author: SMITH, Chief Justice,

text:
    George PAZ and Joseph P. Harris, et al. v. BRUSH ENGINEERED MATERIALS, INC., Brush Wellman, Inc., Wess-Del, Inc. and The Boeing Company.
    No. 2006-FC-00771-SCT.
    Supreme Court of Mississippi.
    Jan. 4, 2007.
    Rehearing Denied March 1, 2007.

      Ruben Honik, Stephan Matanovic,- Robert C. Latham, Natchez, Randall A. Smith, Stephan M. Wiles, attorneys for appellants.
    Jeffrey D. Ubersax, Paul H. Stephenson, III, Roy D. Campbell, III, Jackson, Vernon Lee Woolston, Timothy Dale Crawley, Ridgeland, attorneys for appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. Before the Court is a certified question of Mississippi law from the United States Court of Appeals for the Fifth Circuit. See M.R.A.P. 20. Class action plaintiffs have sued defendant corporations for medical monitoring costs for detection of disease development due to beryllium exposure allegedly caused by the negligence of the defendants. The United States District Court for the Southern District of Mississippi granted the defendants’ motions to dismiss, finding a failure to state a cause of action with regards to plaintiffs’ medical monitoring claim and a lack of personal jurisdiction over two of the defendants. Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580 (S.D.Miss. 2005) (reversed in part and question certified by Paz v. Brush Engineered Materials, Inc., 445 F.3d 809 (5th Cir.2006)). Plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit, and finding that Mississippi law was silent as to the recognition of medical monitoring actions, the Fifth Circuit posed the question to this Court of “[wjhether the laws of Mississippi allow for a medical monitoring cause of action, whereby a plaintiff can recover medical monitoring costs for exposure to a harmful substance without proving current physical injuries from that exposure?” Paz, 445 F.3d at 815.

¶ 2. Plaintiffs, current or previous employees of the John C. Stennis Space Center in Mississippi (Stennis Center) and Ca-noga Park facility in California (Canoga Park), as well as their family members, sued four corporations. First, Boeing Company is the operator of the Stennis and Canoga Park facilities. Also defending the suit are Brush Engineered Materials, Inc. (BEMI) and its subsidiary Brush Wellman, Inc. (Brush), both of which sold beryllium products used at the Stennis Space Center and Canoga Park facilities to Boeing. Lastly, Wess-Del Inc. is the fabricator of beryllium goods which machined, assembled, fabricated and distributed beryllium-containing goods for use at the Stennis Center.

¶ 3. Plaintiffs claim exposure to beryllium due to the alleged negligence of defendants and seek to recover medical monitoring costs in order to stay abreast of their possible development of Chronic Beryllium Disease, typically a latent disease which impairs the lungs and often causes death. Plaintiffs seek an injunction requiring the defendants to fund a court-supervised medical monitoring program. None of the plaintiffs has suffered physical injury from the alleged exposure.

¶4. Plaintiffs appeal from the January 11, 2005, order of the United States District Court for the Southern District of Mississippi granting the Defendants’ Motions to Dismiss. One of two grounds for Defendants’ motions was failure to state a claim because Mississippi does not recognize a medical monitoring cause of action, and the Fifth Circuit requests that this Court decide that issue. Paz, 445 F.3d at 815. The parties’ collective assertions for review can be consolidated into three issues:

I. The State of Common Law Regarding the Recognition of a Medical Monitoring Cause of Action Which Allows Recovery Without a Showing of Physical Damage.

II. The Use of Policy Considerations in Determining Whether to Recognize a Medical Monitoring Cause of Action.

III. The Authority of this Court to Create a Medical Monitoring Cause of Action.

DISCUSSION

I. The State of Common Law Regarding the Recognition of a Medical Monitoring Cause of Action Which Allows Recovery Without a Showing of Physical Damage

Mississippi Law

¶ 5. Plaintiffs contend that recognition of a medical monitoring action is in accordance with Mississippi law; however, the decisions of this Court do not support that contention. “To prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury.” Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 922 (Miss. 2006). Creating a medical monitoring action would be contrary to Mississippi common law, which does not allow recovery for negligence without showing an identifiable injury, and, further, strongly indicates that a claim for medical monitoring, as Plaintiffs present it, lacks an injury.

¶ 6. Plaintiffs claim they should be able to recover damages in the form of medical monitoring costs solely on the basis that they have been exposed to harmful levels of beryllium and are in danger of suffering from latent diseases. Plaintiffs cite Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648 (Miss.1995), an emotional distress case, for the proposition that Mississippi previously recognized a similar tort cause of action without present physical injury. Defendants contend that Ferguson, in fact, requires an actual, present injury.

¶ 7. As it pertains here, the law supports Defendants. In Ferguson, this Court held that proof of an injury is required in negligence cases. Id. at 650, 657-58. In Ferguson the Court listed two circumstances under which recovery for emotional distress without physical injury is allowed. Both require the presence of an injury, with the only distinction being the additional element of proof required.

¶ 8. The first involves a claim of outrageous conduct. “[Wjhere there is something about the defendant’s conduct which evokes outrage or revulsion, done intentionally—or even unintentionally yet the results being foreseeable—Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury.” Id. at 658. “In such instances, it is the nature of the act itself— as opposed to the seriousness of the consequences—which gives impetus to legal redress. Id.

¶ 9. The first instance does not lack an injury requirement but recognizes that “injury” is not restricted to physical injury, also encompassing mental and emotional injuries as compensable. Some “consequence” of the defendants’ actions must be shown; however, in cases of outrageous conduct the primary consideration for redress is not the consequence, i.e., the injury, but, rather, an additional element of proof, the defendant’s outrageous conduct. Accordingly, recovery in emotional distress cases is possible without a physical injury. Beyond evidence of emotional distress, which is the injury, the plaintiff must show that the defendant’s conduct was willful, wanton, malicious, outrageous or intentional. Adams v. U.S. Homecrafters, Inc. 744 So.2d 736, 743 (Miss.1999); Sears, Roebuck & Co. v. Devers, 405 So.2d 898, 902 (Miss. 1981). Here, the Plaintiffs’ pleadings and briefs lack allegations or arguments suggesting willful, wanton, malicious, outrageous or intentional conduct by defendants, thereby eliminating this category and leaving for analysis the second instance in which recovery is allowed for emotional distress without physical injury.

¶ 10. In the second instance, tort recovery is allowed “[e]ven in the absence of physical injury accompanying the negligent conduct, if there is a resulting physical illness or assault upon the mind, personality or nervous system of the plaintiff which is medically cognizable and which requires or necessitates treatment by the medical profession.” Ferguson, 662 So.2d at 658. The test of reasonable foreseeability must also be met. Id.

¶ 11. Presenting no allegations of outrageous conduct, this case involves a claim of simple negligence as in this second instance. Again, though no physical injury is required, the person claiming emotional distress must prove that he has incurred a mental or emotional injury. The additional proof in this instance beyond showing an injury is that the injury is medically cognizable and treatable. In such a case of ordinary negligence a plaintiff may not recover damages for emotional distress without showing a physical manifestation of injury or demonstrable harm. See Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1211 (Miss.2000) (holding that where there is ordinary negligence, there must be demonstrative harm); Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 65 (Miss.2004) (same); Ill. Cent. R.R. v. Hawkins, 880 So.2d 1162, 1174 (Miss.2002) (same); Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1209 (Miss.2001) (same).

¶ 12. Ferguson does not, as Plaintiffs suggest, lead to the logical inference that this Court would recognize a medical monitoring action, whereby the plaintiffs need not show an injury. Similarly, as for the conclusion in Ferguson, this Court reversed the trial court award of damages for emotional distress allegedly caused by a fear of future illness since manifestation of physical illness or scientific support for the emotional injury is required before recovery is allowed. 662 So.2d at 650. Further, as noted in Ferguson, “this Court has never allowed or affirmed a claim of emotional distress based [solely] on a fear of contracting a disease or illness in the future, however reasonable.” Id. at 658.

¶ 13. Though plaintiffs analogize emotional distress actions to medical monitoring actions, the two claims are not analogous. One element of an emotional distress action is that the victim have suffered some injury. Hawkins, 830 So.2d at 1174. Yet, a medical monitoring cause of action, as Plaintiffs present it, would not require an injury be proven. Thus, this Court rejects the argument that emotional distress decisions from this Court establish a legal foundation for the creation of a medical monitoring action, without requiring proof.

¶ 14. Likewise, Mississippi law does not recognize a claim for medical monitoring based on increased risk of future disease. In Anglado v. Leaf River Forest Products, Inc., 716 So.2d 543, 546 (Miss.1998), during the trial court determination of whether to grant summary judgment for the defendants on the plaintiffs’ claims of increased risk of future disease and medical monitoring, this Court decided Ferguson. As a result, plaintiffs conceded that Ferguson foreclosed recovery for those claims, and the trial court granted summary judgment on the plaintiffs’ personal injury claims, dismissing them with prejudice. Id. This Court affirmed that judgment. Id. at 549.

¶ 15. The possibility of a future injury is insufficient to maintain a tort claim. Recognizing a medical monitoring cause of action would be akin to recognizing a cause of action for fear of future illness. Each bases a claim for damages on the possibility of incurring an illness with no present manifest injury. There is no tort cause of action in Mississippi without some identifiable injury, either physical or emotional. Thus, this Court has held that “it is clear that Mississippi does not recognize a cause of action for fear of possibly contracting a disease at some point in the future.” Brewton v. Reichhold Chemicals, Inc., 707 So.2d 618, 620 (Miss. 1998) (citing Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 451 (Miss. 1997); Ferguson, 662 So.2d at 658 (for the same proposition)).

¶ 16. Further, the determination of whether Mississippi can recognize a medical monitoring action hinges on whether the purported cause of action includes a compensable injury. The United States Supreme Court has held that “[a]n exposed plaintiff can recover related reasonable medical monitoring costs [as an element of damages] if and when he develops symptoms.” (Emphasis added). Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 432, 117 S.Ct. 2113, 138 L.Ed.2d 560- (1997). This Court has held that exposure to a dangerous substance is not an injury. Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 705-09 (Miss.1990). Exposure to a potentially harmful substance does not in itself constitute a personal injury. Id. “Persons who allege only exposure are asking for a remedy without a wrong.” Schiro v. Am. Tobacco Co., 611 So.2d 962, 965 (Miss.1992). Therefore, plaintiffs have a claim for harm which is not compensable under Mississippi law. Accordingly, it would be contrary to current Mississippi law to recognize a claim for medical monitoring allowing a plaintiff to recover medical monitoring costs for mere exposure to a harmful substance without proof of current physical or emotional injury from that exposure.

Other States

¶ 17. The United States Supreme Court has examined the common law for the allowance of recovery for negligently caused exposure by a plaintiff who has yet to suffer from a disease. Buckley, 521 U.S. at 432, 117 S.Ct. 2113 (holding that an employee could not recover damages and medical monitoring costs under the Federal Employers’ Liability Act unless or until he manifested symptoms of a disease). The Court found that with few exceptions, “common law courts have denied recovery to those who are disease and symptom free.” Id. The Court concluded that to recognize medical monitoring costs alone as a separate injury is to go “beyond the bounds of currently evolving common law.” Id. at 439, 117 S.Ct. 2113. Accordingly, as plaintiffs invite this Court to recognize a medical monitoring cause of action, an act which would require an unprecedented and unfounded departure from the long-standing traditional elements of a tort action, this Court declines that invitation.

¶ 18. Plaintiffs argue that because a majority of states recognize a medical monitoring cause of action, this Court should as well. In support of their contention that the majority of states recognize medical monitoring actions, plaintiffs cite seven states as having actually recognized the cause of action and five as having predicted such a cause of action. Defendants counter with seventeen cases illustrative of the refusal of various states to recognize a medical monitoring cause of action. This is obviously an issue of divided authority among our sister states.

¶ 19. Plaintiffs overestimate the persuasiveness of other states’ decisions on this Court. The extent of the usefulness of the citations provided by both parties is the establishment of the existence of a conflict among jurisdictions over this matter, as is the case concerning numerous other issues. This Court is not bound by the decisions of courts of other jurisdictions on similar questions. Griffith v. Gulf Ref. Co., 215 Miss. 15, 36-37, 61 So.2d 306, 307 (1952). While the Court may utilize these decisions as persuasive authority if it finds them well-reasoned, the decisions are not binding, and this Court is at perfect liberty to disregard them. Id.

¶ 20. This Court need not survey other states to reach a conclusion on this matter. Likewise, this Court is not persuaded by Plaintiffs’ mention of the Department of Energy’s practice of requiring medical monitoring costs for its employees as a condition of all of its contracts with beryllium fabricators. See 10 C.F.R. §§ 850, et seq. Considering Mississippi law, this Court finds that as Mississippi requires the traditional elements of proof in a tort action, it has refused to recognize a category of potential illness actions, which would include medical monitoring actions. Therefore, this Court preserves the requirement of each of the traditional tort elements and declines to recognize medical monitoring as a cause of action.

II. The Use of Policy Considerations in Determining Whether to Recognize a Medical Monitoring Cause of Action

¶ 21. Plaintiffs assert policy considerations that favor recognizing a right to recover medical monitoring costs without a showing of present physical injury, including a: (1) public health interest in encouraging and fostering access to early medical testing for those exposed to hazardous substances, (2) possible economic savings realized by the early detection and treatment of the disease; (3) deterrence of tortfeasors; and (4) avoidance of the injustice of burdening an economically disadvantaged person with expensive treatment needed due to another’s negligence. Defendants claim that it is improper for this Court to consider policy in determining whether to recognize a new cause of action. However, in Buckley the United States Supreme Court also reviewed policy considerations, including a potential floodgate of trivial litigation and the resultant delay and decrease in remedy for those with manifested illnesses as well as the extra burden on consumers resultant from virtually unlimited liability. 521 U.S. at 432-38,117 S.Ct. 2113.

¶22. In developing the common law, courts may evaluate policy considerations. In Buckley, the United States Supreme Court responded to a policy consideration raised by the plaintiff in favor of recognizing a medical monitoring action by stating “here the relevant question concerns not simply recovery in an individual case, but the consequences and effects of a rule of law that would permit recovery.” 521 U.S. at 438, 117 S.Ct. 2113. The Court noted that, if allowing plaintiff to recover without showing an injury provided benefits in some individual cases but would comprehensively cause more harm than good, the Court may factor that consideration into its decision to refuse to allow the recovery. Id. The Court in Buckley decided that it need not engage in weighing the factors, and likewise, this Court need not balance the harms in order to reach a result but merely notes in response to defendants’ assertion that it may indeed factor policy considerations into its decision whether to recognize a new cause of action.

III. The Authority of this Court to Create a Medical Monitoring Cause of Action.

¶ 23. Defendants also argue that the creation of a new cause of action is an improper task for this Court but, instead, proper only for the Legislature. Defendants cite statements in Gunter v. Gray, 876 So.2d 315, 317 (Miss.2004), and Mauldin v. Branch, 866 So.2d 429, 435 (Miss. 2003), to support the proposition that only the state legislature can create law and decide when a law should be created. As this proposition and the cases given in support are irrelevant here and contrary to law, we should reject Defendants’ proposition.

¶ 24. In each of these cases this Court’s decision was subject to a statute which clearly and directly regulated the disputes. Gunter, a domestic case, involved a dispute over termination of parental rights, which was governed by a specific statute. 876 So.2d at 317. Therefore, the Court found that it must defer to the legislature as its decision was dictated by the statute. Similarly, in Mauldin, the Court held that congressional redistricting must be left to the legislature as that is specifically what the pertinent statute requires. 866 So.2d at 435. That is not the case here. There is no statute concerning medical monitoring or the allowance of tort recovery on the grounds of fear of a future illness. This is the type of case in which the Court has held that the common law is malleable, particularly so in the area of torts, and thus this Court can create and discontinue torts in common law. See Saunders v. Alford, 607 So.2d 1214, 1219 (Miss.1992) (holding that the Mississippi Supreme Court created the tort of criminal conversation and had the authority to decide to end recognition of that tort in Mississippi).

CONCLUSION

¶25. This Court has continuously rejected the proposition that within tort law there exists a cause of action or a general category of injury consisting solely of potential future injury. Therefore, in response to the question from the Fifth Circuit as to whether Mississippi recognizes a medical monitoring cause of action without a showing of physical injury this Court has previously refused to recognize such an action and in accordance with Mississippi common law continues to decline to recognize such a cause of action.

¶ 26. CERTIFIED QUESTION ANSWERED.

WALLER AND COBB, P JJ., CARLSON AND DICKINSON, JJ., CONCUR. DIAZ, EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., NOT PARTICIPATING.

      . Plaintiffs assert four causes of action—medical monitoring, product liability, negligence, and breach of warranty, and within the negligence claim request medical monitoring damages, further suggesting that plaintiffs based their claims on negligent, as opposed to intentional, acts.

      . Although the focus of the rejection of the plaintiffs' claim was that the request for a lump sum payment of the costs plaintiffs claimed for medical monitoring, the Court specifically addressed the issue of the plaintiff's apparent claim “that medical monitoring costs themselves represent a separate negligently caused economic ‘injury.’ ’’ Buckley, 521 U.S. at 439-40, 117 S.Ct. 2113.

      . See Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28, 33-34 (Ct.App.1987) (holding that awards of surveillance costs to monitor the effects of hazardous chemical exposure are allowed in the absence of physical injury); Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 822-23 (1993) (en banc) (same); Petito v. A.H. Robins, 750 So.2d 103, 106-07 (Fla.Ct. App.2000) (same); Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287, 314 (1987) (same); Redland Soccer Club, Inc. v. Dep’t of the Army, 548 Pa. 178, 696 A.2d 137, 145 (1997) (same); Hansen v. Mountain Fuel Supply, 858 P.2d 970, 979-81 (Utah 1993) (Same); Bower v. Westinghouse, 206 W.Va. 133, 522 S.E.2d 424, 429-30 (1999) (same).

      . See, e.g., In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir.1990) (concluding that the Pennsylvania Supreme Court would recognize a medical monitoring action without a showing of physical injury); Martin v. Shell, 180 F.Supp.2d 313, 323 (D.Conn.2002) (noting a citation by Connecticut Supreme Court indicating that it would uphold a medical monitoring action without requiring physical injury); Carey v. Kerr-McGee Chem. Corp., 999 F.Supp. 1109, 1119 (N.D.Ill.1998) (concluding that the Illinois Supreme Court would uphold a claim for medical monitoring without requiring plaintiffs to show actual, present injury); Bocook v. Ashland Oil, Inc., 819 F.Supp. 530, 537-38 (S.D.W.Va.1993) (concluding that Kentucky law would recognize a medical monitoring action without requiring injury); Cook v. Rockwell Int’l Corp., 755 F.Supp. 1468, 1476-77 (D.Colo.1991) (concluding that the Colorado Supreme Court would probably recognize a medical monitoring cause of action without requiring physical injury).

      . See Parker v. Brush Wellman, Inc., 377 F.Supp.2d 1290, 1296, 1302 (N.D.Ga.2005) (concluding that the Georgia Supreme Court does not recognize a medical monitoring action without the showing of an injury); Jones v. Brush Wellman Inc., No. 1:00 CV 0777, 2000 WL 33727733, *8, 2000 U.S. Dist. LEXIS 21897, *23 (N.D.Ohio Sept. 13, 2000) (concluding that Tennessee law does not recognize a medical monitoring action absent a present injury); Hinton v. Monsanto Co., 813 So.2d 827, 830-32 (Ala.2001) (holding that Alabama law does not recognize a medical monitoring action absent a present injury); Wood v. Wyeth-Ayerst Labs., 82 S.W.3d 849, 852-56 (Ky.2002) (holding that Kentucky law does not recognize a medical monitoring cause of action absent present injury); Henry v. Dow Chem. Co., 473 Mich. 63, 701 N.W.2d 684, 686 (2005) (holding that Michigan law does not recognize a medical monitoring action absent present injury); Badillo v. American Brands, Inc., 117 Nev. 34, 16 P.3d 435, 440-41 (2001) (holding that Nevada law does not recognize a medical monitoring cause of action absent a present injury); Lowe v. Philip Morris USA, Inc., 142 P.3d 1079, 207 Or.App. 532, 556-57 (Or.Ct.App.2006) (holding that Oregon law does not permit recovery for a medical monitoring action without physical injury). See also Trimble v. Asarco Inc., 232 F.3d 946, 962-63 (8th Cir.2000) (rejecting medical monitoring claim absent present injury on the basis that Nebraska does not recognize such an action); Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir.1991) (holding that West Virginia does not recognize recovery of medical monitoring costs absent physical injury); Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 607-09 (W.D.Wash. 2001) (concluding that it would be contrary to Washington law to recognize a medical monitoring action absent accompanying present injury); Thompson v. Am. Tobacco Co., Inc., 189 F.R.D. 544, 552 (D.Minn.1999) (declining to recognize a medical monitoring action); Thomas v. PAG Bearings Corp., 846 F.Supp. 1400, 1410 (W.D.Mo.1994) (inferring that Missouri law would not recognize a medical monitoring action absent proof of damages in the form of an injury); Carroll v. Litton Sys. Inc., No. B-C-88-253, 1990 WL 312969, at *51, 1990 U.S. Dist. LEXIS 16833, at *149-50 (W.D.N.C. Oct. 29, 1990) (concluding that the Supreme Court of North Carolina would not recognize a medical monitoring action); Purjet v. Hess Oil Virgin Islands Corp., 22 V.I. 147, 153-54, 1986 WL 1200 (D.V.I. Jan. 8, 1986) (holding that to recognize a medical monitoring action would be contrary to the law governing the Virgin Islands); Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647, 651 (Del. 1984) (holding that Delaware law does not recognize a medical monitoring cause of action without a present injury).


source: Caselaw Access Project

author: DIAZ, Justice,

license: Public Domain

text:
    James M. BIGLANE and Nancy K. Biglane v. UNDER THE HILL CORPORATION.
    No. 2005-CA-01751-SCT.
    Supreme Court of Mississippi.
    Feb. 8, 2007.

      John G. Corlew, Virginia T. Munford, Jackson, Bruce M. Kuehnle, Jr., Philip Elmer Carby, Natchez, attorneys for appellants.
    T. Mack Brabham, McComb, attorney for appellee.
    Before WALLER, P.J., DIAZ and DICKINSON, JJ.
   DIAZ, Justice,

for the Court.

¶ 1. In this case we are asked two questions. First, was the noise coming from a local saloon such that it constituted a private nuisance to the residents of an apartment next door? Second, were the actions of the neighbor of the saloon a tortious interference with business relations? After a review of the case, we conclude there was a nuisance, but no tortious interference with business relations.

FACTS

¶ 2. “No spot on the American continent ever bore a viler name” wrote one historian about the section of Natchez that was closest to the mighty Mississippi River. Edith Wyatt Moore, Natchez Under-The-Hill 7 (1958). The spot gained its name from the bluffs of loess which the river carved through easily, creating an “upper” Natchez and the one called “under-the-Hill.” “Early travelers described it variously as a gambler’s paradise, a sink-hole of iniquity and a resort of the damned,” likely because “legitimate business houses and firms lined the streets but ... were far outnumbered by gambling dens, saloons, houses of ill repute,” not to mention the presence of pirates and slave-traders— or the possibility that the rule of code duello might be invoked at any time. Id. at 7-9.

¶ 3. “For the size of it, there is not, perhaps in the world, a more profligate place,” said one visitor, while another called it “hell on earth, with bells attached.” David G. Sansing, Natchez: An Illustrated History 65 (1992). At one point “[s]treet brawling in Natchez became so prevalent that [Spanish Mayor Manuel] Gayoso issued a ban on knives and other metal weapons,” to little effect. Id. at 46.

¶ 4. Straddling the uncertain area between crumbling cliffs and the wild river, Natchez Under-the-Hill suffered many natural disasters, and “[s]ome claim that the Great River, in revenge against the place that shamed its name, altered its course, widened its banks and gobbled up much of that awful place.” Id. at 66. Indeed, the “fine mansions and patrician elegance” of the upper city “soon eclipsed the fame of Natchez’s lower half, though both found an easy journey into lore and legend.” Id. at 48.

¶ 5. Time and great changes in technology eliminated the necessity of Natchez as a port, as the riverboats gave way to steam-powered locomotives, which in turn gave way under the advent of automobiles and airplanes. “It was the area’s infamous past, however, that eventually saved it and secured its future,” as the growing tourist industry brought those persons who “could not resist the pull of the landing’s past, the power of its legends or the magic of its name: Natchez Under-the-Hill.” Id. at 164. Tourists began to flock to Silver Street — the only remaining portion of Under-the-Hill — in much the same way they began pilgrimages to sprawling and majestic homes such as Rosalie, the stately mansion used as a headquarters for the Union forces in the Civil War; Longwood, the legendarily-unfinished octagon house; and the Burn, used as a hospital dining the War, with its towering spiral staircase.

¶ 6. Onto this stage strode the two families who take center stage in the case at hand. In 1967 Nancy and James Biglane purchased a dilapidated building at 27 Silver Street that had been built in the 1840s, and opened the lower portion of the building as a gift shop in 1978. In 1973, Andre Farish, Sr., and Paul O’Malley purchased the building directly next door, at 25 Silver Street, which had been built in the 1830s; in 1975 they opened the Natchez Under the Hill Saloon. Eventually the Saloon would come to be run by the children of Mr. Farish, Melissa and Andre, Jr.

¶ 7. The Saloon would establish itself proudly as a welcoming haven for locals and visitors alike, and maintained its presence on 25 Silver Street as other businesses came and went. The Biglanes began converting the upper floors of 27 Silver Street into a large apartment, which they moved into in 2002.

¶ 8. Despite installing insulated walls and windows, locating their bedroom on the side of the building away from the Saloon, and placing their air conditioner unit on the side nearest the Saloon, the Biglanes quickly realized they had a problem: the raucous nature of the Saloon kept them wide awake at night.

¶ 9. Specifically, it was live music, a hallmark of the Saloon. During the summertime the un-air conditioned Under the Hill opened its windows and doors to lessen the heat inside, and music echoed up and down Silver Street. While the music was easier on Mr. Biglane, who had lost his hearing over the years, it was particularly difficult on Mrs. Biglane, who was frustrated by the constant rock and roll, conversation, and the clack of pool balls.

¶ 10. The Biglanes contacted the Saloon and asked that the music be turned down, and it was: Mr. Farish got rid of Groove Line, the band that seemed to trouble the Biglanes the most, and installed thick windows to block noise. He also purchased a sound meter by which bands could measure their output in decibels, and forbade them from going over a certain point.

¶ 11. Still dissatisfied, the Biglanes blocked off two nearby parking lots that served the Saloon, using a cable over the entrance of one and crafting a metal gate over another. Ultimately this classic neighborly dispute spilled into the Chancery Court of Adams County, prompted by a complaint from the Biglanes.

¶ 12. The couple alleged private nuisance, among other causes of action, and Under the Hill counterclaimed, alleging that the Biglanes had tortiously interfered in its business (by blocking the nearby parking lots) and defamed them (by sending a letter of complaint to the City Attorney).

¶ IB. The trial court heard multiple witnesses who testified to a dazzling array of subjects, including a historian who described the origins and evolution of under-the-Hill and a doctor with an expertise in sound who played loud music in court to replicate the alleged decibel levels of Under the Hill. The trial court ultimately rendered a highly detailed and intricately reasoned opinion and order than ran to 17 pages.

¶ 14. The chancellor determined that Under the Hill was a private nuisance to the Biglanes, and enjoined the Saloon from leaving open any doors or windows when music was playing, and ordered it to prevent patrons from loitering in the streets. The trial court also found that the Biglanes had tortiously interfered with the business relations of Under the Hill. Although no damages were actually shown, the trial court assessed nominal and punitive damages because of the intentional character of the conduct.

¶ 15. In lieu of setting an amount for damages, the trial court attempted to bring the parties together for “the opportunity to reach some type of an agreement which will allow the Under the Hill Saloon employees and patrons to park in the Water Street area.” This attempt to reconcile the parties failed, and the Biglanes quickly filed a motion that the trial court reconsider its ruling regarding punitive damages. It did so, voiding the award of punitive damages and setting nominal damages at $500.

¶ 16. Aggrieved, the Biglanes appealed, arguing that damages were improperly awarded, and Under the Hill cross-appealed, arguing that its business was not a private nuisance.

STANDARD OF REVIEW

¶ 17. In this case we are presented with questions of law and fact arising from the determination of a chancery court. We “always review a chancellor’s findings of fact, but ... will not disturb the factual findings of a chancellor when supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996). We use a de novo standard when analyzing questions of law. Id.

DISCUSSION

I. Is the Under the Hill Saloon a Private Nuisance to the Biglanes?

¶ 18. The Biglanes asserted that the Saloon was a private nuisance. “A private nuisance is a nontrespassory invasion of another’s interest in the use and enjoyment of his property.” Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995). “One landowner may not use his land so as to unreasonably annoy, inconvenience, or harm others.” Id. (internal quotations and citation omitted).

¶ 19. An entity is subject to liability for a private nuisance only when its conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land and that invasion is either (a) intentional and unreasonable, or (b) unintentional but otherwise provides the basis for a cause of action for negligent or reckless conduct or for abnormally dangerous conditions or activities. Id.

¶ 20. The trial court proceeded under the first path of liability — whether the conduct complained of was intentional and unreasonable. After reviewing the evidence presented at trial, the chancellor found ample evidence that the Biglanes frequently could not use or enjoy their property — significantly, that Mrs. Biglane often slept away from the apartment on weekends to avoid the noise and that she could not have her grandchildren over on the weekends because of the noise. The audiologist who testified for the Biglanes concluded that the noise levels were excessive and unreasonable, although he also conceded that he had never measured the noise levels in the couple’s bedroom. This problem was exacerbated during the summer months, when the un-airconditioned Saloon left its doors and windows open to defray the oppressive Natchez heat.

¶ 21. The Saloon did offer a witness who lived in back of the establishment who said he never had any problems with the noise, but the chancellor held that he was not an impartial witness, since he was testifying for his landlord.

¶ 22. Ultimately the trial court weighed the fact that the Biglanes knew or should have known that there was going to be some sort of noise associated with living “within five feet of a well established saloon which provides live music on the weekends.”

¶ 23. We have examined similar issues before. An important Mississippi case regarding private nuisance based on the actions of a neighbor is Alfred Jacobshagen Co. v. Dockery, 243 Miss. 511, 139 So.2d 632 (1962). In that case a group of residents in Byram were overwhelmed by the “repulsive” odors of a nearby rendering plant. Id. at 514-15, 139 So.2d at 632-33.

¶ 24. The general rule is that “[a] business, although in itself lawful, which impregnates the atmosphere with disagreeable and offensive odors and stenches, may become a nuisance to those occupying property in the vicinity, where such obnoxious smells result in a material injury to such owners.” Id. at 517, 139 So.2d at 634. This same rule extends to a situation where a lawful business injects loud music into the surrounding neighborhoods. For “[a] reasonable use of one’s property cannot be construed to include those uses which produce obnoxious [noises], which in turn result in a material injury to owners of property in the vicinity, causing them to suffer substantial annoyance, inconvenience, and discomfort.” Id.

¶ 25. Accordingly, even a lawful business — which the Under the Hill Saloon certainly is — “may become ... a nuisance” by interfering with its neighbors’ enjoyment of their property.” Id. We recognize that “[e]ach [private nuisance] case must be decided upon its own peculiar facts, taking into consideration the location and the surrounding circumstances.” Id. Ultimately, “[i]t is not necessary that other property owners should be driven from their dwellings,” because “[i]t is enough that the enjoyment of life and property is rendered materially uncomfortable and annoying.” Id.

¶ 26. In Dockery we deferred greatly to the chancery court and determined that it “had the power to enjoin such future operations of the rendering plant as constituted in fact a nuisance,” and that it also “had the lesser power to permit continued operation of the plant, subject to certain stated conditions and requirements.” 243 Miss. at 517, 139 So.2d at 634; see also Lambert v. Matthews, 757 So.2d 1066, 1068 (Miss. Ct.App.2000) (chancery court’s limitation on farmowners “from keeping more than two roosters on their property at any time” was affirmed as a proper equitable response to private nuisance caused by the crowing of the birds).

¶ 27. In the case at hand, the trial court exercised its power to permit continued operation of the Saloon while setting conditions to its future operation. Namely, it found that the Saloon could not “operat[e] its business with its doors and windows opened during any time that amplified music is being played inside the saloon.” The chancery court found “that such a limitation is reasonable in that it should help contain the noise within the saloon, and should discourage the bar patrons from congregating or loitering in the streets outside of the saloon.”

¶ 28. From a review of the record it is clear that the chancery court balanced the interests between the Biglanes and the Saloon in a quest for an equitable remedy that allowed the couple to enjoy their private apartment and while protecting a popular business and tourist attraction from over-regulation. See also Lambert, 757 So.2d at 1071 (“Equity should adjust the remedy to the need in a nuisance case”). Accordingly, we agree that the Saloon was a private nuisance to the Biglanes and affirm the trial court’s equitable conditions placed upon its continued operation.

II. Was There a Tortious Interference with Business Relations?

¶ 29. In response to the Biglanes’ assertion that the Saloon was a private nuisance, the bar counterclaimed, arguing that its neighbors had interfered with the operation of their business. “There are four elements necessary to prove a claim of tortious interference with a business relationship: (1) The acts were intentional and willful; (2) The acts were calculated to cause damage to the plaintiffs in their lawful business; (3) The acts were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); (4) Actual damage and loss resulted.” MBF Corp. v. Century Business Comms., Inc., 663 So.2d 595, 598 (Miss.1995). In this case the Biglanes essentially concede the presence of the first two prongs, but urge that neither the third nor the fourth factors were satisfied. If any of the factors are not met, there cannot be a finding of tortious interference with business.

A. “Without Right or Justifiable Cause.”

¶ 30. Mr. Biglane, or corporations of which he has substantial control, owns much of the property surrounding the Under the Hill Saloon, including multiple parking areas around the Saloon. After the tensions escalated between the Biglanes and the Saloon, Mr. Biglane caused the two parking areas in his control to be blocked, one with a cable gate after 6:00 p.m. and the other by an iron gate. It is undisputed that Mr. Biglane controls the former lot outright, but the ownership of the second lot — the so-called Water Street area — is more complicated.

¶ 31. Ownership of the property is important because it speaks to the third factor of the tort — that the allegedly tortious acts must be performed without right or justifiable cause. It is a basic tenet of property law that a landowner or tenant may use the premises they control in whatever fashion they desire, so long as the law is obeyed. See generally Ewing v. Adams, 573 So.2d 1364, 1367-68 (Miss. 1990). This leads to the logical conclusion that a landowner or valid tenant may forbid any other persons from using their property. This ideal is protected in our law to the point that there are both civil and criminal prohibitions against trespassing. See Alexander v. Brown, 793 So.2d 601, 605 (Miss.2001) (definition of civil trespass); Miss.Code Ann. § 97-17-87 (Rev.2006) (criminal trespass).

¶32. Generally speaking, it cannot be malicious for a person to refuse access to others to their private property. Accordingly, blocking off the parking lot he owned in whole was not tortious conduct by Mr. Biglane.

¶ 33. The property comprising the area called Water Street is a different matter. There was extensive testimony by multiple witnesses regarding the property, its history, nature, and various owners— whether Mr. Biglane, the City of Natchez, or others. The Water Street property is not a paved street per se, but an area that has been built up on the western bank of the Mississippi River by placement of rock and soil.

¶ 34. Part of Water Street is a parking lot, and the city engineer testified that roughly two parking spaces, or portions of the spaces, were owned by the city. Another portion of Water Street is a boat ramp owned by Mr. Biglane. The city has a permanent easement to use the ramp, but of late it is basically only used by riverboat traffic. Previously the only access to the city’s portions of Water Street were through Mr. Biglane’s parcel, and the city engineer testified that blocking the city’s right of way was impermissible, as the city no longer had use and access to the property they owned or had access to its easement because of the gate. There was also testimony that there had been a city-owned sign advertising the area as parking for the public that was later taken down. The city ultimately acquiesced to the placement of the gate and the blocking of its own property.

¶ 35. It is undisputed that Mr. Biglane erected an iron gate blocking Water Street. The chancellor found that part of the property blocked by the iron gate was owned by the city; that the gate itself partially rested upon city property; and that two of the parking spaces blocked by Mr. Biglane were city property. In light of this evidence, the trial court found that the third factor required for tortious interference with business was present — that Mr. Biglane did not have the right to block property which he did not own from public access.

¶ 36. Substantial evidence provided at trial and in the record supported the detailed and extensive findings of fact provided by the trial court. Accordingly, we defer to the chancellor’s findings and conclude that the Biglanes acted without right in blocking the Water Street property. Yet our inquiry does not end there.

B. “Actual Damage and Loss Resulted.”

¶ 37. Next we must consider whether the Under the Hill Saloon was damaged by the actions of the Biglanes. To satisfy this tort, we require “actual” damages, which are synonymous with “compensatory” damages; they are substantial, rather than nominal. ACI Chems., Inc. v. Metaplex, Inc., 615 So.2d 1192, 1202 (Miss.1993).

¶ 38. This does not mean that an exact dollar value must be set before we can find actual damages. In the case of ACI Chemicals, we affirmed a chancellor’s finding of tortious interference with business relations when a company, after suffering interference from a competitor, no longer received any new orders from a customer; when its credit line was frozen; and it lost the opportunity to solicit business from at least three potential customers. Id. at 1202. We found that this was evidence of actual damages. Id. This is in accord with the public policy underscoring this tort: to maintain a fair and legal playing field between competitors in the business arena.

¶ 39. In the case at hand, Under the Hill conceded that it could not demonstrate a loss of income from the lack of parking. In fact, business had slightly increased after the parking lots were blocked by Mr. Biglane, which was attributed by Mr. Farish to more riverboats docking in Natchez. There was evidence that one server at the Saloon had worked less than she had in years, but no receipts or other evidence was presented by the Saloon to demonstrate any sort of a loss. In its amended order the trial court found that punitive damages were not warranted under these facts, and accordingly declined to assess attorney’s fees against the Biglanes. Compare ACI Chems., 615 So.2d at 1194 (attorney’s fees can be warranted when trial court assesses punitive damages in tortious interference with business case).

¶40. The trial court assessed a damages award of $500 for “nominal damages” because it determined the Biglanes’ conduct was intentional. The trial court based this finding upon the basic legal concept that nominal damages can be awarded for intentional torts. See Williams v. Wiggins, 285 So.2d 163, 164-65 (Miss.1973) (“nominal damages ... can only be granted in the absence of actual injury in cases of intentional tort,” and not in cases involving negligence). The situation at hand is different. Unlike intentional torts such as trespass or battery, “actual damage and loss” is a required component of the tort of interference with business relations. As noted supra, this factor can be met in differing ways, but it must be met. The Under the Hill Saloon admitted it had suffered no actual damage or loss. Nominal damages do not satisfy a finding of the tort of intentional interference with business relations. In this type of case, there must be actual damages. Because the fourth factor was not met, there cannot be a tortious interference with business and the award of nominal damages must be reversed.

CONCLUSION

¶ 41. This is a classic case of a dispute between two neighbors. We reaffirm our position that a finding of tortious interference with business relations must be based upon a finding of actual damages, and also that a landowner may not use its property in such a fashion as to unreasonably deprive another of the use or enjoyment of their property. We therefore affirm the chancery court’s judgment finding a private nuisance but reverse the award of $500 in damages against the Biglanes for tortious interference with business relations.

¶ 42. ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: AFFIRMED.

SMITH, C.J., WALLER AND COBB, PJJ., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. DICKINSON, J., CONCURS IN RESULT ONLY. RANDOLPH, J., NOT PARTICIPATING.

      . In 1963 the City of Natchez zoned the area encompassing Silver Street as a "WD district,” or a waterfront development district; the ordinance is still in place today. It explicitly authorized "as of right” the use of dwelling homes such as the Biglanes' and businesses like Under the Hill. The ordinance noted that "[i]It is intended that [the WD district] be reserved for active uses which animate the waterfront and take advantage of their proximity to the waterfront. Such uses should be oriented toward the enjoyment of tourists and citizens of the community. Primary objectives include visual and limited physical access to the water, a pedestrian-friendly environment, limited automobile access and parking, and the preservation and enhancement of the distinct character of the historic waterfront.”


author: EASLEY, Justice,

text:
    Michael Joseph KRAMM v. STATE of Mississippi.
    No. 2005-KA-01901-SCT.
    Supreme Court of Mississippi.
    Feb. 8, 2007.

      Roger Wayne Woodall, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Michael Joseph Kramm was indicted by a Harrison County grand jury in a three-count felony indictment: (1) Count I: driving a motor vehicle while under the influence and causing death, Miss.Code Ann. § 63-ll-30(l)(a) and (5) (Rev.2004); (2) Count II: driving a motor vehicle with a blood alcohol level of .08% or more and ' causing death, Miss.Code Ann. § 63 — 11— 30(l)(c) and (5); (3) Count III: leaving the scene of an accident which resulted in the death of another person, Miss.Code Ann. § 63-3-401(1) and (4). Kramm did not file a motion to quash the indictment.

¶ 2. Kramm was convicted in the Circuit Court of the Second Judicial District of Harrison County, Mississippi, on all three counts. Thereafter, the Honorable Kosta Vlahos sentenced Kramm to twenty years on Count I and twenty years on Count II to be served concurrently. He was also sentenced to five years on Count III to be served consecutively, for a total of twenty-five years to serve in the custody of the Mississippi Department of Corrections.

¶ 3. Kramm filed a post-trial motion for new trial, which was denied by the trial court. Kramm filed a motion for bail pending the outcome of his appeal and an addendum to the motion for appeal bond with a hand-written letter from Kramm attached. The trial court issued an opinion and order of the court denying Kramm’s request for bond pending the outcome of the appeal.

¶4. Kramm now appeals his conviction and sentence to this Court.

FACTS

¶ 5. On the evening of December 4, 2002, several students from William Carey College, Joseph Nunnally, Nick Mulvaney, Treacy Staunton, and two young females, referred to as “Brin” and “Sinead,” went to the Grand Casino in Biloxi to enjoy a night out before the Christmas holidays. Nunnally and Mulvaney were members of the men’s soccer team at William Carey. Staunton, a native of Ireland, was a member of the women’s soccer team. Nunnally served as the designated driver, refraining from drinking any alcohol that evening. The students decided to leave the Grand and meet some other soccer players at another bar.

¶ 6. Nunnally testified that he drove, and Staunton was seated in the back seat directly behind him. The students were traveling in a Honda. While heading west on Highway 90, Nunnally stopped at a red light at the intersection in front of Edge-water Mall. The vehicle behind them, an SUV, did not stop and slammed into the back of the Honda. The other vehicle then left the scene of the accident. The Honda was pushed through the median into a light pole. Nunnally got out of the car and then pulled Staunton out of the car. Nun-nally testified that Staunton was bleeding from her mouth and her nose. Staunton did not speak. All five of the students were transported to the hospital.

¶ 7. Dr. Donald Robert Doran, Jr., testified that he treated Staunton when she arrived at the hospital. Dr. Doran testified that Staunton died from blunt force trauma to the head area and stoppage of the heart. Staunton was pronounced dead when her heart would not restart.

¶ 8. Danielle Rose Yarbrough testified that she and her friend Paul Duane Lad-ner witnessed the accident on Highway 90. Yarbrough was traveling in Ladner’s car down Highway 90. Yarbrough had seen the SUV swerving in and out of the median before the accident. The SUV went up an embankment and came back onto Highway 90. Yarbrough testified that they did not have a cell phone so Ladner planned to pull into a gas station near the mall to call the police regarding the erratic driving. However, before they could pull into the gas station, Yarbrough saw the SUV slam into the back of a car. She testified that the accident occurred at approximately 1:20 a.m. Yarbrough testified that the SUV did not slow down before the accident, and the driver did not hit the brakes. After the SUV left the scene of the accident, Ladner and Yarbrough followed it until it pulled into the VA. After they took the SUV’s tag number, they went back to the scene of the accident and informed the police.

¶ 9. On December 4, 2002, Lee William Valencia was employed as a security guard assigned to work the gate in front of the Armed Forces Retirement Home, located on Highway 90. Valencia observed the driver of an SUV turn off the headlights while driving slowly. The SUV turned into the gate to the Home. Valencia approached the SUV to inform the driver that he was not authorized to be on the premises. The driver told Valencia that he was looking for the admissions office at the VA. Valencia gave the driver directions, but the driver “could not figure out a way to get out” of the parking lot. Valencia decided he should call the main office for assistance. Valencia did not see the driver eat or drink anything.

¶ 10. Greg Connelly responded to Valencia’s call for assistance. The driver exited the SUV, a Ford Explorer, when Con-nelly arrived. Connelly testified that the driver “appeared to be drunk, and didn’t know how to leave out.” Connelly stated that the driver could “hardly stand up” and was “disoriented.” Connelly smelled an “intoxicating beverage on his breath,” and he observed blood on the driver’s face, trickling down from the lip area, and “bloodshot red eyes.” The driver apologized for being so drunk and stated that he would leave his vehicle and walk home.

¶ 11. Connelly took the driver’s driving license, which was issued by the state of Texas. Connelly removed the keys from the SUV’s ignition and put the vehicle in park. The SUV had “heavy damage to the front end” which appeared to be fresh on the right passenger side and glass inside the vehicle, along with beer cans on the floorboard on the driver’s side. The driver told Connelly that he had been involved in an accident “about a mile east of our location.” The driver did not eat, drink, or smoke anything while in Connelly’s presence. Connelly refused the driver’s request to be allowed to smoke a cigarette. Connelly identified the driver of the vehicle as Michael Kramm. Connelly testified that no one else was in the vehicle with Kramm. The Gulfport Police Department was contacted for assistance.

¶ 12. Officer Nicholas Sonnier, Biloxi Police Department, responded to the accident scene on December 5, 2002, at approximately 1:23 a.m. Only one car was in the median when he arrived. He was provided a description of the other vehicle, a dark-colored SUV. He advised dispatch that he was looking for a hit and run. Dispatch informed Officer Sonnier that the Gulfport Police Department had a suspect vehicle at the retirement home. Officer Sonnier arrived at the retirement home at approximately 1:40 a.m. The driver was advised of his rights. Officer Sonnier identified Kramm for the record as the individual he questioned.

¶ 13. Officer Sonnier testified that he detected a strong odor of alcohol coming from Kramm’s breath as he spoke. Kramm had blood coming from his lip. Kramm’s speech was slurred. He also swayed back and forth as he spoke. Based on his observations, Officer Sonnier placed Kramm under arrest for suspicion of DUI and leaving the scene of an accident. Officer Sonnier helped Kramm walk to his patrol car. A videotape of the condition of Kramm’s SUV was introduced into evidence.

¶ 14. Officer Sonnier transported Kramm to Biloxi Regional Medical Center to obtain medical treatment for his lip and to draw a blood sample for a blood alcohol content test. Officer Sonnier testified that he stayed with Kramm from 1:41 a.m. until the blood was drawn at approximately 3:55 a.m. Kramm received stitches for his injuries. Officer Sonnier testified that the Biloxi Police Department sent the hospital a blood sample kit. Once he was advised that it was time to draw the sample, Officer Sonnier had a lab technician at the hospital draw the blood. The blood sample kit was sealed and initialed by the lab tech and Officer Sonnier, who mailed the blood samples to the Mississippi Crime Lab. Kramm told Officer Sonnier that he was “sorry” and his insurance would cover the damages involved in the accident. Officer Sonnier testified that Kramm was wearing an armband from the nightclub Reflections.

¶ 15. Thomas Roberts, a phlebotomist at the Biloxi Regional Medical Center, testified that he drew Kramm’s blood sample for the kit. Roberts stated that he labeled the vials with his initials, placed security-tape on the vials, and boxed and sealed the blood sample kit before giving it to Officer Sonnier. Maury Phillips, section chief from the Implied Consent Section of the Mississippi Crime Lab, testified that he was the forensic toxicologist who tested the sample for the presence of alcohol. The blood sample contained an ethyl alcohol concentration of .20 grams per percent. The defense’s witness, Patrick Demers, an expert in forensic chemistry, testified that the fact that the blood alcohol level (BAC) was .20% at 3:55 a.m. did not necessarily mean that the BAC had been higher than that at 1:20 a.m. He testified that the two and a half hours between the time of the accident and when the sample was drawn could result in significant differences in the levels. He stated he was not able to determine the level at the time of the collision from the blood sample. However, Demers stated on cross-examination that he could not testify that Kramm’s BAC was less than .08% at the time of the collision. Kramm did not testify, however, the trial court conducted an examination of Kramm outside of the jury’s presence to ensure that he understood he had a right to testify as well as a right to not testify in his defense.

ANALYSIS

I. Whether Count I and Count II of the indictment, which resulted in conviction and sentence under both counts, are the same crime.

¶ 16. Kramm was indicted on three separate counts, Count I and Count II both being under Miss.Code Ann. § 63-11-30 (Rev.2004). Count I of the indictment is pursuant to Miss.Code Ann. § 63-11 — 30(l)(a), and Count II of the indictment is pursuant to Miss.Code Ann. § 63 — 11— 30(l)(c). According to the record, Kramm did not file a motion to quash the indictment before trial. Kramm argues that the two subsections described the same crime. Kramm asserts that if both his convictions and sentences under Count I and II, along with his conviction and sentence under III of the indictment, are allowed to stand, he will qualify as a habitual status offender.

¶ 17. Miss.Code Ann. § 63-11-30(1) provides:

It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person’s blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter; (d) is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or (e) has an alcohol concentration of four one-hundredths percent (.04%) or more in the person’s blood, based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person’s blood, breath or urine, administered as authorized by this chapter for persons operating a commercial motor vehicle.

(Emphasis added).

¶ 18. This Court previously has examined Miss.Code Ann. § 63-ll-30(l)(a) and (c) to determine whether the prosecution may proceed to trial under both subsections. Young v. City of Brookhaven, 693 So.2d 1355, 1357 (Miss.1997). The Court interpreted the two subsections as merely providing two different ways to prove a single violation. Id. at 1358. The Court affirmed Young’s conviction, finding no error in the prosecution’s choice to proceed under both subsections rather than electing to proceed under just one. Id. The Court stated that “Miss.Code Ann. § 63-11-30 merely sets forth numerous methods of committing the same crime.” Id.

¶ 19. However, unlike the case at hand, the Court in Young did not convict and impose sentence under both subsections of Miss.Code Ann. § 63-11-30. Young, 693 So.2d at 1358. Accordingly, Kramm is correct that his conviction and sentence under Count I and Count II amounted to being convicted and sentenced twice for the same crime.

¶ 20. Having imposed a conviction and sentence under Count I, the trial court erred by accepting the conviction under Count II and imposing a separate twenty-year sentence under Count II. The trial court sentenced Kramm to serve a separate twenty-year sentence under Count II to run concurrently with the twenty-year sentence imposed under Count I. Therefore, the judgment of the trial court as to Count II is reversed and judgment rendered to vacate the conviction and sentence imposed under Count II. However, Kramm’s twenty-year sentence under Count I and five-year sentence under Count III, to run consecutively with the sentence under Count I, for a total of twenty-five years in the custody of the Mississippi Department of Corrections, is affirmed.

II. Whether the State meets its burden of proof on Count III.

¶21. Kramm argues that the State failed to prove that he was the driver of the SUV at the time of the accident. The State asserts that there is no proof that Kramm was not the driver of the SUV at the time of the accident. In Holloway v. State, 860 So.2d 1244, 1246-47 (Miss.Ct. App.2003), the court held:

A person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence. Horn v. State, 825 So.2d 725 (Miss.Ct.App.2002). Reasonable doubt need not be removed about whether the defendant had actually driven the vehicle prior to his discovery. Lewis [v. State], 831 So.2d [553, 558 (Miss.Ct.App.2002) ].

In Lewis, 831 So.2d at 558, the court similarly stated the following:

We hold that to be guilty of driving or operating a motor vehicle while under the influence of drugs or alcohol, or with an illegally high blood alcohol content, the person must be shown by direct proof or reasonable inferences to have driven the vehicle while in that condition, or as in Jones [v. State, 461 So.2d 686 (Miss.1984)] to be “operating” the vehicle while sitting behind the wheel, in control with the motor running. Reasonable doubt need not be removed about whether the defendant had actually driven the vehicle prior to his discovery. Proof of the imminence of such driving by being the “operator” of a vehicle that has its motor running is itself an offense even if the offender has yet to move the vehicle.
Driving under the influence is a serious crime with serious risks to the public. It may often be difficult to catch an offender in the act. He or she may be discovered only after causing a horrendous accident or perhaps, as alleged by the State here, only after the intoxication causes the driver to stop for awhile. In order to avoid the former harm we do not believe that we have the authority to relax the proof necessary to convict in the latter instance. Perhaps intoxicated individuals in vehicles for whom no proof exists of past act or future intent to move the vehicle should be guilty of some offense, such as public intoxication if the vehicle is in a public place. Miss.Code Ann. § 97-29-47 (Rev.2000). Being found alone in a vehicle alongside the road, even when an excuse is later offered, may be sufficient to infer past driving. If the motor is running, the separate element of operating the vehicle is proven.

¶ 22. Following the guidance provided in Holloway and Lewis, we conclude that the State is not required to provide eyewitness evidence that Kramm was the driver of the SUV at the time of the accident as long as it provides sufficient proof supporting a reasonable inference that the defendant was driving the vehicle. See also Turner v. State, 910 So.2d 598, 601 (Miss.Ct.App.2005).

¶ 23. Kramm raised the State’s alleged failure to prove that he was the driver of the SUV at the time of the accident in his motion for new trial. This Court has repeatedly held that a motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id. In Bush v. State, 895 So.2d 836, 844 (Miss. 2005), this Court set out the standard of review for weight of the evidence:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

¶ 24. Here, no new trial is warranted, as the jury’s verdict is consistent with the weight of the evidence allowing the State the benefit of all reasonable inferences drawn from the evidence. Sitting as the “thirteenth juror,” we find that the evidence and testimony, weighed in the light most favorable to the verdict, support the jury’s conviction.

¶ 25. Yarbrough testified that she witnessed the accident, which occurred at approximately 1:20 a.m. She testified that the SUV did not slow down before the accident and the driver did not hit the brakes. The SUV left the scene of the accident. Yar-brough and Ladner followed the SUV to where it pulled in at the retirement home. Yarbrough wrote down the SUV’s tag number and then went back to the scene of the accident and informed the police. She did not testify that she observed a change of drivers in the SUV. At the retirement home, Valencia testified that he observed the SUV pull into the parking lot with its lights turned off. He told Kramm that he could not park there.

¶ 26. When Kramm did not leave, Valencia called for assistance. When Connelly arrived, he spoke to Kramm and took his driver’s license from him and took the keys out of the ignition. Kramm smelled of alcohol, could hardly stand up, and was bleeding. Connelly observed the damage to Kramm’s SUV. Kramm apologized to Connelly for being so drunk, and he told Connelly that he had been involved in an accident “about a mile east of our location.” Connelly testified that no one else was in the vehicle with Kramm.

¶ 27. The security guards at the retirement contacted the police for assistance. Officer Sonnier arrived at the retirement home at approximately 1:40 a.m. Officer Sonnier detected a strong odor of alcohol coming from Kramm’s breath as he spoke. Kramm’s speech was slurred, and he also swayed back and forth as he spoke. Officer Sonnier testified that Kramm told him that he was “sorry” and his insurance would cover the damages involved in the accident. Kramm did not tell Officer Son-nier that someone else was driving the SUV at the time of the accident.

¶ 28. On the record, the weight of the evidence presented by the State supported the jury’s verdict. Accordingly, we find that the trial court did not abuse its discretion in overruling Kramm’s motion for a new trial.

CONCLUSION

¶ 29. For the foregoing reasons, the judgment of the Circuit Court of the Second District of Harrison County, Mississippi, is affirmed in part and reversed and vacated in part.

¶ 30. COUNT I: CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED AND VACATED. COUNT III: CONVICTION OF LEAVING THE SCENE OF AN ACCIDENT AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I FOR A TOTAL OF TWENTY-FIVE YEARS.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . The motion for appeal bond is not in the court papers. However, the addendum is contained in the court papers.

      . Yarbrough referred to the retirement home as the VA.


text:
    Sandra Faye FLOYD v. Nickie FLOYD.
    No. 2005-CA-02270-SCT.
    Supreme Court of Mississippi.
    Feb. 15, 2007.

      Sherri Muriel Flowers, attorney for appellant.
    Nickie Floyd, appellee, pro se.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case comes to this Court on appeal by defendant Sandra Faye Floyd. She appeals from an order of the Chancery Court of Simpson County denying her motion for modification of the custody of their minor child, based upon allegations of abuse and the child’s election to live with his mother.

¶ 2. We hold that the chancellor erred in failing to include his reasons for rejecting the guardian ad litem’s recommendation in the court’s finding of fact and conclusions. Accordingly, we reverse and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. On May 16, 2001, the parties, Sandra and Nickie Floyd, received a Final Decree of Divorce on the grounds of irreconcilable differences. The decree included a Separation and Property Settlement Agreement, which awarded the parties joint custody of their ten-year old child, specifically giving physical custody to Nickie during the week and to Sandra on the weekends and during the summer. On February 12, 2003, Nickie filed an Amended Motion for Modification requesting that the chancery court restrict Sandra’s visitation with their child, based on a substantial and material change in the circumstances of the parties since the original decree was entered. On July 30, 2003, the court denied the request for modification but upon its own motion modified visitation. The court’s order reduced Sandra’s visitation to every other weekend and granted Nickie at least one week of visitation during the summer.

¶ 4. On August 2, 2004, Nickie filed a petition to hold Sandra in contempt and a Motion for Emergency and Other Relief, which was based on Sandra’s alleged refusal to return their child at the end of the summer and her enrollment of him in another school district. Sandra subsequently filed a Counter Claim for Contempt and For Modification based on the child’s election to live with her and an agreement between the parties which she believes permits the child to choose which school he will attend upon reaching the age of 12. On August 24, 2004, the chancery court granted Nickie’s Motion for Emergency Relief and ordered Sandra to immediately return the child to his father’s custody. The issue of custody was continued for a later hearing. At this hearing, the chancery court referred this case to the Department of Human Services (DHS) because of allegations of abuse, which were made by the child in a letter to DHS. On January 10, 2005, the chancery court, acting on its own motion, appointed a guardian ad litem for the child. On April 6, 2005, the guardian ad litem filed his report with the chancellor, in which the guardian concluded that the child was mature and capable of electing his custodial arrangement and that he desired to live with his mother. On November 23, 2005, the chancery court denied Sandra’s Motion for Modification. Feeling aggrieved by this decision, Sandra asserts the following two issues on appeal:

I. WHETHER THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN RULING CONTRARY TO THE RECOMMENDATIONS OF THE GUARDIAN AD LITEM WHILE FAILING TO LIST AND ADDRESS THE GUARDIAN’S QUALIFICATIONS AND RECOMMENDATIONS.

II. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN FAILING TO MAKE AN ON-THE-RECORD FINDING OF THE ALBRIGHT AND/OR MARTIN FACTORS WHEN HE AWARDED CUSTODY OF THE MINOR CHILD TO THE FATHER OVER THE MOTHER.

DISCUSSION

¶ 5. The standard of review in child custody cases is limited. Reversal occurs only if a chancellor is manifestly wrong or applied an erroneous legal standard. Powell v. Ayars, 792 So.2d 240, 243 (Miss.2001). This Court will not reverse a chancery court’s factual findings, where there is substantial evidence in the record supporting these findings of fact. Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991).

¶ 6. Sandra cites S.N.C. and J.H.C. v. J.R.D., Jr. in support of her argument that the chancellor committed reversible error by failing to address the guardian ad li-tem’s recommendations. S.N.C. and J.H.C. v. J.R.D., Jr., 755 So.2d 1077 (Miss. 2000). While S.N.C. v. J.R.D., Jr. is factually different from the present case, as that case involves the termination of a party’s parental rights, the portion of this decision regarding a chancellor’s required findings of fact is applicable to this case. Id.

¶ 7. Courts are required by statute to appoint a guardian in custody cases where allegations of abuse and neglect are made. Miss.Code Ann. § 93-5-23 (Supp.2006). While the chancellor properly appointed a guardian to investigate the allegations of abuse that were made by the child, he failed to address or include a summary of the guardian’s qualifications or recommendations when he rendered the decision to deny modification.

¶ 8. This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So.2d at 1082. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss. 2002). As the chancellor’s opinion lacked both of these elements, we reverse and remand this issue to the chancery court with instructions to make specific findings with regard to the guardian’s report.

¶ 9. Secondly, Sandra alleges that the chancellor abused his discretion in failing to make on-the-record findings of the Al-bright factors when he awarded custody to Nickie. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Sandra cites Powell v. Ayars for its holding that a determination of child custody will be held erroneous where a chancellor is not thorough in his discussion, factor by factor, of Albright. Powell, 792 So.2d at 249.

¶ 10. The polestar consideration in child custody cases is the best interest of the child. Albright, 437 So.2d at 1005. The test for a modification of child custody is: (1) whether there has been a material change in circumstances which adversely affects the welfare of the child and (2) whether the best interest of the child requires a change of custody. Weigand v. Houghton, 730 So.2d 581, 585 (1999). In considering such changes, the chancery court should view the evidence within the totality of the circumstances. Spain v. Holland, 483 So.2d 318, 320 (Miss.1986). Once a material change is found, a modification of custody is warranted only if it would be in the best interest of the child. Weigand, 730 So.2d at 585. In order for this Court to find that a chancellor has not abused his discretion in these matters, there must be sufficient evidence to support his conclusions. Id.

¶ 11. In Hayes v. Rounds, the Court reversed and remanded a custody determination for the chancery court to make specific findings of fact, employing the Albright factors. Hayes v. Rounds, 658 So.2d 863, 866 (Miss.1995). In doing so, the Court stated:

While we cannot say that the chancellor’s conclusion is so lacking in eviden-tiary support as to be manifest error, in the absence of specific findings we cannot affirm with confidence that the best result has been reached. Because it is unclear how the court found that the best interest of [ ] was served by placing custody in [], the court alluded to an inappropriate analysis regarding abandonment, and there are no specific findings applying the Albright factors, we conclude that the best course is to reverse and remand this case for the chancellor to provide specific findings of fact and conclusions of law using the Al-bright analysis. (Citation omitted)(emphasis added).

Id. Although the chancery court properly appointed a guardian to investigate the allegations of abuse, the chancellor did not address whether there had been a material change in circumstances or analyze the evidence under the Albright factors in denying Sandra’s motion for modification of custody. It has been well-established that both of these elements are required when considering a request for modification. Weigand, 730 So.2d at 585; Smith v. Jones, 654 So.2d 480, 486 (Miss.1995). Therefore, we reverse the chancellor’s order denying modification and remand this case for the chancellor to provide specific findings of fact, addressing each Albright factor.

¶ 12. Additionally, while the allegations of abuse and neglect as well as the child’s election to live with his mother are in the record, the chancellor addressed only the child’s election in his order denying a modification of custody. We have held that modification based on alleged abuse requires proof of conduct by the custodial parent that creates a genuine danger to the child. Robison v. Lanford, 841 So.2d 1119, 1123-24 (Miss.2003). We have also held that a child’s preference to change custody does not in itself determine that his desired custodial arrangement is in the child’s best interest. Westbrook v. Oglesbee, 606 So.2d 1142, 1147 (Miss.1992). While the chancellor is not bound by the election of a minor child, when declining to follow a child’s election, the chancellor is required to make specific findings explaining the reasons for the refusal. Miss.Code Ann. § 93-11-65 (2006). The pertinent portion of this statute states:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored. (Emphasis added).

Id.

¶ 13. In Polk v. Polk, the Court reversed and remanded a custody modification case to further consider this issue, holding that “when the chancellor denies a child his choice of custodial parent under § 93-11-65, then the chancellor must make on-the-record findings as to why the best interest of the child is not served.” Polk v. Polk, 589 So.2d 123, 130 (Miss.1991). In the present case, the court’s order simply acknowledges the child’s election and concludes that “the appeallate [sic] Courts have ruled that this could not be the sole basis for a change in custody and that based on the evidence presented that the motion for modification should be denied.” This vague finding does not adequately explain the reasons for rejecting the child’s election to live with his mother as required by this Court’s directive in Polk. Therefore, we remand to the chancery court with specific instructions to address this issue with the specificity required by § 93-11-65 and to make findings on the record in support of its decision.

CONCLUSION

¶ 14. Based on the foregoing reasons, we reverse and remand for new trial with instructions to make the required on-the-record findings consistent with this opinion.

¶ 15. REVERSED AND REMANDED.

WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.


author: CARLSON, Justice,

text:
    W.A.S. v. A.L.G. and Wife, R.L.G.
    No. 2005-CA-02313-SCT.
    Supreme Court of Mississippi.
    Feb. 15, 2007.

      William Mitchell Moran, attorney for appellant.
    James E. Smith, Jr., Carthage, attorney for appellees.
    Before WALLER, P.J., DIAZ AND CARLSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the chancery court’s termination of parental rights to his minor child in an adoption proceeding, Wilbur Andrew Simpson appeals to us. Finding no error, we affirm the final judgment of the Chancery Court of Leake County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. While in high school, Wilbur Andrew Simpson (Andy) met Ramona Lois Kim-mons (Lois). Soon after they began dating, Lois became pregnant with their child, and Marion Samuel Kimmons (Sam) was thereafter born. At the time of Sam’s birth, Andy was eighteen years old, and Lois was twenty years old. The relationship between Andy and Lois soured, and Lois began dating Bob Beckett, whom she eventually married; however, they divorced a couple of months later. Lois then met Alexander Garner (Alex), a man sixteen years older than Lois, and after six months of dating, they married in September 2003. Since Alex’s marriage to Lois, Alex has raised Sam as his own son in their marital home. Sam has considered Alex to be his father for approximately two years. On June 1, 2005, Lois and Alex filed a complaint for adoption in the Chancery Court of Leake County.

¶ 3. On June 29, 2005, the chancellor entered an order appointing Lynn Dor-man, a local attorney in Carthage, as Guardian Ad Litem. On August 11, 2005, Dorman filed her detailed eight-page report. A reading of the report reveals that Dorman conducted individual interviews with Sam, Lois, Alex, Andy, Marion and Lenora Kimmons (Sam’s maternal grandparents), Andrew and Laura Simpson (Andy’s father and step-mother), and Clara Simpson (Andy’s paternal grandmother). Dorman also discussed in detail in her report the statutory factors concerning adoption and termination of parental rights. Dorman concluded her report by stating:

This is a very difficult recommendation to make to this Court and is one that I do not take lightly. I have given this case much thought and have prayed for guidance in reaching a recommendation that will ultimately serve the best interest of the minor child. All other considerations are second at best. I believe that a parent’s rights in the life of a child is one of the most precious legal rights one can enjoy and is of fundamental importance, however, Andy has not demonstrated a willingness to take on the role and responsibility of a parent by his past actions. The only attempt that I can ascertain was the current filing of his petition occurring only after the Plaintiffs’ Petition for Adoption. He stated that he didn’t know why he had not pursued this action sooner, but that he had grown up since that time and had bettered himself. I can certainly appreciate his admission of shortcomings in the past as to his responsibility as a father, however, I still must consider ultimately the best interest of this child as the primary factor in making my recommendation.
Alexander L. Garner assumed the role of father to Sam when he married Lois and has been that father for nearly two years. It is my honest and true belief that Alex would continue to provide Sam with the love and care that he needs from a father figure and that it would be in the best interest of the minor child for Alex to be allowed to adopt said minor child and that it would be in the best interest of the minor child for the parental rights of Wilbur Andrew Simpson to be terminated.

(Emphasis in original).

¶ 4. On August 24, 2005, a trial on the merits was held on the complaint for adoption, Chancellor William J. Lutz, presiding. Lois and Alex were present and represented by counsel, and Andy was present and represented by counsel. At this trial, the chancellor received sworn testimony from Lynn Dorman, Andy Simpson, Alex Garner, Lois Garner, Laura Simpson, Clara Simpson, Catherine Burns, and Belinda Aultman.

¶ 5. At the conclusion of the trial, the chancellor issued a bench opinion granting the petition terminating Andy’s parental rights and also granting the petition of Alex and Lois to adopt Sam. At the conclusion of his bench opinion, the chancellor informed the parties and counsel that he would in due course issue a written opinion and final judgment consistent with his bench opinion. On November 8, 2005, Chancellor Lutz entered a detailed, seven-page written opinion, followed by the entry of a final judgment consistent with his opinion. It is obvious from reading Chancellor Lutz’s written opinion, that by the time of the writing of his opinion, he had access to the court reporter’s transcript of the trial of August 24, 2005. Chancellor Lutz’s written opinion contains several quotes from the transcript, followed by references to the page number and line number of the transcript. Chancellor Lutz concluded his written opinion by stating:

The Court finds by clear and convincing evidence that Andy Simpson failed to attempt and did not make contact with his child Sam, for a period of over one (1) year. The Court further finds by clear and convincing evidence that there has been a substantial erosion of the relationship between Andy Simpson and Sam, which was caused by Andy Simpson’s prolonged and unreasonable absence and his unreasonable failure to visit and communicate. The Court, therefore, concludes that it is in Sam’s best interest that the parental rights of Andy Simpson be and are hereby terminated.

¶ 6. Andy filed a motion to set aside the judgment, or alternatively, to grant a new trial, which was in due course denied by an order entered by the chancellor. Andy then perfected his appeal to this Court, claiming as the sole error the chancellor’s misapplication of the law in terminating Andy’s parental rights with Sam.

DISCUSSION

¶ 7. The chancellor’s findings of fact concerning the termination of parental rights are viewed under the manifest error/substantial credible evidence standard of review. K.D.F. & J.C.F. v. J.L.H., 933 So.2d 971, 975 (Miss.2006) (quoting Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991)). Therefore, we examine “whether credible proof exists to support the chancellor’s finding of fact by clear and convincing evidence.” Id. (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000)). That being said, “[i]t is not this Court’s role to substitute its judgment for the chancellor’s.” Id. (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002)).

¶ 8. Andy Simpson argues that the trial court did not apply the proper law when it terminated his parental rights. Specifically, Andy asserts that the trial court is required to use the “totality of the circumstances” test when determining whether to sever Andy Simpson’s parental rights. On the other hand, Lois and Alex Garner contend that under Miss.Code Ann. § 93-15-103(3) (Rev.2004), “grounds for termination of parental rights shall be based on one or more of the following factors,” and that a single factor may thus be outcome-determinative.

¶ 9. Miss.Code Ann. § 93-15-103 sets out the grounds for involuntary termination of parental rights. Along with this statutory provision, a chancellor must also look to established case law to determine whether to sever a natural parent’s rights and allow a contested adoption. In his very detailed opinion, the chancellor specifically explained his reasoning in determining to terminate the parental rights of Andy Simpson and to permit Alex Garner to adopt Sam Kimmons. The chancellor expressly stated in his written opinion, inter aha:

The grounds for involuntary termination of parental rights are statutory and found in Mississippi Code § 93-15-103. Mississippi Code § 93-15-103 states in part, “(3) Grounds for termination of parental rights shall be based on one or more of the following factors: (b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year or (f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment.
The Court is clearly convinced from the testimony of Andy Simpson, Laura Simpson and Lynn Dorman, the Guardian Ad Litem, that Andy had no intention of seeking visitation or paying support until his life was on track. No testimony was presented that Andy went to Laura Simpson and said “please call Lois to see if I can have visitation next weekend.” Rather, Laura Simpson took it upon herself to try to continue to have contact with Sam. Laura Simpson selected, purchased and delivered Christmas presents to Sam in 2004 and 2005. These were not gifts from Andy. The Court is clearly convinced that Laura Simpson sought visitation for herself and if Andy was able to visit at the same time that was fine. Laura Simpson did not attempt to schedule visitation with Sam for the sole purpose of visitation with Andy.
Andy’s top priority was to start and finish college. Only after Andy had completed college did he have any intention of seeking visitation or supporting Sam. Andy made the conscious decision with the help of his father and stepmother to put off seeking visitation and paying support until he got out of school and had a job. Andy was not willing to accept a little hassle or inconvenience to have a relationship with or even visit with Sam. Instead, Andy was willing to stop having any contact with Sam until he completed his two (2) years at East Central Community College. Andy and all of Andy’s witnesses testified that the only reason Andy did not pursue his parental rights with Sam was financial. Andy had to finish college, get a job; and, then, when he could afford it, he would exercise his parental rights.

(Emphasis in original). With that background in mind, the chancellor determined that Andy missed out on probably two of the most important years of Sam’s life and this caused a substantial erosion in Andy’s relationship with Sam.

¶ 10. In order to sever a natural parent’s parental rights, a two-prong test outlined in Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984), must be satisfied. First, the petitioner must establish by “clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child.” Id. Once the first prong has been satisfied, the court must consider the second prong: the best interest of the child. Id. “The best interest of the child is a polestar consideration in the granting of any adoption,” and “this Court has never allowed termination of parental rights only because others may be better parents.” In re V.M.S., 938 So.2d 829, 835-36 (Miss. 2006) (citing M.L.B. v. S.L.J., 806 So.2d 1023, 1029 (Miss.2000) (quoting In re Adoption of J.J.G., 736 So.2d 1037, 1038 (Miss.1999))).

¶ 11. Clearly, the chancellor determined that Alex and Lois Garner proved by clear and convincing evidence the first prong of Petit. Andy Simpson’s continued absence from Sam’s life for a period of at least two years, as testified to by Andy, not only satisfied by clear and convincing evidence the provisions of § 93-15-103(3)(b), but the chancellor also determined that § 93-15-103(3)(f) was met. The legislature enacted § 93-15-103(3) as guidance for the courts to consider several grounds in making a determination as to whether to terminate parental rights. The clear language of the statute also demonstrates to us that only one of the enumerated grounds need to be satisfied in order to justify terminating a natural parent’s rights. Although, “under Mississippi law a strong presumption exists that the natural parent should retain his or her parental rights,” we are of the firm opinion based on the record before us that the chancellor did not commit manifest error by terminating the parental rights of Andy Simpson. In re V.M.S., 938 So.2d 829, 834-35 (Miss.2006).

¶ 12. Since the chancellor, consistent with the report and finding of the Guardian Ad Litem, determined that Andy Simpson is unfit to raise Sam, the second prong of Petit must be examined. Again, from the record before us and the applicable law, we have no doubt that the chancellor did not commit manifest error in finding that the best interest of the child was served by allowing Alex to adopt Sam. Alex, a mature man at forty years of age at the time of the trial, has graciously cared for Sam as his own son for the past two years. He spends time with Sam by taking him hunting and fishing. Additionally, Alex feeds, clothes, and cares for Sam. Alex has demonstrated that he is an excellent father figure, and there is every indication that he intends to always “be there” for Sam. Thus, in applying “the manifest error/substantial credible evidence standard of review,” we are firmly convinced that the chancellor committed no error in the entry of his opinion and final judgment terminating Andy’s parental rights and permitting Alex to adopt Sam.

CONCLUSION

¶ 13. For the reasons stated, the Leake County Chancery Court’s final judgment terminating Andy Simpson’s parental rights is affirmed.

¶ 14. AFFIRMED.

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

        . Since this case involves an adoption proceeding containing sensitive information, we are using pseudonyms to protect the true identities of the natural and adopting parents, the minor child, and all relatives.

      . Catherine Bums is Andy’s aunt. Belinda Aultman is also Andy’s aunt.

      . In his bench opinion wherein he explained his reasoning in concluding to grant the requested relief to Alex and Lois, Chancellor Lutz noted that even though there had never been an issue of paternity, Andy, who up to that point had unquestionably been deemed to be the natural father of Sam, on cross-examination by the attorney for Alex and Lois, engaged in this colloquy: "Q. Are you the natural father of Sam Kimmons? A. Yes, sir, I believe. I haven't had a test. Q. You believe you are or you are? A. Yes, I am. I just haven’t had the DNA test.” The chancellor opined from the bench that ''[f]or someone who is trying to be a dad and trying to claim his son, why would someone — there even be a possible qualifier, possible caveat in his mind?”