdoor production line to produce various pre-stressed concrete components used in the construction industry.

¶ 3. Sellers was injured on February 20, 1997, when he slipped on some diesel fuel on the ground and hurt his back. Sellers completed his shift that day, but sought medical treatment three days later from Dr. Cox, a chiropractor. Sellers did not work from February 23, 1997 until April 26, 1997, while he was under the care of Dr. Cox. On April 27, 1997, Sellers returned to work on restricted duty until June 7,1997.

¶4. In June of 1997, Sellers was still experiencing problems with his back, so Dr. Cox referred him to Dr. Howard Smith, a neurosurgeon. Dr. Smith treated Sellers with epidural steroid injections and prescribed a course of physical therapy. Dr. Smith testified that Sellers magnified his symptoms and did not give maximum effort in physical therapy. Dr. Smith also ordered diagnostic studies, including a CAT scan and an MRI, which revealed a herniated disc in Sellers’ lower back. However, Dr. Smith did not believe Sellers’ symptoms were consistent with a herniated disc and did not believe surgery would be beneficial.

¶ 5. When the injections and physical therapy failed to relieve Seller’s symptoms, Dr. Smith referred him to Dr. John Wyatt, a physiatrist. Dr. Wyatt recommended electromyography (EMG) and more physical therapy. Dr. Wyatt also noted that Sellers’ complaints did not match what he found in the medical records. Dr. Wyatt thought Sellers was exaggerating his symptoms.

¶ 6. Thereafter, Sellers attended an employer’s medical evaluation with Dr. Victor Bazzone, a neurosurgeon. Dr. Bazzone recommended surgery for Sellers’ herniated disc, which was performed on October 2, 1997. When Sellers returned to Dr. Smith after the surgery, Dr. Smith told him that he should continue to see Dr. Bazzone. Thereafter, Dr. Bazzone became Sellers’ primary treating physician.

¶ 7. Sellers continued to complain of low back pain after the operation. A follow-up MRI taken January 8, 1998, revealed residual scarring but no recurrent disc herniation. Dr. Bazzone opined that Sellers’ pain was caused by scar tissue swelling, and he prescribed steroid injections. At the next follow-up visit on January 28, 1998, Sellers told Dr. Bazzone that the steroids had not helped, but he also said that he felt ninety percent better than he had prior to the operation. Dr. Bazzone testified that ninety percent improvement is considered a success.

¶8. On March 11, 1998, Sellers again returned to Dr. Bazzone complaining of back pain. Dr. Bazzone recommended that Sellers get a second opinion. On March 16, 1998, Dr. Bazzone sent a letter to Liberty Mutual indicating that video camera surveillance should be undertaken on Sellers. Dr. Bazzone claimed that he was suspicious because Sellers was not progressing as rapidly as he thought he should, and that Sellers was possibly a malingerer. However, video surveillance was never undertaken.

¶ 9. After another follow-up visit on May 19, 1998, Dr. Bazzone found that Sellers had reached maximum medical improvement and assigned Sellers an impairment rating of eight percent to the body as a whole. Subsequently, the Commission appointed Dr. Howard Katz to perform an independent medical examination on Sellers. Dr. Katz agreed with Dr. Bazzone that Sellers had reached maximum medical improvement.

¶ 10. Even after Dr. Bazzone determined that Sellers had reached maximum medical improvement, Sellers continued to complain of pain. Dr. Bazzone continued to treat Sellers for his pain symptoms, and eventually referred him to Dr. Paul Stanton, an orthopaedic surgeon. Dr. Stanton recommended a fusion to stabilize Sellers’ spine, but before this procedure could be performed, Dr. Stanton moved to California.

¶ 11. Dr. Stanton referred Sellers to Dr. Michael Lowry, a neurosurgeon. It was Dr. Lowry’s opinion that a fusion would not be beneficial because there was no evidence of instability in Sellers’ lumbar spine. Instead, Sellers claims that Dr. Lowry recommended a morphine pump. However, there is no evidence of such a recommendation in Dr. Lowry’s records, and he does not remember making such a recommendation. Dr. Lowry testified that, in his opinion, Sellers did not reach maximum medical improvement until May 10, 1999. However, he also testified that he would defer to Dr. Bazzone’s opinion since Dr. Bazzone was Sellers’ primary treating physician.

¶ 12. Sellers also sought treatment from Dr. Carrie Alexander and Dr. David McAfee regarding pain management after May 19, 1998, the assigned date of maximum medical improvement. Dr. Alexander, a family physician, prescribed medication including Valium, Neurontin and Oxycontin, and more physical therapy. Eventually, Dr. Alexander released Sellers from her care because she was no longer comfortable with his case. Her office notes indicated that she had concerns about the amount of Oxycontin that Sellers was taking.

¶ 13. Dr. McAfee, a specialist in pain management, saw Sellers on referral from Dr. Alexander to evaluate Sellers for advanced pain therapy, such as a morphine pump. Dr. McAfee testified that Sellers’ physical examination was inconsistent with the reported pain history, that Sellers was possibly exaggerating his symptoms, and that his symptoms were inconsistent with maneuvers that he performed during the examination. Dr. McAfee also questioned Sellers’ ability to control his narcotic medications.

¶ 14. On May 19, 1998, Sellers’ claim was heard before the administrative law judge for the Commission. The administrative law judge found that Sellers had reached maximum medical improvement, and limited Sellers’ permanent disability to a twenty-five percent loss of wage earning capacity. Sellers appealed to the Commission, where the administrative law judge’s order was affirmed. Sellers then appealed to the Circuit Court of Harrison County. The circuit court found substantial evidence in the record to support the Commission’s findings, and affirmed.

¶ 15. Sellers now appeals to this Court, asserting as error that (1) the administrative judge, the Commission and the circuit court erred in finding that Sellers had reached maximum medical improvement while failing to consider contrary medical testimony, and (2) that the administrative judge, the Commission and the circuit court erred in limiting Sellers’ permanent loss of wage earning capacity to twenty-five percent.

STANDARD OF REVIEW

¶ 16. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision. Hale v. Ruleville Health Care Center, 687 So.2d 1221, 1224 (Miss. 1997). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious.” Id. at 1225; Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991).

¶ 17. The supreme court has held:

We do not sit as triers of fact; that is . done by the Commission. When we review the facts on appeal, it is not with an eye toward determining how we would resolve the factual issues were we the triers of fact; rather, our function is to determine whether there is substantial credible evidence to support the factual determination by the Commission.

South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 588 (Miss.1985). Stated differently, this Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of evidence. Myles v. Rockwell Int’l., 445 So.2d 528, 536 (Miss.1984) (citing Masonite Corp. v. Fields, 229 Miss. 524, 91 So.2d 282 (Miss. 1956)); Riverside of Marks v. Russell, 324 So.2d 759, 762 (Miss.1975). An appellate court may not simply reweigh the evidence and substitute its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported. Fought v. Stuart C. Irby, Co., 523 So.2d 314, 317 (Miss.1988).

ANALYSIS

I. Whether the administrative judge, the Commission and the circuit court erred in finding that Sellers had reached maximum medical improvement.

¶ 18. Sellers asserts the circuit court erred in its conclusion that the Commission’s determination of maximum medical improvement was supported by substantial evidence. We must consider the Commission as the ultimate fact finder. South Central Bell Telephone Co., 474 So.2d at 588. The Commission, therefore, enjoys the presumption that it made proper determinations as to the weight and credibility of the evidence and its factual findings are binding on this Court, and the circuit court as a reviewing court, provided the findings are supported by substantial evidence. Fought, 523 So.2d at 317.

¶ 19. Mississippi courts have held that “substantial evidence” means something more than a “mere scintilla” of evidence, and that it does not rise to the level of “a preponderance of the evidence.” Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991). Thus, it may be said that substantial evidence “means such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id. We look to determine whether there was substantial evidence to support the Commission’s determination.

¶ 20. Dr. Bazzone, Sellers’ primary treating physician, and Dr. Katz, who was appointed by the Commission to do an independent medical evaluation, both agreed that Sellers had reached maximum medical improvement on May 19, 1998. Sellers relies on Dr. Lowry’s determination that Sellers did not reach maximum medical improvement until May 10, 1999, and a statement by Dr. McAfee that Sellers has not reached maximum medical improvement from a pain management standpoint.

¶ 21. However, Dr. Lowry testified that while he felt Sellers did not reach maximum medical improvement until May 10, 1999, he would defer to Dr. Bazzone, as Sellers’ primary treating physician. As for Dr. McAfee, he did testify that Sellers may not have reached maximum medical improvement from a pain management standpoint, but he also testified that Sellers’ physical examination was inconsistent with the reported pain history, and that Sellers was possibly exaggerating his symptoms. Furthermore, Dr. Bazzone testified that management of pain has nothing to do with whether or not a patient has reached maximum medical improvement.

¶ 22. Sellers also argues that the Commission erred in determining he had reached maximum medical improvement because he continued to have problems and seek treatment well after the set date for maximum medical improvement. However, all of the physicians Sellers sought treatment from after May 19, 1998, dealt with pain management, and as Dr. Baz-zone testified, pain management has nothing to do with maximum medical improvement. Furthermore, the physicians from whom Sellers sought treatment questioned whether Sellers was exaggerating his pain symptoms.

¶ 28. Based on the testimony from Sellers’ physicians, the Commission had substantial evidence to support its finding that Sellers reached maximum medical improvement on May 19, 1998. Therefore, we find that the circuit court did not err in affirming the Commission.

II. Whether the administrative judge, the Commission and the circuit court erred in limiting Sellers’ permanent loss of wage earning capacity to twenty-five percent.

¶24. Sellers asserts that it was error to limit his loss of wage earning capacity to twenty-five percent. Sellers argues that since he is unable to return to his previous employment and has had difficulty in obtaining new employment due to his medical condition, he should be awarded permanent total disability.

¶ 25. There is well-established law that a claimant in a workers’ compensation claim bears the burden of establishing a loss of wage-earning capacity. Robinson v. Packard Electric Division, 523 So.2d 329, 331 (Miss.1988). The issue of loss of wage-earning capacity:

in the final analysis ... is largely factual and is to be left largely to the discretion and estimate of the Commission. Often the estimate of loss of wage-earning capacity involves a compromise of medical estimates, and the result is generally sustainable in appeal to the courts. The loss is to be determined in each case from the evidence as a whole.

Vardaman S. Dunn, Mississippi Workers’ Compensation Law and Practice Rules and Forms, § 68 (3d ed. 1982 & Supp. 1990).

¶ 26. While Sellers testified that he could not do the job he did before he was injured, the record indicates that he possesses skills in the computer field that would allow him to obtain employment within his physical limitations. In fact, Sellers testified that he has widely varied experience, training, and work history, and that his friends nicknamed him “Bill Gates.” Sellers has been repairing computers to earn money since shortly after he was injured.

¶ 27. The Commission also noted that Sellers refused to cooperate in functional capacity evaluations and made questionable efforts to obtain employment. Sellers applied for various positions for which he had no relevant experience or for which he did not meet the educational requirements. Also, when questioned, Sellers admitted that he did most of his job hunting over the Internet and had sent out only a few resumes or written job applications. Furthermore, no physician ever placed restrictions on Sellers’ activity or found him to be permanently and totally disabled.

¶ 28. Therefore, based on the evidence as a whole, we find that there was substantial evidence to support the Commission’s determination to limit Sellers’ loss of wage earning capacity to twenty-five percent. Accordingly, we affirm the circuit court on this issue.

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

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