author: COBB, Justice, for the Court.

text:
    Peggy Sloan STARNS v. STATE of Mississippi.
    No. 2002-KA-00709-SCT.
    Supreme Court of Mississippi.
    Dec. 31, 2003.
    Rehearing Denied March 18, 2004.

      William B. Jacob, Joseph A. KieronsM, Jr., Meridian, Daniel P. Self, Jr., attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorneys for appellee.
   COBB, Justice, for the Court.

¶ 1. In July of 2001, the Lauderdale County Grand Jury indicted Peggy Sloan Starns for deliberate design murder in the death of her stepdaughter, Angela Schnoor. Angela’s death occurred on July 30,1984, and was diagnosed at that time as an accidental death due to asphyxiation by aspiration. At the conclusion of a six-day jury trial, Starns was found guilty of murder and sentenced to life in prison.

FACTS

¶ 2. Michael Schnoor (Mike) and Debbie Herndon (Debbie) married as teenagers in 1977, and their only child, a daughter named Angela Schnoor (Angela), was born in Meridian in 1980. Mike and Debbie divorced in 1981, and he married Peggy Lynn Sloan Starns (Starns) in 1983. At the time of her death, Angela lived with Debbie, although Mike had visitation rights.

¶ 3. Early on the morning of Friday, July 27, 1984, Mike, Angela, Starns, and Mike’s sister traveled to the Mississippi Gulf Coast for a day on the beach and at the water park. They returned to Meridian, arriving about 2:00 a.m. Saturday morning, and after sleeping late, they had another “big day” on Saturday. According to Mike’s testimony they went to town to visit and had hamburgers, then returned to Mike’s home and watched a TV movie. Angela fell asleep on the couch, and Mike left her there sleeping while he took a nap in the bedroom. Upon awaking, he went to his parents’ house, and Starns was going to bring Angela there when Angela awakened.

¶ 4. Upon Mike’s departure, Starns was the only person in the apartment with Angela. At 7:40. p.m. Mike called to talk to Starns, but the telephone was busy. Starns subsequently called Mike’s parents house and talked to Mike’s sister, Jo Ellen, who at the time lived with Mike’s parents. Starns told Jo Ellen to tell Mike not to call their apartment because Angela was asleep, and he might wake her up.

¶ 5. Soon afterwards, Starns called and told Mike that Angela could not be awakened and was not breathing. Mike rushed home 'and found Starns standing by the car. Angela was on front seat and appeared to be asleep. However, she was not breathing and her heart was not beating. They drove to Meridian Regional Hospital, and after treatment in the emergency room, Angela’s heart was re-started, but there was no spontaneous breathing. Angela was transferred to the Intensive Care Unit, where she died on July 30, 1984. Dr. Paul Wilcox diagnosed the cause of death to be “Accidental Death Due to Asphyxiation by Aspiration.”

¶ 6. An autopsy of the body was performed by Dr. LeRoy Riddick and Dr. Gary Cumberland on August 27, 1984. Dr. Riddick was informed that Angela was found in the couch which folded down to make one large flat surface when the bottom portion of the couch was picked up. The couch was not, however, folded down when Angela was sleeping upon it. He subsequently responded that:

What I envisioned was that it was a folding couch operated by a spring mechanism so that the seat of the couch — roll-away bed so that the seat could really push up against the back of the couch with a spring loaded mechanism. And that it was at least possible that in that type of couch that a four-year old might get his or her arm caught and not being able to extricate oneself to get out of it, but also that there would be enough pressure to press on the nose and the mouth so the child could not breathe. But even with that, we didn’t accept it because we weren’t certain about what type of couch it was and it didn’t really make good sense anyway.

¶ 7. After the autopsy was completed, the cause of death was determined to be “Asphyxia of Undetermined Etiology.” After an exhaustive effort, the final stages of investigation of this case were not completed until Debbie contacted Bill East (East) of the Attorney General’s Office on November 3, 2000. Following East’s investigation, Starns was arrested on July 26, 2001, and indicted for Angela’s murder. At trial, the jury returned a verdict of guilty, and the court sentenced Starns to a term of life imprisonment. Aggrieved, Starns appeals and raises four assignments of error. Because we determine that there is no merit to Starns’s assignments of error, the Lauderdale County Circuit Court’s judgment is affirmed.

DISCUSSION

I. WHETHER STARNS’S FIFTH AMENDMENT RIGHT WAS VIOLATED BY ADMITTING SECRETLY RECORDED STATEMENTS MADE BY STARNS TO INVESTIGATOR BILL EAST.

¶ 8. Starns’s first assignment of error centers around two conversations with investigator East, which she alleges were recorded in violation of her Fifth Amendment rights. She argues that East secretly recorded the conversations in an attempt to elicit incriminating information that East could use to build a case against her. Further, Starns argues that she was misled by East when he told her he was sent by his boss “to talk to [her] and see what happened on that night and maybe put some closure to this thing.” Starns also alleges that she was told that she was not a suspect. East testified that Starns was the target of his investigation at the time the two conversations took place.

¶ 9. Starns relies on Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), for the proposition that a person who is the target of an investigation must be informed of his or her Fifth Amendment right against self incrimination. In Beckwith, an IRS criminal tax fraud case, the target of the investigation claimed that his conversation with IRS agents led to him incriminate himself, and because he was the “focus” of that investigation, Miranda warnings should have been given. The United States Supreme Court, however, declined to extend Miranda to non-custodial investigations, and thus Starns’s reliance on Beckwith is misplaced.

¶ 10. Starns also relies on Hunt v. State, 687 So.2d 1154, 1159 (Miss.1996), in which the defendant voluntarily went to the sheriffs office to file a missing person’s report on her husband. The sheriff, noting that the description fit that of a man found dead near Holly Springs, had Hunt identify the body. She identified the body as that of her husband, and she was then asked to repeat the information which she had originally given the sheriff, to an investigator. At that time, the investigator noticed inconsistencies in her story, and she was given her Miranda rights. On appeal, Hunt argued that her Fifth Amendment right to counsel was violated, but this Court held that she voluntarily submitted herself to the sheriffs department and that she properly waived her rights under Miranda.

¶ 11. Starns argues that this Court allowed Hunt’s pre-Miranda warning statement because it had been voluntarily given and she was not identified as a suspect. However, Starns’s argument is flawed. Although it is true that Hunt was not the target of an investigation nor a suspect in her husband’s murder at the time she voluntarily entered the sheriffs department, this Court did not evaluate Hunt’s change from a non-suspect to a suspect in determining whether her Fifth Amendment right to counsel was violated. In fact, what this Court considered was whether Hunt was properly given Miranda warnings and whether she was in custody at that time. Id. at 1160. Thus the fact that East told Starns his inquiry was only to put closure to this matter and that she was not a suspect does not change our holding that no violation occurred. There is no doubt that East had decided before he went to interview Starns that she was the primary suspect, the target of his investigation. However, the mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in non-custodial settings. See Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984). Starns’s Fifth Amendment rights were not violated by admitting her secretly recorded conversations with East.

II. WHETHER THE STATE WAS REQUIRED TO PROVE AN ACT DONE BY STARNS TO CAUSE THE DEATH OF ANGELA SCHNOOR.

¶ 12. Starns argues that neither the indictment nor jury Instruction C-7 stated any act taken by her to cause Angela’s death. Starns moved for a directed verdict, specifically pointing out that the State had failed to establish an act by her that caused Angela’s death. The trial court denied the motion.

¶ 13. The State argues that Instruction C-7 sufficiently charged the jury with the act committed by Starns, by using the language “causing her asphyxiation.” Instruction C-7 reads as follows:

The Court instructs the Jury that, should you find from the evidence in this case, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that:
1. On or about the 28th day of July, 1984, in Lauderdale County, Mississippi;
2. The Defendant, Peggy Sloan Starns, did wilfully, unlawfully and feloniously, without authority of law
3. and with deliberate design to effect the death, kill and murder a human being, Angela Schnoor, by causing her asphyxiation,
then it is your sworn duty to find the Defendant guilty of Murder.
Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, then you shall find the Defendant not guilty of Murder,

(emphasis added.)

¶ 14. The State contends that the asphyxiation was itself the act and that it was sufficient to tell the jury that some-hoto Starns caused Angela to suffer a lack of oxygen which led to her death. The State also argues that the indictment does not have to set forth the manner or means by which the death was caused and that it is sufficient to charge murder in the proper terms.

¶ 15. Starns relies on Edwards v. State, 755 So.2d 443 (Miss.Ct.App.1999), to support her contention that the State must put forth a coherent theory., and prove through evidence that Starns committed an act to cause Angela to asphyxiate. In Edwards, the parents of a four year old child were charged with culpable negligence manslaughter after the child drowned while on a camping excursion with his parents. A review of that case shows that it is inapplicable. Edwards involved reversal and dismissal of criminal charges due to improper jury instructions and insufficient evidence. In the present case, C-7 properly charged the jury on the fact-finding it had to perform. Its job was to evaluate the evidence and determine if Starns asphyxiated Angela. In other words, it had to determine whether the evidence proved beyond a reasonable doubt that Starns stopped Angela from being able to take in oxygen long enough to cause her death.

¶ 16. The State’s theory was that Starns was the only person with Angela when she stopped breathing. The doctors testified that the ' couch could not have caught Angela’s arm and held her so she could not breathe, as Starns asserted in her version of the cause of Angela’s death. Whether Starns pressed her face into something by pushing on the back of her head or closed her nose and covered her mouth, the State’s theory of suffocation and death by asphyxiation was sufficiently charged in C-7. This issue is without merit.

III. WHETHER THE INDICTMENT PROPERLY APPRISED STARNS OF THE NATURE AND CAUSE OF THE ACCUSATIONS AGAINST HER.

¶ 17. Starns’s indictment reads in pertinent part: “PEGGY SLOAN STARNS in said County and State, on or about the 28th day of July, A.D., 1984 did wilfully, unlawfully, and feloniously, without authority of law and with deliberate design to effect death, kill and murder a human being, ANGELA SCHNOOR....”

¶ 18. An indictment must apprise a defendant of the “nature and cause of the accusations” against her. U.S. Const, amend. V; Miss. Const, art. 3, § 26.

¶ 19. The Mississippi Code instructs:

In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased.

Miss.Code Ann. § 99-7-37 (Rev.2000).

¶ 20. The Uniform Circuit and County Court Rules further provide:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense. charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. ‘ The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

URCCC 7.06 (2003).

¶ 21. Starns argues that her indictment did not apprise her of the nature and cause of the accusations against her because it did not follow Rule 7.06’s “plain, concise and definite written statement of the essential facts constituting the offense charged” requirement. She also argues that Section 99-7-37’s instruction “[i]n an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused” should not be followed because it is inconsistent with Rule 7.06 and Rule 7.06 trumps pursuant to Newell v. State, 308 So.2d 71 (Miss.1975), and Miss. R. Evid. 1103. Furthermore, she also argues that the instruction is unconstitutional because it does not track Miss. Const. art. 3, § 26’s “nature and cause of the accusation” language.

¶ 22. This Court recently addressed this issue in Jones v. State, 856 So.2d 285 (Miss.2003), where the defendant alleged that his homicide indictment did not apprise him of the nature and cause of the accusations against him because it did not specifically state how he committed the crime. This Court held:

[T]he defense is not entitled to notice of specific overt acts charged to have caused a murder. Accordingly, the statute [99-7-37] does not violate Jones’s constitutional notice rights. Moreover, the record makes clear that Jones was not in any way prejudiced by the indictment in the preparation of his defense.
* * *
If the statute fully and clearly defines the offense, the language of the statute is sufficient to provide notice of the crime charged. We have repeatedly held that the manner or means employed in the commission of a crime need not be averred.

Jones, 856 So.2d at 289 (citations omitted).

¶ 23. Pursuant to Jones, the indictment did apprise Starns of the nature and cause of the accusations against her. The indictment tracked § 99-7-37 and apprised Jones of the material elements of the statutory offense. Moreover, Starns has not shown that the indictment unduly prejudiced her. From the beginning, there was no question that Starns was being charged for the unlawful asphyxiation of Angela Schnoor. This issue is without merit.

IV. WHETHER THE COURT ERRED BY FAILING TO GRANT THE PEREMPTORY INSTRUCTION, MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, A NEW TRIAL IN THAT THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE STATE FAILED TO PROVE CRIMINAL AGENCY.

¶ 24. Starns finally argues that the trial court erred in denying her request for a peremptory instruction and her motion for acquittal or for a new trial.

¶ 25. This Court will not reverse a trial court’s denial of a motion for acquittal unless, viewing the evidence in the light most favorable to the State, the verdict was not based on sufficient evidence. Pruitt v. State, 807 So.2d 1286, 1242-43 (Miss.2002). This Court will not reverse a trial court’s denial of a motion for new trial unless, accepting the evidence that supports the verdict as true, the verdict was against the overwhelming weight of the evidence. Pruitt, 807 So.2d at 1242-43.

¶ 26. Starns was the only person with Angela when she stopped breathing. Starns said that she found Angela with her arm caught in the couch face down and that Angela smothered as a result. However, there were no bruises on Angela’s arm, and the doctors who examined her and performed the autopsy, as well as the expert who examined the facts, all said Angela could not have died by having her arm caught in the couch.

¶ 27. Starns urged that an autopsy should not be done, and she became angry when she learned that one would be done. Dr. Mary Case testified that it was her opinion that Angela died as a result of homicide and not as a result of an accident or suicide. When asked about the report of Angela being found face down on the couch, her arm caught in the mechanism, and that causing her head to be positioned so that she could not breathe, Dr. Case testified: “That is a story that is not a possibility.”

¶28. Dr. LeRoy Riddick, the State Medical Examiner for the State of Alabama, co-signed an autopsy report that Dr. Gary Cumberland, another medical examiner, performed on Angela in 1984. Dr. Cumberland said he was led to believe that Angela died in a full-size hide-a-bed folding couch that rolls out into a full-size bed. He further stated that a photograph of the couch would have been important to him in determining the manner of death.

¶ 29. Dr. Riddick also testified that the reason given did not make good sense but that it was possible, however, that a four-year-old girl could have died in a folding couch operated by a spring mechanism where- the seat could push up against the back of the couch. He said that the photographs of the couch admitted into evidence at trial did not depict the type of couch he had envisioned in 1984, and if he had seen the pictures of the couch in 1984 they would have affected his conclusions.

¶ 30. The verdict was based «on sufficient evidence. The verdict was not against the overwhelming weight of evidence. The trial court correctly denied the peremptory instruction and motion for acquittal or a new trial. This issue is without merit.

CONCLUSION

¶ 31. For the reasons stated above, the judgment of the Circuit Court of Lauder-dale County is affirmed.

¶ 32. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TOGETHER WITH PAYMENT OF COURT COSTS AND FEES, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.

      . The State offered Instruction S-2(A), which the Court adopted as C-7. Starns refers to C-7 as S-2(A) whereas the State refers only to C-7.


source: Caselaw Access Project

license: Public Domain

text:
    Rhonda MASSEY v. Ross TINGLE d/b/a Columbus Speedway and John Does 1-5.
    No. 2002-CA-00870-SCT.
    Supreme Court of Mississippi.
    March 4, 2004.

      John W. Boling, Meridian, Christopher Michael Falgout, attorneys for appellant.
    Patrick H. Zachary, Hattiesburg, attorney for appellees.

      SMITH, P.J., WALLER, P.J., and CARLSON, J.
   SMITH, Presiding Justice, for the Court.

¶ 1. Rhonda Massey appeals to this Court from a Lowndes County Circuit Court order granting Ross Tingle’s motion for summary judgment. The trial court relied on a broad waiver of liability giving notice to the plaintiff and other persons entering the pit area of a race track that a racing event is dangerous and may involve risk of injury or death. The trial court also held that such danger is open and obvious. Finally, the trial court held in the alternative that Massey’s injuries were not proximately caused by any alleged breach of duty by the Tingle.

FACTS

¶ 2. The plaintiff, Rhonda Massey (“Massey”), attended a racing event at a dirt track leased by the defendant, Ross Tingle doing business as Columbus Speedway (“Tingle”). Massey paid an additional fee to be admitted to the pit area. She also signed a “Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement” (‘Waiver”) prior to entry. One clause of the Waiver stated the undersigned “HEREBY acknowledges THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve risk of serious injury and/or death and/or property damage.” (Emphasis in original).

¶ 3. While at the Columbus Motor Speedway, Massey agreed to help a friend time a race car. Massey used a stop watch to time the cars, but wanted to see the speedway’s time clock so that she could compare her times to the official times. Massey left the pit area in order to see the official clock. The pit area was enclosed by a chain-link fence. There was an open area between the chain-link fence and the track guardrail. She was timing the cars in the area between the chain-link fence and the guardrail when she was injured. There were no designated areas at the speedway for timing cars, but Massey testified she thought that she could have seen the official time clock from the grandstands. She was fully aware the ears were traveling around the track at speeds of up to one hundred miles per hour. Moreover, she stated that one could see the track from the grandstands.

¶ 4. An out-of-control race car struck the guardrail. The guardrail struck Massey, and she suffered serious injuries. The car did not, however, enter the fenced-in pit area. Massey contends that Tingle was negligent in the following respects: failing to construct the guardrail of a material strong enough to sustain the weight placed upon it; failing to furnish her with a safe place to view the race; allowing her to be in an unreasonably dangerous area; and failing to warn her that the area of the premises where she was injured was unreasonably dangerous.

¶ 5. Massey has been attending racing events for more than fifteen years. She has seen over one hundred races and has been admitted to the pit area between eighty-five and ninety times. It appears that each time Massey was admitted to the pit area, she was required to sign “something.” Massey denies ever reading this waiver specifically or any prior release in the sixteen years she has been attending races. The trial court found there was no genuine issue of any material fact, and, therefore, granted summary judgment to Tingle. Massey raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF TINGLE.
II. WHETHER THE LANGUAGE USED IN THE WAIVER IS AGAINST PUBLIC POLICY.
III. WHETHER TINGLE HAD A DUTY TO WARN MASSEY OF AN ALLEGEDLY' UNREASONABLY DANGEROUS CONDITION.
IV. WHETHER THE DOCTRINE OF ASSUMPTION OF RISK BARS MASSEY’S CLAIMS.
V. WHETHER THE TRIAL COURT ERRED IN FINDING MASSEY’S DAMAGES WERE NOT PROXIMATELY CAUSED BY A BREACH OF ANY DUTY TINGLE OWED MASSEY. ,

STANDARD OF REVIEW

¶ 6. This Court’s standard of review regarding motions for summary judgment is well established. We review summary judgments de novo. Hardy v. Brock, 826 So.2d 71, 74 (Miss.2002) (citing Heirs and Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 314 (Miss.1999)). The facts are viewed in light most favorable to the nonmoving party. Id. (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999)). The existence of a genuine issue of material fact will preclude summary ‘ judgment. Id. The non-moving party may not rest upon allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial. Id. (citing Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997)).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF TINGLE.

¶ 7. This Court begins its review of the trial court’s grant of summary judgment keeping in mind that “[t]he presence of fact issues does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense.” Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001) (citing Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)).

¶ 8. First, Massey’s complaint alleges that Tingle constructed and maintained the guardrails in a defective and dangerous manner and condition. The complaint also contends that Tingle failed to construct the guardrails of a material strong enough to sustain the weight placed upon them. However, the record does not contain any evidence regarding the construction or maintenance of the guardrails. Likewise, there is no evidence of Tingle’s alleged failure to construct the guardrails of material strong enough to sustain the weight placed upon them.

¶ 9. M.R.C.P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

See also Boyles v. Schlumberger Tech. Corp., 832 So.2d 503, 507 (Miss.2002); Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215 (Miss.2001). Massey simply failed to come forward with any concrete evidence to support her first two allegations. She clearly did not “set forth specific facts showing that there is a genuine issue for trial” and, therefore, “rest[ed] upon the mere allegations ... of h[er] pleadings” with respect to these contentions. The bare statements regarding the guardrail in her complaint and response to Tingle’s motion for summary judgment are insufficient, standing alone, to insulate Massey from a summary judgment.

¶ 10. The complaint next alleges that Tingle failed to provide Massey a safe place to watch the race. However, viewing the facts in the light most favorable to Massey, it is apparent to us that there is no issue of material fact regarding this contention. Massey admitted that she was not instructed to watch the race from the area between the chain-link fence and the guardrail. In fact, she could have watched the race from the pit area or the grandstands. Massey admitted that the official clock was probably visible from the grandstands. Further, her act of timing the cars was for her own benefit and was not directed in any way by the race track or its staff.

¶ 11. Massey’s complaint alleges that Tingle negligently allowed her to be in an area that was unreasonably dangerous. The complaint also asserts that Tingle negligently failed to warn her that the particular area of the premises where she was injured was unreasonably dangerous. This allegation is identical to Massey’s third assignment of error; therefore, Massey’s third issue will be treated here as a sub-part of the summary judgment issue.

¶ 12. The analysis of a premises liability case proceeds according to three steps. Titus v. Williams, 844 So.2d 459, 467 (Miss.2003). First, it is necessary to determine whether the injured person is an invitee, licensee, or trespasser. Next, the duty owed to the injured person must be determined. The final step is the determination of whether the landowner breached that duty. Id.

¶ 13. In order to create invitee status, there must be a mutually advantageous interaction between the landowner and invitee. Corley v. Evans, 835 So.2d 30, 37 (Miss.2003). A landowner “is not an insurer of the invitee’s safety, but does owe to an invitee the duty ‘to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.’ ” Id. (emphasis added) (quoting Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992)).

r ¶ 14. Where a person enters the property in question for his or her “own convenience, pleasure or benefit pursuant to the license or implied permission of the owner,” he or she is a licensee. Titus, 844 So.2d at 467. We have characterized trespassers as follows:

A trespasser is a person who enters on the property of another without any right, lawful authority, or express or implied invitation,.permission, or license, not in the performance of any duty to the owner or person in charge or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge.

Id. (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss.1967)). Landowners owe licensees and trespassers the same duty, specifically, to refrain from willfully or wantonly injuring them. Titus, 844 So.2d at 467.

¶ 15. Regardless of whether Massey is characterized as an invitee, licensee, or trespasser at the time she was injured after leaving the fenced-in area, we find that there is no material fact issue as to whether Tingle made the premises reasonably safe. Clearly, the fenced-in pit area was reasonably safe, as evidenced by the fact that the ont-of-control car which struck the guardrail did not enter the pit area. Moreover, when he took control of the race track, Tingle had repairs done on some of the track guardrails. Further, he installed guardrails in the portion of the track where the accident occurred. Tingle testified that the metal guardrails and supporting posts were a type approved by the State. Moreover, the pit area was enclosed by a chain-link fence.

¶ 16. Nor is there any genuine issue of material fact regarding whether Tingle failed to warn Massey th^t the particular area of the premises where she was injured was very dangerous. First, we find that the speeding cars were in plain and open view. The risk of injury increased when Massey left the fenced-in pit area to time the cars. This increased risk of injury was likewise not a hidden peril, especially since Massey had attended race events for over sixteen years prior to her accident. It is certainly obvious to any person, particularly an experienced race goer like Massey, that a spectator who moves closer to speeding race cars with less protection is subjected to more risk of injury than to one who is further away from the cars with more protection. Massey admitted that she knew the rate of speed at which the cars traveled around the track. She also knew the reason there was a guardrail between the track itself and the designated spectator areas was to prevent cars from leaving the track. Because Massey was in more danger after leaving the fenced-in area, and this danger was not hidden, but open and obvious, we find that Tingle had no duty to warn even if he failed to make the premises reasonably safe.

¶ 17. Moreover, “[i]n Mississippi, a person is -charged with knowing the contents of any document that he executes.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 726 (Miss.2002) (citing J.R. Watkins Co. v. Runnels, 252 Miss. 87, 96, 172 So.2d 567, 571 (1965)) (emphasis added). See also Dunn v. Dunn, 786 So.2d 1045,1050 (Miss.2001) (“a person cannot avoid a- written contract which he entered into on the ground that he did not read it or have it read to him”); Turner v. Terry, 799 So.2d 25, 36 (Miss.2001) (“parties to an arms-length transaction are charged with a duty to read what they sign; failure to do so constitutes negligence”). The warning clause is not printed in fine print — rather, it was printed in bold typeface which could easily be seen, even at a glance. Although Massey admitted that she did not read the document, there is no evidence that she was prevented from reading it had she chosen to do so. In fact, Massey admitted to receiving this document and signing it. She also admitted that on previous occasions she had received other similar documents at racing events and signed them without reading the documents. The document she received at the Columbus Speedway clearly stated that the race activities were dangerous and involved serious risk of injury. Therefore, even if Tingle had the duty to warn Massey, we find that the document Massey executed gave sufficient warnings of the possible danger presented by the race, and she is charged with knowledge of those warnings.

¶ 18. Accordingly, we find that none of the contentions in this issue has merit. Because our holding as to summary judgment is dispositive of this appeal, we need not consider Issues II, IV, and V.

CONCLUSION

¶ 19. For the foregoing reasons, we find that the trial judge did not err in granting summary judgment. Therefore, we affirm the trial court’s judgment.

¶ 20. AFFIRMED.

PITTMAN, C.J., WALLER, P.J., COBB, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND EASLEY, JJ., NOT PARTICIPATING:


author: CARLSON, Justice, for the Court.

text:
    In the Matter of the ENLARGEMENT AND EXTENSION OF The MUNICIPAL BOUNDARIES OF The CITY OF D’IBERVILLE, Mississippi and The City Of Biloxi, Mississippi. City of D’Iberville, Mississippi v. City Of Biloxi, Mississippi.
    No. 2002-AN-01075-SCT.
    Supreme Court of Mississippi.
    March 4, 2004.

      Jerry L. Mills, Ridgeland, Walter L. Nixon, Jr., attorneys for appellant.
    James L. Carroll, Elizabeth Jane Hicks, Mary Largent Purvis, attorneys for appel-lee.
    Before SMITH, P.J., COBB and CARLSON, JJ.
   CARLSON, Justice, for the Court.

¶ 1. Today’s appeal comes to us from a final judgment entered in annexation proceedings conducted by the Chancery Court of the Second Judicial District of Harrison County, Mississippi, which had consolidated for hearing three separate petitions: (1) a petition for annexation filed by the City of D’Iberville; (2) a petition for annexation for the exact same area filed by the City of Biloxi; and (3) a petition for inclusion into Biloxi of a smaller area within the proposed annexation area filed by residents of this smaller area. After a trial was held on the consolidated actions, the special chancellor awarded a portion of the proposed annexation area (PAA) to each city, including the inclusion area to Biloxi. The remainder of the PAA was denied to both cities. Both cities have appealed the chancellor’s decision to deny the entire PAA to that city and the decision to grant a portion of the PAA to the other city. The inclusion petitioners have not participated in this appeal.

¶ 2. In both the briefs and at oral argument, the parties have invited this Court to address the doctrine of prior jurisdiction as it relates to an annexation where there exist competing interests of more than one municipality. Because that doctrine is at issue us in the case before us today, we accept that invitation.

FACTS AND PROCEEDINGS IN THE CHANCERY COURT

¶ 3. Since this appeal involves the filing of three separate petitions concerning the annexation efforts of the City of D’Iber-ville and the City of Biloxi, the procedural history of each petition, as well as a petition filed by Harrison County, will be briefly discussed.

(1) D’Iberville’s Petition:

¶ 4. The City of D’Iberville was incorporated in 1988. The area of the city is approximately 4.7 square miles and, according to the 2000 census, had a population of 7,608 persons. In commencing its first annexation effort since incorporation, D’Iberville, on October 5, 1999, adopted an ordinance seeking to annex approximately 9.75 square miles to its north and west. On October 6, 1999, D’Iberville filed its petition for approval of the annexation in the Chancery Court of the Second Judicial District of Harrison County. The area sought to be annexed was an unincorporated area of Harrison County. The proposed annexation area (PAA) consisted of approximately 9.75 square miles, had a population of approximately 1,347 persons residing in 533 dwelling units, and had approximately 17 businesses. The PAA included a subdivision known as Wells Ferry Landing. Harrison County filed a Petition to Intervene on December 8, 1999, and that petition was granted on December 20, 1999. Thereafter, on March 1, 2000, Harrison County filed its Objection of Harrison County, Mississippi, To Petition For Ratification, Approval, and Confirmation of an Ordinance Extending and Enlarging the Boundaries of the City of D’Iberville.

(2) Wells Ferry Landing’s Petition:

¶ 5. Without objecting to the D’Iberville annexation, on October 19, 1999, a group of citizens residing in the Wells Ferry Landing subdivision filed a petition in the Chancery Court of the Second Judicial District of Harrison County seeking inclusion into the City of Biloxi. The area sought to be included in Biloxi consisted of a narrow east-west band, situated north of the existing city limits of D’Iberville. On November 17, 1999, the petition was amended, reducing the area sought to be included. The inclusion petition was filed under a separate action, and it made no reference to the annexation attempt of D’Iberville. Responsive pleadings to this inclusion petition were filed by Biloxi and D’Iberville on January 5, 2000.

(3) Biloxi’s Petition:

¶ 6. On December 29, 1999, Biloxi adopted an ordinance seeking to annex the entire PAA. As a third action in the chancery court, Biloxi filed its petition seeking approval of the proposed annexation on January 19, 2000. The area sought to be annexed was the same PAA as that sought by D’Iberville in its annexation petition. Biloxi’s ordinance and annexation petition were both silent as to the D’Iberville proposed annexation, although Biloxi’s annexation petition referred to the inclusion petition as support for Biloxi’s annexation efforts.

¶ 7. Previously in 1995, Biloxi sought to annex approximately 54 square miles, including the present PAA. After a trial, Biloxi’s annexation petition was partially approved; however, the present PAA and other territory was not included in the final judgment granting the annexation. We affirmed that decision on July 29,1999. In re Enlargement & Extension of the Mim. Boundaries of the City of Biloxi, 744 So.2d 270 (Miss.1999). After the annexation, Biloxi consisted of approximately'38 square miles. According to the 2000 census, Biloxi’s population was 50,644.

¶ 8. Without objection from any of the parties, the chancery court consolidated the three actions. A trial was held before Special Chancellor J. Shannon Clark on July 16-19, 24-26, 31 and August 1-2, 2001. Harrison County and several individuals appeared at trial and objected to the annexation attempts. After the parties submitted proposed findings of fact and conclusions of law, the court entered its own Findings of Fact and Conclusions of Law on May 13, 2002. The Final Judgment Approving the Enlargement and Extension of The Boundaries of the 'City of Biloxi, Mississippi was entered on June 21, 2002, granting the annexation in part but including the territory outlined in the inclusion petition. The Final Judgment Approving the Enlargement and Extension of the Boundaries of the City of D’Iberville, Mississippi was entered on July 9, 2002, granting the annexation in part. Both D’Iberville and Biloxi have appealed these orders.

ANALYSIS

I. Statutory Procedure for Annexation

¶ 9. The procedure for annexation is governed by Title 21, Chapter 1, of the Miss.Code Ann. Both D’Iberville and Biloxi adopted ordinances pursuant to Miss. Code Ann., § 21-1-27. Petitions were then filed with the chancery court, as required by Miss.Code Ann. § 21-1-29. Notices by each city were given by posting and publication pursuant to Miss.Code Ann. § 21-1-31. The petition for inclusion was filed pursuant to Miss.Code Ann, §§ 21-1-45 & -47 and the required two-thirds of the qualified electors residing in the territory executed the amended petition.

¶ 10. At trial, each city bore the burden of proving that its proposed annexation was reasonable. Miss.Code Ann. § 21-1-33. This Court has determined reasonableness by utilizing the following twelve indicia:

(1) the municipality’s need for expansion; .
(2) whether the area sought to be annexed is reasonably within a path of growth of the city;
(3) the .potential health hazards from sewage and waste disposal in the annexed areas;
(4) the municipality’s financial ability to make the improvements and furnish municipal services promised;
(5) the need for zoning and overall planning in the area;
(6) the need for municipal services in the area sought to be annexed;
(7) whether there are natural barriers between the city and the proposed annexation area;
(8) the past performance and time element involved in the city’s provision of services to its present residents;
(9) the impact (economic or otherwise) of the annexation upon those who live in or own property in the area proposed for annexation;
(10) the impact of the annexation upon the voting strength of protected minority groups;
(11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy the (economic and social) benefits of proximity to the municipality without paying their fair share of taxes; and,
(12) any other factors that may suggest reasonableness, vel non.

In re Extension of the Boundaries of the City of Hattiesburg, 840 So.2d 69, 82-83 (¶ 21) (Miss.2003) (City of Hattiesburg) (citations omitted). However, “[t]he ultimate determination must be whether the annexation is reasonable under the totality of the circumstances.” In re Corp. Boundaries of the Town of Mantachie, 685 So.2d 724, 726 (Miss.1996) (quoting In re Extension of the Boundaries of the City of Columbus, 644 So.2d 1168, 1172 (Miss.1994)). “Totality of the circumstances” is not a thirteenth factor to be addressed by a chancellor in determining whether a municipality’s annexation is reasonable. We have held that “[tjhese [12]factors, however, are only indicia of reasonableness, not separate and distinct tests in and of themselves.” Id. at 81-82 (quoting Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989)).

¶ 11. A chancellor has the authority to reduce the amount of territory sought to be annexed. Miss.Code Ann. § 21-1-33. In reviewing the chancellor’s decision to grant, deny, or reduce the proposed annexation, this Court’s standard of review is well established:

This Court’s standard of review for annexation is very limited. The Court can only reverse the chancery court’s findings as to the reasonableness of an annexation if the chancellor’s decision is manifestly wrong and is not supported by substantial and credible evidence. In re Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 494 (Miss.1995). We also stated “[w]here there is conflicting, credible evidence, we defer to the findings below.” Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989). “Findings of fact made in the context of conflicting, credible evidence may not be disturbed unless this Court can say that from all the evidence that such findings are manifestly wrong, given the weight of the evidence.” Id. at 921. “We only reverse where the Chancery Court has employed erroneous legal standards or where we are left with a firm and definite conviction that a mistake has been made.” Id.

City of Hattiesburg, 840 So.2d at 81 (¶ 18).

II. Prior Jurisdiction

¶ 12. D’Iberville asserts that although the three petitions were consolidated for trial, its petition was filed first and thus the D’Iberville filing was entitled to priority consideration by the chancellor. D’Iberville relies on a treatise which states:

The rule that among separate equivalent proceedings relating to the same subject matter, that one which is prior in time is prior in jurisdiction to the exclusion of those subsequently instituted, applies, generally speaking, to and among proceedings for the municipal incorporation, annexation, or consolidation of a particular territory. In proceedings of this character, while the one first commenced is pending, jurisdiction to consider and determine others concerning the same territory is excluded. Thus, where two or more bodies or tribunals have concurrent jurisdiction over a subject matter, the one first acquiring jurisdiction may proceed, and subsequent purported assumptions of jurisdiction in the premises are a nullity. This principle of the common law is based upon the general public policy of the promotion of the orderly administration of government and justice. Thus, the first of two or more annexation proceedings prevails over those subsequently commenced relating to the same territory.
The prior jurisdiction rule applies where the proceedings are equivalent., If they are not equivalent, the prior jurisdiction rules does not apply. Thus, the “first step” rule may not be followed as between conflicting petitions, one which is voluntary, the other involuntary.
The jurisdictional priority based on priority in time ordinarily is determined by the time of the commencement or initiation of the proceedings, and not by the time of completion, nor by another time or date. However, in some instances a time other than the time the proceedings are commenced is said to be determinative of jurisdictional priority. The taking of the first mandatory public procedural step in the statutory process for incorporation or annexation of territory ordinarily fixes the date, of the commencement of the proceedings, for the purposes of the rule as to jurisdictional priority.

Eugene McQuillin, The Law of Municipal Corporations § 7.22.20, at 508-09 (3d ed.1996) (footnotes omitted). D’Iberville also relies on this Court’s decision in Incorporation of Forest Hill v. Fields, 280 So.2d 837, 838 (Miss.1973). In Forest Hill, we found:

The doctrine of ‘prior jurisdiction’ also supports the decree appealed. Where two inconsistent petitions involving the same territory are pending, it is proper to decline to consider the later one until there is a disposition of the earlier one. It is held that where a petition for incorporation of territory into a new municipality was filed and pending before the institution of annexation proceedings involving the same territory, such annexation proceedings may not be'taken until disposition of the proceedings seeking incorporation.

Id. at 838 (citing City of Daytona Beach v. City of Port Orange, 165 So.2d 768, 771 (Fla.Dist.Ct.App.1964)). We were also asked to address prior jurisdiction in Matter of City of Horn Lake, 630 So.2d 10 (Miss.1993). However,-, in that case we found:

Southaven also argues that this state consistently follows the “prior jurisdiction” rule on questions of municipal boundaries. They contend that if the chancellor had followed the principles of prior jurisdiction, then he would not have consolidated the trials again on the passage of Horn Lake’s new ordinance. They cite Incorporation of [Forest] Hill v. Fields, 280 So.2d 837 (Miss.1973), for support.
In Fields, residents of an area called “[Forest] Hill” fought the City of Jackson over the incorporation of a twelve mile area abutting the western boundary of Jackson. The trial court consolidated the annexation proceeding with an incorporation proceeding. During trial, the City of Jackson adopted an ordinance for extension of the boundary of Jackson to the Madison County line. Fields, 280 So.2d at 838. This ordinance did not refer to the previous ordinance concerning extension into the “[Forest] Hill” area. The annexation proceeding by [Forest] Hill had previously been dismissed; thus, the later ordinance did not have an affect on the validity or invalidity of the previous argument.
The ordinance in this case was amended to correctly describe the boundary of the City of Horn Lake, and its purpose was not to extend the boundaries of Horn Lake into other territories which were not described in the original annexation ordinance of December 7, 1989. Fields is factually distinguishable from the dispute in this case.

630 So.2d at 16. There was no need to address prior jurisdiction in that case. After Horn Lake’s annexation was found to be unreasonable, Southaven was permitted to annex the disputed territory.

¶ 13. Biloxi contends that D’Iber-ville’s argument is flawed for three reasons. First, Biloxi contends that the argument fails because D’Iberville has failed to show that it would have been granted the entire PAA had D’Iberville’s petition been considered first. Second, Biloxi argues that the argument is waived because D’Iberville failed to raise the issue before the trial court. Finally, Biloxi claims that because D’Iberville consented to the consolidation order, that D’Iberville is es-topped from making that assertion now. Biloxi is correct that D’Iberville is procedurally barred from raising this issue on appeal because the issue was not raised before the trial court. Notwithstanding this procedural bar, because this issue is being raised in annexation litigation around this State, we take this opportunity to address this issue as a guide to the bench and bar.

¶ 14. Biloxi is correct in asserting that there has been no showing that the result would have been different if the D’Iberville petition had been first considered alone. The chancellor analyzed each indicium in great detail in the twenty-six page Findings of Fact and Conclusions of Law. Furthermore, the consideration of the testimony of the inclusion petitioners and the testimony of Biloxi’s witnesses was relevant to the reasonableness of D’Iberville’s petition. AlS the chancellor stated on page 23 of the Findings of Fact and Conclusions of Law: “There is no real guidance as to factors to be taken into account when two cities compete for the same land.” However, these competing interests in the land should be considered in the twelve indicia and under the totality of the circumstances.

¶ 15. As to the question of whether the issue is waived by failure to raise it at the trial court level, D’Iberville maintains that this is an issue of jurisdiction which may be raised for the first time on appeal. D’Iberville relies on Norwood v. Extension of Boundaries of City of Itta Bena, 788 So.2d 747, 751-52 (Miss.2001). However, that case is distinguishable from the case sub judice. In Norwood, after finding that the city failed to meet the statutory requirements of the notice provision under Miss.Code Ann. § 21-1-15, we held that the concerned citizens could raise the question of jurisdiction for the first time on appeal. Norwood, 788 So.2d at 751-52. Here, the trial court clearly had jurisdiction over each of the three petitions, and all statutory notice provisions were met. Further, D’Iberville cites no authority that the issue of prior jurisdiction may be raised for the first time on appeal.

¶ 16. Finally, as to the estoppel argument, D’Iberville consented to the consolidation of the three cases for trial. Not only did D’Iberville consent to the consolidation, but the order of consolidation was prepared and submitted by one or more of D’Iberville’s attorneys. D’Iberville further acknowledges that the trial court had the authority to consolidate the three underlying cases for purposes of judicial economy.

¶ 17. In addition to the arguments brought forth in the briefs, the parties agreed during oral argument that the doctrine of prior jurisdiction has become antiquated. We agree. When reviewing a petition for annexation, a chancellor weighs the twelve indicia. The competing interest of another city is considered under one or more of the indicia and, certainly, when looking at the totality of the circumstances.

¶ 18. Although this issue is procedurally barred, we address this issue today as a guidance to the bench and bar. Until this case, we have not been faced with a situation where a chancellor has found more than one annexation petition concerning the same plot of land to be reasonable. Under the present day circumstances where there is competition among multiple municipalities for the same land, it is essential that a chancellor evaluate the competing interests of the other city or cities when considering the twelve indicia in the totality of the circumstances. Given this Court’s concerns regarding judicial economy, it is certainly reasonable for a chancellor to consolidate competing petitions for one trial. This is particularly so given the considerable expense and time involved in each annexation case. Accordingly, we today declare as antiquated the prior jurisdiction doctrine as it relates to annexation litigation, and to the extent that any of our prior cases have recognized and applied this doctrine, these prior cases are to that limited extent overruled.

III. The Reasonableness of the Chancellor’s Decision

¶ 19. Because the chancellor correctly consolidated the underlying petitions for annexation of the same territory, we shall simultaneously address both D’Iberville’s and Biloxi’s interests in the area. Initially, the chancellor determined that annexation of a portion of the PAA was not reasonable for either D’Iberville or Biloxi. As to the remainder, the chancellor awarded a portion to D’Iberville and a portion to Biloxi. The petition for inclusion to Biloxi was granted and that area is included in the award to Biloxi. As stated above, the following twelve indicia of reasonableness are not separate or independent tests but rather are helpful in viewing the totality of the circumstances. City of Hattiesburg, 840 So.2d at 82-83 (¶ 21).

¶ 20. Both cities have appealed the chancellor’s decision that it is not reasonable for either city to annex a certain portion of the PAA. The area denied to both cities is described as: ‘All that part of Sections 19, 30 and 31, T6S, R9W, lying East of the Biloxi corporate limits, and Sections 20, 21, 29, 32, and the North one-half of Section 28, T6S, R9W.” Specifically, the chancellor found:

that (1) neither Biloxi nor D’Iberville has a need to expand into this area; (2) the area cannot reasonably be found to be a path of growth of either City at this time; (3) there are not [sic] potential health hazards from sewage and waste disposals in this area which need to be addressed by either City at this time; (4) that, although Biloxi has the financial ability to make the infrastructure improvements and furnish municipal services promised in this area, Biloxi has substantial undeveloped areas from the previous annexation that need to be addressed before Biloxi can reasonably undertake the necessary improvements in this area; (5) D’Iberville does not have the financial ability to make infrastructure improvements and furnish municipal services to the larger area within a reasonable period of time; (6) there is no need for zoning and overall planning in the area at the present time, and the zoning and overall planning provided by Harrison County adequately serves the needs of this area at the present time and within the reasonably foreseeable future; (7) there is no need for municipal type services in the areas in its present state of development, or in the near future; (8) the net effect of allowing the annexation of this largely undeveloped rural area at this time to either City, would be to block the potential paths of growth for the other City; and (9) the best interests of the landowners and residents of this area, and of the two competing cities, would be to allow the further establishment of growth patterns in the area prior to a determination of whether this area should be annexed to either City, and which City, if either, is allowed to annex the area herein excluded.

¶ 21. The chancellor further found it reasonable for the following area to be included in Biloxi: “All that part of Section 6, T7S, R9W, lying East of the Biloxi Corporate limits and North of the Tchouta-cabouffa River and all that part of Section 5, T7S, R9W, lying North and West of the Tchoutacabouffa River; and all that part of Section 4, T7S, R9W, lying West of the Tchoutacabouffa River” (referred to as the “BAA”). It also found it reasonable for the following area to be annexed by D’Iberville: “All that part of Section 7, T7S, R9W, lying North and East of the Biloxi corporate limits; and all that part of Section 6, T7S, R9W, lying South of the Tchoutacabouffa River; and all that part of Section 5, T7S, R9W, north of D’Iber-ville corporate limits and east of the Tchoutacabouffa River; and Section 33, and the Sfc of Section 28, in T6S, R9W” (referred to as the “DAA”).

A. The municipalities’ need for expansion

¶ 22. The chancellor utilized a number of factors to determine whether either municipality had a need to expand into the PAA.

This Court has enumerated many factors to consider when determining whether a City seeking an extension and enlargement has a reasonable need for expansion. These factors may or may not include: (1) spillover development into the proposed annexation area; (2) the City’s internal growth; (3) the City’s population growth; (4) the City’s need for development land; (5) the need for planning in the annexation area; (6) increased traffic counts; (7) the need to maintain and expand the City’s tax base; (8) limitations due to geography and surrounding cities; (9) remaining vacant land within the municipality; (10) environmental influences; (11) the city’s need to exercise control over the proposed annexation area; and (12) increased new building permit activity. In re Enlargement and Extension of Mun. Boundaries of City of Biloxi, 744 So.2d at 279; Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson, 691 So.2d 978, 980 (Miss.1997); Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 552 (Miss.1995); Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1173 (Miss.1994).

In re Enlargement & Extension of Boundaries of City of Macon, 854 So.2d 1029, 1035 (¶ 12) (Miss.2003) (City of Macon). As stated, this list is not exhaustive nor is it required that each factor be present in order for an annexation to be reasonable. The chancellor’s decision utilized many of the above-enumerated factors, and the decision is well supported by the evidence as presented at trial.

¶ 23. D’Iberville has demonstrated its need for expansion in various , ways. The existing City is approximately 4.7 square miles. Development has spilled over into the DAA, including established subdivision development and ongoing new development. The total area of vacant land represents 19.5% of the total area of the city. The number of housing units has increased by 627 between 1990 and 2000. D’Iberville’s population has increased to 1,619 persons per square-mile. D’Iberville has been able to extend sewer service into the DAA, at great cost to the city. Because D’Iberville receives no direct income from the gaming industry, additional land is necessary to accommodate residential and commercial growth. However, the chancellor determined that this need is satisfied by the area of the DAA and not the entire PAA.

¶24. Biloxi also has shown a need to enlarge its borders. The chancellor found that Biloxi’s ability to expand is limited due to its location. The Mississippi Sound is directly south, the City of ‘Gulfport is directly west, D’Iberville directly east, and DeSoto National Forest to its north. Biloxi has grown extensively since gaming emerged in 1993, as has the entire Harrison County. Biloxi has experienced commercial growth, including several national chain restaurants and two casinos (bringing the .total casinos to nine). In nine months during 2000, Biloxi issued 333 building permits. From 1996 to 2000, business licenses issued increased from 140 to 2,570; water connections increased by 3,700, and sewer connections increased by 805. Biloxi has issued 117 building permits, 90 electrical permits, 58 plumbing permits, 28 mechanical permits and 18 certificates of occupancy in the previously annexed areas. The chancellor found that the BAA was sufficient to meet the needs of Biloxi and that there was no demonstrated need to expand beyond that area.

¶ 25. The chancellor’s decision is well supported by the evidence and testimony presented at trial. This indicium supports a finding of reasonableness for annexation by each city, as reduced in area by the chancellor.

B. Whether the area sought to be annexed is reasonably within a path of growth of either city

¶26. The trial court found that the DAA is clearly a path of growth for D’Iberville and that Biloxi is growing toward the BAA. The trial court further found that it would be premature to award the remainder of the PAA to either city at this time because it is largely undeveloped. In evaluating a path of growth in annexation cases, we have said:

This Court has established factors for consideration when evaluating reasonableness as it relates to the path of growth which may or may not include: (1) spillover development in annexation area; (2) annexation area immediately adjacent to'City; (3) limited are [sic] available for expansion; (4) interconnection by transportation corridors; (5) increased urban development in annexation area; (6) geography; and (7) subdivision development. In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, 744 So.2d at 280; Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 497 (Miss.1995); Extension of Boundaries of City of Ridgeland, 651 So.2d at 556. This Court in Enlargement and Extension of Mun. Boundaries of City of Meridian v. City of Meridian, 662 So.2d 597, 612-13 (Miss.1995), held that the most important factors when determining the reasonableness of path of growth are the adjacency of the proposed annexation area to the City, accessibility of the proposed annexation area by City streets, and spillover of urban development into the proposed annexation area.

City of Macon, 854 So.2d at 1037 (¶ 25). Again, this is not an exclusive list of necessary factors, but rather is provided as a guide to evaluating the question of whether the area sought to be annexed is reasonably within a path of growth for a city.

¶ 27. Both D’Iberville and Biloxi are limited in the direction in which they may expand. D’Iberville is blocked by Biloxi to the west and the Mississippi Sound to the south. Jackson County lies to the east where an incorporation petition is pending for a new city. Biloxi is blocked to the east by D’Iberville, to the west by Gulfport, to the south by the Gulf of Mexico, and, with the exception of a small cushion of land, to the north by DeSoto National Forest.

¶28. The chancellor found that the DAA, the area to the north and west of D’Iberville, is clearly in the paths of growth for D’Iberville. Development is already occurring, and there is spillover into the DAA with the development of new subdivisions and businesses. The new subdivision development has been expedited due to the water and/or sewer service provided by D’Iberville. Transportation corridors provide direct access the DAA to D’Iberville, while there are no existing in use streets providing direct access to Biloxi.

¶ 29. The chancellor also found that Biloxi is growing toward the BAA. These residents have access to 1-10 and several connecting streets into Biloxi. There is considerable development along Highway 15 near both cities’ corporate limits. Due, for the most part, to the growth in gaming in Biloxi, the population of the entire PAA has increased by 55% over the last ten years.

¶ 30. Again, the chancellor found that the DAA was sufficient to meet the needs of D’Iberville, that the BAA was sufficient to meet the needs of Biloxi, and that neither city has demonstrated a need to expand beyond those areas. The chancellor’s decision is based upon personal observation as well as supported by the evidence presented at trial. This indici-um supports a finding of reasonableness for annexation by each city, as reduced in area by the chancellor.

C. The potential health hazards from sewage and waste disposal in the annexed area

¶ 31. Noting that Harrison County and the objectors disagreed with the cities’ position that there are potential health hazards that need to be addressed, the chancellor found that annexation of the DAA and BAA will address these problems: Although the chancellor cited no law in this section of the Findings of Fact and Conclusions of Law, this Court has:

established a number of factors to be considered when evaluating the reasonableness as related to potential health hazards which may or may not include: (1) potential health hazards from sewage and waste disposal; (2) a large number of septic tanks in the area; (3) soil conditions which are not conducive to on-site septic systems; (4) open dumping of garbage; and (5) standing water and sewage. In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, 744 So.2d at 280; In re Extension of Corporate Boundaries of the Town of Mantachie, 685 So.2d 724, 727 (Miss.1996); Extension of the Boundaries of City of Ridgeland, 651 So.2d at 558; City of Horn Lake, 630 So.2d at 18; In re Matter of the Extension of the Boundaries of the City of Jackson, 551 So.2d at 866; City of Greenville, 513 So.2d at 935.

City of Macon, 854 So.2d at 1038 (¶ 33). As with the previous two indicia, the list of factors is merely a guide and is not an exhaustive or exclusive list for determination of whether there are potential health hazards within a proposed annexation area.

¶ 32. Jim Weston of the Mississippi Department of Health confirmed that potential health hazards exist in the PAA. Despite the fact the soils are largely unsuitable for septic tank use, much of the area is served by septic tanks. The only sewer service provided in the PAA is that provided by D’Iberville. Biloxi provides none. Both cities have adequate plans to address the need for proper sewage disposal.

¶ 33. While the problems were well documented in the DAA and BAA, these potential hazards were not significant in the reduced area. That area is mostly rural and does not present the potential health hazards as the more populated areas of the DAA and BAA. Thus, after the reduction of the rural areas, the chancellor’s findings that this indicium favors annexation is supported by the evidence presented at trial. The question would then be which municipality could provide these services.

D. The municipalities’ financial ability to make the improvements and furnish municipal services promised

¶ 34. The chancellor found that both cities have the financial ability to successfully complete the proposed annexation, as reduced. In so determining:

This Court has developed several factors to evaluate reasonableness as related to financial ability which may or may not include: (1) present financial condition of the municipality; (2) sales tax revenue history; (3) recent equipment purchases; (4) the financial plan and department reports proposed for implementing and fiscally carrying out the annexation; (5) fund balances; (6) the City’s bonding capacity; and (7) expected amount of revenue to be received from taxes in the annexed area. Town of Mantachie, 685 So.2d at 728; City of Meridian, 662 So.2d at 611; Extension of Boundaries of City of Ridgeland, 651 So.2d at 558; City of Columbus, 644 So.2d at 1171; City of Greenville v. Farmers, Inc., 513 So.2d at 935; In re Extension of Boundaries of City of Ridgeland, 388 So.2d 152, 156 (Miss. 1980); In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, 361 So.2d [1372] at 1374 [1978]; Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683, 685 (1965); In re City of Gulfport, 253 Miss. 738, 179 So.2d 3, 6 (1965).

City of Macon, 854 So.2d at 1039-40 (¶ 40). As with the other indicia, this list is not exclusive or exhaustive but rather is provided as guidance in determining the financial ability of the municipality to provide the improvements and services promised.

35. Both cities are in good financial condition and have the ability to keep their commitments, particularly with the reduction in the area annexed. D’Iberville’s sales tax revenue has increased from $1,253,234 in 1996 to $2,389,868 in 2000. D’Iberville has very little outstanding bonded debt subject to the 15% limitation and had a general obligation capacity of $7,660,326 for the fiscal year of 2002.

¶ 36. Both D’Iberville and Harrison County stipulated that Biloxi’s proposed annexation was reasonable from a financial ability standpoint. Biloxi has a bonding capacity of approximately $40 million and a total budget of approximately $100 million. Biloxi’s general fund has approximately $18 million cash on hand, and Biloxi has approximately $62 million unencumbered cash overall. Biloxi has a fund balance of $6 to $7 million in water and sewer plans; is undertaking capital projects costing approximately $60 million; and has reduced its general fund millage to 15 mills.

¶ 37. Thus, the chancellor’s finding that annexation of the DAA by D’Iberville and the annexation of the BAA by Biloxi is reasonable from a financial standpoint for both cities.

E. The need for zoning and overall planning in the area

¶ 38. The chancellor found that this indicium does not have any significant impact on either annexation. Biloxi argues that this indicium should favor Biloxi over D’Iberville because Biloxi’s planning department is better staffed and funded. This argument fails to take into account that the area is already covered under Harrison County’s zoning ordinance for the entire PAA. Therefore, we find reasonable the chancellor’s decision that this indi-cium is neutral relative to both cities’ proposed annexation.

F. The need for municipal services in the area sought to be annexed

¶ 39. The chancellor found that there is a need for the establishment of municipal services that favor a finding of reasonableness of annexation by both cities, but not for the entire PAA. Some factors to consider under this indicium include:

(1) requests for water and sewage services; (2) plan of the City to provide first response fire protection; (3) adequacy of existing fire protection; (4) plan of the City to provide police protection; (5) plan of City to provide increased solid waste collection; (6) use of septic tanks in the proposed annexation area; and (7) population density. Enlargement and Extension of the Mun. Boundaries of City of Madison, 650 So.2d 490, 502 (Miss.1995); Extension of Boundaries of City of Ridgeland, 651 So.2d at 559; City of Horn Lake, 630 So.2d 10, 21 (Miss.1993).
This Court has also addressed how these factors are applied when addressing sparsely populated areas and densely populated areas. This Court found that in sparsely populated areas, there is less of a need for immediate municipal services. In re Matter of the Extension of the Boundaries of the City of Jackson, 551 So.2d at 867.

City of Macon, 854 So.2d at 1041-42 (¶¶ 51-52). Again, not all of the above-listed factors need be present or satisfied for an annexation to be deemed reasonable.

¶ 40. While there has been substantial population growth in the PAA, the majority of that growth has been immediately adjacent to the city limits of D’Iber-ville and Biloxi. The area reduced from the PAA consists largely of undeveloped area; and therefore, the trends do not apply to the reduced area. From 1990 to 2000, the entire PAA has grown in dwelling units from 328 to 533 and in population density from 88 persons per square mile to 136 persons per square mile.

¶ 41. Most of the PAA has been assigned a fire rating of Class 10 (the worst possible rating) by the Mississippi Rating Bureau while D’Iberville is rated Class 7 and Biloxi is rated Class 5. Upon annexation, the rating of each area will be changed to that of the city to which it belongs. Thus, annexation will result in a decrease of fire insurance rates for residents in the respective annexation areas.

¶ 42. The D’Iberville Fire Department has made numerous runs into the PAA. D’Iberville provides police protection at a municipal level through an interlocal agreement with the Harrison County Sheriff Department; however, D’Iberville is in the process of establishing its own police department. Biloxi already has its own police department. -Although the chancellor found that the level of service currently provided by the Harrison County Sheriffs Department in the PAA is adequate, additional municipal level law enforcement will benefit the area as it develops further. Sewer utilities are needed in certain areas of the BAA. Biloxi is capable of delivering water and sewer to the BAA. D’Iberville already provides water and sewer to certain portions of the PAA, particularly residences and businesses within the DAA.

¶43. Biloxi provides numerous recreational and cultural opportunities for the area. Biloxi has the area’s only natatori-um, conducts various festivals and maintains numerous parks and museums. Recreational opportunities for D’Iberville are currently being provided by interlocal agreement with Harrison County.

¶ 44. There is no dispute between the parties that there is a need for municipal services in the PAA now and in the future. This indicium favors a finding that annexation is reasonable. Again, the question becomes which city could provide these services. That Biloxi is bigger and has a larger budget does not mean that the services D’Iberville could provide are insufficient. Based upon the evidence presented at trial, the chancellor’s weighing of the competing interests, and personal observation of the area, the chancellor’s findings are reasonable and supported by the evidence.

G. Whether there are natural barriers between either city and the proposed annexation area

¶ 45. The chancellor found that “[t]he existence of barriers, man-made, natural or geopolitical does not indicate the unreasonableness of the proposed annexation by either City.” This Court has previously considered natural or man-made conditions that may impede a city’s expansion or render the provision of services impossible or prohibitively expensive, including flood plains, Columbus, 644 So.2d at 1174-75, Extension of Boundaries of Horn Lake v. Renfro, 365 So.2d 623, 625 (Miss.1978); interstate highway, Southaven, 630 So.2d at 23, City of Hattiesburg, 588 So.2d 814 (Miss.1991); and county lines, City of Hattiesburg, 588 So.2d 814, Jackson, 551 So.2d at 865-66.

¶ 46. In today’s case, the only natural barrier in either the DAA or BAA is the Tchoutacabouffa River. However, since the river has already been bridged for traffic purposes, the river is not a factor. Thus, the chancellor’s finding that this in-dicium is neutral is reasonable and supported by the evidence.

H. The past performance and time element involved in either cities’ provision of services to its present residents

¶ 47. This indicium is difficult to assess in the instant case. D’Iberville has no past annexation to evaluate, and Biloxi’s past performance is difficult to measure due to the recent date of the 1999 annexation. With that difficulty in mind, the chancellor found that both cities have performed sufficiently in the past to satisfy this indicium.'

¶ 48. Although D’Iberville has never before annexed territory, the city, was incorporated in 1988. The services provided to D’Iberville’s current residents provide proof of its abilities. Water and sewer is available to all residences and businesses, although five residential structures are not connected to sewer and 24 residential structures are not connected to water. Either directly or through interlocal agreements, D’Iberville provides at a municipal level fire protection, police protection, trash and garbage collection, street lighting, parks and recreational facilities, streets, drainage, right-of-way maintenance, and animal control. D’Iberville has a comprehensive plan and zoning ordinance and has adopted standard building and construction codes.

¶ 49. The services that Biloxi has undertaken to provide through its previous annexation are currently on schedule. Water and sewer is being provided in the previously annexed areas on an “as needed” basis. Biloxi owns the French Utilities, Cedar' Lake Utilities, and Smith Utilities. The expected purchase of the certificated areas of the Galion Utilities will better serve the Woolmarket area. Biloxi is also seeking to build a fire station with land for a recreational facility in the Woolmarket area. They have also entered into an agreement with the Harrison County School District for the use of a gym for recreational activities in other recently annexed areas of the city.

¶ 50. The Biloxi Public Works Department has met or exceeded its $1,159,000 projected annexation area cost for the first year and is expected to do the same for the second year. The Community Development Department is updating its mapping, zoning, and land development ordinance and has committed $300,000 to do so. The Comprehensive Plan is being updated.

¶ 51. Thus, the evidence supports the chancellor’s finding that this indicium favors a finding of reasonableness for each city’s annexation, as reduced.

I. The impact (economic or otherwise) of the annexation upon those who live in or own property in the area proposed for annexation

¶ 52. The chancellor found that this indicium evaluating the impact of an annexation on the residents and property owners supported the reasonableness of these annexations, as reduced. Under this indicium, the chancellor must “balance the equities by comparing the City’s need to expand and any benefits accruing to residents from'the annexation with .any adverse impact, economic or otherwise, which will probably be experienced by those who live in and own property in the annexation area.” In re City of Horn Lake, 630 So.2d 10, 23-24 (Miss.1993) (citing In re Ext. of Boundaries of City of Jackson, 551 So.2d 861, 867-68 (Miss.1989)). “The mere fact that residents and landowners will have to start paying city property taxes is not sufficient to show unreasonableness.” Columbus, 644 So.2d at 1179 (citing Jackson, 551 So.2d at 867-68).

¶ 53. In the chancellor’s view, the residents and property owners of the DAA and BAA will receive valuable services in return for the additional taxes. These services include police protection, fire protection, public works, and improved street and drainage maintenance, paving of streets, street lighting, administration of municipal level code enforcement, and municipal level planning and zoning. Also, water and sewer needs will be extended where necessary and economically feasible. The comparative financial impact is relatively low in that D’Iberville’s tax levy is 28.63 mills and Biloxi’s tax levy is 30.10 mills. Additionally, the testimony of the Wells Ferry Landing residents (the inclusion petitioners) favored annexation of this area into Biloxi. Thus, the evidence supports the chancellor’s finding that this indi-cium favors annexation by each city, as reduced.

J. The impact of the annexation upon the voting strength of protected minority groups

¶ 54. The parties agreed at trial that there would be no impact on the voting strength of protected minorities. Thus, the chancellor correctly found that this indicium is neutral.

K Whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy the (economic and social) benefits of proximity to the municipality without paying their fair share of taxes

¶ 55. The chancellor found that this indicium was neutral. While residents of the PAA do receive some benefit by their proximity to the respective cities, it is “no more or less than any other citizen might receive as a result of living in close proximity to a City.” The chancellor further reasoned that this factor is balanced by the fact that these outside residents shop at businesses inside the city, thereby increasing the sales tax rebate. Thus, we find reasonable the chancellor’s finding that this factor is neutral.

L. Any other factors that may suggest reasonableness, vel non

¶ 56. In this indicium, the chancellor noted that there has been little or no guidance provided to a trial court when there is more than one city competing for the same land. In this particular situation, all parties agreed to consolidate the matter for trial. Both cities have shown the need to expand in the sought area, that the reduced areas are paths of growth for each, and that both cities have a common interest in establishing certain indicia, such as need for municipal services, planning and zoning, and the existence of potential health hazards. No natural barriers or impact on minority voting strength prohibit either city from annexation. Annexation would not have a substantial impact on the unincorporated residents, who currently benefit from the close proximity of both cities. Both cities have the financial ability to successfully complete the improvements of the annexation, as reduced.

¶ 57. However, to permit annexation of the entire area by either municipality would effectively block any future annexation efforts of the other. Because the remaining area is undeveloped, the chancellor’s decision to deny annexation of this area to both cities is well supported by the evidence and is reasonable. The chancellor’s decision to grant the inclusion petition is reasonable for the reasons described above favoring annexation of the BAA by Biloxi.

CONCLUSION

¶ 58. Today we declare as antiquated the prior jurisdiction doctrine as it relates to municipal annexation litigation in Mississippi, and to the extent that any of our prior cases have recognized and applied this doctrine, these prior cases are to that limited extent overruled. Certainly our learned chancellors, for the sake of judicial economy and in fairness to annexation litigants, can consolidate multiple annexation cases involving common tracts of disputed territory.

¶ 59. Based upon the foregoing, this Court affirms the chancellor’s judgment granting in part and denying in part the annexation petitions of both D’Iberville and Biloxi and granting the inclusion petition of the Wells Ferry Landing citizens.

¶ 60. AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL.

SMITH AND WALLER, P.JJ., COBB, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. PITTMAN, C.J., AND DIAZ, J., NOT PARTICIPATING.


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

text:
    Robert ROWLAND, Appellant, v. Cherryl BRITT, Chief Records Officer, and Mississippi Department of Corrections, Appellees.
    No. 2002-CP-01052-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Rehearing Denied Nov. 18, 2003.
    Certiorari Denied March 4, 2004.
    Robert Rowland, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   KING, P.J., for the Court.

¶ 1. Rowland was convicted in 1979 of two counts of murder and two counts of armed robbery in the Circuit Court of Washington County, Mississippi. He was sentenced to two life terms for the murder convictions and two twenty-four year sentences for the armed robbery convictions. All of the sentences were to be served consecutively in the custody of the Mississippi Department of Corrections. Subsequent to his convictions, Rowland filed a complaint seeking earned time credit for his entire sentence, including the mandatory portion of the armed robbery sentences. That request was denied, and Rowland has appealed that denial by stating the issue as follows:

Whether the trial court erred in disposing of Appellant’s claim without an eviden-tiary hearing, contrary to the trial court’s previous opinion and order in Hicks v. Houston, et al., Circuit Court case # 94-0234M, and without regards to House Bill 1113 (Regular Session of 1999).

FACTS

¶ 2. In 1979, Rowland was sentenced to two life terms for murder convictions and two twenty-four year sentences for armed robbery convictions, to be served consecutively in the custody of the Mississippi Department of Corrections. He had begun serving his sentence on February 23, 1979.

¶ 3. The record reveals that on November 26, 2001, the Department of Corrections received a request from Rowland to determine his earned time credit eligibility-

¶ 4. On December 19, 2001, the Department of Corrections responded to Rowland’s inquiry regarding earned time by stating:

Your request for Administrative Remedy involves a complaint to the effect that you have not been credited with earned time which you have earned.
The Staff of the Administrative Remedy Program has received and investigated your grievance and the following determination has been made:
As you have previously been advised, earned time can only be applied toward a non mandatory sentence.
Your Sentence Data Computation Sheet is correct.
Therefore, based upon the facts outlined above, your request for further relief is hereby denied.

¶ 5. On February 1, 2002, Rowland filed a civil complaint in the Circuit Court of Sunflower County, Mississippi against the Mississippi Department of Corrections and Cheryl Britt, Chief Records Officer. In his complaint, Rowland alleged that he was convicted in 1979, at a time when the Mississippi Department of Corrections awarded earned time on entire sentences regardless of any mandatory time to be served.

¶ 6. In an order dated June 6, 2002, the trial judge denied Rowland’s request for relief and indicated that “[a] life sentence is non-dischargeable.” The trial judge stated that Rowland has a parole eligibility date of May 9, 2018, upon which he can be considered for parole. The trial judge determined “that date is calculated by adding ten (10) years of service for each life sentence and ten (10) years of service for each armed robbery sentence. Currently, Rowland is eligible May 9, 2018, a date well in the future. All reduction due Rowland to date has been subtracted from the statutory forty (40) years service he must do day for day for parole eligibility (See: MCA § -4 — 7—3)[sic]. Rowland’s parole time is properly computed by the Mississippi Department of Corrections and he is due no relief.”

ISSUE AND ANALYSIS

Whether the trial court erred in disposing of Rowland’s claim without an evidentiary hearing.

¶ 7. Rowland asserts that the trial court erred in disposing of his claim without an evidentiary hearing, contrary to the trial court’s opinion in the circuit court case of Hicks v. Houston, 94-0234M and without regard to House Bill 1113.

¶ 8. In regards to evidentiary hearings, Miss.Code Ann. § 99-39-19(1) (Rev.1994) of the Post Conviction Collateral Relief Act reads:

(1) If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.

Clearly, the trial court is not required to grant an evidentiary hearing on every petition it entertains. McMillian v. State, 774 So.2d 454(¶ 6) (Miss.Ct.App.2000). “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Miss.Code Ann. Section 99-39-11(2) (Rev.1994).

¶ 9. The purpose of an evidentiary hearing is for the court to receive evidence in order to make findings of fact. Lyle v. State, 756 So.2d 1(¶ 7) (Miss.Ct.App.1999). The supreme court held in Milam v. State, 578 So.2d 272, 273 (Miss.1991), that if there are not any disputed or disputable facts, and the question is merely the interpretation of statutes, no evidentiary hearing is required. Id. Because there was no disputable fact, but merely a question of statutory interpretation, no evidentiary hearing was necessary.

¶ 10. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY,

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, jvtyeRS, CHANDLER AND GRIFFIS, jj CONCUR


author: MYERS, J., for the Court. CHANDLER, J.,

text:
    THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Cathy D. HENDERSON, Appellee.
    No. 2002-CC-01044-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Rehearing Denied March 9, 2004.

      Office of the Attorney General by Mary Margaret Bowers, attorney for appellant.
    Eugene Burton Gifford, Booneville, Bradley D. Tennison, attorneys for appel-lee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MYERS, J., for the Court.

¶ 1. Cathy D. Henderson applied for disability benefits from the Public Employees’ Retirement System (PERS). Her application was denied. After exhausting administrative reviews, Henderson appealed to the Circuit Court of the First Judicial District of Hinds County. The circuit court reversed the PERS decision, and PERS now appeals to this Court, asserting two issues for our consideration:

I. WHETHER THE CIRCUIT COURT ERRED IN REWEIGHING THE FACTS AND SUBSTITUTING ITS JUDGMENT FOR THAT OF THE ADMINISTRATIVE AGENCY IN FINDING THAT MS. HENDERSON IS ENTITLED TO THE RECEIPT OF DISABILITY BENEFITS.
II. WHETHER THE CIRCUIT COURT ERRED IN DETERMINING THAT MS. HENDERSON PRESENTED SUBSTANTIAL EVIDENCE OF DISABILITY FINDING THAT THE EVIDENCE IS UNCONTRADICTED.

FACTS

¶ 2. Henderson terminated her employment with the Prentiss County School District, where she worked as a teacher’s assistant, on May 21, 1998. She had twelve years of service credit. Henderson claimed disability as the result of arthritis and fibromyalgia. She claimed always to be in severe pain, making it difficult for her to write her name or drink a glass of tea. She has not had any special tests for arthritis or x-rays to diagnose her condition. She also claims to suffer from “fainting spells” and from depression, although she has never seen any mental health professional for the depression.

¶ 3. Physicians treated Henderson for pain as far back as 1995. Medical records show that Henderson has had an MRI, and several tests on her heart, all of which found no abnormalities.

¶ 4. PERS first denied Henderson’s disability claim after a hearing in March 1999. Henderson then appealed to the circuit court. That court remanded for a consideration of the Social Security Administration’s findings of disability. PERS again recommended denying benefits to Henderson. Henderson then appealed again to the Circuit Court of Hinds County. That court found the PERS decision to be unsupported by substantial evidence and to be arbitrary and capricious. The circuit court reversed PERS. Aggrieved by the circuit court’s decision, PERS now appeals.

Standard of Review

¶ 5. A reviewing court shall let the decision of an administrative agency stand unless the agency’s decision (1) was not supported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the power of the agency to make, or (4) violated some statutory or constitutional right of the complaining party. URCCC 5.03; Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 429(¶ 32) (Miss.2000). It is not this Court’s job to determine whether the claimant has presented enough evidence to prove she is disabled, but whether PERS has presented enough evidence to support its finding that the claimant is not disabled. Doyle v. Pub. Employees’ Ret. Sys., 808 So.2d 902, 905(¶ 8) (Miss.2002).

Legal Analysis

¶ 6. We find the PERS decision to be supported by substantial supporting evidence, and therefore we reverse the ruling of the circuit court. “Substantial evidence” requires there to be more than a mere suspicion. Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1241(1113) (Miss.2002) (citing Marquez, 774 So.2d at 425).

¶ 7. To support its findings, PERS notes that Henderson did not appear to be in pain for the approximately one hour hearing she attended. Additionally, PERS notes that Henderson’s cognitive functions, which are not in controversy, appear intact. These observations were made by three medical doctors who also reviewed Henderson’s medical records. Some of her conditions, notably fibromyalgia, are controversial in the medical community. In fact, Henderson’s physician even noted that he reached this diagnosis only by ruling out every other possible cause of the symptoms Henderson reported.

¶ 8. The circuit court appears to place a good deal of weight on the findings of the Social Security Administration. This is not, alone, determinative of a finding of disability. Id. at 1242(¶ 23). The only other evidence which supports Henderson’s case for disability appears to be anecdotal evidence. While we do not require Henderson to prove to us that she is disabled, PERS’ decision is supported by much more substantial evidence than in Henderson’s claim.

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

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

CHANDLER, J.,

dissenting.

¶ 10. Because the record contains no evidence to support a finding that Henderson is able to perform the duties of a teaching assistant, I respectfully dissent. It is a fundamental principle of administrative law and due process under the Fourteenth Amendment to the United States Constitution that the decision in an administrative hearing “must rest solely on the legal rules and evidence adduced at the hearing.” Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). A denial of disability benefits must be supported by “substantial evidence,” and the failure to make a record showing such evidence mandates a reversal and award of disability payments upon appellate review. Public Employees’ Ret Sys. v. Dearman, 846 So.2d 1014(¶ 7) (Miss.2003). See also Public Employees’ Ret Sys. v. Marquez, 774 So.2d 421(¶ 34) (Miss.2000).

¶ 11. In this case, the record contains approximately forty-five pages of a transcript from an administrative hearing and approximately 240 pages of documentary evidence consisting mostly of medical records. At the administrative hearing, PERS called a single witness, who testified simply that the circuit court had remanded this cause back to PERS, pending a ruling by the Social Security Administration on whether Henderson was eligible for federal disability benefits, and that at the time of the hearing Henderson had been ruled disabled and was eligible for approximately $405.23 in monthly federal disability benefits. The only other witnesses who testified were Henderson, her husband and her son, all of whom testified to the effect that she could not perform her duties as a teaching assistant. The documentary evidence, including the medical opinions and treatment recommendation shows that Henderson is disabled. Her treating physician noted that he believed Henderson was unable to work due to her medical condition. No physician record or lay testimony contradicted that opinion. The Prentiss County School District, Henderson’s employer, indicated both that Henderson was unable to perform her job duties due to her medical impairments, and that it had not offered Henderson an alternative employment position with duties that she could perform. In sum, the evidence incontrovertibly showed Henderson was medically unable to continue her employment.

¶ 12. The Disability Appeals Committee stated in its final decision denying benefits that “[Henderson] indicated a willingness on the part of the school to make accommodations, such as getting her a different chair.” But, this statement is directly contradicted by the record. Henderson testified that while she attempted to assist students while sitting in her chair, the chair was too high for her to reach the elementary school desks, and the chair’s seat could not be adjusted. One of the physicians employed by PERS to be on its Disability Appeals Committee asked Henderson in the hearing whether the school had offered a different chair, and she responded that the employer had not offered a different chair because “[t]hey didn’t have any and we asked. They just didn’t have any extra.” And she stated, “I tried everything I could within the room.” While it is possible that some assistive technology might have assisted Henderson in continuing employment, and while providing such assistance might well have been good employment and medical practice, the role of an agency in an administrative hearing is not to substitute its own judgment without regard to the facts and evidence contained in the record.

¶ 13. The circuit court was correct in its finding that “the medical board and Disability Appeals Committee is both arbitrary and capricious.” This case is factually and legally indistinguishable from Marquez, 774 So.2d at (¶ 34). I would affirm.

KING, P.J., AND BRIDGES, J., JOIN THIS SEPARATE WRITTEN OPINION.