author: THOMAS, J.,

text:
    In re the Matter of the CONSERVATORSHIP OF the ESTATE and the Person OF Annie Mae LOYD. Margaret Loyd Lang And Clyde Lang, Appellant, v. Edith Cecille Loyd Lutz, Conservatrix, Appellee.
    No. 2002-CA-00054-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied Jan. 6, 2004.
    Certiorari Denied March 11, 2004.

      William D. Boerner, Brookhaven, attorney for appellant.
    Sim C. Dulaney, Port Gibson, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court.

¶ 1. This case involves a dispute between sisters over their mother and her estate. The trial court ruled against the appellants, Margaret Loyd Lang and Clyde Lang. Aggrieved, Margaret perfected an appeal to this Court and asserts the following issues:

I. THE CHANCELLOR ERRED BY FINDING THAT APPELLANT MARGARET LANG PROCURED HER OFFICE OF TRUST THROUGH UNDUE INFLUENCE AND FURTHER ERRED BY REMOVING HER AS TRUSTEE.

II. THE CHANCELLOR ERRED BY FINDING THE TEMPORARY SUPPORT TO BE UNREASONABLE.

III. THE CHANCELLOR ERRED BY FINDING APPELLANT LANG TO HAVE VIOLATED HER FIDUCIARY DUTIES AS TRUSTEE.

IV. THE CHANCELLOR ERRED BY ORDERING AN ACCOUNTING.

V. THE CHANCELLOR ERRED BY CANCELING THE WARRANTY DEED FROM APPELLANT MARGARET LANG TO APPELLANT CLYDE LANG.

VI. THE CHANCELLOR ERRED BY DISMISSING APPELLANT CLYDE LANG’S COUNTER-COMPLAINT FOR SLANDER OF TITLE AND ASSESSING COURT COSTS TO THE APPELLANTS.

Finding no error, we affirm.

FACTS

¶ 2. Annie Mae Loyd was born in April 1908, and at the time of appeal was ninety-two years old. She had been married to Vernon Loyd who died in 1956. Besides Annie, five children survived Vernon: Vernon Loyd, Jr., Margaret Elizabeth Loyd Lang, Edith Cecille Loyd Lutz, Charles Loyd and William Gerrard Loyd. The youngest, William Gerrard Loyd, passed away in 1992. From late 1965 on, Margaret was a co-signer on her mother Annie’s bank accounts. Margaret assisted Annie with her business dealings from that time forward.

¶ 3. When Vernon Loyd, Sr. died, he owned two tracts of land: a fifty-six acre tract which he owned together with Annie Mae Loyd with full rights of survivorship, and a forty acre tract which was titled in his name alone. The forty acre tract passed to Annie and the children, share and share alike. At the request of Annie, all of the children except Margaret signed a quit claim deed conveying the forty acre tract to their mother. The quit claim deed was filed without Margaret’s signature on May 10, 1988. From about 1986 until 1998, Annie lived in a trailer purchased for her by her daughter Edith Lutz. Athough Annie Mae Loyd contributed to the purchase price by giving a down payment of $1,700, the monthly payments on the trailer were made by Edith and her husband.

¶ 4. In 1992, Clyde and Margaret Lang had attorney Scott Farnsworth prepare living trusts for them. In 1993, Vernon Loyd, Jr., having noticed a change in Annie including forgetfulness and hallucinations, suggested to Margaret that a trust should be established to take care of her. On May 17,1993, Clyde and Margaret Lang transported Annie to attorney Farnsworth’s office for the purpose of establishing the Annie Mae Loyd Trust. Margaret Lang attended the meeting between Annie Mae Loyd and Farnsworth, then Farnsworth met with Annie Mae Loyd alone for approximately fifteen minutes. Over the next week, Farnsworth drafted the “Declaration of the Annie Mae Loyd Trust, Memorandum of Agreement of Annie Mae Loyd Trust, Last Will and Testament of Annie Mae Loyd, Medical Care Power of Attorney, Living Will, and General Power of Attorney.” Additionally, Farnsworth prepared a quit claim deed which conveyed all of Annie Mae Loyd’s real property to Margaret Lang as trustee for the Annie Mae Loyd Trust. On May 24,1993, Margaret Lang again transported Annie Mae Loyd to Farnsworth’s office for the purpose of executing the trust documents. Margaret Lang was present when all of the trust documents were executed.

¶ 5. Annie Mae Loyd’s last will and testament provides that, after payment of expenses, all of her property was given and devised to the trustee of the Annie Mae Loyd Trust, to be held and disposed of in accordance with the terms, covenants and conditions of the trust. The declaration of trust of the Annie Mae Loyd Trust provides that upon Annie’s death, any remaining principal, together with any accrued and unpaid income thereon, shall be paid and distributed as follows: $1,000 to be divided among the issue of William G. Loyd, per stirpes, and the residue to Margaret Lang, Vernon W. Loyd, Edith Ce-cille Loyd Lutz and Charles Ronald Loyd, equally. The declaration of trust of the Annie Mae Loyd Trust appoints Margaret Lang as trustee, and upon her death or if she should cease to serve, appoints Vernon W. Loyd, Cecille Lutz, and Charles Ronald Loyd, in that order, as successive trustees. Margaret Lang testified that no copies of any of these documents were ever furnished any of Mrs. Loyd’s other children because Annie Mae Loyd was a very secretive person who did not want the other children to know her business.

¶ 6. In early 1995, Margaret’s husband Clyde, after receiving bids, sold some of the timber on his land to Dixieland Forest Products of Meridian, Mississippi. Margaret Lang, as trustee, thereafter sold the standing timber belonging to the Annie Mae Loyd Trust to Dixieland Timber Products. Clyde Lang initialed the contract between Dixieland Forest Products and the Annie Mae Loyd Trust. He also authorized Dixieland Forest Products to clear cut the timber on the Annie Mae Loyd Trust property. Dixieland Forest Products sent the payment for Annie Mae Loyd Trust’s timber to Clyde Lang who delivered the checks to Margaret Lang. Theses checks were later endorsed by Annie Mae Loyd and Margaret Lang.

¶ 7. On April 21, 1995, Margaret Lang deposited two Dixieland Forest Product checks for timber cut on the Annie Mae Loyd Trust property in the amounts of $11,222.99, and 11,079.92, together with a sum of $2,999.51, withdrawn from Annie Mae Loyd’s savings account, into an account in the name of Margaret Elizabeth Loyd Lang. The total sum deposited was $26,302.42. Margaret Lang then used this money to purchase a certificate of deposit in her name. Margaret Lang held this CD for more than three years. In February 1998, Annie moved in with Margaret and Clyde and Edith sold the trailer in which Annie resided. On November 18, 1998, Margaret Lang redeemed the CD, before maturity, and after making deductions for other expenses, including $50 to Farns-worth, withheld for herself $14,400. The CD at the time of redemption was worth $32,428.62. The invoice prepared to account for the $14,400 payment indicated that it was for costs of caring for her mother at $1,200 per month for one year. After these deductions Margaret deposited $16,204.62 into the Annie Mae Loyd Trust account.

¶ 8. On September 30, 1998, Margaret Lang, as trustee, conveyed all of the real estate owned by the Annie Mae Loyd Trust to her husband, Clyde Lang. Two estimates were obtained, and the higher was used for valuing the property. The deed transferring this property was prepared by Farnsworth, and the sale price of the property, $64,000, was paid by check drawn on the joint account of Mr. E. Lang and Elizabeth L. Lang. The check was signed by (Margaret) Elizabeth Lang and endorsed by (Margaret) Elizabeth Loyd Lang, trustee of the Annie Mae Loyd Trust.

¶ 9. Trustee Margaret Lang testified that the reasons she sold the land to her husband included: (1) Mrs. Loyd was tired of being “harassed” by her other children. This harassment was punctuated by the allegation that Mrs. Loyd’s daughter, Edith Lutz, was repeatedly asking for her inheritance. Mrs. Lutz denies ever demanding her inheritance; (2) Annie Mae Loyd was upset after February 1998 when Edith Lutz sold the trailer that Annie had previously resided in, without reimbursing her for her share of the purchase price; and (3) Annie Mae Loyd requested Clyde Lang to purchase the property in order to allow him to invest his money in the property and to make it productive.

¶ 10. Edith Cecille Loyd Lutz, Margaret’s sister, became upset with the management of the trust, and filed a petition for appointment of conservator which was granted by the lower court. Margaret filed a motion to set aside and an order was entered which appointed Margaret and Edith co-conservatrixes. This created a dispute which led to litigation. Testimony at trial established that Annie suffered from hallucinations and some form of dementia from as early as 1993, with some testimony indicating as early as 1989. After hearing the evidence, the chancellor found in part that Margaret had violated her fiduciary duty as trustee, that she should be removed as trustee, that a warranty deed from Margaret to her husband of real property contained in the trust should be cancelled, and ordered Margaret to make an accounting to the court and to reimburse the trust some $14,400.

STANDARD OF REVIEW

¶ 11. When considering the decisions of a chancellor on appeal, this Court has a limited standard of review. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Fisher v. Fisher, 771 So.2d 364(¶ 8) (Miss.2000). The chancellor is the fact-finder and is charged with the obligation of resolving disputes between the parties and likewise is the sole arbiter of the credibility of the witnesses. Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994). A chancellor’s findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or where it is determined that the chancellor applied an erroneous legal standard.' Tinnin v. First United Bank, 570 So.2d 1193, 1194 (Miss.1990). If the chancellor’s findings are supported by substantial, credible evidence in the record, this Court will not reverse. Id.

ANALYSIS

I. DID THE CHANCELLOR ERR BY . FINDING THAT APPELLANT MARGARET LANG PROCURED HER OFFICE OF TRUST THROUGH UNDUE INFLUENCE AND FURTHER ERRED BY REMOVING HER AS TRUSTEE?

¶ 12. Margaret asserts that the chancellor erred in finding that she procured her office of trust through undue influence and further erred by removing her as trustee of the Annie Mae Loyd Trust. Margaret points this Court to what she asserts are conflicting statements made by the chancellor regarding when a fiduciary relationship between Margaret and Annie Mae Loyd began. The chancellor stated in his findings of fact and conclusions of law that “there is substantial and ample evidence that a confidential relationship existed between Mrs. [Margaret] Lang and Annie Mae Loyd as of May 24, 1993.” In his judgment, however, the chancellor stated that Margaret entered into a fiduciary relationship with Annie Mae Loyd on May 24, 1993. In his order denying Margaret’s motion to alter or amend, the chancellor stated that “the trust agreement, viewed in light of the manner in which Mrs. Lang utilized it, was procured through undue influence, overreaching, and a breach of the position of trust which Mrs. Lang occupied with her aged and ill mother.” Margaret points out that the chancellor did not revoke the entire trust document but instead only removed Margaret as trustee. According to Margaret, if the trust was procured through undue influence, the chancellor erred in not revoking the document.

¶ 13. Edith asserts that the judgment removing Margaret clearly articulates that she was removed for violations of her fiduciary duty and that undue influence in the procurement of the trust is not relevant to the case at bar. Therefore, any statement made by the chancellor in an order or ruling which does not affect the substantial rights of the parties is harmless error under Rule 61 of the Mississippi Rules of Civil Procedure. We agree with the Edith. The question at bar is whether or not the chancellor erred in removing Margaret Loyd Lang as trustee for the Annie Mae Loyd Trust. The chancellor based his decision on the actions of Margaret as trustee of the Annie Mae Loyd Trust. This issue is without merit.

II. DID THE CHANCELLOR ERR BY FINDING THE TEMPORARY SUPPORT TO BE UNREASONABLE?

¶ 14. Margaret asserts that the chancellor erred in finding the temporary support to be unreasonable, since the same chancellor later approved $1,200 per month as payment for care of Annie Mae Loyd. Lang’s assertion of error, however, is factually incorrect because it does not reflect the chancellor’s judgment or the order denying motion to alter or amend or, in the alternative, for a new trial. The chancellor determined that the method of payment and other actions by Margaret were improper and were in fact conversion, and he required Margaret to return the money to the trust. Margaret was required to demonstrate by clear and convincing evidence that the transaction was not the product of undue influence. Murray v. Laird, 446 So.2d 575, 578 (Miss.1984).

¶ 15. At trial, Margaret testified that she took trust money from the sale of timber along with money from the trust bank accounts and deposited those funds into her personal account. She purchased a certificate of deposit with those funds in her name and held them for three years. She then sold the remaining trust assets to her husband, Clyde Lang. In November 1998, she redeemed the certificate of deposit early and paid herself $1,200 per month for the entire year for care of her mother. The court would later authorize $1,200 per month in December 1999 with agreement from all parties. The chancellor found that Margaret had not proven by clear and convincing evidence that the payments made in November 1998 were not the product of undue influence. The only evidence presented was the testimony of Margaret. At best, the decision in November 1998 was made by Margaret and Annie Mae Loyd. However, both parties agree that by 1998 Annie Mae suffered from dementia.

¶ 16. “Conversion requires an intent to exercise dominion or control over goods which is inconsistent with the true owner’s right.” Terrell v. Tschirn, 656 So.2d 1150, 1153 (Miss.1995) (quoting Walker v. Brown, 501 So.2d 358, 361 (Miss.1987)). “The intent required is not necessarily a matter of conscious wrongdoing.” Walker, 501 So.2d at 361. The chancellor determined that Margaret converted to her personal use $14,400, or twelve months’ care at $1,200 per month, and that she did not provide clear and convincing evidence that the transaction was made in good faith, full knowledge, and with consent of the parties. The chancellor is to be afforded substantial deference, and we will only reverse if we determine that his findings were against the substantial weight of the credible evidence. Brown v. Brown, 817 So.2d 588, 591(¶ 7) (Miss.Ct.App.2002). The substantial weight of the evidence supports the chancellor’s decision. This issue is without merit.

III. DID THE CHANCELLOR ERR BY FINDING APPELLANT LANG TO HAVE VIOLATED HER FIDUCIARY DUTIES AS TRUSTEE?

¶ 17. Margaret asserts that the chancellor erred in finding her to have violated her fiduciary duties as trustee, since the trust gave her authority to deposit funds in her own name and the sale of property to her husband was for good and valuable consideration. Margaret fails to cite to any legal authority in support of this assignment of error; therefore, this Court is not obligated to consider it on appeal. Pickering v. Indus. Masina I Traktora, 740 So.2d 836, 848(¶ 55) (Miss.1999). Nevertheless, we will review the merits of this issue.

¶ 18. The chancellor’s decision to remove Margaret Lang as trustee of the Annie Mae Loyd Trust was based upon Margaret’s misuse of trust assets. Margaret admits that she was in a fiduciary relationship from and after May 24, 1993. Mississippi case law provides that the existence of a confidential or fiduciary relationship gives rise to a presumption of undue influence. Estate of Volmer v. Volmer, 832 So.2d 615, 619(¶12) (Miss.Ct.App.2002) (citing Croft v. Alder, 237 Miss. 713, 725, 115 So.2d 683, 687 (1959)). The burden of going forward with the proof then shifts to the grantee/beneficiary to prove by clear and convincing evidence: (1) good faith on the part of the grantee/beneficiary; (2) grantor’s full knowledge and deliberation of his actions and their consequences; and (3) advice of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator’s interest. Murray, 446 So.2d at 578.

¶ 19. The chancellor found that Margaret violated her fiduciary duty to.Annie Mae by depositing funds of Annie Mae in the amount of $26,302.42 in her own name and holding them for more than three years, by paying herself $14,400 of the funds for care of Annie Mae, and by conveying all of the Annie Mae Loyd Trust real property to her husband, Clyde Lang. Margaret argues that she was able to prove by clear and convincing evidence that she acted in good faith by adding .a $60,000 addition to her home, purchasing a vehicle to transport Annie Mae, and taking her into her home. Margaret also asserts that the testimony of attorney Scott Farnsworth proved Annie Mae Loyd’s full knowledge and deliberation pf her actions and Farnsworth provided independent advice to Annie Mae. However, in- regard to the sale of land, the chancellor found.that the sale to Margaret’s husband went against the intention Annie Mae expressed in the last will and trust to leave her property to her surviving children in equal shares. By selling the property to her husband, Margaret had ended up with all of Annie Mae Loyd’s land while the rest of Annie Mae’s children ended up with none without voluntarily having given up their interest.

¶ 20. The chancellor heard the testimony, considered the facts, and after applying the applicable law determined that Margaret had violated her fiduciary duties and should be removed as trustee. The substantial weight of the evidence supports the chancellor’s decision. This issue is without merit.

rv. DID THE CHANCELLOR ERR BY ORDERING AN ACCOUNTING?

¶ 21. Margaret asserts that the chancellor erred in ordering an accounting. However, the chancellor is vested with the authority to oversee and supervise the administration of a trust. Reedy v. Johnson’s Estate, 200 Miss. 205, 213, 26 So.2d 685, 688 (1946). Having determined that Margaret had violated her fiduciary duties as trustee, it is within the chancellor’s authority to order an accounting in order to determine what assets remain in the estate. “Counts of equity have all remedial powers necessary to the particular case, except those that, are expressly forbidden by law.” Hall v. Wood, 443 So.2d 834, 843 (Miss.1983). The chancellor did not act outside of his authority. Absent a clear abuse pf discretion, we will not interfere, with the. chancellor’s exercise of authority. Id.

V. DID THE CHANCELLOR ERR BY CANCELING THE WARRANTY DEED FROM APPELLANT MARGARET LANG TO APPELLANT CLYDE LANG?

¶ 22. Margaret asserts that the chancellor erred in cancelling the warranty deed from her as trustee of the Annie Mae Loyd Trust to her husband, Clyde Lang. Margaret asserts that by selling the property at or above fair market value, the sale was an arms length transaction and as trustee she was vested with the authority to sell the property at any time. The chancellor canceled the warranty deed from Margaret Lang to her husband Clyde Lang because they failed to overcome the presumption of invalidity which attached to this transaction. It was Margaret and Clyde’s burden at trial to overcome the presumption of invalidity by producing “clear and convincing evidence” that this transaction, was not the product of “undue influence.” As stated above, the chancellor heard the testimony at trial and determined that Margaret and Clyde failed to overcome this presumption of undue influence, and the sale went against the expressed intention that the children inherit the land in equal shares. Margaret and Clyde fail to demonstrate that the chancellor used the wrong legal standard or that his determination was an abuse of discretion. This issue is without merit.

VI. DID THE CHANCELLOR ERR BY DISMISSING APPELLANT CLYDE LANG’S COUNTER-COMPLAINT FOR SLANDER OF TITLE AND ASSESSING COURT COSTS TO THE APPELLANTS?

¶ 23. Margaret and Clyde assert that the chancellor erred in dismissing Clyde’s counter-complaint for slander of title and assessing court costs to them. The chancellor’s judgment held that the Langs failed to overcome the presumption of undue influence regarding the conveyance of land from the trust to Clyde. By finding the sale was invalid, the deed was invalidated and the land returned to the trust. Since the court found that Lutz had a valid right to have her case decided, filing a lis pendens notice cannot be slander of title. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 117 (Miss.1987). The action for slander of title was therefore rendered moot when the chancellor entered his judgment setting aside the conveyance which was the subject of the slander of title suit. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF CLAIBORNE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Bordman C. HUMPHREY, Appellant, v. Jeanette Humphrey SMITH, Joe A. Herrin d/b/a Herrin Timber Company, Bruce A. Rawls and K. Elaine Rawls, Appellees.
    No. 2003-CA-00416-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.

      William Hall Pettey, Gulfport, attorney for appellant.
    Larry 0. Norris, Hattiesburg, R. Christopher Wood, Jackson, attorneys for appel-lee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Bordman C. Humphrey appeals judgment granting summary judgment in favor of Joe A. Herrin. Finding the chancellor to be in error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts of this case are relatively straightforward, but the procedural history is complex and, at times, confusing. We present a detailed discussion of both.

¶ 3. Athough the record does not indicate his exact age, Bordman Humphrey is an elderly man who owned real property in Pearl River County. Pursuant to a divorce in the State of Texas, Bordman jointly owned at least two of four separate tracts of property with his former wife Ruby Humphrey.

¶ 4. On January 23, 1991, Ruby purportedly executed a deed conveying her interest in the property to Jeanette Humphrey Smith, one of Bordman’s and Ruby’s daughters. On March 27, 1992, Bordman purportedly executed a deed conveying his interest in certain real property to Jeanette.

¶ 5. On September 10, 1993, Bordman commenced a lawsuit against Jeanette asking the court to void the deeds executed by both Bordman and Ruby on the grounds of fraud and undue influence. Bordman alleged that Jeanette fraudulently procured their signature on the deeds. On January 4 and May 17,1994, Bordman filed amendments to the complaint to assert claims for undue influence, fraud in the procurement and failure of consideration.

¶ 6. According to the deeds attached to the complaints, we are not able to determine whether there were two or four separate tracts of property. The deeds from Ruby to Jeanette described the property to be conveyed as the property that was jointly owned by Ruby and Bordman, which had been partitioned in their divorce proceeding. The first tract was described by reference to monument, and the second tract was described by a combination of metes and bounds with description by reference to a monument. The deeds from Bordman to Jeanette describing the property to be conveyed were described by metes and bounds descriptions indicating the section, township and range. For our consideration, when necessary, we identify the properties described in Ruby’s deeds as tracts 1 and 2, which appear to be jointly owned by Bordman and Ruby, and the properties described by Bordman’s deeds as tracts 3 and 4, which appear to be owned solely by Bordman.

¶ 7. On April 29, 1994, the chancellor appointed Erik Lowery as a guardian ad litem to determine Bordman’s competency and present ability to understand the proceedings. On May 23, 1994, Lowery opined that Bordman was a capable, able litigant who had a firm grasp of the issues before the court. By order of the court dated November 15, 1994, Lowery was allowed to withdraw and relieved of any further duties as guardian ad litem.

¶ 8. On June 24, 1994, Bordman’s original counsel was allowed to withdraw. In subsequent pleadings, Frank Montague entered an appearance as counsel for Bordman. We find no pleading or order allowing Montague to withdraw as counsel for Bordman.

¶ 9. On October 22,1994, Jeanette filed a motion to dismiss any and all proceedings brought by Bordman, for and on behalf of Ruby. Jeanette’s motion asserted that Bordman lacked standing to assert Ruby’s claims. Bordman responded by asserting that his standing was by virtue of his inheritance through Ruby’s will .

¶ 10. On November 15, 1994, Chancellor Howard Patterson, Jr., entered an order on the motion to dismiss that held Bordman lacked standing to assert Ruby’s claims and that Bordman had shown no legal entitlement to an interest in the property. The chancellor ruled that the claims to set aside the conveyance of Ruby to Jeanette were “dismissed without prejudice, and subject to reinstatement by request if the alleged will of Ruby Humphrey, deceased, dated January 16,1983, is ruled valid, in Cause No. 66123 in the County Court of Jefferson County, Texas.” The chancellor’s order concluded by holding in abeyance all other matters. Thus, the chancellor dismissed Bordman’s claim against Jeanette for Ruby’s interest in tracts 1 and 2 and held in abeyance Bord-man’s claims against Jeanette for his interest in tracts 3 and 4.

¶ 11. Several miscellaneous pleadings were filed during 1995. Among the pleadings were several motions and orders allowing the guardian and various counsel to withdraw or be substituted.

¶ 12. 'After approximately two more years of inactivity, on September 17, 1997, a notice of dismissal with prejudice was filed. The record does not indicate who prepared or filed the notice. The notice of dismissal was a voluntary dismissal, pursuant to Rule 41(a)(l)(ii) of the Mississippi Rules of Civil Procedure., The notice was signed by Bordman, pro se, and Jeanette’s attorney. The notice was not signed by Montague or any other attorney representing Bordman.

¶ 13. On March 4, 1999, Bordman filed his third amended complaint against Jeanette. The third amended complaint added several other defendants who had obtained an interest in the property, namely Joe A. Herrin d/b/a Herrin Timber Company, Lamar Bank, Bruce S. Rawls and K. Elaine Rawls. Just as with the previous complaints, the third' amended complaint asserted claims ‘for fraud and undue influence. The complaint alleged that Bordman’s affairs were now under a con-servatorship and that the will of Ruby Humphrey had never been validated by the Texas court, because it had been settled and the estate closed without addressing that issue. The complaint asked the court to void and set aside the deeds conveying the property to Jeanette, the deeds from Jeanette to Herrin, the deed of trust by Herrin for the benefit of the Lamar Bank, and the deed from Herrin to the Rawls.

¶ 14. The third amended complaint was signed by Nadine Stevens, another daughter of Bordman and Ruby, as conservator of Bordman. Stevens was now represented by William H. Pettey, Jr. On March 10, 1999, Stevens filed a motion to file a third amended complaint requesting leave of court to file the third amended complaint.

¶ 15. On August 19, 1999, the Lamar Bank was dismissed without prejudice.

¶ 16. On November 2, 1999, the clerk entered a default against Jeanette. A motion for default judgment was filed, but Herrin and the Rawls opposed the motion. There is no record that the motion was heard or decided by the chancellor.

¶ 17. On February 27, 2002, Herrin filed a motion for summary judgment, which was subsequently amended. Herrin asserted that the prior dismissals prohibited the refiling of this claim against Jeanette and the new defendants. In response, Bordman’s conservator asserted that the notice of dismissal was void because Bord-man was incompetent, suffering from senile dementia, at the time it was executed. Bordman’s conservator attached an affidavit from Bordman’s treating physician that opined that Bordman did not possess the requisite mental capacity in November of 1997 to understand his actions in executing a legal document, such as the notice of dismissal.

¶ 18. On January 30, 2003, Chancellor James H.C. Thomas, Jr., granted Herrin’s motion for summary judgment. In the judgment, the chancellor held:

A history of this action reveals that it . was initially filed on September 10, 1993 and, after being reduce [sic] to issue, dismissed on two occasions. The first dismissal was by Order of this Court on November 15, 1994, without prejudice subject to reinstatement if an alleged will of Ruby Humphrey, deceased, is ruled valid in Cause No. 66123 in the County Court of Jefferson County, Texas. That order followed the appointment by the Court, on April 29, 1994, of a guardian ad litem for Plaintiff and his report on May 23, 1994 that the Plaintiff was competent to prosecute the action sub judice with his counsel. Thereafter, pursuant to Rule 41(a)(i)(ii) of the Mississippi Rules of Civil Procedure, the matter sub judice was voluntarily dismissed by Plaintiff filing a Notice of Dismissal dated September 17, 1997 which was agreed to by counsel for the Defendant. A Motion To File Third Amended Complaint was then filed on March 10, 1999 on behalf of Plaintiff alleging him to be under a conservator-ship and a Third Amended Complaint was filed on March 4, 1999 without leave of the Court being entered. That Complaint states that the will of Ruby Humphrey has never been validated by the Texas Court based on that cause having been settled and the estate closed without addressing that issue.
The Court finds the Motion For Summary Judgment, as amended, should be granted in keeping with the prior order of this Court dismissing the action absent the requisite showing the condition of the Order has been met, and the actions of the Plaintiff in effecting a dismissal by himself by complying with Rule 41(a)(i)(ii), MRCP, which may be done without an order of the Court when the appropriate notice of dismissal is filed, as was done in this case.
Further, the competence of Plaintiff has previously been address[ed] in this matter, and, while a change in his status may not be clear between the Order of November 15, 1994 and the Notice of Dismissal of September 19, 1997, it is clear that a conservator could not take legal action on behalf of his ward without prior court approval. See In the Matter of the Last Will and Testament of and Estate of Thomas D. Mingo v. Mingo, 748 So.2d 433, (Miss.App.1999). The Third Amended Complaint is dismissed.

Bordman appeals this judgment.

STANDARD OF REVIEW

¶ 19. “The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996) (citing Mantachie Natural Gas v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992)). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990).

ANALYSIS

¶ 20. Our de novo review of the chancellor’s judgment indicates that the chancellor considered four applicable legal concepts but decided the case based on the order of dismissal and the notice of dismissal. We will address each of the issues considered by the chancellor.

¶21. First, the chancellor determined that the summary judgment should be “granted in keeping with the prior order of this Court dismissing the action absent the requisite showing the condition of the Order has been met....” The November 15, 1994 order of dismissal simply does not support the chancellor’s decision to dismiss all of Bordman’s claims. According to the order, Chancellor Patterson ruled that Bordman lacked standing to pursue Ruby’s claims. The order dismissed, subject to reinstatement, only the claims Bordman asserted against Jeanette that arose out of the conveyance of Ruby’s interest in the property. Bordman’s claims against Jeanette that arose out of his purported conveyance of his interest in the property remained separate and viable, but held in abeyance until further order of the court. Accordingly, we conclude that the chancellor erred as a matter of law in finding that the November 15, 1994 order dismissed all of Bordman’s claims against Jeanette.

¶ 22. Second, the chancellor ruled that the September 17, 1997 notice of dismissal with prejudice dismissed all of Bordman’s claims. In response to the motion for summary judgment, Bordman’s conservator asserted that the notice of dismissal was void because Bordman was incompetent, suffering from senile dementia, as of September 17, 1997. To support this contention, Bordman’s conservator attached an affidavit from Bordman’s treating physician that opined that Bordman did not possess the requisite mental capacity in November of 1997 to understand his actions in executing legal documents. The treating physician’s affidavit is sufficient to establish that there was a genuine issue of material fact in dispute as to whether Bordman was competent to execute the September 17, 1997 notice of dismissal. Also, in the judgment, the chancellor recognized that the change of Bordman’s status was not clear, meaning that his competency was in dispute. According to our standard of review, we find that there were genuine issues of material fact in dispute. Therefore, the chancellor erred in granting summary judgment based on the September 17,1997 notice of dismissal.

¶ 23. Also, as part of our review of the notice of dismissal, we recognize that Bordman challenged the legal validity and effect of the notice. Indeed, the record does not indicate who prepared or filed the notice. The record does not indicate how Bordman’s signature was obtained or whether there was in fact any consideration paid. The notice was signed by Bordman, pro se, and Jeanette’s attorney. According to the record, Bordman was previously represented by Frank Montague, and we can find no order granting Montague leave to withdraw. Therefore, on remand, the chancellor should consider the circumstances surrounding the execution of the September 17, 1995 notice of dismissal to determine the legal effect of the notice of dismissal.

¶24. Next, although the chancellor’s judgment did not appear to make a conclusion on this issue, the chancellor discussed Bordman’s competency, and the impact of the conservatorship on the claims asserted in Bordman’s third amended complaint. The chancellor avoided the competency issue by holding that the conservator could not bring such legal action without prior court approval, which was not obtained before filing the third amended complaint. The language used by the chancellor points to this legal conclusion but does not state that it was determinative of the issue. Indeed, we do not disagree with the chancellor’s statement of the law, as it applies to the authority of the conservatorship, but the fact remains that Bordman’s claims on tracts 3 and 4 were viable and not affected by the conservator-ship’s failure to obtain prior chancery court authority.

¶ 25. Finally, the chancellor mentions that Bordman’s conservator did not obtain leave of the court before filing the third amended complaint, as required by Rule 15(a) of the Mississippi Rules of Civil Procedure. However, the chancellor’s judgment does not indicate that the violation of Rule 15(a) was the basis for the summary judgment or dismissal of the complaint. Rule 15(a) provides that leave shall be granted where justice requires. Herrin’s motion for summary judgment, as amended, did not raise Rule 15(a) as a grounds for the summary judgment. Since this issue was not decided by the chancellor, the chancellor may consider whether leave should be granted or denied and what relief should be granted as a result thereof.

¶ 26. According to our standard of review and the Mississippi Supreme Court’s directive that summary judgments should be cautiously granted, Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983), we find that the chancellor’s summary judgment should be reversed and remanded for further proceedings consistent with this opinion.

¶ 27. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

      . Ruby died on January 22, 1993. Her will was probated in Texas.


author: MYERS, J.,

text:
    LAKE CASTLE LOT OWNERS ASSOCIATION, INC., Appellant, v. Scott LITSINGER, Cindy Litsinger and Gregory F. Broadbridge, Appellees.
    No. 2002-CA-02019-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.
    James H. Herring, attorney for appellant.
    James E. Lambert, Jackson, Cecil Mai-son Heidelberg, attorneys for appellees.
    Before KING, P.J., THOMAS and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. The Lake Castle Lot Owners Association, Inc. (LCLOAI), filed suit in the Chancery Court of Madison County against Scott Litsinger, Cindy Litsinger, Gregory Broadbridge, CJB Partners, L.P., Curtis Partners, L.P., and Retsub Partners, L.P. seeking to enforce certain covenants and to set aside certain deeds to lots located within the second addition of Lake Castle Subdivision. All of the partnerships requested and were granted motions to dismiss. The Litsingers and Broad-bridge requested and were granted a motion for summary judgment. LCLOAI filed a motion for partial summary judgment but the chancellor denied it. LCLOAI now appeals and requests our review of the following issues:

I. DID THE CHANCELLOR ERR IN DENYING THE APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT?
II. DID THE CHANCELLOR ERR IN GRANTING THE APPELLEES’ MOTIONS FOR SUMMARY JUDGMENT?
III. DID THE CHANCELLOR ERR IN FINDING THAT THE APPEL-LEES DID NOT VIOLATE THE RESTRICTIVE COVENANTS?

STATEMENT OF FACTS

¶ 2. In 1937, L.C. Castle acquired title to a parcel of land located in Madison County. Castle platted that parcel of land into a thirty lot subdivision called Lake Haven of Rest, now known as Lake Castle. Edwin and Willard Sagian owned two parcels of land situated south and adjacent to Lake Castle. In 1973, the Sagians platted their two parcels into the first and second additions to Lake Castle, respectively. The first addition contained three lots and the second addition contained five lots. That same year, the Sagians encumbered all eight lots with certain protective covenants. Those original covenants provided in pertinent part as follows:

5. No lot in said Additions shall be re-subdivided. However, nothing herein contained shall prevent a person who owns two (2) adjoining lots within said Additions and/or adjacent to a lot within the original thirty (30) lot subdivision from treating the combined area of the two lots as one (1) lot for building purposes.

¶ 3. Through the years, the Sagians divested themselves of title to the five lots in the second addition to Lake Castle. Lots two and three were conveyed to CJB Partners, L.P., Curtis Partners, L.P., and Ret-sub Partners, L.P. However, the partnerships executed a warranty deed conveying lot two to the Litsingers on May 1, 1998.

¶ 4. On September 9, 1998, the owners of lots two, three, four, and five executed and tendered for approval a plat to the Madison County Board of Supervisors whereby the four lots would be platted as Adderly Gardens, part two, revised. The plat for Adderly Gardens, part two, revised, relocated the interior lot line between lots two and three from the line depicted on the plat for the second addition to Lake Castle. The purpose of the relocation was to alleviate a drainage problem. On October 28, 1998, CJB Partners, L.P., Curtis Partners, L.P., and Retsub Partners, L.P. executed an amended warranty deed and conveyed lot three of Adderly Gardens to Cindy Litsinger. That same day, Cindy Litsinger conveyed revised lot three to Gregory Broadbridge.

¶ 5. Before changing the interior lot line between lots two and three, lot two had approximately 1.80 acres and lot three had approximately 3.55 acres. After changing the interior lot line between lots two and three, lot two had approximately 2.85 acres and lot three had approximately 2.50 acres.

¶ 6. LCLOAI filed suit in the Chancery Court of Madison County seeking to cancel and hold for naught the warranty deeds at issue as well as the newly configured plat for Adderly Gardens. LCLOAI also claimed they were entitled to, compensatory and punitive damages as well as attorney’s fees.

¶ 7. The partnerships involved in this case filed their motion to dismiss based on the fact that they no longer held any own-' ership interest in the property and the chancellor ruled in their favor. That judgment was not appealed by the LCLOAI, and as a result, those partnerships are not parties to this appeal. The Litsingers and Broadbridge filed motions for summary judgment arguing that the protective covenant at issué was not violated by the fact that the interior lot line between lots two and three was moved. All parties stipulated that the interpretation of the protective covenant was a matter of law for the court to decide.

¶ 8. The Chancery Court of Madison County conducted a hearing on the motions for summary judgment filed by the Litsingers and Broadbridge as well as a motion for partial summary judgment filed by LCLOAI. The trial court granted the Litsingers’ and Broadbridge’s motions and denied LCLOAI’s. Aggrieved by this result, LCLOAI filed a timely notice of appeal.

LEGAL ANALYSIS

I. DID THE CHANCELLOR ERR IN DENYING THE APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT?

II. DID THE CHANCELLOR ERR IN GRANTING THE APPELLEES’ MOTION FOR SUMMARY JUDGMENT?

III.DID THE CHANCELLOR ERR IN FINDING THAT THE APPEL-LEES DID NOT VIOLATE THE RESTRICTIVE COVENANTS?

¶ 9. This case is concerned with privately created restrictions on land use and turns on the construction given the term “re-subdivided” as that term has been used in the applicable covenants involved. LCLOAI argues that the trial court erred in granting the Litsingers’ and Broad-bridge’s motions for summary judgment and in denying their own motion for partial summary judgment. As a result, we analyze both issues together.

¶ 10. We apply a de novo standard of review to a grant or denial of summary judgment by the lower court. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002(¶ 7) (Miss.2001). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The evidence must be viewed in the light most favorable to the moving party against whom the motion has been made.” Hudson, 794 So.2d at (¶ 7). Likewise, the burden of demonstrating that no genuine issue of material fact exists is on the moving party. Lewallen v. Slawson, 822 So.2d 236, 237(¶ 6) (Miss.Ct.App.2002).

¶ 11. “Generally courts do not look with favor oh restrictive covenants. Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is most strongly against the person seeking the restriction and in favor of the person being restricted.” Kemp v. Lake Serene Property Owners Ass’n, Inc., 256 So.2d 924, 926 (Miss. 1971). “An important corollary rule, however, is that the clear and unambiguous wording of protective covenants will not be disregarded merely because a use is prohibited or restricted. If the intent to prohibit or restrict be expressed in clear and unambiguous wording, enforcement is available in the courts of this state.” Andrews v. Lake Serene Property Owners Ass’n, Inc., 434 So.2d 1328, 1331 (Miss.1983). In addition, a protective covenant must be read in its ordinary sense. City of Gulfport v. Wilson, 603 So.2d 295, 299 (Miss.1992). Finally, we consider the entire document, as well as the circumstances surrounding its development when ascertaining its meaning, purpose, and intent. Id.

¶ 12. LCLOAI contends that the relocation of the interior lot line between lots two and three constituted a re-subdivision of the lots, and therefore, violates the covenant found in paragraph five of the 1973 protective covenants. The Litsingers and Broadbridge contend that relocation of the interior lot line between lots two and three did not create a new lot, and therefore, did not constitute a violation of the covenant. The trial court found that the term “re-subdivided” as used in the protective covenants and relied upon by LCLOAI was not clear, was not free from ambiguity, nor was it legally enforceable.

¶ 13. The 1973 instrument that contains the covenants does not have a definitions section. LCLOAI argues that the term “re-subdivided” can easily be defined by separating the prefix from the key word. According to LCLOAI, the term “subdivided” means to divide a part into smaller parts of the same thing or subject matter and the prefix “re” simply means to do it again. The Litsingers and Broadbridge argue that the term is incapable of being defined. This point becomes moot, however, because even if we accept LCLOAI’s definition of the term “re-subdivided” that construction still does not support the claim that the Litsingers violated paragraph five of the 1973 covenants. In other words, there was no subdivision by the Litsingers in this case much less a re-subdivision.

¶ 14. Before relocating the interior lot line, there was a lot two and a lot three. After relocating the interior lot line, there was a lot two and a lot three. No new lot was created and there was nothing smaller created from lot two or lot three. Construing paragraph five of the 1973 covenants favorably to the Litsingers and Bro-adbridge and against the LCLOAI, we find that the relocation of an interior lot line for a person who owns two adjoining lots does not constitute a re-subdivision. In view of the rules of construction applicable to restrictive covenants, we find the language at issue falls short of the degree of specificity and clarity necessary for its enforcement.

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

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


text:
    MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY, Appellant v. Sunil DESAI, Administrator of the Estate of S.K. Desai, Deceased, Appellee.
    No. 2002-CC-00259-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.

      Roy Furrh, Chuck D. Barlow, Jackson, attorneys for appellant.
    James T. McCafferty, attorney for ap-pellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. S.K. Desai, d/b/a H.Y.S.H. Corporation (“Desai”), requested reimbursement from the Mississippi Commission on Environmental Quality (the “Commission”) for costs incurred in replacing underground storage tanks, pursuant to the Mississippi Groundwater Protection Trust Fund. After an evidentiary hearing, the Commission determined that Desai did not qualify to receive reimbursement. Desai appealed the Commission’s decision to the Chancery Court of Madison County. The chancellor reversed the Commission and ordered reimbursement. Finding that the Commission’s order was supported by substantial evidence, we reverse and reinstate the Commission’s order.

FACTS

¶ 2. On April 14, 1993, Desai purchased the property known as Hawkeye’s Exxon, which is located in Canton, Mississippi. On May 7, 1993, Desai filed the required notification of underground storage tanks form with the Mississippi Department of Environmental Quality (“MDEQ”) covering five underground storage tanks at Hawkeye’s Exxon.

¶ 3. On January 7, 1994, MDEQ sent Hawkeye’s Exxon a leak detection survey that informed Desai of the acceptable methods of leak detection and requested that Desai advise MDEQ of the type of leak detection utilized at the site. Desai did not respond to the request.

¶ 4. On March, 15, 1994, MDEQ sent Hawkeye’s Exxon a second letter asking for disclosure of the method of leak detection. With this letter, MDEQ again advised Desai of the acceptable methods of tank and line leak detection. Desai did not respond to the second request.

¶ 5. On April 18, 1994, MDEQ sent Hawkeye’s Exxon a third letter, by certified mail, asking for disclosure of the method of leak detection. MDEQ again included a description of the acceptable methods of tank and line leak detection. Desai responded on June 8, 1994, and identified the method of leak detection used at Hawkeye’s Exxon.

¶ 6. On May 19, 1997, Gloria Ellington, an employee at Hawkeye’s Exxon, discovered a petroleum product seeping through the cracks in concrete near the underground storage tanks. Ellington notified MDEQ that a possible petroleum release had occurred. MDEQ inspected the site and confirmed the release. MDEQ also discovered that a monitoring well cover near the seeping petroleum product was obstructed by concrete and debris.

¶ 7. On May 23, 1997, MDEQ requested the last six months of required leak detection records from Desai. By letter dated June 3,1997, Desai advised MDEQ that he could not produce copies of any leak detection records. Desai, however, requested reimbursement from the Mississippi Groundwater Protection Trust Fund (the “Trust Fund”) for the costs of the investigative and remediation activities related to the petroleum release. MDEQ determined that Desai was not eligible for reimbursement from the Trust Fund because he had failed to comply with the underground storage tank regulations. MDEQ advised Desai that he had failed to conduct and record leak detection and failed to have a valid method of leak detection for pressurized piping. Desai requested a hearing on the determination of Trust Fund eligibility.

¶ 8. In December of 1997, the Hawkeye’s Exxon site was remediated by excavating and hauling off the contaminated soil. In January of 1998, MDEQ confirmed that Desai had sufficiently remediated the site.

¶ 9. An evidentiary hearing was held before the Commission on Desai’s eligibility for reimbursement from the Trust Fund. Thereafter, the Commission entered an order concluding that Desai was not in substantial compliance with underground storage tank regulations and, therefore, was ineligible for reimbursement from the Trust Fund for the assessment and cleanup costs incurred at the Hawkeye’s Exxon site.

¶ 10. Desai appealed the Commission’s order. Having briefed the issues for the chancery court, on November 17, 1999, Desai and the Commission presented oral arguments. At the conclusion of oral argument, the chancellor indicated that she would take the arguments under advisement, review the Commission’s records, and make a decision.

¶ 11. The chancellor took no action for over a year. On March, 20, 2001, Desai’s counsel submitted an unsolicited proposed opinion and judgment to the chancellor. On April 16, 2001, before the Commission could respond and submit its own proposed opinion and judgment, the chancellor entered an order that reversed and remanded the Commission’s order. The chancellor adopted and entered the proposed opinion submitted by Desai.

STANDARD OF REVIEW

¶ 12. The standard of review for our consideration of the findings and conclusions of an administrative agency is well established. The appellate or reviewing court will entertain the appeal only to determine whether or not the order of the administrative agency (1) was unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. These are the only grounds for overturning an agency action; otherwise, the agency’s determination must remain undisturbed. Miss. Comm’n on Envt’l Qlty. v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993).

¶ 13. Also, there is a rebuttable presumption in favor of an administrative agency’s actions. United Cement Company v. Safe Air for the Environment, 558 So.2d 840, 842 (Miss.1990). So long as substantial evidence exists, an agency’s fact finding must be allowed to stand “even though there might be room for disagreement on that issue.” Mississippi Public Service Comm’n v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992). Neither the chancellor nor this Court is authorized to substitute its judgment for that of the Commission where there was substantial evidence to support the Commission’s finding. Id. Where a circuit or chancery court exceeds its authority and overturns an agency action, this Court will reverse and reinstate the agency’s order. Id.

ANALYSIS

I. Introduction to Mississippi Underground Storage Tank Act.

¶ 14. The Mississippi Underground Storage Tank Act of 1988 is codified at Mississippi Code Annotated Sections 49-17-401 through 49-17-435 (Rev.2003) (the “Act”). The Act created the Trust Fund, which is a form of financial assurance for owners of underground storage tanks. Miss.Code Ann. § 49-17-405(1) (Rev.2003). Our consideration is focused on the interpretation of Mississippi Code Annotated Section 49-17-405(2), which provides:

The owner of the underground storage tank shall not be liable to the department for such costs if the owner was in substantial compliance on the date on which the discharge of motor fuels which necessitates the cleanup was reported to [MDEQ], Otherwise owners are responsible for reimbursement and the reimbursed monies shall go back into the [Trust Fund].

¶ 15. Thus, the Act authorizes the Commission to determine whether owners of underground storage tanks are in “substantial compliance” with the regulations and whether cleanup costs may be reimbursed by the Trust Fund. “Substantial compliance,” as defined by statute, requires that an owner or operator of an underground storage tank has registered the tank with MDEQ and has made a good-faith effort to comply with the Act and the rules and regulations of the Commission. Miss.Code Ann. § 49-17-403(q) (Rev.2003). Accordingly, the ultimate question is whether there was substantial evidence to support the Commission’s finding that Desai was not in substantial compliance with the Act and the applicable regulations.

¶ 16. The Act places several core requirements on owners, which include: the registration of the underground storage tanks by the owner; the timely payment of the underground storage tank regulatory fee; and the compliance with equipment maintenance, anti-corrosion, release, and leak detection requirements. Miss.Code Ann. § 49-17-413 (Rev.2003); Miss.Code Ann. § 49-17-409 and 49-17-421(Rev.2003); 40 C.F.R. Sections 280.34, 280.40-45.

¶ 17. Pursuant to its authority, the Commission also adopted regulations governing underground storage tanks. The regulations adopted by the Commission were identical to the Environmental Protection Agency regulations. See 40 C.F.R. Section 280. The Commission’s underground storage tank regulations specifically require owners to maintain records related to compliance with leak detection requirements (40 C.F.R. Sections 280.34 and 280.45) and to maintain and monitor leak detection for tanks and piping of the underground storage tank system. (40 C.F.R. Sections 280.40-45). Leak detection for tanks requires monitoring every thirty days. (40 C.F.R. Section 280.41). Leak detection for piping requires monthly monitoring or an annual line tightness test. Id. Considering the statutes and regulations, we examine the factual and legal support underlying the Commission’s decision.

II. Whether the Commission’s order was unsupported by substantial evidence?

¶ 18. The Commission determined that Desai was not in substantial compliance with the Act and relevant regulations. The Commission’s order concluded:

[A]t the hearing on October 22,1998, the substantial evidence proved that at the time the release was reported on May 19, 1997, [Desai] had not performed the required monthly monitoring and had no written documentation of monthly monitoring for the leak detection for his [underground storage tanks] in violation of Sections 40 CFR 280.34 and 280.40-45 of the Mississippi Underground Storage Tank Regulations. The substantial evidence also revealed that [Desai] did not have records indicating that he tested the automatic line leak detector annually and [Desai] did not have a monthly monitoring method for leak detection or conduct an annual line tightness test for his pressurized piping in violation of Section 40 CFR 280.34 and 280.40-45 of the Mississippi Underground Storage Tank Regulations. The Commission determined that [Desai] was not in substantial compliance on the date on which the discharge of the motor fuels which necessitated the cleanup was reported to the department and ineligible for reimbursement from the Trust Fund.

¶ 19. The record before the Commission indicated that Desai admitted, at the hearing, that he never monitored the leak detection for the tanks and piping until after the release was reported to MDEQ, on May 19, 1997. Pursuant to Section 280.40(c) of the Underground Storage Regulations, Desai was required to comply with the leak detection requirements by December 22, 1993. Thus, Desai operated Hawkeye’s Exxon for four years, prior to the release, without maintaining the required leak detection monitoring, in direct violation of the regulations. The Commission considered the duration of noneompli-anee, with the underground storage tank leak detection requirements, was significant and did not exhibit a good faith effort to comply with the regulations.

¶ 20. In addition, the Commission found evidence that the monitoring well cap near the seeping fuel was covered in part by concrete and debris, which prevented the required monitoring. The Commission considered this to be evidence that, prior to the release, Desai completely ignored the leak detection monitoring requirements. The Commission found that the monitoring wells and automatic line leak detector served no purpose in detecting releases and minimizing contamination since Desai never monitored the system.

¶ 21. Desai challenges the Commission’s findings. Desai argues that, while not in strict compliance, he was in substantial compliance with the Act and applicable regulations. As evidence of his compliance, Desai points to the fact that he paid the underground storage tank regulatory fee and that he had the necessary equipment in place.

¶ 22. Desai also argues that the Commission erred .in its determination of substantial compliance, based on whether De-sai “made a good faith effort to comply with the law; and the rules and regulations adopted pursuant thereto.” Miss. Code Ann. § 49-17-403(k). Desai claims that the Commission made no finding on whether Desai made a good faith effort and had no statutory or regulatory definition of the meaning of the term “good faith.”

¶ 23. To establish his “good faith” effort to comply, Desai made three factual arguments: (a) Desai claimed that he only received one of three letters that MDEQ mailed to him notifying him of the leak detection requirements and requesting verification that he was in compliance; (b) Desai claimed that he “could have been confused” or “could have misunderstood” the requirements because his native tongue was an Indian language called Gujarat; and (c) Desai claimed that he lacked a native born American’s ability with English. Desai also argues that the Commission failed to follow the definition of “good faith” contained in the Uniform Commercial Code, which defines good faith as honesty in fact. Miss.Code Ann. § 75-1-203(19). Desai asserts that he was in good faith compliance because he was honest in his dealings with MDEQ and that he met almost all of the requirements.

¶24. To counter Desai’s claims, the Commission found that Desai understood the English language well enough to serve as an alderman for the City of Canton, that Desai could have contacted or visited MDEQ’s headquarters to answer any questions, or that Desai could have attended one of the publicized seminars on Underground Tank Storage Act compliance to gain a better understanding of the requirements.

¶ 25. The Commission contends that it was not required to adopt a definition of the term “good faith,” pursuant to the Mississippi Administrative Procedures Act. The Commission argues that it has the statutory authority to determine if there was a good faith effort to comply with the law, sufficient to satisfy the “substantial compliance” requirement of the Act. The Commission argues that it found that its decision was based on the fact that Desai made virtually no effort to comply. While Desai did pay the required fees and installed equipment, he did not comply with what the Commission considered to be the most important aspects of the Act, leak detection monitoring and record keeping requirements.

¶ 26. The term “good faith” is commonly used. Like many terms of general reference, some statutes may specifically define the term and other statutes may not. Mississippi Code Annotated Section 1-3-65 provides that “[a]ll words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.”

¶ 27. Desai urges us to apply the definition of “good faith,” established in Mississippi’s Uniform Commercial Code, where good faith is defined as “honesty in fact in the conduct or transaction concerned.” Miss.Code Ann. § 75-1-201(19) (Rev.2002). The Commission’s consideration of Desai’s request for reimbursement is not controlled by the UCC. Instead, the Uniform Commercial Code regulates the conduct of parties under certain circumstances, such as the sale goods. The UCC definition of good faith has been criticized as the rule of “the pure heart and empty head.” Black v. Peoples Bank and Trust Co., 437 So.2d 26, 29 (Miss.1983).

¶ 28. The term “good faith” has different definitions in other areas of our jurisprudence. For example, the supreme court considered the term “good faith” in relation to the performance of contracts, e.g., a claim for breach of the duty of good faith and fair dealing. The court held:

A leading contracts treatise describes the duty of good faith and fair dealing as follows:
In recent years, courts have often supplied a term requiring both parties to a contract to exercise what is called ‘good faith’ or sometimes ‘good faith and fair dealing.’ This duty is based on fundamental notions of fairness, and its scope necessarily varies according to the nature of the agreement. Some conduct, such as subterfuge and evasion, clearly violates the duty. However, the duty may not only proscribe undesirable conduct, but may require affirmative action as well. A party may thus be under a duty not only to refrain from hindering or preventing the occurrence of conditions of his own duty or the performance of the other party’s duty, but also to take some affirmative steps to cooperate in achieving these goals. Farnsworth, Contracts, §§ 7.17, 526-27 (1982).
Good faith is the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness. Restatement (Second) of Contracts §§ 205,100 (1979).

Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992).

¶ 29. In Bailey v. Bailey, 724 So.2d 335, 338 (Miss.1998), the court considered the definition of bad faith as “[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” The term “good faith” has even been said to be “a term which is not susceptible of precise definition and is generally determined on a case-by-case basis.” Joe Lee, Bankruptcy Service, Lawyers Edition Consultant § 34:398 (Rev.2003) (citing In re Lake States Commodities, Inc., 253 B.R. 866 (Bankr.N.D.Ill.2000)).

¶ 30. We reject Desai’s contention that the Commission was in error because it had failed to define “good faith,” pursuant to the Mississippi Administrative Procedures Act. Under any of the definitions cited above, there was substantial evidence to support the Commission’s finding that Desai failed to make a “good faith” effort to comply with the Act and its regulations, i.e., substantial compliance. Under the definition in Cenac, Desai’s conduct could be considered as “evasion” of his obligations under the Act or the failure to “take some affirmative steps to cooperate in achieving” the goals or purpose of the Act.

¶ 31. Indeed, the Legislature granted the Commission the authority, pursuant to the Act, to make such determination on a case-by-case basis. We do not reweigh the evidence; instead, we simply determine whether there was substantial evidence to support the decision. We cannot say that the Commission’s findings were in derogation of its duties under the Act.

¶ 32. Leak detection was clearly a core requirement of the Act. If an underground storage tank owner, such as Desai, is allowed to gain Trust Fund eligibility, without having performed the required leak detection monitoring or record keeping, then his and similar claims could threaten MDEQ’s ability to enforce leak detection compliance, would endanger human health and the environment, and would jeopardize the solvency of the Trust Fund. By affirming the chancellor here, we would penalize the underground storage tank owners who expend the necessary time, effort, and resources to comply with the imposed leak detection requirements.

¶ 33. We are of the opinion that the Commission’s finding that Desai failed to substantially comply with the Act, and related regulations, was in fact supported by substantial evidence.

III. Whether the Commission’s order was arbitrary or capricious?

¶ 34. The Mississippi Supreme Court adopted the following definitions of arbitrary and capricious:

The terms “arbitrary” and “capricious” are open-textured and not susceptible of precise definition or mechanical application. We find helpful meanings North Carolina has assigned in a not-dissimilar context:
“Arbitrary” means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone, — absolute in power, tyrannical, despotic, non-rational, — implying either a lack of understanding of or a disregard for the fundamental nature of things.
“Capricious” means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles....

McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992); Mississippi State Dept. of Health v. Southwest Mississippi Regional Medical Center, 580 So.2d 1238, 1240 (Miss.1991).

¶ 35. As discussed above, the Commission was authorized to determine whether owners of underground storage tanks were in “substantial compliance” with the regulations and whether the reimbursement was to be covered by the Trust Fund. Concluding that there was substantial evidence to support the Commission’s conclusion, we also find that the Commission’s order was neither arbitrary nor capricious.

TV. Whether the Commission’s order was beyond the power of the administrative agency to make?

¶36. Desai does not dispute that the Commission’s order was within its power and authority under the Act and applicable regulations. The Commission was vested with the authority to administer the Act and the Trust Fund.

IV. Whether the Commission’s order violated Desai’s statutory or constitutional rights?

¶ 37. The chancellor’s opinion and judgment ruled that the denial of Trust Fund eligibility to Desai denied him his rights to due process of the law and equal protection of the law, secured by the United States Constitution, including the Fifth and Fourteenth Amendments, and Section 14 of the Mississippi Constitution. The chancellor apparently determined that the Commission applied unwritten policies related to the failure to define the term “good faith,” in violation of the Mississippi Administrative Procedures Law.

¶ 38. As we discussed above, Desai again argues that the failure to reduce to writing its policies concerning its application of the “good faith” requirement of the Act and to promulgate them as regulations as required by the Administrative Procedures Law prohibits the Commission from deciding whether Desai was in substantial compliance. “Good faith” is a term of equity that is not defined in the Act or regulations. Nevertheless, consistent with the definition of substantial compliance found at Mississippi Code Annotated Section 49-17-403(q) (Rev.1999), the Commission determined that Desai did not make a good faith effort to comply with the Act and the underground storage tank regulations.

¶ 39. The Commission’s decision was reasonable and did not violate Desai’s statutory or constitutional rights. As detailed above, Desai’s actions, or lack thereof, supports the Commission’s finding. After De-sai purchased the station in 1993 until the release was reported in 1997, Desai admittedly never conducted leak detection monitoring or maintained record keeping, which are violations of Sections 280.34 and 280.40-45 of the Underground Storage Tank Regulations.

¶ 40. The Commission properly examined Desai’s case on its individual merits to determine whether the owner made a good faith effort to comply with the Act and the regulations. The Commission’s order did not violate Desai’s substantive due process rights, as the decision has a reasonable relation to a proper governmental purpose, which is compliance with leak detection monitoring and recording requirements for underground storage tank systems, and is not an arbitrary exercise of governmental power. Consistent with his procedural due process rights, Desai was allowed a full opportunity to present his case and supporting evidence to the Commission at the hearing held on October 22, 1998, but he did not convince the Commission that he made a good faith effort to comply with the act and the regulations pursuant to Mississippi Code Annotated Section 49 — 17—403(q).

¶41. We find that the Commission’s decision was supported by substantial evidence, was neither arbitrary nor capricious, was within its statutory mandate, and provided Desai with appropriate due process. Accordingly, the chancellor was in error by reversing the Commission’s order. The chancellor’s opinion and judgment is reversed. The order of the Mississippi Commission on Environmental Quality is hereby reinstated.

¶ 42. THE ORDER OF THE CHANCERY COURT OF MADISON COUNTY IS REVERSED. THE ORDER ENTERED BY THE MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . MDEQ also assigned error because the chancellor inappropriately executed and adopted the unsolicited proposed opinion submitted by Desai's counsel. MDEQ argues that the chancellor's opinion and judgment was executed so quickly after submission that MDEQ was not allowed an adequate opportunity to respond or submit its own proposed opinion. Because we reverse and render on other grounds and because the amendment to Rule 15 of the Mississippi Rules of Appellate Procedure provides an adequate procedure for any future similar unilateral action by an attorney, we decline to consider this assignment of error.


text:
    Perry Ray RICHARDSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01768-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.

      Tommy Wayne Defer, John D. Watson, David L. Walker, Batesville, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Perry Ray Richardson was convicted of two counts of shoplifting and was sentenced to two concurrent five year sentences in the custody of the Mississippi Department of Corrections and fined $1,000. Aggrieved, he asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING RICHARDSON’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE FOR A NEW TRIAL.

II. THE TRIAL COURT ERRED IN DENYING RICHARDSON’S PROPOSED JURY INSTRUCTION, D-4, A PEREMPTORY INSTRUCTION.

Finding no error, we affirm.

FACTS

¶ 2. On January 18, 2002, Officer George Murray was on bicycle patrol at the Home Depot parking lot in Horn Lake, Mississippi. Officer Murray noticed a black woman leaving the store in a hurry carrying a large white bag through a door which he knew did not have a checkout. The woman ran to a maroon car, which was driven by a black male. Officer Murray became immediately suspicious of the activity. As the car left rapidly, it almost hit Officer Murray. Murray radioed for help, giving a partial tag number and brief description of the car, and gave chase on his bicycle. Although he lost sight of the car briefly, Murray came upon the car parked outside of a Papa John’s Pizza restaurant and Blockbuster video rental store less than a half-mile from the Home Depot. The partial tag number matched and the white bag was still in the car, but the driver and passenger were gone. Other officers arrived on the scene and began to check the area behind the stores and inside the Papa John’s restaurant. One officer went into Blockbuster and found a jacket on the floor in the middle of the aisle. The officer questioned a black woman in the store, Erica Blevins, who initially told the officer that she had arrived in a green station wagon and knew nothing of the maroon car. An employee at Blockbuster told the officer that a man had entered the store in a hurry and had gone straight to the restroom. The officer knocked on the restroom door but received no response, although the toilet was flushed and the hand dryer ran alternately for several minutes. After a few minutes had passed and the hand dryer and toilet were run multiple times, Perry Ray Richardson emerged from the restroom. Richardson initially gave officers a false name and social security number and denied having arrived in the maroon car, claiming that his girlfriend had dropped him off. Richardson had no identification or money on him when he emerged from the restroom. Attempts to reach his girlfriend failed, and although the officers were at the store for an extended period of time, no one came to pick him up.

¶ 3. Meanwhile, officers continued to question the other people in the store, including Erica Blevins. Blevins changed her story to say that she had been dropped off in a cream colored Oldsmobile. Blevins was then identified by Officer Murray as the woman who ran out of the Home Depot carrying the white bag. Blevins then admitted to Detective Danielle McKenzie that she had been in the maroon car and that Richardson had been with her. In a later written statement, Blevins described how “a man” whom she had orally identified as Richardson, had driven her to Home Depot and told her to steal certain items and to exit a certain door. Officers retrieved the .white bag from the maroon car and found Home Depot merchandise but no receipt. The merchandise was returned to Home Depot where a store employee determined the value of the stolen goods to be $470 before tax.

¶ 4. Richardson and Blevins were indicted for conspiracy to commit felony shoplifting and felony shoplifting. The State amended the indictment on August 29, 2002, to charge Richardson as a habitual offender. At trial, Officer Murray testified regarding the initial events at the Home Depot and positively identified Richardson as the driver of the maroon car. Murray testified that he was able to view the car for approximately a minute and a half and that he got a good look at the driver as the car almost ran over him as it left the parking lot. Officer Murray’s report did not mention his identification of the driver of the car and he admitted that he did not see- who exited the car because he lost sight of it briefly.

¶ 5. Several other officers testified for the State regarding the events at the Blockbuster, including finding Richardson in the bathroom. Detective Danielle McKenzie testified that no fingerprints were taken at the scene. McKenzie testified that Officer Murray advised her that he could identify Richardson as the driver of the car, but this did not appear in McKenzie’s report. McKenzie testified that Blevins indicated. Richardson was the driver of the car, although Blevins’ statement did not identify him by name. A Home Depot employee testified regarding the value of the merchandise found in the white bag and for which no receipt was ever produced.

¶ 6. The State rested its case in chief and Richardson moved for a directed verdict of acquittal, arguing that the State had failed to meet its required burden of proof. The trial court denied Richardson’s motion and Richardson presented his case. Richardson’s fiancée, Lakeica Gross, testified on his behalf. Gross testified that she and Richardson had traveled from Memphis to DeSoto County in order to do some shopping. On the way she filled out an application at a liquor store which was dated on January 18, 2002, the day of the shoplifting at the Home Depot. The application was not completed, however, and did not contain any information to prove where it had come from or that it was actually filled out on that date.

¶ 7. Gross testified that she had dropped Richardson off at the Blockbuster in order to obtain a Blockbuster card. She went and did some shopping at Super K-mart and when she'returned he was not there. Gross testified on cross-examination that she had dropped Richardson off at the Blockbuster near the Super K-mart on State Line Road. The State pointed out in closing arguments that this was not the Blockbuster where Richardson was found by the officers. The officers’ testimony was that Blevins and Richardson were found at the Blockbuster on Goodman Road, less than a mile away from the Home Depot.

. ¶ 8. Erica Blevins also testified for the defense. Blevins pled guilty to shoplifting and by the time of trial had recanted her prior statement. Blevins testified that she owned the maroon car and that she and her' boyfriend, Terrence Morning, had shoplifted at Home Depot and attempted to evade the police. Blevins testified that she wenb inside Blockbuster and Morning ran around the back of the building. Blevins stated that she did not know Richardson nor his family.. On cross, Blevins was asked if she had' received a ride from Richardson’s brother to the courthouse, she admitted only to walking in with him and testified that she had just met him outside the courthouse.

¶ 9. At the conclusion of Richardson’s case, the trial court denied Richardson’s proposed peremptory instruction asking the court to instruct the jury to return a verdict of not guilty. After deliberating, the.jury returned a unanimous verdict of guilty on both counts. Richardson was sentenced to five years on each count to run concurrently and fined $1,000 on each count.

ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING RICHARDSON’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE FOR A NEW TRIAL?

II. DID THE TRIAL COURT ERR IN DENYING RICHARDSON’S PROPOSED JURY INSTRUCTION, D-4, A PEREMPTORY INSTRUCTION?

¶ 10. Richardson asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict or in the alternative for a new trial. Also, Richardson argues that the trial court erred in denying his peremptory instruction. According to Richardson, the sufficiency of the evidence did not support the verdict. In the alternative, Richardson argues that the jury verdict was against the overwhelming weight of the evidence.

¶ 11. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 12. A motion for new trial challenges the weight of the evidence. McClain, 625 So.2d at 781. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Collins, 757 So.2d at 337(¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 13. The evidence presented by the State included testimony from several officers regarding the events after the shoplifting at Home Depot, including an in-eourt identification of Richardson as the driver of the maroon car by Officer Murray. Richardson put two witnesses on the stand in his defense. His fiancé testified that she dropped Richardson off at a Blockbuster, but she testified to a different location than the Blockbuster at which Richardson was found. Erica Blevins recanted her earlier statements which led the officers to believe Richardson was her accomplice, testifying instead that her boyfriend drove the car. Blevins also testified that she had never met Richardson and had never even seen him until the day before trial. It would appear difficult for her not to have noticed him in the Blockbuster on the day in question at a minimum. It is, however, the jury’s duty to resolve conflicts in testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 14. Although the State could have presented more evidence against Richardson, the evidence was sufficient that a reasonable and fair minded juror could find him guilty of conspiracy to commit and committing felony shoplifting. Giving the benefit of all favorable inferences that may reasonably be drawn from the evidence to the State and accepting as true the evidence which supports the verdict, the trial court’s denial of Richardson’s motion for a new trial was not an abuse of discretion. Richardson’s assignments of error are without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT FELONY SHOPLIFTING AND SENTENCE OF FIVE YEARS, AND COUNT II, FELONY SHOPLIFTING AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONCURRENTLY TO THE SENTENCE IMPOSED IN COUNT I, AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    Gloria MARSH, Appellant, v. Davis Gene MARSH, Appellee.
    No. 2003-CA-00355-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.

      William L. Bambach, Columbus, attorney for appellant.
    Mark G. Williamson, Starkville, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Gloria Marsh appeals the property settlement and alimony portions of the judgment of divorce entered by the Chancery Court of Oktibbeha County. Gloria assigns as error the following.

I. THE LOWER COURT ERRED IN ITS DISTRIBUTION OF MARITAL ASSETS BY NOT PROPERLY CONSIDERING SEVERAL FACTORS.

II. THE LOWER COURT ERRED IN NOT AWARDING GLORIA MARSH ALIMONY.

¶ 2. After review, we find no error by the chancellor and therefore affirm the judgment as rendered.

FACTS

¶ 3. Gloria and Davis Gene Marsh (Gene) were married in 1966. Two children were born of the marriage, Chad and Leslie, both now adults. Gene, aged sixty, has worked for Eagle Family Foods, Inc. since 1969. At the time of the divorce hearing, he was a plant manager earning a gross salary of $56,700 per year. Gloria, aged fifty-five, is a registered nurse, with an extensive work history in healthcare, including ownership of a personal care homes business from 1989 to February 2002. Gene contributed to the growth of the business by acting as general maintenance and handyman on a regular basis. In February 2002, Gloria pled guilty to the misdemeanor crime of abuse of a vulnerable adult, surrendered her license to operate personal care homes as part of a plea agreement and the business was closed.

¶ 4. During the course of the marriage, the Marshes acquired six parcels of residential real property. Three parcels were used as Gloria’s personal care homes. One of these parcels was titled exclusively in Gloria’s name, the remaining two were jointly titled with Gene. A fourth property was used as an office. The fifth property constituted the marital home. The sixth parcel, a house and land located in Lowndes County, was titled: Gene held a one-quarter interest, Gloria held a one-half interest, and their daughter, Leslie, held a one-quarter interest.

¶ 5. Gloria filed a petition for divorce in December 2001, claiming habitual cruel and inhuman treatment and desertion as grounds. Gene filed a counter-complaint alleging habitual cruel and inhuman treatment. Both petitions sought divorce for irreconcilable differences as an alternative to the stated grounds. Three days before filing her petition, Gloria cashed out jointly held certificates of deposit, individual retirement accounts and a bank account totaling $64,550.51. Gloria also had in her possession approximately $70,000 in cash, kept in a strong box in the home. This cash was allegedly acquired by Gloria by keeping several of her patients “off the books,” cashing the monthly checks for their care and keeping the funds for herself.

¶ 6. On January 29, 2002, an agreed order was entered in chancery court which froze the assets of the parties until a hearing on the divorce was had. A little over two weeks later, Gloria held a yard sale, selling the contents of the houses used in her business. Gloria also sold a Jeep Cherokee, locked two other vehicles in the garage of her aunt and placed one of the pieces of real property for sale. The lock box holding the $70,000 in cash was removed from the marital home. Gene sold a tractor and bush hog for approximately $14,000 although the exact date of this sale is uncertain.

¶ 7. On February 28, 2002, Gene sought a preliminary injunction to halt Gloria’s sale of marital property in violation of the agreed order. The chancellor granted the motion and ordered an inventory and accounting of all assets, including those which had been disposed of already by either party. Gloria never fully complied with the inventory and accounting order; she never disclosed the disposition of the funds in the strong box nor did she account for the property sold at the yard sale or sale of the Jeep. In September 2002, Gene filed a petition for contempt against Gloria for her failures to comply with the various court orders.

¶ 8. The chancery court entered an agreed order for a divorce based upon irreconcilable differences on September 11, 2002, reserving for hearing all financial matters. The hearing took place that same day as well as the following day and Chancellor James Gore entered judgment on November 15, 2002. In that order, the chancellor granted Gloria assets with a net value of approximately $571,775.25. This consisted of the marital home and its contents, jewelry, a vehicle, sole ownership of one of the properties used in the nursing home business and half interest in another, one half of the contents of the strong box containing $70,000 in cash, one half of the amount of the CDs, IRAs and checking accounts she cashed out prior to filing the divorce petition, and one half of the proceeds she received from selling the contents of the nursing home properties and the Jeep Cherokee which the chancellor together valued at $65,000. Gloria was also ordered to assume marital debt of $90,590.49.

¶ 9. Gene received net assets valued at approximately $260,147.98. This included the three-quarter interest in the Lowndes County property and its contents, one of the personal care home properties, the property used as an office, a 1988 Jeep Wrangler, two boats, an all-terrain vehicle, proceeds of the sale of the tractor and bush hog, one half of the contents of the lock box, one half of the bank funds withdrawn by Gloria, a truck, gas grill, tools, a bedroom suite, knife collection and his retirement account. Gene was also assigned marital debt of $21,547.81.

ANALYSIS

1. Equitable distribution

¶ 10. Gloria does not make any specific claim or coherent argument for her assertion that the distribution of marital assets was unjust. She appears to be arguing the chancellor erred in the factual findings leading to the division of assets made as described above. Gloria states that the chancellor erred in finding her a healthy woman capable of employment, that due to the surrender of her personal care home license she is incapable of resuming her career, and that failing to allot a portion of Gene’s retirement fund was unjust in the extreme.

¶ 11. Mississippi is an equitable distribution state. Owen v. Owen, 798 So.2d 894, 399 (¶ 14) (Miss.2001). The division of marital assets is a matter of discretion for the chancellor, bearing in mind the equities of the circumstances and the relevant facts and considerations. Davis v. Davis, 638 So.2d 1288, 1293 (Miss.1994). The factors that must be considered, the Ferguson factors, are familiar and well-known to the courts of this State. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 12. The chancellor did address and make findings of fact for each of these points in making the distribution of marital assets and we find no abuse of discretion in those findings. The testimony and financial records submitted by the parties support them. It was found that Gloria had disposed of marital assets but the contents of the marital home had greater sentimental value for her than they did for Gene. Both parties were found to be in good health with the capacity to earn a living.

¶ 13. Gloria submitted no evidence of ill-health other than a single statement during her testimony. As of the date of trial, she is a licensed registered nurse with the ability to earn a living even had she not been given the majority of the marital assets. The chancellor noted that he included Gene’s accrued pension as marital property but awarded it to him in full. Gene is not entitled to receive these funds until he retires. Awarding a portion of it to Gloria would entangle this couple for the foreseeable future, an outcome not in keeping with the goal of finalizing the division of assets and the legal relationship of the parties where possible. Id. at 929. Gloria was awarded the bulk of the marital property and only a small portion of the debt, an indicator the chancellor did consider her substantial contributions to the marriage. We find no error in this distribution.

2. Alimony

¶ 14. Gloria next argues she should have been awarded alimony and failure to do so was unjust. She argues her inability to obtain employment will prevent her from living in the manner to which she is accustomed, her health is poor, Gene’s needs and obligations are considerably less than her own and Gene wasted assets throughout the thirty-six marriage.

¶ 15. There are several factors that must be considered in determining the propriety of an alimony award:

(1) the income and expenses of the parties;
(2) the health and earning capacity of the parties;
(3) the needs of each party;
(4) the obligations and assets of each party;
(5) the length of the marriage;
(6) the presence or absence of minor children in the home;
(7) the age of the parties;
(8) the standard of living of the parties;
(9) the tax consequences of spousal support;
(10) fault or misconduct;
(11) wasteful dissipation of assets;
(12) any other factor bearing on justness and equity.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 16. Alimony awards are left to the discretion of the chancellor. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992). We will not disturb the chancellor’s decision unless it is against the overwhelming weight of the evidence or manifestly in error. Id. Where the division of marital assets in conjunction with nonmarital assets will adequately provide for a party, alimony need not be awarded. Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994).

¶ 17. The chancellor did not make specific findings of fact in this section of the judgment. However, many of these factors are congruent with the factors to be considered in making an equitable distribution of marital assets and these were thoroughly discussed in that section. When comparing the factors with the facts of the case, the decision not to award alimony is neither against the overwhelming weight of the evidence nor is it manifestly erroneous.

¶ 18. In awarding Gloria more than two-thirds of the marital estate, the chancellor clearly recognized her contributions to the financial well-being of the marriage. The chancellor also noted that Gloria was soon expecting the benefit of an inheritance of approximately $75,000 in cash and property. The great majority of the assets awarded Gloria are unencumbered while most of the property awarded Gene hold mortgages. Gloria has at her disposal over $600,000 in assets with which to support herself. Gene has under half that amount. On these facts we do not find the chancellor’s decision erroneous.

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

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

      . The values assigned are approximate and do not precisely match those cited by the parties in their briefs. The amounts were reached by computation of the values assigned to each piece of property by the chancellor. The amounts are not exact as the value of some items, such as the tools, bedroom set and grill given to Gene, were never recited by the chancellor.