author: GRAVES, Justice, for the Court.

text:
    FARM SERVICES, INC. v. OKTIBBEHA COUNTY BOARD OF SUPERVISORS.
    No. 2002-CA-00205-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Dewitt T. Hicks, Jr., P. Nelson Smith, Jr., Columbus, attorneys for appellant.
    Jackson M. Brown, Starkville, attorney for appellee.
    Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   GRAVES, Justice, for the Court.

¶ 1. This appeal arises from a judgment of the Oktibbeha County Chancery Court terminating the lease between Farm Services, Inc. (Farm Services) and the Oktib-beha County Board of Supervisors (Board) for failure to sustain operation for more than one year and/or failure to provide employment to residents. Feeling aggrieved, Farm Services appeals and raises four issues: (1) whether the trial court erred in forfeiting the lease contract; (2) whether the trial court erred in finding that the notice terminating the lease was adequate; (3) whether the court erred in finding that Farm Services was not entitled to $5,750 in credit for overpayment on the lease contract; and (4) whether the court erred in finding that Farm Services’ constitutional rights had not been violated.

FACTS AND PROCEEDINGS BELOW

¶ 2. On April 4, 1966, Oktibbeha County (County) leased 10 acres of industrial park in Starkville, Mississippi, to Riverside Oil Mill (Riverside Mill). Later on August 26, 1966, the County entered into an expanded lease contract to provide funds to aid in promoting industry, trade and the use of in state agricultural products and to reduce unemployment by the issuance of industrial revenue bonds. The County issued bonds in the amount of $250,000. With the $250,000 in bond money, the County erected a building and made other improvements. The bonds have now been retired.

¶ 8. On March 29, 1973, Riverside Mill, with County approval, sublet the lease to Cook Industries which then sublet the lease to Farm Services with County approval. The lease was assigned to Farm Services on May 26, 1978, and Farm Services assumed all liabilities, responsibilities and privileges of the original lessor, Riverside Oil Mill or known as Riverside Chemical Company at the time of the assignment. Farm Services is owned by two brothers, Sam and John McReynolds. Farms Services closed its business operations on August 29, 1997. Later, Farm Services demolished buildings and other improvements that were made with bond money. On December 27, 1999, the Board voted to terminate the lease for default because Farm Services had failed to operate a business on the site for more than a year, failed to employ residents of the county, and failed to pay rent. On the same day, Sandra Strickland, Comptroller for the County, received three delinquent checks from Farm Services. The attorney for the Board mailed Farm Services a certified letter informing Farm Services of the Board’s termination of the lease on December 28, 1999. However, the letter was returned as undeliverable. Also on December 28, 1999, the Board’s attorney orally notified John McReynolds, President of Farm Services, of the Board’s decision to terminate the lease.

¶ 4. The Board sued Farm Services in the Oktibbeha County Chancery Court for specific performance and declaratory judgment on March 21, 2000, seeking to terminate its lease with Farm Services for failure to operate for more than one year and for failure to employ residents. The Board also prayed for four years of taxes on building improvements which had been dismantled without County approval and damages caused by dismantling of the structure owned by the County. Farm Services removed the case to U.S. District Court on April 11, 2000, alleging violations of its Fifth and Fourteenth Amendment rights. The U.S. District Court remanded the case to the chancery court, which found:

[T]he county acted in good faith when its attorney attempted to mail a notice of termination to Farm Services at the address to which it had sent previous notices which were not returned and the County should not be penalized for Farm Services failure to leave a forwarding address or to provide the County with its new address. Additionally, Farm Services had actual notice of the County’s actions no later than January 17, 2000. Further, Farm Services received written notice when it was served with process on March 31, 2000. The Court finds that Farm Services was not prejudiced because it failed to receive written notice of the termination by registered mail, and its due process rights were not violated.

DISCUSSION

Forfeiture of Lease

¶ 5. Farm Services argues that the trial court’s decision to forfeit the lease on the basis that Farm Services dismantled a building was erroneous. Farm Services concedes that it did dismantle an antiquated building, unusable silos, and disposed of rusted farm equipment. Farm Services advised that fertilizer residue caused the buildings to be in danger of explosion. Farm Services also contends that the court disregarded provisions of the lease that gave it the right to alter the nature of the fertilizer and feed business and to remove any machinery or equipment that was obsolete or uneconomical to maintain. Farm Services suggests that members of the Board and the Board’s attorney were aware of the dismantling of the buildings. Farm Services also claims that one supervisor participated in helping to remove dismantled portions of the building. Farm Services advances that it was error for the court to state that although the County had notice of the dismantling, waiver did not apply to the Board.

¶ 6. The construction of a contract is a question of law to be reviewed de novo. Gulfside Casino P’ship v. Miss. State Port Auth. at Gulfport, 757 So.2d 250, 257 (Miss.2000). A contractual clause should be objectively construed. See id. “[T]he first rule of contract interpretation is to give effect to the intent of the parties,” however, the words utilized are “the best resources for ascertaining intent and assigning meaning with fairness and accuracy.” Simmons v. Bank of Miss. 593 So.2d 40, 42 (Miss.1992). “[M]ere disagreement about the meaning of a contract clause does not make it ambiguous as a matter of law.” Gulfside Casino P’ship, 757 So.2d at 257 (quoting Simmons, 593 So.2d at 42-43).

¶ 7. Farm Services’ assertion that the trial judge forfeited the lease because Farm Services dismantled buildings on the property is partly correct. The court did find that “Farm Services breached provisions of the lease by dismantling structures and improvements built with County bond money,” however, this finding was ancillary. The judgment clearly states that the trial judge declared that (1) “the lease is terminated and canceled for Farm Service, Inc.’s default due to its failure to be in operation for more than one year and/or failure to provide employment to residents and to decree immediately possession of the property to the County”; and (2) “that the lease is terminated for failure of lessee to rectify breaches within 60 days of the Board’s order on December 12, 1999, or the attempted registered notice to Farm Services on December 28, 1999 or within 60 days of filing of this action.” Furthermore, the Board stated in its “Order to Terminate the Farm Services Lease” that “the lease has been broken by Farm Services, Inc. for failure to be in operation for more than one year as well as having failed to pay the annual rental for several years.... ”

¶ 8. The lease provides in pertinent part:
3. Employment: ... Mill will exercise due diligence to maintain and operate a manufacturing, processing, warehousing, or other similar type industry in said building expansion project, and to provide steady employment in such operations provided that this agreement is predicated on the continued peaceful operation of the building enterprise of the premises described in this contract and the continued peaceful relationship by and between County, the Mill and all Mill employees. County and the Mill expressly agree and understand that Mill shall not be required to do any of the above things during any period of time or times when any of the above things are interrupted or when Mill may reasonably anticipate that any of the above things will be interrupted by or as a result of disputes, activities of any person or persons (whether employed by Mill or not), events or circumstances beyond the control of Mill or its management; it is further agreed and understood that Mill shall not be held responsible for factors beyond its control not for interruptions to employment caused by civic commotion, riot, labor disputes and acts of government. It is further agreed that Mill shall not be deemed guilty or chargeable with any breach of covenant or agreement contained in this paragraph unless and until Mill has failed for a continuous period of one year to comply with the provisions hereof, and that in the event of such failure, County may cancel this lease.

¶ 9. Farm Services agreed in its lease assignment from Riverside Chemical Company, assignor, dated May 26, 1978, “to assume all of Assignor’s title to and interest in the Lease including all rights, privileges and obligations arising thereunder .... ” In doing so, Farm Services also agreed to the “Employment” provision. The record reveals that Farm Services ceased its operations and has not employed residents since August 29, 1997. John McReynolds explained that operations ceased because of the embargoes on Russia due to conflicts in Afghanistan. He noted that the Russians lost faith in the United States and began to buy soybeans from other sources and this caused the feed business to go under.

¶ 10. The evidence offered that the cessation of operation was beyond Farm Services’ control was not sufficient to shelter Farm Services under the exception that it is not to be held responsible for factors beyond its control nor for interruptions to employment caused by civic commotion, riot, labor disputes and acts of government. Farm Services did breach the lease by failing to operate its business for more than a year and by failing to provide employment to residents. Hence, we find that the trial court committed no error in forfeiting the lease.

Sufficiency of Notice

¶ 11. Farm Services argues that the lease was terminated by the County on December 27, 1999, in direct violation of the lease provision giving Farm Services a right of notice of intent to terminate the lease with 60 days right to cure. Furthermore, Farm Services argues that it never received the notice. Farm Services claims that the notice was sent to a defunct post office box, although the County knew how to notify Sam and John McReynolds. For this reason, Farm Services argues that it was error for the trial court to rule that Farm Services received notice.

¶ 12. Also, as pointed out by Farm Services, the notice was an actual notice not a notice of intent to terminate, thus the notice was defective and not in compliance with the lease provisions. Farm Services suggests that the County accepted three years’ delinquent rental payments on the same day the lease was terminated and that, therefore, any breach for nonpayment was cured. Not only that, but Farm Services alleges that it paid all personal property taxes for 1997, so the County could not argue that there was a breach for lack of payment on the day the lease was terminated. Farm Services also maintains that it cannot be held responsible for the cessation of operations of a business for interruptions caused by civic commotion, riot, strike, labor disputes, and acts of government.

¶ 13. Provision 12 D of the lease states: [I]f Mill shall fail to perform any of its other obligations or agreements hereunder or under any lease executed pursuant hereto, or if Mill or any assignees or subtenant ... County shall have the right at its option to terminate this lease ... however, that before terminating this contract, County shall give notice by registered mail addressed to the Mill at its office in the City of Marks, Mississippi, and Mill shall have sixty (60) days after receipt thereof to cure such default

¶ 14. The Board’s attorney sent notice by certified mail to Farm Services on December 28, 1999, notifying its officers of the Board’s actions to terminate the lease. The letter was addressed to Farm Services at P.O. Box 923, Starkville, Mississippi. The letter was returned by the post office as undeliverable. The Board attorney orally notified John McReynolds of the Board’s action to terminate the lease on December 28, 1999. Furthermore, Monica Banks, Oktibbeha County Chancery Clerk and Clerk for the Board, testified that she also informed John McReynolds of the Board’s actions to terminate the lease on December 28,1999.

¶ 15. The address for Farm Services that was returned was the one on record as the business address. There is no evidence that the County was given another address to send the letter informing Farm Services of its intent to terminate the lease. We find that the Board acted in good faith when it attempted to send written notification to the address for which other notices had been sent and not returned.

¶ 16. Moreover, Farm Services certainly had written notice when it was served with the Bill for Specific Performance and Request for Declaratory Judgment filed March 21, 1999. The record reveals that the McReynoldses were served with process on or about March 31, 1999. From that date, the lease allowed for sixty days to cure any breach. No evidence has been presented by Farm Services that it constructed a new building in the place of the one that was dismantled. Therefore, we find that Farm Services received sufficient notice and failed to cure the breach. For these reasons, the trial court did not err in finding that Farm Services received sufficient notice.

Entitlement to Lease Payments

¶ 17. Farm Services argues that the lease sets the rent at $1,000 per month, while it was paying $1,250 per month. Farm Services argues that there was no agreement oral or otherwise modifying this contract; therefore, Farm Services suggests that it is entitled to a credit of $5,750.

¶ 18. The trial court found:

There is no proof before the Court of any written agreement between the County and Farm Services whereby annual rental was increased from $1,000 to $1,250. The County sent annual statements to Farm Services for “lease payment” due of $1,250. For whatever reason, Farm Services voiced no complaint and paid said amount. This Court finds that there has been no overpayment.

The statute of frauds requires that a contract be in writing. Perkins v. Blackledge, 285 So.2d 761, 763 (Miss.1973). “The contract can only validly be changed or modified as to any material condition when the parties agree to a subsequent parol agreement which then would render the original written contract as modified an enforceable obligation.” Id. (citing Nason v. Morrissey, 218 Miss. 601, 67 So.2d 506 (1953)).

¶ 19. The actions of the County must be viewed as a written modification to the original contract, and the actions of Farm Services must be viewed as an acceptance of the modification. The County sent an annual statement to Farm Services for lease payment due of $1,250. modifying the originally agreed upon amount of $1,000. Farm Services accepted this modification by paying the increased amount, without objection, for over twenty-three years.

¶ 20. The case law concerning the governing of contracts is well-established. In Singing River Mall Co. v. Mark Fields, Inc., 599 So.2d 988, 946-47 (Miss.1992), this Court held:

In a contract which purports to be complete, prior or contemporaneous negotiations are merged into the completed contract. Continental Gin Co. v. Freeman, 237 F.Supp. 240, 244-45 (N.D.Miss.1964), aff'd, Freeman v. Continental Gin Co., 381 F.2d 459 (5th Cir.1967).
For a subsequent agreement to modify an existing contract, the later agreement must, itself, meet the requirements for a valid contract. Petition of M/V Elaine Jones, 480 F.2d 11, 24-25 (citing 3 Corbin, Contracts § 574 at 371 n. 12 (1960)), amended on other grounds, Canal Barge Co., Inc. v. Griffith, 513 F.2d 911 (5th Cir.1975), cert. denied, Griffith v. Canal Barge Co., Inc., 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60 and Canal Barge Co., Inc. v. Griffith, 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60 (1975); McGee v. Clark, 343 So.2d 486, 489, supplemented by 346 So.2d 914 (1977). Since a contract modification must have the same essentials as a contract, a binding post-contract agreement must fulfill the requirements of a contract regardless of whether a party characterizes it as a modification or a stand-alone contract.

In Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992), this Court stated:

Any contract, however made or evidenced, can be discharged or modified by subsequent agreement of the parties .... The existence and the terms of this modifying or discharging agreement can be proved by the same kinds of evidence that are admissible to prove any other kind of contract... .But after these issues have been determined and the court finds, as a fact, the making and the terms of the modifying or discharging agreement; we are no longer interested in the terms of the antecedent contract for purposes of enforcement of them, in so far as those terms have been nullified by the new agreement. 3 A. Corbin, Contracts § 574 at 373-75 (1960).

¶ 21. In the case sub judice, the facts clearly show actions by both parties modified the preexisting agreement. Therefore, the original contract which listed the lease payment as $1,000 is of no moment to this Court. We must now be only concerned with the new terms of the new contract which set the lease payments at $1,250.

¶ 22. Because Farm Services and the County Board of Supervisors modified their preexisting contract to increase the amount of the lease payments, we find the chancellor did not err in determining Farm Services was not entitled to any reimbursements.

Violations of Constitutional Rights

¶ 23. Farm Services argues that the County violated its constitutional rights in three ways: (1) by failing to give it due process before depriving it of a property right; (2) by violating its right by treating it differently that similarly situated lessees; and (3) by violating the Takings Clause by attempting to take its property interest without paying just compensation. Additionally, its contends that the County has overlooked nonpayment of rent by other lessees.

¶ 24. Farm Services failed to cite to any case law in support of its argument. Failure to cite ease law in support of an argument precludes this Court from considering the assignment of error on appeal. Hewlett v. State, 607 So.2d 1097, 1107 (Miss.1992).

CONCLUSION

¶ 25. For there reasons, we affirm the trial court’s judgment.

¶ 26. AFFIRMED.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    William BRIDGES, by and Through his Conservator, Sharon BRIDGES, and Sharon Bridges, Individually v. PARK PLACE ENTERTAINMENT a/k/a Park Place Entertainment, Inc. a/k/a and/or d/b/a the Grand Casino, John Doe and/or Jane Doe.
    No. 2002-CA-02145-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Daniel A. Seward, attorney for appellants.
    Tim Wade Hellen, D. Pace Branan, Sou-thaven, attorneys for appellee.
   CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the circuit court’s judgment granting dismissal pursuant to Miss. R. Civ. P. 12(c), William and Sharon Bridges have appealed to this Court on the issue of whether a first-party tort lawsuit may be brought against the business which furnished intoxicating beverages to an adult plaintiff who voluntarily became intoxicated and was then injured by a third-party. Finding that the circuit court was correct in granting the Grand Casino’s motion for judgment on the pleadings and dismissing the suit, we affirm the judgment of the Circuit Court of Tunica County-

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. We state the facts as gleaned from the trial court pleadings before us. William Bridges and his wife, Sharon, were patrons of the Grand Casino on March 8, 1999, in Tunica County, Mississippi. During his stay at the Casino, William gambled and was served alcoholic beverages by the Casino staff. William eventually left the Casino, with the assistance of his wife, and was placed into their car. Sharon drove away on U.S. Highway 61. During their drive home, William attempted to get out of their car; therefore, Sharon pulled over on the shoulder of the highway. William then exited the vehicle, walked onto Highway 61, and was struck by a car. As a result of the accident, William suffered a broken neck, broken ribs, fractured scapula, fibula and ankle, pneumonia and brain damage. William was declared incompetent, and Sharon was appointed his conservator.

¶3. On March 8, 2002, the Bridgeses (plaintiffs) filed a complaint against the Grand Casino alleging that while William was gambling, the Casino and its staff continuously served him alcoholic and/or intoxicating beverages and that William’s subsequent injuries were a direct and proximate result of the Casino continuously serving William alcohol after he was visibly intoxicated.

¶ 4. On October 4, 2002, the Casino filed a motion for judgment on the pleadings pursuant to Miss. R. Civ. P. 12(c) on the ground that the complaint failed to state a cause of action upon which relief could be granted because Mississippi did not recognize a common law right of action for damages against a person who furnishes alcoholic beverages. On December 9, 2002, the trial judge granted the Casino’s motion for judgment on the pleadings and dismissed the suit pursuant to Miss. R. Civ. P. 12(c). In his order of dismissal, the trial judge, finding that Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346 (Miss.1986), was directly on point, held that the “[Ljegislature did not intend to impose liability on servers of alcoholic beverages when adult consumers voluntarily consume intoxicating beverages and injure themselves” (citing Cuevas, 498 So.2d at 348-49). On December 26, 2002, the plaintiffs timely filed their appeal.

DISCUSSION

¶ 5. This Court applies a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) or 12(c) motion. Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such, we sit in the same position as did the trial court. The scope of review of a motion to dismiss is that the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of her claim. Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000). See also Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Miss. Dep’t of Corrections, 522 So.2d 219, 220 (Miss.1988).

¶ 6. The two statutes at issue in this suit are Miss.Code Ann. §§ 67-1-83 (Rev.2001) and 67-3-73 (Rev.2001). Miss.Code Ann. § 67-1-83(1) states:

(1) It shall be unlawful for any permit-tee or other person to sell or furnish any alcoholic beverage to any person who is known to be insane or mentally defective, or to any person who is visibly intoxicated, or to any person who is known to habitually drink alcoholic beverages to excess, or to any person who is known to be an habitual user of narcotics or other habit-forming drugs ...

(emphasis added). The provisions of Miss. Code Ann. § 67-3-73 are quoted later in this opinion.

¶ 7. The plaintiffs argue that we should overrule our 1986 decision in Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346 (Miss.1986), wherein this Court affirmed the dismissal of a first party suit against a hotel which allegedly sold alcohol to a visibly intoxicated guest. They contend that because Cuevas was a four to four decision with one justice not participating and because it was decided before the rise of the gaming industry, Cuevas is now ripe for judicial review. They also argue the language “any person who is visibly intoxicated” found in Miss.Code Ann. § 67-1-83 is meant to encompass everyone for public policy considerations.

¶ 8. However, the Casino argues Cuevas is still good law which is in line with the majority of other jurisdictions having held there is no cause of action against a business who sells or furnishes alcohol to adults who voluntarily become intoxicated and then injure themselves as a result of that intoxication. The Casino contends that this Court has held that persons who become voluntarily intoxicated and then injure themselves are not in the protected class listed in § 67-1-83. The Casino also argues this claim falls under § 67-3-73(1), not § 67-3-73(4), which states that consumption, not the sale or furnishing of the beverage, is the proximate cause of any injury inflicted by an intoxicated person on himself or another person. The Casino thus opines that William proximately caused his own injuries.

¶ 9. While we today unhesitatingly revisit our decision in Cuevas, we do so recognizing that notwithstanding the fact that we voted 4-4 to affirm the trial court in Cuevas, that decision is still good law and binding precedent. Harper v. Harper, 491 So.2d 189, 202 (Miss.1986) (“Prior decisions of this Court have said that an affir-mance by an equally divided court is binding precedent unless and until the same is overruled. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So.2d 771 (1949)”). We are not however without authority to overrule Cuevas should we deem it appropriate.

¶ 10. In Cuevas, the plaintiff, a guest at a hotel, injured herself after she fell over a railing. 498 So.2d at 346-47. Immediately prior to the accident, Cuevas had been drinking alcoholic beverages in the hotel lobby. Id. at 347. Cuevas argued the hotel continued to serve her alcoholic beverages after she had become intoxicated and that her intoxicated condition caused or contributed to her injuries. Id. Therefore, Cuevas argued the hotel was liable pursuant to Miss.Code Ann. § 67-1-83. The circuit court dismissed Cuevas’s complaint. Id. at 347. The question before this Court was “whether or not [the hotel] was liable to [Cuevas] for selling and furnishing her intoxicants in violation of § 67-1-83(1), if the intoxication proximately caused or contributed to [Cuevas’s] injury.” Id.

¶ 11. This Court reaffirmed its holding in Munford, Inc. v. Peterson, 368 So.2d 213 (Miss.1979), “that the Mississippi law which prohibits the sale of beer or wine to a minor, was adopted for the protection of the general public” and that minors are members of that protected class. Cuevas, 498 So.2d at 348. This Court further stated:

We hold that the public, e.g., a third-party class whether minor or adult, is protected under the statute from the negligent acts of an intoxicated person, and has a claim against a person or business furnishing alcoholic beverages in violation of the statute. However, we do not think the legislature intended to impose liability upon a dispenser of intoxicants to an adult individual, such as appellant here, who voluntarily consumes intoxicants and then, by reason of his inebriated condition, injures himself. We further hold that such a person as appellant is excluded from the protected class as articulated in Munford, Inc. v. Peterson.

Cuevas, 498 So.2d at 348-49 (emphasis added).

¶ 12. Subsequent to this Court’s decision in Cuevas, the Legislature enacted a law, codified as Miss.Code Ann. § 67-3-73 (Rev.2001), which became effective from and after April 3, 1987, which states in its entirety:

(1) The Mississippi Legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.
(2) Notwithstanding any other law to the contrary, no holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder, who lawfully sells or serves intoxicating beverages to a person who may lawfully purchase such intoxicating beverages, shall be liable to such person or to any other person or to the estate, or survivors of either, for any injury suffered off the licensed premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.
(3) Notwithstanding any other law to the contrary, no social host who serves or furnishes any intoxicating beverage to a person who may lawfully consume such intoxicating beverage shall be liable to such person or to any other person or to the estate, or survivors of either, for any injury suffered off such social host’s premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished. No social host who owns, leases or otherwise lawfully occupies a premises on which, in his absence and without his consent, intoxicating beverages are consumed by a person who may lawfully consume such intoxicating beverage shall be liable to such person or to any other person or to the estate, or survivors of either, for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person who consumed the intoxicating beverages.
(4)The limitation of liability provided by this section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol, or to any holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated.

¶ 13. The plaintiffs argue this limitation of liability found in § 67-3-73(4) should apply because William was visibly intoxicated when the Casino continued to serve him alcoholic beverages; therefore, he is a protected member within the statute. The Casino first argues that although § 67-3-73(4) provides an exception to liability for cases involving the purchase of alcohol by visibly intoxicated persons, William did not purchase any alcohol from the Casino. The Casino also argues that § 67-3-73(1) adopts the common law rule that the consumption of alcoholic beverages is the proximate cause of any injury inflicted by the intoxicated person upon himself or another person, and that, therefore, William proximately caused his own injuries.

¶ 14. Although § 67-3-73(4) does state “person making a purchase,” § 67-3-73(2) refers to “sells or serves” intoxicating beverages. Thus we reject the Casino’s argument that the legislative intent was to exempt businesses from liability based on a distinction of “making a purchase” as opposed to “being furnished” alcoholic beverages. Therefore, the Casino’s argument fails in that regard.

¶ 15. The language of § 67-3-73 clearly states that the holder of an alcoholic beverage permit shall not be liable if they lawfully sell the intoxicating beverages. However, if the vendor sells intoxicating beverages, or furnishes intoxicating beverages in this case, to a person who is visibly intoxicated, that limitation of liability shall no longer apply. But to whom shall the permit holder be liable?

¶ 16. We clearly stated in Cuevas that we did not perceive the intent of the Legislature as including adults who voluntarily consume alcohol and then injure themselves in the protected class listed in section 67-1-83. Likewise, we do not perceive the Legislature as having intended to include those same individuals in the same protected class of section 67-3-73. In adopting Miss.Code Ann. § 67-3-73, the Legislature had the opportunity to clearly state whether adults who voluntarily consume alcoholic beverages and then injure themselves as a result of that intoxication were members of the protected class thus enabling them to bring suit against vendors who sold or furnished them the alcoholic beverages. However, the Legislature did not take this opportunity; therefore, this Court’s holding in Cuevas clearly applies to the present case.

Civil liability, or an accountability akin to it, which imposes some responsibility on a vendor who willfully or carelessly serves alcohol to an intoxicated patron or a minor has much to commend it. However, such a measure should be the result of legislative action rather than judicial interpretation.

Hinegardner v. Marcor Resorts, L.P.V., 108 Nev. 1091, 1096, 844 P.2d 800, 804 (1992).

¶ 17. Although this issue of first-party lawsuits against the business which furnishes the intoxicants has not been addressed in Mississippi since Cuevas, this issue has been addressed numerous times by many other jurisdictions. A majority of the states which have addressed this issue do not recognize a first party cause of action against a vendor of alcoholic beverages. See Wright v. Moffitt, 437 A.2d 554 (Del.1981) (A patron who purchases alcoholic beverages from tavern operator does not have a cause of action against a vendor for personal injuries resulting from the patron’s voluntary intoxication.); Reed v. Black Caesar’s Forge Gourmet Restaurant, Inc., 165 So.2d 787, 788 (Fla.Dist.Ct. App.1964) (Complaint did not state a cause of action because “the death of the plaintiffs husband was the result of his own negligence or his own voluntary act of rendering himself incapable of driving a car rather than the remote act of the defendant in dispensing the liquor[.]”); Riverside Enters., Inc. v. Rahn, 171 Ga.App. 674, 320 S.E.2d 595 (1984) (There is no cause of action in favor of an injured adult against the seller of alcoholic beverages when injuries arose from injured person’s intoxication, even when the person was noticeably intoxicated at the time the beverages were purchased.); Bertelmann v. Taas Assocs., 69 Haw. 95, 100, 735 P.2d 930, 933 (1987) (Intoxicated persons whom voluntarily consume alcohol can not seek recovery from the bar or tavern which sold them that alcohol if they harm themselves as a result of their voluntary intoxication.); Davis v. Stinson, 508 N.E.2d 65 (Ind.Ct.App.1987) (Intoxicated driver’s operation of an automobile upon a public highway constitutes willful and wanton misconduct which bars recovery against the provider of alcohol for injuries to the driver.); Gregor v. Constitution State Ins. Co., 534 So.2d 1340 (La.Ct.App.1988) (The serving of alcohol to an intoxicated patron is not an affirmative act which increases peril to the intoxicated patron for which a vendor could be held liable.); Fisher v. O’Connor’s, Inc., 53 Md.App. 338, 452 A.2d 1313 (1982) (There is no cause of action against a bar or tavern owner for injuries sustained by a person to whom the bar or tavern owner sold intoxicating beverages.); Jackson v. PKM Corp., 430 Mich. 262, 422 N.W.2d 657 (1988) (Under Michigan’s dramshop act, an intoxicated person has not right to recovery from those who contributed to his intoxication.); Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (N.M.Ct.App.1986) (A patron has neither a common-law nor a statutory claim against a tavern for the negligent sale of alcohol to such patron.); Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629, 636, 543 N.Y.S.2d 18, 22, 541 N.E.2d 18, 22 (1989) (A common-law cause of action will not be recognized against providers of alcoholic beverages in favor of persons injured as a result of their own voluntary intoxication.); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969) (The common law rule of non-liability was adopted; if civil liability were to be imposed upon commercial alcohol vendors, it should be accomplished by “legislative act after appropriate surveys, hearings, and investigations.”); Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 646, 423 S.E.2d 72 (1992) (Recovery in the wrongful death action against the seller of the alcohol by the estate of a twenty-one-year-old who was fatally injured as a result of driving while in a highly intoxicated state was barred.); Smith v. The 10th Inning, Inc., 49 Ohio St.3d 289, 551 N.E.2d 1296 (1990) (Intoxicated patron has no cause of action against a liquor permit holder where the injury sustained by the patron off the premises of the permit holder was proximately caused by the patron’s own intoxication.); Ohio Cas. Ins. Co. v. Todd, 813 P.2d 508 (Okla.1991) (Tavern owner has no liability to intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injury as result of his intoxication.); Tobias v. Sports Club, Inc., 332 S.C. 90, 504 S.E.2d 318 (1998) (First party causes of action against a tavern owner by an intoxicated adult predicated on alleged violation of alcohol control statutes are not recognized.); Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986) (State’s Dram Shop Act provides no remedy to intoxicated person against commercial vendor.); Estate of Kelly ex rel. Kelly v. Falin, 127 Wash.2d 31, 896 P.2d 1245 (1995) (A commercial establishment owes no duty to obviously intoxicated patron to whom it serves alcohol.).

¶ 18. Only a small minority of jurisdictions have extended the liability of the seller of the intoxicants to allow a cause of action in favor of the intoxicated adult. See Lyons v. Nasby, 770 P.2d 1250 (Colo.1989) (Although voluntary intoxication is a self-indulgent act, a tavern owner owes an intoxicated patron a duty of care not to serve that person alcohol.); Boehm v. Kish, 201 Conn. 385, 517 A.2d 624 (1986) (A cause of action may only be brought against a tavern owner for reckless and wanton conduct.); Klingerman v. SOL Corp., 505 A.2d 474 (Me.1986) (An intoxicated person may recover damages on negligence theory from the person who sold him alcoholic beverages while he was visibly intoxicated.); Jevning v. Skyline Bar, 223 Mont. 422, 726 P.2d 326 (1986) (A tavern is not responsible for furnishing a person with alcoholic beverages unless that person is visibly intoxicated.); Fulmer v. Timber Inn Restaurant & Lounge, Inc., 330 Or. 413, 9 P.3d 710 (2000) (A plaintiff may bring a common-law negligence action against a person or entity that negligently supplied alcohol to the plaintiff when he or she already was visibly intoxicated and the plaintiff suffered injuries caused by that negligent conduct.); McDonald v. Marriott Corp., 388 Pa. Super. 121, 564 A.2d 1296 (1989) (Under Pennsylvania’s dram shop law, in order for to avoid summary judgment, the Plaintiffs must demonstrate a genuine issue of fact that the Defendant served alcohol to the injured party while he was visibly intoxicated and that it was that conduct that proximately caused the accident.); Smith v. Sewell, 858 S.W.2d 350 (Tex.1993) (Individual who is provided, sold, or served alcoholic beverages in violation of Dram Shop Act and injures himself may assert cause of action against provider of alcoholic beverages.).

¶ 19. As in Cuevas we reiterated our holding in Munford, we now reiterate our holding in Cuevas. We find that the Legislature did not intend to include adults who voluntarily become intoxicated and subsequently injure themselves as a result of that intoxication as members of the protected class within Miss.Code Ann. § 67-3-73. Therefore, the trial court correctly dismissed the plaintiffs’ complaint pursuant to Miss. R. Civ. P. 12(c).

CONCLUSION

¶ 20. William Bridges suffered grievous physical and mental injuries. He has been judicially declared incompetent, and his wife is his conservator. The plaintiffs, through counsel, made a fervent argument during oral arguments before this Court, requesting that we revisit Cuevas in the wake of the casino industry which has since by legislative enactment moved into our State. However, the gaming industry notwithstanding, our decision in Cuevas is still sound law, and it is undergirded by numerous cases from foreign jurisdictions, some of which even have dramshop laws.

¶21. The trial court was correct in granting the motion for judgment on the pleadings and dismissing the lawsuit pursuant to Miss. R. Civ. P. 12(c). In light of Miss.Code Ann. §§ 67-1-83 and 67-3-73, Cuevas, which held there is no cause of action against a business who sells or furnishes alcohol to adults who voluntarily become intoxicated and then injure themselves as a result of that intoxication, continues to be binding authority and was correctly followed by the trial court. Therefore, we affirm the judgment of the Circuit Court of Tunica County.

¶ 22. AFFIRMED.

SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR. PITTMAN, C.J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

dissenting.

¶ 23. While I neither endorse nor reject the statement of law provided by the majority, I find fault with the manner in which it applies that statement of law to the facts of this case. The majority states those who become voluntarily intoxicated and injure themselves as a result of this intoxication should not be able to pursue a cause of action against those who merely sold or furnished the alcohol. However, in this case the complaint is void of any admission that the plaintiff was intoxicated voluntarily, and no such allegation is made in the defendant’s answer. In addition, the trial court, in reaching beyond the pleadings in its determination of the defendant’s motion, turned it into one for summary judgment. Because there is a genuine issue of material fact as to the voluntariness of the plaintiffs intoxication, I would reverse the judgment of the trial court and remand this case for further proceedings. Accordingly, I dissent.

¶ 24. Under Miss.Code Ann. § 67-1-83 (Rev.2001), the plaintiff must show that he was visibly intoxicated and that the defendant served him while he was visibly intoxicated. However, the majority has held today that the defendant may rebut with our equally divided decision in Cuevas v. Royal D’Iberville Hotel, 498 So.2d 346 (Miss.1986), that those who become voluntarily intoxicated and injure themselves as a result of this intoxication should not be able to pursue a cause of action against those who merely sold or furnished the alcohol.

¶25. In this case, the circuit court granted a judgment on the pleadings because it found that the plaintiff was voluntarily intoxicated. However, the voluntariness of the plaintiffs intoxication was not addressed in either of the pleadings. It was mentioned for the first time in the defendant’s memorandum in support of motion for judgment on the pleadings. Thus, the circuit court wandered beyond the pleadings in ruling on the motion. Therefore, as the majority points out in a footnote, the defendant’s motion should have been handled in accordance with M.R.C.P. 56, which it was not.

¶ 26. In addition, there is a genuine issue of material fact as to the voluntariness of the plaintiffs intoxication. By removing all clocks, creating huge open spaces with absolutely no windows and surrounding the consumer with constant stimulations of light and sound, casinos strive to create an environment where time goes by unnoticed. See George Ritzer & Todd Stillman, The Modern Las Vegas Casino-Hotel: The Paradigmatic New Means of Consumption, 4 M@n@gement, page no. 3 (2001). Calling casino-hotels “cathedrals of consumption,” casinos are purposefully designed in order to make the consumer stay and gamble more than they normally would and longer than they intend. Id. As the plaintiff notes in the complaint, the whole time that the consumer is in the midst of this manipulated environment, he is also constantly bombarded with free alcohol. This is how casinos make their money. By removing inhibitions and altering consumers’ concepts of time, they urge and entice the customer to stay longer and gamble more. There is even an elaborate system of “comps” which reward those who stay longer and gamble more. Id.

¶ 27. This is not to say that casinos are evil or are totally to blame. While they figuratively shove alcohol down their customers’ throats, no one here argues that such is done literally. However, questions begin to emerge. First, when casinos set out a deliberate plan such as this, do they not at some point owe a duty to those customers whom they have manipulated? Second, do they also not take at least some part of fault as contributing to the customer’s intoxicated state through this manipulation.

¶ 28. However, the ultimate question is whether this manipulation of the customer and his environment renders his subsequent intoxication completely voluntary within the law? By considering information outside of the pleadings, the trial court effectively turned this inquiry into one of the propriety of summary judgment. In addition, I reiterate that this alleged voluntary intoxication should have been pled as an affirmative defense. Notwithstanding, there is a genuine issue of material fact as to the voluntariness of the plaintiffs intoxication and therefore, summary judgment was inappropriate. I would reverse the judgment of the trial court and remand this case for further proceedings.

¶ 29. For these reasons, I dissent.

      . Park Place Entertainment a/k/a Park Place Entertainment, Inc. operates the Grand Casino in Tunica County. We will refer to the Grand Casino or simply the Casino.

      . (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).

      . There is also an issue as to whether the affirmative defense of voluntary intoxication was raised in the answer as required by M.R.C.P. 8(c), as the defendant pled that the plaintiff was contributorily negligent, but never specifically alleged that the intoxication was voluntary. It should also be noted that the defendant never alleged that there was no genuine issue of material fact and thus, cannot be said to have met its burden under M.R.C.P. 56.


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

text:
    Antrina GOLDEN, a/k/a Trina, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00449-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Rehearing Denied Aug. 12, 2003.
    Certiorari Denied Dec. 4, 2003.

      Linton Cook Kilpatrick, Martin A. Kil-patrick, Greenville, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J., for the court.

¶ 1. Antrina Golden was convicted after a jury trial of embezzlement and conspiracy. On appeal, Golden asserts that the trial judge erred by repeatedly interjecting himself into the proceedings and in denying a proposed jury instruction. We find no merit to Golden’s claims and affirm.

STATEMENT OF FACTS

¶ 2. On January 15, 2001, Antrina Golden, a cashier at the Lighthouse Point Casino, appeared for her nightly shift. Although Golden testified that she felt sick and told her supervisor she was not feeling well, she nevertheless proceeded to her station. In keeping with the casino’s accounting practices, Golden was responsible for repeated counting of the cash on hand. As depicted by the surveillance videos offered at trial, at one point Golden attached bills pulled from the drawer’s one dollar currency slot to bound stacks of $100 bills. These stacks were later delivered to a customer, positively identified as Golden’s sister, in an unorthodox transaction. Immediately following the exchange, Golden left her post and exited the casino. Once Golden’s protracted absence aroused suspicion, casino officials discovered that her cash drawer was short over $19,000. Golden was subsequently convicted of embezzlement and conspiracy. Her appeal has been deflected here.

DISCUSSION

1. Judicial interference

¶ 3. Golden claims that the lower court shirked its responsibility to conduct the proceedings impartially. Golden challenges the behavior and participation of the trial judge as tainting the outcome of the trial.

¶ 4. We first note Golden’s procedural failure to make a timely objection to the lower court’s actions. To secure review of the judge’s remarks and conduct during the trial, Golden had an obligation to make a contemporaneous objection to inappropriate behavior and lodge a proper objection at the time. Powell v. Ayars, 792 So.2d 240, 248 (Miss.2001). A rule of evidence specifies that objection to the court’s actions should be made either when the disputed judicial interrogation is made or at the next available opportunity outside the jury’s presence. M.R.E. 614(c). Golden’s failure to raise a timely objection not only denied the opportunity for corrective measures during trial, it also precludes her from pursuing the claim on appeal. Jackson Yellow Cab Co. v. Alexander, 246 Miss. 268, 148 So.2d 674, 678 (1963).

¶ 5. Golden counters with the Alexander court’s narrow exception to the contemporaneous objection rule. That court required objection “unless the conduct of the trial judge, on the entire record, was so reprehensible and prejudicial as to deny a fair trial or due process of law.” Id. Golden submits that such egregious conduct was present here. Ten examples are given. Of these, three were the judge’s rephrasing of leading questions asked by the district attorney. Four were instances in which the lower court asked casino employees for explanations of casino procedures. The remaining three examples include a request by the judge for the witness to repeat an answer that he was unable to hear; the repetition of a question asked by the district attorney and challenged by Golden; and finally, a request by the court for the defendant to repeat herself.

¶ 6. Golden relies heavily on a case which provides illustrations of situations where a circuit judge may properly interrogate a witness. Griffin v. State, 171 Miss. 70, 156 So. 652 (1934). These examples address nonproductive and repetitive questioning by the attorneys; frightened, confused, and belligerent witnesses; and the development of essential facts. Id., 171 Miss, at 73-74, 156 So. 652. Golden argues that none of her claimed instances of this judge’s interference fall within the listed examples. Golden then concludes that this categorical failure entitles her to reversal of the conviction.

¶ 7. We do not find the Griffin list to be comprehensive. Rather, it has been consistently treated as a non-exclusive guideline for proper judicial interrogation. See, e.g., Powell, 792 So.2d at 248; M.R.E. 614 cmt. Indeed, the Griffin court itself acknowledged that “[t]hese are examples of some of the situations in which the trial judge may and sometimes must take a hand in the examination of a witness.” Griffin, 156 So. at 653 (emphasis added).

¶ 8. Courts are expressly authorized to question witnesses. M.R.E. 614(b). However, this authority must be tempered by the following realization:

jurors ... are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party....

Thompson v. State, 468 So.2d 852, 854 (Miss.1985), quoting Green v. State, 97 Miss. 834, 835, 53 So. 415, 416 (1910).

¶ 9. As a result, trial courts must honor the line between detachment and advocacy. Layne v. State, 542 So.2d 237, 242 (Miss.1989). It is this standard, not the illustrative examples set out in Griffin, which ultimately governs our review.

¶ 10. Reviewing each instance of challenged judicial conduct as well as the context of the whole proceedings, we do not find that the record supports a claim that the lower court abandoned its detachment and adopted a position adversarial to Golden. Though judicial participation in trial proceedings carries inherent risks, there is no requirement solely to be a silent observer. Bumpus v. State, 166 Miss. 276, 281-82, 144 So. 897, 899 (1932). The judge acted within his authority.

2. Jury instruction

¶ 11. Golden next argues that the judge similarly became an advocate during the consideration of jury instructions. Outside the presence of the jury at the close of trial, the parties engaged in the routine practice of submitting jury instructions. Upon Golden’s submission of a circumstantial evidence instruction, the following exchange occurred:

COURT: Okay. And what is marked D-10, two plausible theories. Isn’t this circumstantial?
DISTRICT ATTORNEY: I don’t have that one. I don’t have a problem with it.

¶ 12. The trial judge proceeded to explain the impropriety of a dual theory instruction. The district attorney then adopted the position of the lower court. The instruction was denied. Golden argues that the prosecution’s initial acquiescence to the instruction was undermined by the judge, placing defense counsel in the “intolerable position of being an adversary to both the judge and the prosecution.” We disagree with Golden’s characterization of the exchange.

¶ 13. Golden implies that once the prosecutor accepted the instruction, Golden was entitled to have it granted. Agreement of the attorneys as to a jury instruction is not controlling:

Though the trial court is entitled to rely upon counsel for the State and the defense to present proposed instructions that accurately inform the jury as to what facts are being submitted to it for resolution and what result the law requires depending upon how the jury resolves those critical facts, ultimately the responsibility for properly instructing the jury lies with the trial court.

Edwards v. State, 755 So.2d 443, 447 (Miss.Ct.App.1999).

¶ 14. It is the trial judge who must determine the propriety of jury instructions, including initiating critical ones in exceptional situations. Kolberg v. State, 829 So.2d 29, 45 (Miss.2002). A judge’s independent analysis of the appropriate law does not Create an adversarial relationship with a party. A judge’s disagreement with submitted jury instructions does not give rise to a claim of the abandonment of judicial detachment. As with other exercises of proper judicial power such as this, it is the nature of the exercise that must be examined to determine whether error occurred.

¶ 15. Furthermore, the judge did correctly instruct the jury. Circumstantial evidence instructions are appropriate only where the evidence is wholly circumstantial. Sullivan v. State, 749 So.2d 983, 992 (Miss.1999). Videotape evidence submitted to the jury of an accused’s unlawful acts constitutes direct evidence. Haynes v. State, 744 So.2d 751, 753 (Miss.1999). Here, substantial videotape evidence of Golden’s offense was provided to the jury. The case was therefore not wholly circumstantial, and the lower court properly denied the instruction.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF COUNT I CONSPIRACY TO EMBEZZLE AND SENTENCE OF FIVE YEARS; AND COUNT II EMBEZZLEMENT AND SENTENCE OF TEN YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE YEAR SUSPENDED AND ONE YEAR SUPERVISED PROBATION, PAY $250 TO CRIME VICTIM’S COMPENSATION FUND AND $19,366.91 IN RESTITUTION IS AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY TO SENTENCE IN COUNT I. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: LEE, J., for the Court.

text:
    Joseph A. SALLIS, Appellant, v. Shirley D. SALLIS, Appellee.
    No. 2002-CA-00800-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.
    Rehearing Denied Dec. 9, 2003.
    Tommy Dexter Cadle, Booneville, Kenneth Eugene Floyd, Attorneys for Appellant.
    John A. Ferrell, Booneville, Attorney for Appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On July 20, 2001, Joseph Sallis filed a complaint for divorce against Shirley Sal-lis in the Prentiss County Chancery Court. On September 4, 2001, the chancellor granted Joseph a divorce. On September 13, 2001, Shirley filed a motion to set aside the judgment claiming she was only served with a Rule 81 summons but not a Rule 4 summons, thereby failing to bestow jurisdiction upon the chancery court to grant the divorce. The chancellor granted Shirley’s motion to set aside, and Joseph filed another complaint for divorce to which Shirley responded with another motion to dismiss. The chancellor again granted the motion to dismiss finding that Joseph and Shirley separated while residing in Illinois and that Shirley had filed a complaint for divorce in Illinois; therefore, Illinois and not Mississippi had jurisdiction. Joseph filed a motion to set aside the order dismissing his complaint, but the chancellor denied the motion. Joseph now appeals to this Court arguing that the chancellor erred in dismissing his complaint when jurisdiction was clearly vested in the Mississippi chancery court. We review Joseph’s argument and find no merit; thus, we affirm.

DISCUSSION

I. DID THE MISSISSIPPI CHANCERY COURT HAVE JURISDICTION OVER THE DIVORCE SUCH THAT THE CHANCELLOR ERRED IN DISMISSING FOR LACK OF JURISDICTION?

¶ 2. Joseph lists three issues in his brief, but all three essentially concern whether the Mississippi court had jurisdiction; thus, we address all in this one discussion. The chancellor dismissed Joseph’s complaint for divorce based on lack of jurisdiction, and we review this question of law de novo. Kolikas v. Kolikas, 821 So.2d 874(¶ 14) (Miss.Ct.App.2002).

¶ 3. In dismissing Joseph’s complaint for divorce, the chancellor found that Shirley had previously filed a complaint for divorce in Illinois where the couple had separated; thus, Illinois had jurisdiction and was the proper forum. In his motion to set aside, Joseph claimed that he and Shirley actually separated while residing in Pennsylvania and that he had never been served with an Illinois complaint. Joseph also claims that by virtue of his residence in Mississippi six months prior to the filing of his complaint there, he met the jurisdictional requirements, and the chancellor erred in dismissing the complaint.

¶ 4. As indicated in the transcript from the hearing on Shirley’s motion to dismiss, her attorney explained to the court that the Sallises lived in Illinois through eighteen years of marriage, they separated while both were living in Illinois, Shirley was still a resident of Illinois, a complaint for divorce was filed in Illinois five months prior to Joseph’s filing the same in Mississippi, and therefore Illinois was more closely tied to the Sallises’s case than was Mississippi. After the hearing, the chancellor ruled that the parties separated while residing in Illinois and that Shirley had filed for divorce in Illinois, as well. Consequently, the chancellor found that jurisdiction inured to Illinois and no other proceedings could be held in Mississippi.

¶ 5. Joseph cites Cox v. Cox, 234 Miss. 885, 108 So.2d 422 (1959), for authority. In February 1957, Ralph Cox filed for divorce from his wife in Mississippi and also sought custody of their child. Id. at 889, 108 So.2d at 423. Lorraine Cox was served with the complaint, but declined to answer or offer witnesses, and a final order of divorce was entered in May 1957. Id. at 889-90, 108 So.2d at 423. Lorraine filed a motion to dismiss based on jurisdiction, claiming a divorce action was pending in Pennsylvania where the couple previously resided, and alleging that Ralph filed the complaint in Mississippi solely for the purpose of gaining custody of their child. Id. at 890, 108 So.2d at 423. Ralph rebutted that the motion was insufficient on its face because it did not include authenticated copies of the Pennsylvania proceedings. Id. An action had, in fact, been filed in Pennsylvania in 1953, and a temporary order of custody entered, but the divorce had not been adjudicated at the time of the Mississippi action. Id. at 891,108 So.2d at 424. The supreme court stated:

It is well-established that the pendency of an action for divorce in another state is not a bar, nor a cause for a stay of proceedings, in a similar action between the same parties in the state, where jurisdiction of defendant is obtained by personal service of process. A stay is not a matter of right, but rests within the sound discretion of the court.

Id., at 892, 108 So.2d at 424 (citations omitted).

¶ 6. We read Cox in conjunction with the more recent case of Brown v. Brown, 493 So.2d 961 (Miss.1986), which Shirley cites. Clayton and Mary Brown married in California in 1968 and one child was born three years later. Id. at 2d 962. In 1984, Clayton filed for divorce in Harrison County, Mississippi, where he was stationed in the Air Force. Id. Nine days later, Mary filed for divorce in California, where she and the child remained. Id. The following month, Clayton appeared in California to request a stay on the California proceedings pursuant to the Soldiers and Sailor’s Civil Relief Act of 1940, 50 U.S.C.App. § 513, which the court granted. Id. Mary requested a stay in the proceedings pending the California action, which the chancellor granted, and the Mississippi Supreme Court affirmed. Id. at 964. The supreme court stated:

That there is another action regarding the same subject matter pending in the courts of a sister state poses no jurisdictional obstacle to a court of this state of otherwise competent jurisdiction hearing and adjudging the matter in controversy. The question is not whether the Chancery Court has jurisdiction of this matter but how it should exercise such jurisdiction as it has.
Whether under these facts Mississippi should defer to California is a matter committed to the sound discretion of the Chancery Court, informed by the presence or absence of exigent circumstances, the legitimate needs and conveniences of the parties, and considerations of interstate comity and the need to avoid unseemly forum shopping.

Id. at 963.

¶ 7. Both Cox and Brown state that the pendency of a case in one jurisdiction is not a necessary bar to the same action in another jurisdiction. Brown, 493 So.2d at 963; Cox, 234 Miss. at 892, 108 So.2d at 424. Additionally, Brown adds that the chancellor has discretion to decide which state will have jurisdiction over the matter at issue, taking into consideration the existence of any exigent circumstances, the parties’ needs, and consideration for comity and protection against forum shopping. Brown, 493 So.2d at 963. The chancellor heard oral arguments on the subject, and based on the evidence presented at that time he determined that Illinois was the proper forum. Whether or not Joseph was properly served in Illinois is a matter for contest in that jurisdiction. However, in our de novo review and pursuant to the rules from both Brown and Cox, we find dismissal of the Mississippi action under the circumstances was proper for the same reasons the chancellor found were cause for dismissal. Accordingly, we affirm the chancellor.

¶ 8. THE JUDGMENT OF THE PRENTISS COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: McMILLIN, C.J., for the court.

text:
    Tony HAMPTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00025-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.
    Tony Hampton, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Tony Hampton has appealed from the judgment of the Circuit Court of Lowndes County denying relief on a motion filed in September 2002. The motion sought relief from a guilty plea Hampton entered to a felony indictment in that court in November 2000. The circuit court treated the pleading as an action brought pursuant to Mississippi’s post-conviction relief statutes and denied relief without a hearing. Hampton has appealed that determination.

¶ 2. Though Hampton’s pleadings do not conform to the statutory requirements for a motion for post-conviction relief, it is plain that, based on the ground for relief asserted by Hampton, a post-conviction relief proceeding was his only available procedural vehicle to bring his grievances to the attention of the circuit court. The court was, therefore, correct in treating the proceeding under the applicable statutes.

¶ 3. Section 99-39-11(2) of the Mississippi Code provides that the circuit court, upon review of the motion, may dismiss the motion without the necessity of a hearing if it appears on the face of the pleading that no relief is warranted. Miss. Code Ann. § 99-39-11(2) (Rev.2000).

¶ 4. Insofar as this Court is able to grasp Hampton’s pro se pleadings and brief, Hampton contends that the indictment charging him with the sale of an illegal narcotic was fatally defective on its face because it failed to properly identify the nature of the narcotic substance and the quantity of drugs involved in the transaction. Hampton argues that, because the maximum punishment for such an offense is dependent upon such facts, they are essential elements of the crime that must be set out in the indictment. He cites, in support of that proposition, the United States Supreme Court case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). That case held that any fact, except prior criminal convictions, having the potential to increase the maximum punishment for an offense is an element of the crime that must be alleged and proven to the satisfaction of the fact-finder beyond a reasonable doubt. Id. at 490.

¶ 5. This Court concedes the validity of Hampton’s contention in the abstract that the nature and quantity of the drug involved is an essential element of the crime that must be alleged in the indictment and proven beyond a reasonable doubt at trial. However, we are unable to understand how the facts of this case demonstrate his entitlement to relief based on this proposition. The indictment to which he pled guilty charges, in part, that he “did unlawfully ... sell a controlled substance, to-wit: Cocaine, to Diane Lowe, in an amount of 1.25 grams....” Despite this wording in the indictment, Hampton contends in his brief that “the appellant’s information failed to state any quantity of drug for which he pled guilty to.” His contention of error therefore lacks any basis in fact.

¶ 6. Hampton makes this further argument: “Nor did the trial court instruct the jury that they had to find a specific quantity of drug as an element in determination .... ” We do not understand this alternate argument. By entering a guilty plea, Hampton waived his right to a jury trial to dispute any of the essential factual elements of the crime laid out in the indictment. We are satisfied, even giving Hampton’s pleadings the most liberal construction possible, that he has failed to set out any fact or legal theory that would entitle him to have his guilty plea set aside and the indictment against him dismissed.

¶ 7. In a supplemental brief permitted by order of the Mississippi Supreme Court, Hampton further charges a defect in his sentence arising out of the fact that the trial court erroneously believed that it was not within that court’s authority to order Hampton’s sentence to run concurrently with another sentence arising out of a federal conviction and that, as a result, his punishment is more severe than it otherwise might have been had the trial court understood that it could order the sentences to be served concurrently. This matter was not raised initially before the trial court and, under long-standing ease law in this State, may not, for that reason, be raised for the first time on appeal. Mitchell v. Glimm, 819 So.2d 548, 552(¶ 11) (Miss.Ct.App.2002) (citing Gatlin v. State, 724 So.2d 359, 369(¶ 43) (Miss.1998)). We have carefully reviewed the supreme court order permitting Hampton to file this supplemental brief and, though the order certainly permits Hampton to file this further pleading, we do not construe the terms of the order as requiring this Court to address the merits of an issue raised in the pleading that is procedurally barred under long-standing principles of Mississippi law.

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

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


text:
    Lisa CAUTHEN, Appellant, v. The PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellee.
    No. 2002-CC-01668-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.
    Lance Laroy Stewart, Jackson, attorney for appellant.

      Mary Margaret Bowers, attorney for ap-pellee.
    Before McMILLIN, C.J, MYERS and GRIFFIS, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Lisa Cauthen, formerly a teacher in the Jackson Public School System, unsuccessfully applied for disability benefits from the Mississippi Public Employees’ Retirement System (hereafter “PERS”). Cauthen claimed that she was unable to continue performing the required duties of a teacher due to chronic fatigue syndrome and various physical and mental problems arising from that condition. After exhausting her administrative remedies under the applicable statutory provisions, Cauthen appealed the adverse decision to the Circuit Court of Hinds County, First Judicial District. That court affirmed the PERS ruling, and Cauthen has now appealed to this Court. We reverse.

I.

Facts

¶ 2. After initially leaving her teaching position upon being diagnosed with mononucleosis, ■ Cauthen ultimately withdrew permanently from employment and filed a claim for disability benefits on the contention that she was unable to perform the usual duties of a school teacher. In support of her claim, Cauthen asserted that her diagnosed condition of mononucleosis developed into chronic fatigue syndrome and fibromyalgia. She reported to various physicians that she suffered from persistent body pain, debilitating fatigue, insomnia, short-term memory lapses, and inability to concentrate on tasks. Cauthen contended that these physical and mental problems, when taken in combination, prevented her from performing the usual duties of a school teacher and that her condition appeared to be permanent in nature.

¶ 3. Her treating family physician ultimately diagnosed her as suffering from chronic fatigue syndrome and referred her to Dr. R.H. Flowers. Dr. Flowers concurred in that diagnosis. Neither doctor specifically found Cauthen’s condition to be permanent, but neither offered a prognosis that indicated the likelihood of improvement in her physical or mental abilities in the foreseeable future.

¶ 4. Cauthen additionally presented medical evidence in the form of an independent medical evaluation performed by Dr. Howard Katz, apparently undertaken as a part of Cauthen’s application for certain other disability benefits available to her through an insurance policy. Dr. Katz offered the view that Cauthen’s diagnosed medical condition of chronic fatigue syndrome rendered her unable to perform many of the functions required of a school teacher. As late as July 13, 2000, Dr. Yolanda R. Alonzo reported to PERS personnel that she had Cauthen under treatment for chronic fatigue syndrome and that her symptoms rendered her “unable to teach or participate in any type of gainful employment.”

¶ 5. The Disability Appeals Committee concluded that its ability to properly decide Cauthen’s petition would be benefitted by an independent neuropsychological evaluation to be performed by Dr. Edward Manning. The report of Dr. Manning appears in the record and dealt exclusively with Cauthen’s mental abilities and emotional condition. PERS had made some effort to have a similar independent evaluation of Cauthen’s physical condition undertaken but later abandoned the effort when their physician of choice declined the request because of a close professional relationship with one of Cauthen’s treating doctors.

¶ 6. In early 2000, the Board determined that Cauthen had not satisfactorily established her right to disability benefits. On appeal, the circuit court remanded for reconsideration based on the court’s concern regarding a potential conflict arising out of the fact that Dr. Rahul Vohra sat on the Medical Review Board that made the initial determination to deny Cautheris claim and then sat in an advisory capacity on the Disability Appeals Committee. Ultimately, PERS once again denied Cautheris disability claim by order of the Board of Trustees dated Decemberl2, 2000. The Board adopted the findings and conclusions of the Disability Appeals Committee that considered Cauthen’s application after the initial remand by the circuit court. The core finding of the Committee was that “there is insufficient objective evidence to support Ms. Cautheris claim that she is presently disabled from her job as a teacher.”

II.

Discussion

¶ 7. Our review of a decision by PERS in matters such as this is limited. We may intercede only if we determine that the decision was not supported by substantial evidence, was arbitrary or capricious, beyond the power of the lower authority to make, or violated some statutory or constitutional right of the complaining party. Public Employees’ Retirement System v. Dishmon, 797 So.2d 888, 891 (¶ 8) (Miss.2001).

¶ 8. Cautheris contention is that the decision to deny her benefits was not supported by substantial evidence since essentially all of the medical evidence submitted by her for consideration by PERS indicated that she suffered from medical conditions that left her unable to perform the duties of her job with little hope of improvement.

¶ 9. We find ourselves in agreement with Cautheris contention that she presented a substantial amount of medical evidence tending to establish an inability on her part, due to her various medical problems, and in particular, a diagnosis of chronic fatigue syndrome, to undertake the duties of a school teacher. The applicable statute defining disability says, in part, that it is

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Miss.Code Ann. § 25 — 11—113(l)(a) (Rev. 2003). There is no contention that Cau-theris employer offered her alternate employment or that any other governmental entity has offered her employment in a position covered under the State’s retirement system. Therefore, we must necessarily limit our consideration to the issue of whether PERS’s determination that Cauthen is not permanently disabled from performing her teaching duties is supported by substantial evidence.

¶ 10. In making our evaluation of the merits of this appeal, we observe that the Mississippi Supreme Court has, in the recent past, issued two decisions that appear to offer guidance. Based on the fact that this Court is bound by the precedent of these decisions, we look to them for direction in identifying and dealing with the pivotal issues upon which this case must be decided. The cases are PERS v. Dearman, 846 So.2d 1014 (Miss.2003), and PERS v. Marquez, 774 So.2d 421 (Miss.2000).

¶ 11. In both of these cases, the supreme court dealt with claimants whose condition was marked by multiple complaints of pain and diminished mental functioning traceable at least in part to a diagnosed condition of chronic fatigue syndrome. Both claimants supported their assertion with multiple reports by treating physicians offering the view that the patient did, in fact, suffer from these conditions. In both cases, PERS rejected the application on the basis that there was not sufficient objective medical evidence to establish the validity of the claimant’s subjective complaints of a debilitating medical condition.

¶ 12. In Marquez, the supreme court noted that the medical evidence presented by the claimant tended to confirm her complaints and offered the following comment regarding the rationale offered by PERS: “If medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” Marquez, 774 So.2d at 427 (¶ 22).

¶ 13. Similarly, in Dearman, the supreme court dealt with a denied application for benefits filed by a teacher with a fairly extensive list of problems including diagnosed fibromyalgia and chronic fatigue syndrome. Dearman, 846 So.2d at 1015(¶ 2). Her primary treating physician submitted a report stating that he found the claimant “to be permanently disabled as a result of her medical condition.” Id. at 1016(¶ 3). The court found it noteworthy that, in the face of this diagnosis, the PERS reviewing authorities did not “conduct a medical examination nor did they request an independent physician examine Dearman.” Id. at (¶ 4). According to the supreme court’s decision, the decision to deny benefits to Dearman appeared to be based on the determination by the reviewing PERS physicians that they remained unconvinced that Dearman’s ailments were, in fact, disabling. However, the court noted that the opinion of the reviewing physician “is not conclusive” and that PERS was not free to “ignore the only evidence in the record ... especially where it chose not to exercise its right to an independent medical evaluation....” Id. at 1018(¶ 11). The court found that, on the basis of the record, which it concluded to be “devoid of any evidence that Dear-man is not disabled,” the decision by PERS was arbitrary and capricious as not being based on substantial evidence appearing in the record. Id. at 1018-19 (¶¶ 11, 14).

¶ 14. It appears from our review of the record in this case, and more particularly from comments made at the hearing by the reviewing physicians during Cauthen’s testimony, that PERS took a dim view of the legitimacy of a diagnosis of chronic fatigue syndrome as an identifiable medical condition. However, though the opportunity to expand on that proposition through appropriate informative entries into the record certainly existed, no such effort was undertaken. Instead, as we have already observed, the extent of the analysis of fact and law consists of a summary statement that the reviewing officials did not find enough objective evidence of disability in the record. Without further expansion or explanation in the record, we find these conclusory remarks unhelpful in our effort to assess whether there was substantial evidence to support such a determination. We also observe that, though PERS based its decision principally on a skepticism regarding the validity of the chronic fatigue syndrome diagnosis, it did not obtain an independent medical evaluation pertaining to Cauthen’s physical condition, instead limiting itself to an independent evaluation of Cauthen’s mental capabilities.

¶ 15. We conclude that the similarities between the facts of Cauthen’s claim and those found by the supreme court to be meritorious in Dearman and Marquez are too great to ignore. In recognition of the deference this Court is properly required to afford an administrative determination of this nature, we have carefully reviewed the record and found no evidence tending to demonstrate that Cauthen’s condition was either incorrectly diagnosed or that the severity of her symptoms were over exaggerated. When we reviewed the findings made by appropriate PERS officials for some understandable reasons why it chose to disregard the firmly-expressed opinions of several different medical experts, we found only that the officials felt that “there is insufficient objective evidence to support Ms. Cauthen’s claim.... ” The brief filed by PERS before this Court argues principally that five separate doctors reviewing the record on behalf of PERS all concluded that she was not disabled. In essence, this argument suggests that we are somehow obligated to accept at face value the unexplained view of these reviewing doctors. Were that the case, the purpose of judicial review of disability determination would cease to exist. As the supreme court observed in Marquez, the opinions of these doctors, even if unanimous, are not conclusive on the question.

¶ 16. We find that the evidence tending to indicate the legitimacy of Cau-then’s claim is substantial and that there is essentially no countering evidence relating to her physical condition diagnosed by several treating physicians as chronic fatigue syndrome that would tend to show she was either not suffering from such a condition or that its symptoms were not so severe as to be disabling. In that circumstance, we conclude that the Mississippi Supreme Court decisions in Dearman and Marquez compel us to conclude that the decision by PERS was arbitrary and capricious as not being supported by substantial evidence found in the record. For that reason, we reverse the judgment of the circuit court, which has the effect of reversing the determination of PERS, and order that Cauthen be awarded disability benefits consistent with the provisions of this opinion.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS REVERSED AND RENDERED, AND THIS CAUSE IS REMANDED TO THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI WITH INSTRUCTIONS THAT THE APPELLANT, LISA CAUTHEN, BE AWARDED DISABILITY BENEFITS AS ALLOWED UNDER APPLICABLE LAW. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


author: IRVING, J., for the Court.

text:
    Norman B. GILLIS, Jr., Appellant, v. CITY OF McCOMB and Sami Shariff, Appellees.
    No. 2002-CP-01289-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.

      Norman B. Gillis, Jr., appellant, pro se.
    Sami Shariff, appellee, pro se.
    Before McMILLIN, P.J., THOMAS and IRVING, JJ.
   IRVING, J., for the Court.

¶ 1. Norman Gillis appeals, pro se, from an adverse judgment of the Circuit Court of Pike County which upheld the decision of the Board of Mayor and Selectmen of the City of McComb (Board) to rezone a one acre lot owned by Sami Shariff from residential to commercial. The appellate issue presented by Gillis, although framed differently, is whether the Board’s decision to rezone the tract in question was arbitrary and capricious and whether the circuit court erred in upholding the decision of the Board.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. The one acre tract of land, which was rezoned, was at one time owned by Gillis who, according to Gillis, sold it to Shariff pursuant to Shariffs representation that he wanted the land to construct a residence for himself and family. The tract is located adjacent to two residential apartment complexes, known as Timber Ridge I and II, which are owned by Gil-lis, and behind, or north of, the Holiday Inn. Almost immediately after the purchase, Shariff cleared the tract of all vegetation filed a petition with the City of McComb for a change in the zoning of the property from R-PL planned residential to C-2 highway commercial. The matter was referred to the McComb Planning Commission (Commission) which conducted a public hearing. After the hearing, the Commission recommended the requested change in the zoning classification of the tract. Pursuant to the Commission’s recommendation, the Board subsequently held a hearing and passed an ordinance amending its land use regulation ordinance to change the zoning designation of the tract to C-2.

¶ 4. Gillis appealed the Board’s action to the Circuit Court of Pike County which affirmed the Board’s rezoning decision.

DISCUSSION AND ANALYSIS OF THE ISSUE

¶ 5. Judicial review of zoning matters is limited. It is well-settled law that before a zoning board may reclassify property from one zone to another there must be proof that either (1) there was a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent as to justify reclassification, and there was a public need for rezoning. City of Madison v. Shanks, 793 So.2d 576, 578(¶7) (Miss.2000). The burden of proof to support the rezoning is upon the applicant, and both propositions must be proven by clear and convincing evidence. Id. The decision of a local governing board is presumed valid, and the burden is upon the person seeking to set it aside to show that it was arbitrary, capricious and unreasonable. Briarwood, Inc. v. City of Clarksdale, 766 So.2d 73, 80(¶ 25) (Miss.Ct.App.2000).

¶ 6. The zoning decision of a local governing body which appears to be “fairly debatable” will not be disturbed on appeal, and will be set aside only if it clearly appears that the decision is arbitrary, capricious, discriminatory, illegal, or is not supported by substantial evidence. City of Madison, 793 So.2d at 578(¶ 8). “Fairly debatable is the antithesis of arbitrary and capricious. If a decision is one which can be considered fairly debatable, then it cannot be considered arbitrary or capricious.” Id.

¶ 7. According to Gillis, the Board failed to make any findings concerning any of the prerequisites for changing zoning designations. Therefore, Gillis proclaims that the absence of such findings renders the Board’s rezoning order unreasonable, arbitrary, capricious, and void.

¶ 8. An act is arbitrary if it is done not according to reason or judgment, but solely upon the will alone. Briarwood, Inc., 766 So.2d at 80(¶ 26). An act is capricious if it is “done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles.” Id.

¶ 9. We first address Gillis’s contention that the failure of the Board to make findings of fact renders its decision arbitrary and capricious. In Board of Aldermen v. Conerly, 509 So.2d 877, 884 (Miss.1987), the Mississippi Supreme Court opined:

When we have before us an appeal from an action by a governing board rezoning property, unless the record contains specific findings by such board that one or both of these two criteria have been met, and in addition thereto sufficient evidence to support such finding, we will inevitably conclude that the governing board acted arbitrarily, unreasonably and capriciously.

¶ 10. The supreme court later relaxed the rule somewhat, explaining that “while recognizing the desirability of specific findings by the zoning authority on each considered issue, we will not reverse for a lack of such specificity where a factual basis for the action is disclosed.” Faircloth v. Lyles, 592 So.2d 941, 945 (Miss.1991).

¶ 11. We now look at the evidence adduced at the hearing before the Board. First, all parties agreed that no mistake was made in the initial zoning decision. The focus of the testimony and documentation adduced at the hearing was whether the character of the neighborhood had changed and whether there existed a public need for the rezoning.

¶ 12. Testimony of the Board’s witness, Walter Temple, director of inspection and zoning for the City of McComb, clearly and convincingly established the appropriateness of the Board’s decision to rezone the subject property. Based upon his experience in his position, Temple testified that he did not foresee any detrimental result to Timber Ridge I and II occurring from the commercial zoning of the Shariff property. His testimony revealed that there had been commercial expansion along Delaware Avenue, where the rezoned tract is located, since the adoption of the 1987 ordinance. He agreed that the character of the neighborhood in which Mr. Shariffs property lies had undergone somewhat substantial change since 1987. Temple verified that the subject one acre lot had absolutely no use for residential development, and he did not foresee anyone building a home on the site. He further testified that the property had no access except by virtue of a retained easement from Delaware Avenue across the Holiday Inn property onto the subject property. He finally discussed the City’s sincere interest and active participation in seeking a commitment from Cracker Barrel to construct a restaurant on the said site.

¶ 13. There were others who gave testimony contrary to that given by Temple. However, that fact does not make the Board’s decision to rezone arbitrary and capricious. Such conflicting testimony only means that the issue was fairly debatable. The public’s need to have the property rezoned is considered to be “fairly debatable” where the development of the subject property “is potentially of great benefit to the public entity, and there is little indication that the best interests of the public entity would be served by the continued undeveloped status of the property.” Old Canton Hills Homeowners Ass’n v. Mayor and City Council of City of Jackson, 749 So.2d 54, 63(¶ 26) (Miss.1999).

¶ 14. Here, we find, as did the circuit judge, a sufficient factual basis for the Board’s actions to warrant the conclusion that the decision of the Board was fairly debatable and not arbitrary, capricious, discriminatory, or beyond the legal authority of the Board. Gillis has not shown otherwise. Therefore, we affirm the decision of the circuit court.

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

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