author: GRIFFIS, J.,

text:
    MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS, Appellant v. Alice BRANNON, Appellee.
    No. 2004-CA-00246-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.
    Rehearing Denied Aug. 1 and 22, 2006.

      John Gordon Roach, Jr., McComb, attorney for appellant.
    Ronald L. Whittington, McComb, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Alice Brannon brought her claim for personal injuries, under the Mississippi Tort Claims Act, against the Mississippi Department of Wildlife, Fisheries and Parks (the “Department”). After a bench trial, the circuit judge rendered a judgment in favor of Mrs. Brannon and awarded damages of $240,000, which was reduced to $180,000 after Mrs. Brannon was assessed to be twenty-five percent at fault. Finding error, we reverse and render.

FACTS

¶ 2. The Department is responsible for the operation of Percy Quin State Park in Pike County, Mississippi. Miss.Code Ann. § 55 — 3—33(l)(a) (Rev.2003). Percy Quin and other state parks provide outdoor recreational activities. Examples of the activities available, include camping, hiking, boating, fishing, swimming, tennis, archery and golf. Visitors may stay in cabins or camp in primitive areas or in campgrounds with roads, camper pads and bathhouses.

¶ 3. Alice and Aubrey Brannon were frequent visitors to Percy Quin, having visited at various times over six years. On March 7, 2000, they were camping at Percy Quin with their grandchildren. Around 9:00 p.m., Mrs. Brannon was carrying her four-year-old granddaughter from the bathhouse back to their campsite when she fell and was injured.

¶ 4. On October 26, 2000, Mrs. Brannon filed an initial accident report. In the report, she stated:

Ms. Alice Brannon was carrying her grandchild from the Bathhouse to Site 28 when she slipped off the road and fell breaking her hip. Her husband took her home to the doctor. Not sure about the date this happened. Will put date down when we find out when it was.

¶ 5. On June 7, 2001, Mrs. Brannon filed her complaint against the Department. She asserted negligence, i.e., premises liability, against the Department and claimed that the Department created the hazardous condition which caused her fall and had actual knowledge of the condition pri- or to her fall. She asked for damages in the amount of $250,000.

¶ 6. In her testimony, Mrs. Brannon claimed that she had taken her grandchildren to the bathhouse to take a shower. She then testified:

Q. Tell us what happened whenever you prepared to leave the bathhouse, what did and who was with you.
A. I had both the girls. I was going to take — McKenzie was finished. They were playing in the shower. You know how kids do. But I was going to take McKenzie back, and so I picked her up. We started down towards the path coming down, and as I walked, all of a sudden I couldn’t see in front of me.
Q. What happened as you walked onto and down the roadway?
A. As I came down — and all of a sudden it was like I could not see. And the minute I couldn’t, I did feel panic that I couldn’t see. And the next minute that was it. I was gone.
Q. What happened?
A. I took one, two maybe, little baby steps when I couldn’t see, and my foot went across—
Q. Which foot, ma’am?
A. It was my right foot.
Q. And what happened? What did you do?
A. My foot like hit, and when it hit, it just went down. I kind of — my foot was — I felt middle ways. I remember the feeling at the time. And I remember kind of struggling trying to hold my balance, and then I went back.

Mrs. Brannon claimed that she could not see because of the dark. She did not carry her flashlight. At trial, she identified a photograph of the area where she fell. The photograph included a tape measure, but the markings on the tape measure cannot be seen in the picture. Mrs. Brannon testified that the area was four to four and a half inches deep, where she stepped off the road. She described it as a “drop-off’ where her foot went to the edge and then went down. She stated that she would not describe it as a hole. She claimed that the drop-off was covered by leaves and pine straw.

¶ 7. When she fell, Mrs. Brannon landed on her right elbow and hip, breaking her right hip. Mrs. Brannon could not move, so she sent McKenzie to get Mr. Brannon to help her. She tried to continue working for three and a half days after the accident. However, she eventually learned she had a broken hip, had to undergo surgery, and was confined to a wheelchair and then a walker for sixteen weeks.

¶8. The trial was held on October 3, 2003. After the parties submitted proposed findings of fact and conclusions of law, the trial judge entered a final judgment on November 19, 2003. The trial judge found that the Department was negligent and was not entitled to immunity under the Mississippi Tort Claims Act.

ANALYSIS

1. The appropriate standard of review.

¶ 9. In a claim based on the Mississippi Tort Claims Act, the trial judge sits as the finder of fact. Miss.Code Ann. § 11-46-13(1) (Rev.2002). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Donaldson v. Covington County, 846 So.2d 219, 222 (¶ 11) (Miss.2003). The circuit judge’s findings of fact and conclusions of law will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 413 (¶ 11) (Miss.Ct.App.2003).

¶ 10. The Department challenges the applicability of this standard of review in this case. It argues that the trial judge adopted Mrs. Brannon’s proposed findings of facts and conclusions of law almost verbatim and simply “filled in the blanks” for percentages of fault apportionment. The Department cites us to Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (¶ 8) (Miss.2004), where the supreme court held:

“A trial judge’s finding is entitled to the same deference as a jury and will not be reversed unless manifestly wrong. A reviewing court cannot set aside a verdict unless it is clear that the verdict is a result of prejudice, bias, or fraud, or is manifestly against the weight of credible evidence.” ... However, we have also stated that when the trial judge is sitting as the finder of fact, and chooses to adopt in toto a party’s proposed findings of fact and conclusions of law, we will conduct a de novo review of the record ....
This Court will not set aside such findings [of the trial judge] on appeal unless they are manifestly wrong.... Where the [trial judge] has failed to make his own findings of fact and conclusions of law, this Court will “review the record de novo.” Brooks v. Brooks, 652 So.2d 1118, 1118 (Miss.1995) (chancellor did not make his own findings, rather adopted litigant’s findings and applied wrong legal standard)....
Here the proposed findings of fact and conclusions of law which Johnson’s lawyer mailed to the judge are identical to the findings of fact and conclusions of law which the judge signed on November 12, 2002. There can be no doubt that the trial judge adopted and entered verbatim Johnson’s proposed findings of fact and conclusions of law. The only difference is that in the version signed by the trial judge, he “filled in the blanks” for the percentages of fault apportioned to Crump, Mauney and MDOT. Additionally, our standard of review is de novo on questions of law.... Thus, consistent with Holden, we today conduct a de novo review not only of the law, but also the trial judge’s findings of fact.

(citations omitted)

¶ 11. We are of the opinion that the Department’s argument has merit and the normal deferential standard of review is not applicable. Nevertheless, we reject the Department’s claim that a de novo review is appropriate.

¶ 12. There are at least three cases in which this de novo standard was applied. See Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (¶ 8) (Miss.2004); Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss.1996); Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995). We believe that there was an inaccurate statement of law in Brooks that needs to be addressed and clarified, to ensure the proper appellate review. We explain.

¶ 13. In Brooks, the supreme court held:

Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, Omni Bank v. United Southern Bank, 607 So.2d 76, 83 (Miss. 1992), and the evidence is subjected to heightened scrutiny, Matter of Estate of Ford, 552 So.2d 1065, 1068 (Miss.1989). Because the chancellor erred in adopting the litigant’s findings of facts and conclusions of law in the case sub judice, the deference normally afforded a chancellor’s findings of fact is lessened. Omni Bank v. United Southern Bank, 607 So.2d 76, 83 (Miss.1992); Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1266 (Miss.1987).
The chancellor erred by applying an incorrect legal standard, and also by adopting a litigant’s findings of fact and conclusions of law. Hence, we do not give deference to the findings of fact and conclusions of law of the lower court. Instead, we review the record de novo. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). See also Omni Bank v. United Southern Bank, 607 So.2d 76 (Miss.1992); Bean v. Broussard, 587 So.2d 908 (Miss.1991); Matter of Estate of Ford, 552 So.2d 1065 (Miss.1989); Rice Researchers, Inc. v. Hitter, 512 So.2d 1259 (Miss.1987).

Brooks, 652 So.2d at 1118. The cases cited in the last paragraph simply do not stand for the proposition asserted. Indeed, none of these cases find that de novo review is appropriate. Bean has no language applicable. The remaining cases cited confirm that the standard of review, albeit less deferential, is not de novo. See Hollingsworth, 609 So.2d at 424; Omni Bank, 607 So.2d at 88; In re Estate of Ford, 552 So.2d at 1068; and Rice Researchers, Inc., 512 So.2d at 1265.

¶ 14. Moreover, the court’s opinion in Rice Researchers, Inc. actually disputes this proposition, when the court held:

A word about our scope of review. Where — as here — a trial judge sits without a jury, this Court will not disturb his factual determinations where there may be found in the record substantial supporting evidence.... This is true whether the findings relate to matters of evi-dentiary fact or ultimate fact....
Put another way, this Court must affirm a chancellor on a question of fact unless upon review of the record we be left with the firm and definite view that a mistake has been made.... This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact, must be accepted....
And, finally, the trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses....
Today’s case presents a variation upon this familiar theme. The detailed findings of fact below resulted from the trial judge’s approving almost verbatim the post-trial proposed findings of fact submitted by counsel for Defendants. These findings simply are not the same as findings independently made by the trial judge after impartially and judiciously sifting through the conflicts and nuances of the trial testimony and exhibits. The matter is important, because the primary reason the law limits our scope of review is that the trial judge is uniquely situated, both institutionally and pragmatically, to “smell the smoke of the battle.” ... Here the trial judge was a non-smoker.
Still, we cannot and will not review this case de novo. Obviously, the Chancery Court was of the view that over all Defendants Williams, et al., had the better of the battle. That determination is entitled to deference, though sensibly not as much as in the ordinary case.
RRI contends that while such a practice may not constitute reversible error in and of itself, the appellate courts in such a case must engage in much more careful analysis of adopting findings than in cases where the findings and conclusions have been authorized by the trial judge himself.... With this we agree. While an appellate court may not summarily disregard fíndings adopted by a trial judge verbatim from the submission of the prevailing party, the appellate court must view the challenged findings of fact and the appellate record as a whole with a more critical eye to ensure that the trial court has adequately performed its judicial function.

Rice Researchers, Inc., 512 So.2d at 1264-65 (citations omitted and emphasis added).

¶ 15. Here, we have compared Mrs. Brannon’s proposed findings of fact and conclusions of law and the trial judge’s final judgment. We find that the circuit judge inserted a word or sentence at various points and deleted other words or sentences. However, we find that the final judgment is substantially verbatim to Mrs. Brannon’s proposed findings of fact and conclusions of law.

¶ 16. Accordingly, we conclude that the appropriate standard of review requires that the appellate court “analyzes such findings with greater care, and the evidence is subject to heightened scrutiny.” In re Estate of Grubbs, 753 So.2d 1043, 1046-47 (¶8) (Miss.2000). “This Court must view the challenged findings and the record as a whole ‘with a more critical eye to ensure that the trial court has adequately performed its judicial function.’ ” Id. (quoting Rice Researchers, Inc., 512 So.2d at 1265).

2. Did the trial judge err in admitting Mike Varnado as an expert and in admitting his opinions based on Mrs. Brannon’s photographs?

¶ 17. Mrs. Brannon called Mike Varnado as her first witness. At the time of her accident, Mr. Varnado was the park manager of Percy Quin State Park. In the final judgment, the court made the following finding about Mr. Varnado’s testimony:

The Court finds the testimony of Mr. Mike Varnado, park manager from 1978 through December, 2000, to be credible and the Court finds after considering his testimony and all other testimony with regard to the condition of the road surface, its expected use and the practice with regard to inspection, road repair, lighting and responsibilities with regard to noticing and correcting such a condition, that Percy Quinn State Park personnel and employees did not use ordinary care in the exercise of their duties. The testimony of Mr. Varnado establishes without contradiction that the area where Mrs. Brannon was walking was expected to be used as a pedestrian walkway as well as a roadway. Lighting was not available by deliberate choice and this choice is understandable as explained by the witness, Mike Varnado, but at the same time, it dictates the need for appropriate inspection and for level pedestrian walkway areas to include appropriate feathering and sloping of edges of paved roads and repair of dangerous conditions where pedestrian traffic will be in evening hours. Likewise, park guests such as Mrs. Brannon and other similarly situated [guests] must exercise reasonable care and caution to reasonably assure that sufficient lighting, even if only artificial light provided by hand lantern or flashlight is available.

(emphasis added).

¶ 18. Based on our discussion in section 1., we acknowledge that the trial judge’s “findings” are verbatim from Mrs. Bran-non’s proposed findings of fact and conclusions of law submitted by Mrs. Brannon. The judge inserted only the language above in italics. Hence we must “analyze such findings with greater care, and the evidence is subject to heightened scrutiny.” Grubbs, 753 So.2d at 1046-47 (¶ 8).

¶ 19. The Department argues that the trial judge abused his discretion in admitting Mr. Varnado as an expert witness. The Department objected because Mr. Varnado was not designated as an expert in discovery or in the pre-trial order. In her brief before this Court, Mrs. Brannon argues that her tender of Mr. Varnado as an expert witness was withdrawn and the record is silent as to any expert opinion sought or given by Mr. Varnado. Unfortunately, the record is not as clear as the argument in her brief.

¶ 20. Mr. Varnado was the first witness called by Mrs. Brannon. He was called as an adverse witness. He was designated as a fact witness in the pre-trial order and was not identified as an expert witness in discovery. In City of Jackson v. Perry, 764 So.2d 373, 383-84 (¶¶ 51-53) (Miss.2000), the supreme court held, “[a]bsent special circumstances, the court will not allow expert testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least 60 days before trial.” Here special circumstances did not exist. Mr. Varnado was neither listed as an expert in a response to discovery under Rule 26(b)(4) of the Mississippi Rules of Civil Procedure nor as required by Rule 4.04 A of the Uniform Rules of Circuit and County Court. Clearly, there was no basis for the court to allow expert testimony from Mr. Varnado. The court was in error to allow Mr. Varnado to testify as an expert.

¶21. Mrs. Brannon now argues that Mr. Varnado gave no expert testimony, and he was not asked a single question that sought an expert opinion. The transcript indicates that Mrs. Brannon’s counsel asked the following question:

Mr. Varnado, we’re not suggesting that people fell every day; we’re just dealing with the facts in this case. And based upon your investigation of this matter, it’s your understanding from the facts that this contributed to the accident. This being the condition of the road surface, shoulder and of lighting that was not available.

John Gordon Roach, counsel for the Department, objected to this question on the ground that he was not qualified as an expert. The judge then held, “[W]e will sustain the objection. If you wish to qualify him as an expert, ... then please go ahead and qualify him as an expert and we’ll allow the question.” Following the judge’s suggestion, Mrs. Brannon’s counsel asked several questions about Mr. Varna-do’s background and experience. The following exchange then occurred:

Mr. Whittington: Your Honor, I would tender Mr. Varnado as an expert with regard to the safety management of the park facility based upon his years of experience as well as his continuing training and his supervision of that park facility for 22 years.
Mr. Varnado: Your Honor, I would respectfully show, of course, Mr. Varna-do was not listed as an expert, number one; and secondly, the ultimate question he was asked a little while ago was whether these factors contributed to the injuries or the accident which makes him in the realm of— that’s an assumption or presumption only for experts, and Mr. Varnado’s testimony does not meet the standard for that type of a question. I think he can ask him about his responsibilities as far as being the manager and what — the layout. I think that’s been shown with the picture. But I don’t think he can go another step further and be able to say whether anything contributed to that.
Mr. Whittington: I’ll withdraw the question, Your Honor.
The Court: Now, you
Mr. Whittington: I’m sorry.
The Court: — can’t operate a park for 22 years without investigating accidents.
Mr. Whittington: Yes, sir.
The Court: It can’t be done. The defense has well known Mr. Varnado’s background. I see no prejudice at all by allowing this question to be — by allowing him to testify as an expert. And I accept him as an expert in the field of park management, which would include, out of necessity the investigations and review of investigations of accidents including the cause of what might contribute to the cause of an accident. So, I think he is amply qualified to be an expert in the area of overall park operations and management.
Mr. Roach: Your Honor, may I be heard on that?
The Court: Yes, sir
Mr. Roach: I think.
The Court: Excuse me. I thought you had been heard. If you are going to want to be heard after I rule, I don’t think it contributes to anything. I want you to speak before I rule. Now, you had stopped talking. I assumed you were through. I don’t appreciate people putting stuff in the record after I rule. I don’t think it contributes to anything. So, I want all counsel to let me hear what you’ve got to say before I rule and not tack stuff in the record after I rule. It does me no good and it only delays the trial of this case. Now, I’ve already ruled on this.

Contrary to the assertion in the brief, Mrs. Brannon’s counsel did not then advise the trial judge that he did not seek to use Mr. Varnado as an expert witness. Instead, Mrs. Brannon’s counsel promptly proceeded to ask Mr. Varnado a number of questions about the site of the accident based on the assumption that the photographs, which were taken several months after the accident, were indeed the site where the accident occurred. Mr. Varnado never testified that he had personal knowledge of the location where the accident was to have occurred.

¶22. The admissibility of evidence rests within the trial court’s discretion. Crawford v. State, 754 So.2d 1211, 1215 (¶ 7) (Miss.2000) (overruled on other grounds). Unless his or her judicial discretion is abused, this Court will not reverse his or her ruling. Id. The qualifications of an expert in the fields of scientific knowledge is left to the sound discretion of the trial judge. Id. His or her determination on this issue will not be reversed unless it clearly appears that the witness is not qualified. Id. However, it is error for an expert witness to testify when he was not properly designated as an expert, and the opposing side had asked for this information in discovery. URCCC 4.04; City of Jackson v. Perry, 764 So.2d 373, 384 (¶ 53) (Miss.2000).

¶ 23. Mrs. Brannon offered Mr. Varna-do as an expert witness. Although Mrs. Brannon’s counsel attempted to withdraw the question, counsel remained silent after the trial judge “accepted” Mr. Varnado as an expert witness in the “field of park management, which would include, out of necessity the investigations and review of investigations of accidents including the cause of what might contribute to the cause of an accident.” Now, Mrs. Bran-non’s counsel argues that Mr. Varnado did not offer any expert testimony. In fact, counsel now concedes that the tender of Mr. Varnado as an expert witness was “withdrawn.”

¶24. Counsel urges us to look at Mr. Varnado’s testimony to conclude that it “is totally silent as to any expert opinion sought or given by Mr. Varnado.” The relevant portion of his testimony reads:

Q. If the condition shown, in the photograph that’s been marked Exhibit 2, existed on March 7th and previous — and I believe you and I agreed that that is a condition that, in all likelihood, did not occur overnight— if that condition existed for some period of time, among Mike Nelson and the rangers and the people working with them, that condition should have been recognized as a hazard and it should have been repaired; isn’t that correct?
A. It’s definitely something that should have been repaired. Again, looking at the picture, I don’t know how deep it is. It could have been hid [sic] by some of the leaves and stuff. But if they — any of those people saw that, it would have been fixed. They should have known it. They should have known about it, should have fixed it.
Q. Should have known about it and they should have fixed it; isn’t that right?
A. You know, that’s correct. Anything that would be a hazard — a health hazard or a safety hazard, we want it fixed.

Mrs. Brannon urges that this is a common sense admission of a duty to exercise reasonable care and an admission that the [Department’s] employees failed therein when the entire record is reviewed. Alternatively, she claims that this is a proper opinion under Rule 701 of the Mississippi Rules of Evidence.

¶ 25. We disagree. The question requires that Mr. Varnado assume several facts of which he lacked personal knowledge. Mr. Varnado had already testified that he was not aware of this condition at the park. He also testified that he looked for and could not locate where this condition was located. Mrs. Brannon’s counsel asked Mr. Varnado to review and rely on what was depicted in several photographs. We find that the testimony quoted above did not ask Mr. Varnado to rely on his perception or matters of which he had personal knowledge. Instead, it sought evidence in the form of an “opinion or otherwise” from a witness who is “qualified as an expert by knowledge, skill, experience, training, or education,” to testify about “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.” It was expert testimony, which should not have been allowed. See Griffin v. McKenney, 877 So.2d 425, 438-41 (¶¶ 46-54) (Miss.Ct. App.2003) (treating physician in medical malpractice action offered impermissible expert testimony); see also Foster v. Noel, 715 So.2d 174, 183 (¶¶ 53-54) (Miss.1998) (treating physician rendered improper expert testimony); Langston v. Kidder, 670 So.2d 1, 4 (Miss.1995) (error for a party, not designated as an expert witness, to testify to industry standards and whether the defendant met those standards); and Scafidel v. Crawford, 486 So.2d 370, 372 (Miss.1986) (treating physician could offer lay testimony as to facts and circumstances surrounding the care and treatment of the patient). Accordingly, we find that the trial judge was in error to admit expert testimony from Mr. Varnado.

S. Whether the court erred when it did not grant immunity from liability under Miss.Code Ann. § 11-46-9(l)(v)f

¶ 26. The Department claims that it was entitled to immunity under the Mississippi Tort Claims Act. Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002). Specifically, the Department argues that it was error to not grant immunity pursuant to Mississippi Code Annotated Section 11-46-9(l)(v)(Rev.2002). It contends that Mrs. Brannon failed to present sufficient proof that a dangerous condition existed or was caused by negligent or other wrongful conduct of an employee of the Department, or that the Department had actual or constructive notice and an adequate opportunity to protect or warn against. Mrs. Brannon argues that the trial court considered and rejected the Department’s immunity defense under Section 11^6-9(l)(v).

¶27. We begin our analysis with the appropriate standard of review. If the final judgment contained conclusions of law that were actually made by the presiding trial judge, we would afford them deference. Here, however, the trial judge relied on Mrs. Brannon’s counsel to state his legal findings verbatim. Thus, we “must view the challenged findings of fact and the appellate record as a whole with a more critical eye to ensure that the trial court has adequately performed its judicial function.” Rice Researchers, Inc., 512 So.2d at 1264-65.

¶ 28. Our analysis begins with the final judgment.

ANALYSIS OF AND CONCLUSIONS OF LAW BASED THEREON

The trial court is afforded understanding of the Mississippi Tort Claims Act by the Mississippi Supreme Court’s decision in Stetvart ex Rel. Womack v. City of Jackson, 804 So.2d 1041 (Miss.2002). MTCA is the exclusive civil remedy against the Mississippi Department of Wildlife, Fisheries and Parks, as it is against any other governmental entity or employee. The MCTA waives sovereign immunity from claims for damages arising out of torts of governmental entities and their employees L.W. v. McCornb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999). Certain circumstances and conduct are exempt from this waiver of immunity. The defendant asserts that it enjoys immunity.
14. In its answer the defendant asserts that it is exempt from liability for claims alleged under MTCA pursuant to Section 11 — 46—9(l)(b), (d), (e), (f), (g), (p), and/or (v). The Court finds that the record in this case does not substantiate or establish an exception from liability based upon 11 — 46—9(l)(e), (f), (g) and (p). This case is a negligence action and the defendant has failed to offer evidence that demonstrates an exemption based upon these subparagraphs of Section 11-46-9. The Court finds that it is required to address whether an exemption from liability exits based upon the provision of Section ll-46-9(a)(b), (d) and/or (v). Exemptions from waiver that are germane to the case sub judice are
(1) a governmental entity and its employees acting within the course and scope of their employment, or duties shall not be liable for any claim: ...
(b) arising out of any act or omission or an employees of a governmental entity exercising ordinary care in reliance upon, or in the execution of performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid....
(d) based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused ...
(v) arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;

Miss.Code Ann. Section ll-^6-9 (Rev. 2001).

15. The Court finds that this case is controlled by the rules of law set forth and explained in Stewart ex. rel Womack v. City of Jackson, supra. And the authorities cited with approval and explained therein. The Court follows this decision and those other authorities including, but not limited to, Jones v. Miss. Dept. of Transp., 744 So.2d 256, Leflore County v. Givens, 754 So.2d 1223 (Miss.2000) and United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The Court finds as a matter of law that there is not a state or federal law germane to the facts of this case that created a legal obligation on the part of the Mississippi Department of Wildlife, Fisheries and Parks that would thereby exempt the defendant from liability.

¶ 29. The trial judge was correct to find that “it is required to address whether an exemption from liability exists based upon the provision of Section 11 — 46—9(l)(b), (d) and/or (v).” However, the cases cited in paragraph 15 of the final judgment discuss only cases that interpret Section 11-46-9(l)(b). None of these cases are applicable here. The court’s final judgment omitted any discussion or consideration of Section ll-46-9(l)(v).

¶ 30. If this case were not against a governmental entity, Mrs. Brannon’s claim would be considered under our laws of premises liability. We, like the trial judge, would conclude that Mrs. Brannon was an invitee. Thus, the business owner (the Department) owes a business invitee (Mrs. Brannon) a duty of ordinary care to keep the business premises in a reasonably safe condition. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). The owner has a duty to warn invitees of dangerous conditions which are not apparent to the invitee, of which the owner or occupier knows or through the exercise of reasonable care should know. Id. However, the owner is not an insurer against all injuries which may occur on the premises. Jerry Lee’s Groce'ry, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988).

¶ 31. However, since the Mississippi Tort Claims Act grants immunity under certain circumstances, we must consider whether Section ll-46-9(l)(v) is applicable. Under this statute, Mrs. Brannon may defeat the immunity defense if she can prove: (1) a dangerous condition, (2) on the government entity’s property, (3) which the government entity caused by negligence or wrongful conduct, or of which it had actual or constructive notice and adequate time to protect from or warn against, and (4) the condition was not open and obvious. Id.; Lowery v. Harrison County Bd. of Supervisors, 891 So.2d 264, 267 (¶ 12) (Miss.Ct.App.2004). There was absolutely no evidence that the Department either caused or had actual notice of the drop-off, i.e., the dangerous condition. Miss.Code Ann. § ll-46-9(l)(v). Hence, our analysis must focus on whether the Department had constructive notice and an adequate opportunity to warn against.

¶ 32. What constitutes a “dangerous condition” is not defined by Mississippi law and is to be determined by the trier of fact. Lowery, 891 So.2d at 267 (¶ 11). In the final judgment, the court found:

The Court finds that the road surface at this particular point where Mrs. Bran-non stepped was not feathered and properly sloped into the adjoining shoulder, but was irregular and that a distance of approximately four to four and one-half inches separated road surface from shoulder surface resulting in a hole or abyss into which a pedestrian could inadvertently step, stumble or fall. That leaves and pine straw from, overhanging trees appear to have covered the edge of the road and shoulder at the point of the fall. Such leaves and pine straw that fell on the road surface ivould be blown to the edge of the road by passing vehicles. Exhibit P-1 shows the trees along the road. Exhibit P-2 shoivs the edge of the road at the point of the fall. Exhibit P-5 shows the pine straw and leaves removed to measure the difference beUveen the road surface and dirt. The condition was not open and obvious.

The quoted portion in italics was not contained in Mrs. Brannon’s proposed findings of fact and conclusions of law and was the most significant insertion of language in the final judgment by the trial judge. Hence, we must give heightened deference to this finding.

¶ 33. The record simply does not support the finding that the dangerous condition was a “hole or abyss.” Mrs. Brannon herself testified it was a drop-off. Others described it as a wash-out. Clearly, it was not an “abyss.”

¶ 34. However, it is the next finding of the trial judge that we believe determines the outcome of this case. The trial judge found that the:

leaves and pine straw from overhanging trees appear to have covered the edge of the road and shoulder at the point of the fall. Such leaves and pine straw that fell on the road surface would be blown to the edge of the road by passing vehi-cles_ Exhibit P-5 shows the pine straw and leaves removed to measure the difference between the road surface and dirt. The condition was not open and obvious.

¶ 35. Mrs. Brannon fell at the side of the road, where the asphalt ends and the dirt begins. She claims that she did not see the drop-off. The trial court found that the area was covered in leaves and pine straw and that it was “not open and obvious” to Mrs. Brannon. The Department admitted that a significant drop-off could be dangerous to pedestrians. There was ample evidence that the park rangers routinely examine the grounds for such conditions.

¶ 36. John Green was the risk management supervisor for the Department in 2000. He was responsible for checking risk management, loss prevention and safety factors at the state parks. He testified that he was responsible for examining all the roads and road sides leading into and within the state parks. On February 15 and 16, 2000, about a month before Mrs. Brannon’s fall, Green inspected Percy Quin State Park. His inspection occurred during the daytime, afternoon, early evening and after dark. He testified that one of the reasons to be there after dark was to check the roadway, walks, and the areas around the campgrounds. He testified that based on his inspection of the roads, there were no drop-offs or wash-outs that needed to be corrected. Green’s inspection report was admitted to evidence. The report did not find a drop-off where Mrs. Brannon fell.

¶ 37. There is absolutely no evidence that the Department had prior notice of the drop-off where Mrs. Brannon fell. Based on the trial judge’s finding, the drop-off was covered by leaves and pine straw. He concluded it was not open and obvious to Mrs. Brannon. Likewise, the testimony indicated that the condition was not open and obvious to the park management, park rangers or Department risk management inspectors. There was no evidence that the Department failed to exercise reasonable care in its inspections of the roadways. Instead, the trial judge held that “[t]he condition of the feathering and sloping at the edge of the roadway in the public pedestrian walkway area should have been inspected, found and repaired. Park employees did not repair same.” This is simply not the appropriate standard. The trial judge’s conclusion makes the Department an insurer against all injuries which may occur on the premises. Jerry Lee’s Grocery, 528 So.2d at 295.

¶ 38. We find that there was insufficient evidence to establish that there was a dangerous condition on the Department’s property of which it had constructive notice and time to correct or warn against. Therefore, we find that the trial judge committed reversible error in ruling that the Department was not entitled to immunity under Mississippi Code Annotated Section ll-46-9(v). Accordingly, we reverse and render the judgment.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J. AND MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. LEE, J., DISSENTS WITHOUT SEPARATE OPINION.

      . The photographs were taken by Mr. Bran-non several months after the accident. One of the photographs, has a tape measure that attempts to depict the edge of the road and, more particularly, the depth of the difference between the asphalt and the dirt. The markings of the tape measure are not clearly shown on the photograph.

      . Under M.R.E. 701, a lay witness's opinion testimony must be “rationally based on the perception of the witness, ..., and © not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”

      . In Dow v. D'Lo, 169 Miss. 240, 248-49, 152 So. 474, 475-76 (1934), the supreme court held that:
      The measure of the duty of a municipality in the maintenance of its streets is to use ordinaiy care to keep them in a reasonably safe condition for persons using ordinaiy care and prudence.... There is no assertion in the evidence that the town authorities had actual knowledge of the hole in the sidewalk, but the case is based upon the contention that there was constructive notice. The rule in that respect is that the danger must have been one which should have been discovered by the town authorities on an inspection made with ordinaiy care and within a reasonable time, and that after such notice there shall have been a reasonable time for the repair or remedy of the danger. There is no fixed requirement as to any formal inspection, or when inspection shall be made or how often, that question depending upon a variety of circumstances, among which are to be considered the size of the municipality, and, therefore, the number of its active municipal officers charged with such duties, and whether the location of the defect is on one of the main and much-used thoroughfares, or whether in a remote location not frequently used for general traffic. And while all these questions are usually for the jury, nevertheless, when the evidence is insufficient, it is the duty of the court to so hold and to direct a verdict.
      The fact that mere passers-by did not observe or discover a dangerous defect is not sufficient to relieve a municipality of constructive notice; but, if the defect or danger be such as not to be observable by those who constantly pass day by day or who for years have lived and labored at the location in question, constructive notice cannot be charged upon the municipality unless the danger was the result of faulty work by the municipality itself.
      (citations omitted).


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Travis LIVINGSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02455-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.
    Rehearing Denied Sept. 12, 2006.

      Rex K. Jones, E. Lindsay Carter, Hat-tiesburg, attorneys for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Travis Livingston was found guilty by a Lamar County Circuit Court jury of the murder of John Merritt and the kid-naping of Michelle Livingston. He received a sentence of life imprisonment for the murder charge, and a consecutive thirty year sentence for the kidnaping charge. He now appeals, raising several issues. Finding no error, we affirm.

FACTS

¶ 2. After a rocky marriage and several separations, Michelle Livingston (Mikki) separated from her husband, Travis Livingston (Livingston), purchased her own home in Sumrall, and filed for divorce. Livingston stayed with friends and relatives and worked in Starkville. He kept in frequent contact with Mikki during the separation. Although Mikki made it clear that she was ready to go on with her life and see other people, Livingston remained hopeful that they could work through their problems. He claims that on the weekend of December 13, 2003, the two had plans to spend the weekend together in either Jackson or Vicksburg.

¶ 3. After separating from her husband, Mikki subscribed to an on-line dating service, where she began chatting with John Merrit of Destín, Florida. After weeks of communicating via the internet and telephone, the two decided to meet. On the evening of December 12, 2003, Mikki and Merritt met at a GulJport restaurant. The date went well, and Mikki invited Merrit to stay the night at her home in Sumrall. Mikki left her ear in Gulfport and rode with Merrit to Sumrall.

¶ 4. The next morning, the pair drove to a nearby store to pick up some breakfast. While they were gone, Livingston arrived at Mikki’s house. He later testified that the reason he drove to her house from Starkville was because he had been unable to reach her by telephone and the two had plans to spend the weekend together. When he arrived, he found the door unlocked and decided to go in and gather some of his belongings. Upon entering the house he saw a pair of men’s shoes on the counter. He also saw a man’s bag with another pair of shoes in a bedroom and decided he should leave.

¶ 5. When Mikki and Merritt returned to Mikki’s home, they saw Livingston in his truck in the circular driveway. Instead of driving away, Livingston drove up to Merritt’s truck, blocking it in. Livingston then emerged from his truck, walked over to Merritt’s truck, opened his truck door, and shot three times. Two bullets struck Merritt, one above his left eyebrow and the other above his left ear, while one bullet struck Mikki in the neck.

¶ 6. Livingston took Mikki and drove to a remote location underneath a bridge. During the drive and upon arriving underneath the bridge, Livingston repeatedly threatened to kill Mikki and himself. He called his brother, Gary Livingston, and told him what had happened and that he was going to kill himself. After a failed attempt at calling for help on Livingston’s cell phone, Mikki attempted to escape, but did not get far before Livingston forced her back into his truck. At one point, Livingston began removing Mikki’s clothes so that he could examine her and determine whether she had engaged in sexual relations with Merritt. Livingston would later testify that he was just changing Mikki’s clothes because she had busted her pants when she slipped in the mud. After much praying and pleading from Mikki, Livingston drove to Gary Livingston’s home. Shortly afterward, first responders came to Mikki’s aid, and Livingston was taken into custody.

ISSUES AND ANALYSIS

I. Whether the trial court erred in denying the motion for a mistrial because of the failure of the State to furnish to the defense the substance of the oral statements of Christopher Ray and Jim Ray.

¶ 7. Livingston claims that the State violated Uniform Circuit and County Court Rule 9.04 by failing to disclose prior to trial a synopsis of the anticipated testimony of Jim and Christopher Ray. Several days before trial, Livingston’s attorneys contacted the Rays to get a statement from them, but they declined to speak with Livingston’s attorneys. Livingston declined to obtain the court’s assistance in procuring Jim and Christopher Ray’s cooperation. At trial, Jim Ray testified that on the morning of December 13, 2003, after hearing a loud commotion outside, his wife, Sharon, ran inside saying that someone had been shot. Jim then contacted 911, and while on the phone he saw Livingston pull Mikki out of Merritt’s truck. He then saw Livingston’s truck exit the driveway. Christopher Ray testified that he saw Livingston block Merritt’s truck in the driveway with his own truck. Christopher then saw Livingston emerge from his truck, walk to Merritt’s truck, open Merritt’s door, shoot Merritt, and walk around the truck and grab Mikki by the arm. He testified that he did not see Merritt pull her out of the truck because he ran to dial 911 for his dad. Their testimony revealed nothing to which Sharon Ray had not already testified, and Livingston had obtained Sharon Ray’s statement prior to trial.

¶ 8. This Court employs an abuse of discretion standard when reviewing a denial of a motion for mistrial. Johnson v. State, 914 So.2d 270, 272(¶ 7) (Miss.Ct.App. 2005). “The essential purpose of Rule 9.04 is the elimination of trial by ambush and surprise.” Wimberly v. State, 839 So.2d 553, 558(¶ 20) (Miss.Ct.App.2002) (citing Robinson v. State, 508 So.2d 1067, 1070 (Miss.1987)). Unless a criminal defendant makes a contemporaneous objection to the admission of previously undisclosed evidence, the issue is procedurally barred on appeal. Gary v. State, 796 So.2d 1054, 1056(¶ 6) (Miss.Ct.App.2001)(eiting Box v. State, 437 So.2d 19, 23 (Miss.1983); De La Beckwith v. State, 707 So.2d 547, 574(¶ 99) (Miss.1997); Nathan v. State, 552 So.2d 99, 108 (Miss.1990)).

¶ 9. The testimony of both Jim and Christopher Ray was admitted into evidence without objection from Livingston. It was not until Officer Joe Loftin testified that he had spoken with Jim and Christopher when responding to the 911 call did Livingston’s attorneys raise the issue before the judge. Accordingly, this issue is procedurally barred.

II. Whether the trial court erred in excluding evidence of the victim’s drug usage

III. Whether the trial court erred in excluding evidence of Livingston’s diminished perception at the time of the murder.

¶ 10. We also employ the abuse of discretion standard in reviewing a trial court’s decision to admit or exclude evidence. Al-Fatah v. State, 916 So.2d 584, 591(¶ 21) (Miss.Ct.App.2005). This Court will not reverse based on a decision to exclude evidence “unless the party against whom evidence has been erroneously received has been denied a substantial right.” Russell v. State, 607 So.2d 1107, 1114 (Miss.1992).

¶ 11. Livingston sought to offer into evidence a report from the Mississippi Crime Lab which showed that Merritt’s urine screened positive for marijuana. The trial court excluded the admission of the report but allowed Livingston to make a proffer. Livingston claimed that this evidence would support his theory that Merritt was the initial aggressor because, according to defense counsel, “there are some studies out there that there’s' a correlation between marijuana use and violence .... ” However, the crime lab report indicated that an insufficient sample volume was submitted to perform a confirmatory drug analysis. Furthermore, defense counsel admitted that they had no expert to testify about the alleged correlation between marijuana consumption and violence. Finally, the trial court stated that it could not take judicial notice of the effects of marijuana as they relate to aggressiveness. We find that the trial court did not err in excluding the report since Livingston failed to sufficiently prove its relevance.

¶ 12. Livingston next argues that the trial court erred in excluding the proposed testimony of Dr. Beverly Smallwood, a licensed psychologist who evaluated Livingston prior to trial. Dr. Smallwood’s forensic opinion was that although Livingston knew right from wrong when he shot Merritt, Livingston was in a state of diminished perception and capacity due to the heightened state of arousal and fear he was experiencing at the time.

¶ 13. Mississippi does not recognize diminished capacity as a defense to a criminal charge. Smith v. State, 880 So.2d 1094, 1097(116) (Miss.Ct.App.2004) (citing Cannaday v. State, 455 So.2d 713, 720 (Miss.1984)). Livingston pursued three defenses at trial: accident, self-defense, and heat of passion manslaughter. A successful self-defense argument requires that the jury believe that it was objectively reasonable for the defendant to believe he was in danger of imminent death or serious bodily harm. Hart v. State, 637 So.2d 1329, 1339 (Miss.1994). Accordingly, Livingston’s “own particular mental frailties” would not have assisted the trier of fact in deciding the merit of his self-defense claim. Id. Dr. Smallwood’s opinion would also be irrelevant to Livingston’s accident defense. Dr. Smallwood’s opinion also could not aid Livingston’s claim of heat of passion manslaughter, which we discuss below.

IV. Whether the trial court erred in refusing a heat of passion manslaughter instruction

¶ 14. This Court employs the following standard when reviewing a trial court’s denial of a jury instruction,

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. When so read, if the instructions fairly announce the law and create no injustice, we will not find reversible error.

Jones v. State, 912 So.2d 501, 505-06(¶ 13) (Miss.Ct.App.2005) (quoting Harris v. State, 861 So.2d 1003, 1012-13(¶ 18) (Miss.2003); Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002)).

¶ 15. Heat of passion manslaughter is “the killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” Miss.Code Ann. 97-3-35 (Rev.2000). Our courts have defined heat of passion as,

a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Anderson v. State, 914 So.2d 1239, 1243(¶ 16) (Miss.Ct.App.2005) (quoting Un derwood v. State, 708 So.2d 18, 36(¶ 54) (Miss.1998)).

¶ 16. The trial court properly denied Livingston’s proposed jury instruction because it lacked foundation in the evidence. Mikki and Livingston’s divorce was weeks from being finalized. Each had expressed to the other that they were going on with their lives and seeing other people. When Livingston encountered Mikki and Merritt, Merritt in no way provoked Livingston. Three eyewitnesses testified that Livingston blocked in, then walked over to Merritt’s truck, opened Merritt’s door, and shot three times. Not only was there no adequate provocation to warrant a heat of passion manslaughter instruction, but also there was no violent, uncontrollable rage at the time of the incident. On cross-examination, the following exchange between the prosecutor and Livingston occurred:

Q. Did that make you mad, Mr. Livingston when you saw the man’s shoes?
A. No—
Q. And you decided to go back on out of that house when you saw that; right?
A. Right, I decided to leave.
Q. Did it make you mad?
A. I was not — I was not angry enough to fight no one or do anything like that.
Q. So it’s your testimony that it didn’t bother you at all?
A. No, I’m not saying it didn’t bother me. I said anybody would be upset, but not to the extreme of going overboard with something, no.

This issue is without merit.

V. Whether the murder conviction is against the overwhelming weight of the evidence.

¶ 17. A challenge to the weight of the evidence succeeds only if a verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). Since three witnesses testified that they saw Livingston murder Merritt, and a fourth witnessed the circumstances surrounding the murder, we cannot say that the jury’s verdict resulted in an unconscionable injustice. This issue is without merit.

VI. Whether the trial court erred in refusing Livingston’s request for a peremptory instruction on the kid-naping charge.

¶ 18. A challenge to legal sufficiency succeeds only if a review of the evidence in the light most favorable to the verdict reveals that no rational juror could have found that the State proved each element of the crime charged beyond a reasonable doubt. Bush, 895 So.2d at 843( 16). Livingston was charged with forcibly seizing and -confining Mikki, with intent to cause her to be secretly confined or imprisoned against her will in violation of Mississippi Code Annotated § 97-3-35 (Rev.2000). Mikki testified that she was forcibly seized and confined and held against her will. The Rays’ testified that they saw Livingston forcibly seize, confine, and carry away Mikki. We find that there was sufficient evidence for a rational juror to find that the State proved beyond a reasonable doubt that Livingston kidnapped Mikki.

¶ 19. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND CONVICTION OF COUNT III KIDNAPING AND SENTENCE OF THIRTY YEARS WITH FIFTEEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIFTEEN YEARS UNDER POST-RELEASE SUPERVISION, WITH A FIVE YEAR SUPERVISION PERIOD, WITH BOTH SENTENCES RUNNING CONSECUTIVELY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: IRVING, J.,

text:
    Jerry Lee MACK a/k/a Jerry Mack, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01138-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.
    Rehearing Denied Oct. 3, 2006.

      Jerry Lee Mack, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Jerry Lee Mack is currently serving a life term for convictions for murder, aggravated assault, and cocaine possession. After being denied parole, Mack filed a petition in the Jefferson County Circuit Court against the State of Mississippi for relief from the decision of the Mississippi Parole Board (Parole Board). The court denied relief upon a finding that it did not have jurisdiction over the matter, since the conviction came from Hinds County and the Parole Board’s decision was within its administrative power. Contending that the denial was in error, Mack appeals and asserts the following errors, which we quote verbatim:

1. WHETHER THE CIRCUIT COURT OF JEFFERSON COUNTY, MISSISSIPPI HAVE [sic] JURISDICTION OVER CONSTITUTIONALLY WRONG PAROLE MATTERS.
2. WHETHER THE MISSISSIPPI PAROLE BOARD DISCRETION [sic] HAS BOUNDARY [sic].
3. WHETHER THE PAROLE BOARD MEMBERS VIOLATED APPELLANTS [sic] CONSTITUTIONAL RIGHTS BY WAY OF DISCRIMINATION.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Under the law as it was at the time of his sentencing, Mack became eligible for parole after serving ten years of his sentences. Mack alleges that, at the time of his parole review, he had “suitable and secure employment,” several recommendations, and an excellent prison record. Nevertheless, the Parole Board denied parole to Mack, due to (1) the “serious nature of the offense,” (2) “community opposition,” (3) “insufficient time served,” and (4) “[t]he Board believes the ability or willingness to fulfill the obligations of a law-abiding citizen is lacking, pursuant to Section 47-7-17 of the Mississippi Code Annotated as amended.” The Parole Board did not find any “[r]easons [flavoring [plarole.” Mack was not present at the parole hearing. The Parole Board decided to revisit Mack’s parole status thirty months from the time of its decision.

¶ 4. Mack filed a petition in the circuit court for review of the Parole Board’s decision. The circuit court dismissed the petition because “the decision of the Mississippi Department of Corrections Parole Board is within the administrative scope of the Mississippi Department of Corrections and not within this Court’s jurisdiction, and as such this Court lacks jurisdiction to proceed in this matter....” The Parole Board was not included as a party to Mack’s petition. Additional facts, as necessary, will be related during our analysis of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Jurisdiction

¶ 5. Mack contends that the circuit court had jurisdiction because Mack’s constitutional rights have been violated and he “is housed in Jefferson County, Mississippi.” As support, Mack cites Melody Manor Convalescent Center v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989), where the Mississippi Supreme Court held that “[t]he only grounds for overturning administrative agency action by the appellate process is that the state agency has acted capriciously, unreasonably, arbitrarily; has abused its discretion or has violated a vested constitutional right of a party.” Id. (citations omitted).

¶ 6. The State contends that an inmate has no “ ‘constitutionally recognized interest’ in parole.” (citations omitted). The State also notes that “the four factors set out by the Parole Board in denying Mack parole have each been upheld by the courts as categories that cannot be viewed as arbitrary and capricious.” (citing Justus v. State, 750 So.2d 1277, 1279(¶ 6) (Miss.Ct.App.1999)). The State also presents the alternate argument that “this is a regular civil suit and not a petition for post-conviction relief and as such the lower court should have dismissed the case for ‘failure to properly name and serve the actual part[y] in interest, namely the Parole Board ....’”• (quoting McClurg v. State, 870 So.2d 681, 682(¶6) (Miss.Ct.App.2004)).

¶ 7. We agree with the State’s assessment that the lower court should have dismissed the case because of Mack’s failure to include the Parole Board as a party to the complaint, which is in the nature of a civil suit and not a petition for post-conviction relief. In McClurg, this Court found that the complaint of an inmate who filed an action regarding the calculation of his sentenced time to serve and parole eligibility was a civil action and not a petition for post-conviction relief, and therefore should have been “dismissed for failure to properly name and serve the actual parties in interest, namely the Parole Board and Department of Corrections.” McClurg, 870 So.2d at 682(¶ 6). As in McClurg, the petition in the present case was filed only against the State of Mississippi, and not against the Department of Corrections or the Parole Board. Therefore, the circuit court should have dismissed the petition for Mack’s failure to file against the proper parties. As stated in Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993), we will affirm a trial court where it reaches the correct result (here dismissal) even if the court’s reasoning was incorrect: “On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Id. (citing Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988)).

¶ 8. We also note that, even if the complaint had been properly filed against the Department of Corrections or the Parole Board, the circuit court would still be correct in its finding that it does not have jurisdiction over this case:

“A circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefore.” Since Title 47, Chapter 7 does not contain a statutory mandate granting circuit courts jurisdiction over appeals concerning the denial of parole, the circuit court was correct in dismissing the petition due, in part, to lack of jurisdiction.

Cotton v. Miss. Parole Bd., 863 So.2d 917, 921(¶ 10) (Miss.2003) (citations omitted). The Mississippi Supreme Court went on in Cotton to recognize that “a constitutional challenge can justify the assertion of jurisdiction.” Id. at 921(¶ 11). However, here, as in Cotton, the complaint fails to allege a constitutional violation sufficient to create jurisdiction in the circuit court. As explained in Vice v. State, 679 So.2d 205, 208 (Miss.1996) (citations omitted):

The United States Supreme Court ... held that while maintenance of a parole system does not, in and of itself, create a protected interest in parole, one exists only where mandatory language creates a presumption of entitlement to parole once certain objective criteria are met. However, because the Mississippi parole statutes contain no such mandatory language, employing the permissive “may” rather than “shall,” prisoners have “no constitutionally recognized liberty interest” in parole.

Therefore, the Parole Board’s determination did not violate one of Mack’s vested constitutional interests. As noted in Cotton, “the Parole Board is given ‘absolute discretion’ to determine who is entitled to parole within the boundaries of factors set forth in Mississippi Code Annotated section 47-7-3.” Cotton, 863 So.2d at 921(¶ 11). As in Cotton, the complaint here basically “called for the circuit court to review the board’s determinations.” Id. Nothing in the present case’s complaint rose to the level of a judicable constitutional issue. Therefore, regardless of the fact that the complaint should have been dismissed for failure to file against the proper parties, the circuit court would not have had jurisdiction even had the complaint been properly filed and served.

(2) The Boundaries of the Board’s Discretion

¶ 9. In this point of error, Mack contends that the Parole Board went beyond its discretionary boundaries when it denied his application for parole. However, as noted above, the Parole Board’s discretion is “absolute.” Additionally, the Parole Board in this case based its decision on factors that are in “areas which [the Parole Board has] been given the authority to consider pursuant to Mississippi Code Annotated section 47-7-17..." Justus, 750 So.2d at 1279(¶ 6).

¶ 10. Mack also contends that the Parole Board exceeded its authority because it relied on factors that “will not change with any future time spent incarcerated.” However, a review of the factors utilized by the Parole Board indicates that this statement is untrue. As pointed out by the State, one factor that the Parole Board pointed to was the insufficiency of the time served, a factor that by its nature must “change with any future time spent incarcerated.” Additionally, the community opposition to Mack’s release, as pointed out by the State, may change over time.

¶ 11. In short, while there may be situations where the Parole Board exceeds its statutory authority, the Parole Board certainly did not exceed its discretion in the present case. The Parole Board’s determination was based on factors that find their basis in the statute granting the Parole Board control over which inmates are eligible for parole. Nothing indicates that the Parole Board went beyond its discretion in denying parole to Mack.

(3) Use of Discrimination in Denial of Parole

¶ 12. In this point of error, Mack claims that the Parole Board discriminated against him because it based its decision “upon whether the victim of the crime is a prominent citizen or a poor citizen.” The basis for Mack’s argument on this point is unclear, since the Parole Board did not mention the victim’s status (or, for that matter, anything else about the victim) when denying Mack parole. Mack intimates that the Parole Board improperly took into account his race as he is a “Black American” and “Constitutional Law forbids unfair treatment or denial of equal protection to prisoners because of their race, age or sex nationality [sic] or religion.” However, Mack provides no specific examples to show that his treatment is not equal to the parole treatment received by other inmates. Mack fails to point out even one incident of a similarly situated inmate receiving the parole that has been denied to Mack. Instead, Mack’s argument appears to be based on the fact that the Parole Board found that “the ability or willingness to fulfill the obligations of a law-abiding citizen is lacking.... ” Mack contends that, given the evidence presented in his favor, “nothing could be further from the truth” than the Board’s determination that he lacked the ability to become a law-abiding citizen. However, for this Court to make a determination as to the correctness of the Parole Board’s decision regarding this factor, we would have to improperly reweigh the evidence and substitute our own judgment for that of the Parole Board. Our limited review of parole decisions dictates that we defer to the decision of the Parole Board in this case.

¶ 13. While there are certainly factual scenarios in which we might find that the Parole Board improperly considered race in making its determination, there is no evidence that any such impropriety occurred in the present case. In the absence of any evidence showing that the Parole Board improperly took into account Mack’s race or his victim’s status, we find that no error occurred. Therefore, even if the dismissal of Mack’s case were not being affirmed on other grounds, we note that nothing in the record indicates that Mack’s constitutional rights have been violated.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Mack was convicted in Hinds County and was serving his sentence at the Jefferson County Regional Correctional Facility at the time of his petition.


author: ISHEE, J.,

text:
    Tramaine CURRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02541-COA.
    Court of Appeals of Mississippi.
    Aug. 1, 2006.
    Rehearing Denied Nov. 28, 2006.
    Johnnie E. Walls, Greenville, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Tramaine Curry was convicted of sexual battery in the Circuit Court of Bolivar County. He was sentenced to serve a term of twenty years, with five years suspended, in the custody of the Mississippi Department of Corrections. The trial court denied Curry’s motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Aggrieved by his conviction and sentence, Curry appeals. Finding no error, we affirm.

FACTS

¶ 2. On September 21, 2004, Curry was indicted by a Bolivar County grand jury for sexual battery. The indictment stated that on October 24, 2003, Curry unlawfully, willfully and feloniously engaged in sexual penetration with a female child under the age of fourteen years. Raymond Wong was appointed by the circuit court to represent Curry. On September 28, 2004, Curry entered a plea of not guilty.

¶ 3. The trial began on November 1, 2004. The victim, an eight-year-old girl (hereinafter referred to as “M.B.”), testified that on the day in question she was in her grandfather’s house with her brother (hereinafter referred to as “M.Z.B.”), her sister, and Curry. Curry called her into the kitchen and led her into another room. Once they were inside the room, Curry closed the door and pulled down his pants. He instructed her to get down on her knees and “suck pajamas.” M.B. described “pajamas” as something in the front of Curry’s body, below his stomach, and brown in color. She further testified that Curry made her put it in her mouth, that it “felt bad,” and that afterward, he “dumped something out over there on the floor.”

¶4. M.Z.B., M.B.’s nine-year-old brother, also testified as to the events of that day. He testified that Curry told him that he was going into the room to clean and that he was taking M.B. with him to help. He explained that when he stood on the porch and looked through a window into the room he saw Curry standing up with his pants down and M.B. on her knees. He further testified that Curry had his penis outside of his pants and that M.B.’s face was close to his penis. M.Z.B. pointed to the place on a boy’s body where M.B.’s face was positioned on Curry’s body. M.Z.B. elaborated further, testifying that Curry’s legs were open and that M.B. was on the floor in front of him.

¶ 5. Curry took the stand in his defense. He testified that he was babysitting the children. According to Curry, he sat the children down in the front room and fed them potato chips, corn dogs, and pop as they watched television. He also testified that he sent the children to the market to get the potato chips. Curry described the room in question as a room filled with junk. He further stated that, of the two entrances to the room, one was locked and the other was blocked by a wheelchair. Curry also testified that he did not commit sexual battery on M.B.

¶ 6. On November 2, 2004, Curry was convicted of sexual battery. The trial court denied his motion for JNOY or, in the alternative, a new trial. Aggrieved by the trial court’s decision, Curry appeals. He asserts the following issues for this Court’s review: (1) whether the verdict of the jury was against the overwhelming weight of the evidence as the state failed to make a prima facie case of sexual battery against Curry; (2) whether Curry received ineffective assistance of counsel; and (3) whether the cumulative effect of the errors warrants reversal of conviction and sentence.

ISSUES AND ANALYSIS

I. Whether the verdict of the jury was against the overwhelming weight of the evidence as the state failed to make a prima facie case of sexual battery against Curry.

¶ 7. Although Curry presents this issue as a challenge to the weight of the evidence, he argues that the critical elements of the crime were so lacking that a reasonable jury could not have found him guilty. Citing McClain v. State, 625 So.2d 774, 778 (Miss.1993), Curry asserts that “in considering motions challenging the sufficiency of the State’s proof’ the trial court “must view the evidence in the light most favorable to the State giving the prosecution the benefit of all reasonable inferences which may be drawn from the evidence.” Thus, Curry challenges the legal sufficiency of the evidence, rather than the weight of the evidence.

¶ 8. A motion for directed verdict and JNOV, as well as a request for peremptory instruction, challenges the legal sufficiency of the evidence, “since each requires consideration of the evidence before the court when made.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Reversal on the issue of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129(¶ 14) (Miss.Ct.App.2004) (citing Hawthorne v. State, 835 So.2d 14, 21(¶31) (Miss.2003)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.1995)).

¶ 9. In support of challenge to the legal sufficiency of the evidence, Curry asserts that M.Z.B. did not see him put his penis in M.B.’s mouth. He further asserts that some of M.Z.B.’s testimony is inconsistent with other evidence. For example, Curry notes that M.Z.B. testified that a screwdriver latched the door of the room in question, but that the police never reported finding a screwdriver. He also notes that M.Z.B. testified that a screen was over the window through which he saw Curry and M.B., but that Officer Oliver Jones with the Shelby Police Department testified that there was no screen on the window.

¶ 10. We find that Curry’s challenge to the legal sufficiency of the evidence does not justify reversal. The State presented the testimonial evidence of M.B. that Curry pulled down his pants, made her get down on her knees, and put his penis in her mouth. M.Z.B.’s version of the events was consistent with that of M.B.’s, as he testified that he saw M.B. on her knees in front of Curry, who had his pants down. Furthermore, Curry admits in his brief that the inconsistencies he points out in M.Z.B.’s testimony are “minute.” Therefore, we conclude that reasonable jurors could have found Curry guilty. This issue is without merit.

II. Whether Curry received ineffective assistance of counsel.

¶ 11. Curry argues that he received ineffective assistance of counsel because his attorney neither fully developed his defense nor properly questioned the key witnesses (M.B. and M.Z.B.). Curry asserts that his attorney should have questioned M.Z.B. about the sequence of events from the time he arrived at the house to the time he went to the market. Curry further asserts that his attorney failed to “fully question” M.B. about finding M.Z.B. and her sister watching television after the assault occurred.

¶ 12. The standard for ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Curry must show that his attorney’s overall performance was deficient, and that this deficiency deprived him of a fair trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). We must be mindful of the “strong rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, Curry must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So.2d 740, 742(¶ 9) (Miss.Ct.App.2003).

¶ 13. Regarding the questioning of the key witnesses, it was Curry’s attorney that brought out during M.B.’s cross-examination that she found M.Z.B. and her sister watching television after the assault occurred. Curry has not shown how the outcome of his trial would have been different. Instead, he vaguely asserts that his attorney’s performance was deficient and that he was deprived of a fair trial. We find that there is nothing in the record to overcome the presumption that Curry received effective assistance of counsel. This issue is without merit.

III. Whether the cumulative effect of errors warrants reversal of conviction and sentence.

¶ 14. Because we determine that Curry has failed to demonstrate any error whatsoever, we find that this issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS WITH FIVE YEARS SUSPENDED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


text:
    Willie George KNIGHT and Ellen D. Knight, Appellants v. SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, Appellee.
    No. 2004-CA-02082-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      Audry Regnal Blackledge, Hattiesburg, David Shoemake, attorneys for appellants.
    John K. Keyes, Collins, Gail A. Crowell, attorneys for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. Willie George Knight and Ellen D. Knight (the Knights) appeal the judgment of the Covington County Circuit Court, sitting as a Special Court of Eminent Domain, condemning a portion of their property for a right-of-way and easement for the construction, maintenance, and operation of an electric transmission line system. Finding no error, we affirm.

FACTS

¶2. South Mississippi Electric Power Association (SMEPA) is a non-profit, rural electrical co-op which has eleven distribution co-op members to whom it provides electricity. The distribution co-ops, in turn, provide electricity to residential and commercial customers. Southern Pine Electric Power Association (Southern Pine) is the SMEPA member which provides electricity to Covington County, as well as ten other counties in the region. Southern Pine’s North Collins substation provides electricity to approximately 1,900 customers. An analysis of the transmission system revealed that the North Collins substation was providing below adequate voltage to its consumers. As a result, on April 1, 1997, SMEPA filed for a certificate of convenience and necessity with the Mississippi Public Service Commission (PSC) to construct a 69 kilovolt power line, Line 104, in the North Collins area in order to provide adequate voltage to its customers. The proposed line would run approximately five miles from Station Creek substation to Southern Pine’s North Collins substation. Notice of the filed petition and the pending PSC hearing was published in The Clariortr-Ledger, a newspaper of general circulation published in Jackson, Mississippi, and in The News-Commercial, a newspaper of general circulation in Covington County, Mississippi. The PSC notice appeared as follows:

MISSISSIPPI PUBLIC SERVICE COMMISSION
Jackson, Mississippi
April 01, 1997
1997-UA-188
SOUTH MISSISSIPPI EPA
EA123075000
In Re: Petition of South Mississippi Electrical Power Association For Certificate Of Public Convenience and Necessity Authorizing Them To Acquire, Construct, Own and Operate Electrical Transmission Facilities In Covington County, Mississippi (Station Creek-North Collins)
Notice
Notice is hereby given that on the 1st day of April, 1997, South Mississippi EPA filed with the Mississippi Public Service Commission the above referenced matter.
Any person desiring to participate in or receive further notice of these proceedings is required under Rule 6J of the Commissions Public Utility Rules of Practice and Procedure to file a written petition to intervene on or before twenty (20) days from the date of this notice.
This cause is returnable to the next regular meeting of the Commission to be held at 10:00 A.M., Tuesday, the 6th day of May, 1997, at the Mississippi Public Service Commission, 19th Floor, Walter Sillers State Office Building, Jackson, Mississippi. This cause may be heard on said return date, if a hearing is necessary, or be subject to being set for disposition on a hearing date not less than twenty (20) days from the date of publication of this Notice. If protest, answer or other appropriate pleading is on file in response to this matter, the Commission will consider same on said hearing date.
WITNESS MY HAND AND THE OFFICIAL SEAL of the Mississippi Public Service Commission, on this, the 1st day of April, 1997.
Brian U. Ray
Executive Secretary
(Seal)
1 Time: April 9,1997

¶ 3. On May 6, 1997, the PSC held a hearing on SMEPA’s petition for a certificate of public convenience and necessity. No objections to the granting of the certificate had been filed. The PSC found that public convenience and necessity required the award of the certificate, and ordered that the certificate be granted to SMEPA. After having been awarded the certificate of public convenience and necessity, SME-PA engineers began drawing construction plans for Line 104. Thereafter, Larry Griffin, SMEPA Director of Land, began negotiations with landowners to obtain rights-of-way for Line 104. By January 21, 2000, SMEPA had obtained a right-of-way from all landowners on whose property Line 104 would run except the Knights. On January 21, 2000, SMEPA filed in the Covington County Circuit Court an application for a condemnation hearing before a special court of eminent domain. On January 22, 2000, the court granted SMEPA’s petition, and set a trial date for May 22, 2000.

¶ 4. On March 20, 2000, the Knights filed a motion to dismiss the eminent domain proceeding, alleging that (1) they had not been provided reasonable notice of the PSC hearing in which the certificate of public convenience and necessity was granted, (2) the condemnation of their property was for private, rather than public, use, and (3) no public necessity existed for the taking of the their property. A hearing on the motion to dismiss was held on June 9 and June 14, 2000. On June 14, 2000, the court denied the Knights’ motion to dismiss. On July 12, 2000, the Knights filed a motion in the circuit court seeking permission to file an interlocutory appeal. On September 19, 2000, the court denied certification. The case proceeded to trial, and on September 10, 2004, the court ordered the portion of the Knights’ property in question to be condemned in order for SMEPA to construct, maintain, and operate Line 104. The court also entered a verdict setting the Knights’ compensation at $7,410.50.

ANALYSIS

¶ 5. This Court reviews motions to dismiss eminent domain proceedings to determine “whether or not the trial judge had sufficient basis to dismiss the condemnation petitions.” Mayor of Vicksburg v. Thomas, 645 So.2d 940, 941-42 (Miss.1994) (quoting Am. Tel. and Tel. Co. v. Purcell Co., 606 So.2d 93, 96 (Miss.1990)). Mississippi Code Annotated Section 11-27-15 (Rev.2004) provides three grounds for dismissal of an eminent domain action:

(1) that the plaintiff seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged.

¶ 6. The Knights’ first issue on appeal is whether they received proper notice regarding SMEPA’s certificate of convenience and necessity hearing before the PSC. However, the Knights’ attorney stipulated that SMEPA had complied with both the statutory notice requirement as well as SMEPA’s procedural rules regarding notice. Therefore, this claim is barred from review. We now consider whether the trial court erred in denying the Knights’ motion to dismiss.

Public Use

¶ 7. Whether a taking is for public use is a judicial question. Mayor of Vicksburg, 645 So.2d at 942. The condem-nor has the burden of proving that the taking is for public use. Id. The Knights argue that the route of Line 104 through their property is not for public use and was arbitrarily selected by SMEPA. The Knights argue that the taking of their land was for private use to benefit surrounding landowners who negotiated with SMEPA to not have Line 104 run on their properties. The Knights’ assertion fails for two reasons. First, we have previously held that, “if the primary and paramount purpose of the taking is for public use ... it will not be defeated because some incidental private benefit or use results.” Winters v. City of Columbus, 735 So.2d 1104, 1108(¶ 14) (Miss.Ct.App.1999) (quoting Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 19, 156 So.2d 572, 577 (1963)). At trial, it was established that Line 104 was being constructed in order for Southern Pine to provide approximately 2,000 customers with adequate power. SMEPA engineers testified that low voltage will cause its customers’ air conditioner, refrigerator, and other household appliance motors to fail. By the time of trial, SMEPA had already received numerous telephone calls from customers complaining of flickering lights and other low voltage conditions. Sanderson Farms, one of Southern Pine’s customers, had to stop production for thirty minutes due to the low voltage situation. We find that substantial testimony adduced at trial established that the taking was for public use. Therefore, any incidental benefit to surrounding landowners would not defeat the taking of the Knights’ property.

¶ 8. Secondly, Griffin testified that when he negotiates easements with landowners, if the landowner can propose an alternate route across his property, and if that alternate route is feasible and will not affect other landowners, he then takes that proposal to the SMEPA engineers responsible for determining the exact location of the route. Griffin further testified that although he negotiated with two of the Knights’ neighbors to move the location of the proposed route on their properties, this modification in no way affected the position of the route on the Knights’ property. This testimony was substantiated by Jerry Pierce, SMEPA’s manager of transmission who was responsible for determining the location of the route, who testified that the change in route negotiated by the Knights’ neighbors did not change the way the route was designed to run across the Knights’ property. Accordingly, we find that the trial court was correct in finding that Line 104 was for public use.

Public Necessity

¶ 9. While public use is a judicial determination, public necessity is determined by the condemning authority exercising its power of eminent domain conferred by the legislature. St. Andrew’s Episcopal Day Sch. v. Miss. Transp. Comm’n, 806 So.2d 1105, 1111(¶ 18) (Miss. 2002) (citing Jackson Redevelopment Auth. v. King, Inc., 364 So.2d 1104, 1110 (Miss.1978)). Mississippi Code Annotated Sections 11-27-47 (Rev.2004) and 77-5-231 (Rev.2000) authorize SMEPA to exercise the power of eminent domain. The condemning authority’s determination of public necessity will only be disturbed where the landowner can prove fraud or abuse of discretion. St. Andrew’s, 806 So.2d at llll(eiting Morley v. Jackson Redevelopment Auth., 632 So.2d 1284, 1288 (Miss.1994)).

¶ 10. The Knights have never asserted that SMEPA committed fraud in determining the public necessity of Line 104. Rather, the Knights insist that SMEPA abused its discretion, as illustrated by the lack of feasibility and economic considerations in determining the route of Line 104. The Knights insist that the most economically feasible route would have been a straight line. However, evidence produced at trial showed that a straight line route would require taking more of the Knights’ property. Currently, Line 104 crosses the perimeter of the Knights’ property, whereas a straight line cuts through the middle of the property. Furthermore, SMEPA engineers justified Line 104’s route, testifying that the route was chosen to avoid environmentally sensitive spots, residences, churches, schools, and other utilities. Since the Knights were unable to prove that SMEPA committed fraud or abused its discretion in determining the public necessity of Line 104, this issue fails.

¶11. THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT SITTING AS A SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . SMEPA is required to provide between 95 to 100 percent voltage to each substation during normal system conditions, and between 90 to 105 percent voltage during outage conditions. At the time of trial, SMEPA was providing the North Collins substation with only 85 percent voltage.


author: LEE, P.J.,

text:
    James STINGLEY, Appellant v. REDLAND INSURANCE COMPANY, Appellee.
    No. 2005-WC-01442-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Rehearing Denied Nov. 28, 2006.

      James (Jay) R. Foster, attorney for appellant.
    F. Hall Bailey, Jackson, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. This case results from a miscommu-nication regarding the date of cancellation of James Stingley’s employer’s workers’ compensation policy. Despite the error, this Court finds that the policy was effectively canceled and thus no coverage exists for Stingley’s claim.

¶ 2. Robert Kirtland, d/b/a Kirtland Trucking, secured workers’ compensation coverage through Redland Insurance for one year effective September 11,1999. On February 9, 2000, Kirtland executed a cancellation requesVpolicy release after receiving a cancellation notice for failure to make payments due under a finance agreement he had taken out to pay for the workers’ compensation policy.

¶ 3. James Stingley was injured on March 1, 2000, in the course and scope of his employment with Kirtland Trucking when a falling tree struck him. The incident was reported to Crawford & Company, administrator for Redland Insurance, Kirtland Trucking’s workers’ compensation carrier.

¶ 4. Not aware that the policy had been canceled on February 9, 2000, Crawford & Company began handling the claim on the basis that coverage was in effect. Payments totaling $62,795.94 for medical expenses and $29,852.76 in disability payments were made on Stingley’s claim. Redland is not seeking reimbursement for these amounts.

¶ 5. On March 15, 2000, Insurance Services of America (ISA), Redland’s underwriting agent, sent a notice to Kirtland advising that its workers’ compensation policy would be canceled on April 18, 2000, for nonpayment of premium. This was done without knowledge of the February 9 cancellation. Upon learning of the mistake, ISA sent another notice to Kirtland with February 9 as the effective date of cancellation.

¶ 6. On January 15, 2003, an administrative law judge found that coverage was in effect until April 18, 2000. However, on March 11, 2004, the same judge set aside the January 15 order upon consideration of additional information. The new finding held that “[t]he blank document signed on February 9, 2000 was, if anything, simply the initial steps of a request to cancel the policy, whereas the document with an effective cancellation date of April 18, 2000 was the actual ‘Notice of Cancellation.’ ” Redland appealed the ALJ’s decision to the Mississippi Workers’ Compensation Commission. The Commission set aside the decision and held that coverage did not exist. Stingley then appealed to the Circuit Court of Pearl River County. On June 22, 2005, the circuit court affirmed the ruling of the Commission.

¶ 7. Stingley appeals to this Court citing the following issues: (1) the employer had workers’ compensation insurance at the time of the accident; (2) the insurance company’s own documents show there was insurance coverage at the time of the accident; (3) the employer’s attorney admitted that there was coverage at the time of the accident; (4) the alleged cancellation of insurance by the employer was not signed by Robert Kirtland; and (5) Redland was confused about the date of cancellation.

¶ 8. Because issues I, II, and V are substantively similar, we will analyze those together. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 9. This Court’s scope of review of decisions of the Mississippi Workers’ Compensation Commission is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Levi Strauss & Co. v. Studaway, 930 So.2d 481, 484 (10) (Miss.Ct.App.2006) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(7) (Miss.Ct.App.1999)). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997); Westmoreland, 752 So.2d at 448 (¶ 8).

DISCUSSION

I.WAS WORKERS’ COMPENSATION INSURANCE IN EFFECT AT THE TIME OF THE ACCIDENT?

¶ 10. Stingley argues that Red-lands’ documents show the date of cancellation of insurance as April 18, 2000, and, therefore, coverage was in effect on March 1, 2000, the date of the injury. Stingley further argues that Redland should be es-topped by its own documents from arguing that there is no coverage.

¶ 11. Stingley cites several authorities allowing estoppel where the insured relied on payments of the insurer. However, no reason exists for estoppel in this case. The doctrine of equitable estoppel requires proof of a belief and reliance on some representation, a change of position as a result of the representation, and detriment or prejudice caused by the change of position. See Gulf Ins. Co. v. Neel-Schaffer, Inc., 904 So.2d 1036, 1048(¶ 33) (Miss.2004).

¶ 12. First, no reliance has been shown. Second, no misrepresentation was made about the provisions of coverage. Kirt-land, the employer, knew of the cancellation, his signature was on the lost policy release, and he was aware that the policy was being canceled for his failure to pay premiums. This is supported by handwritten notes made by the insurance agent during conversations with Kirtland stating Kirtland’s intent to cancel the policy on February 9.

¶ 13. By signing the lost policy release, Kirtland canceled coverage consistent with the provisions for immediate cancellation set out in Mississippi Code Annotated Section 71 — 3—77(1)(b) (2000). Under this section, a workers’ compensation insurer must give the insured thirty days notice of intent to cancel a policy unless the insured signs and delivers a lost policy release. Id.

¶ 14. Kirtland agreed to the cancellation of coverage on February 9, 2000, and he should have known that any payments made to Stingley under the workers’ compensation coverage were a mistake. Therefore, cancellation was effective as of February 9, 2000.

II. DID THE ADMISSION OF INSURANCE COVERAGE BY THE EMPLOYER’S ATTORNEY GIVE EMPLOYEE RIGHT TO COVERAGE?

¶ 15. In Redland’s answer to Stingley’s complaint, Redland admitted “that the parties were subject to the Mississippi Workers’ Compensation Act at the time of alleged accident or occupational disease.” Stingley uses this statement to further support his argument that workers’ compensation insurance was available at the time of the injury.

¶ 16. No evidence of this argument appears at the trial level or in the record of the Commission. An appellant is not entitled to raise a new issue on appeal, since to do so prevents the trial court from having an opportunity to address the alleged error. West v. West, 891 So.2d 203, 214(¶ 33) (Miss.2004); Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992). Since this issue was not previously raised, it cannot be heard for the first time by this Court on appeal.

III. WAS THE CANCELLATION OF INSURANCE AS SIGNED BY THE EMPLOYER’S WIFE VALID?

¶ 17. Stingley argues that the cancellation of insurance was invalid since it was signed by Kirtland’s wife, Lois, who was not authorized to sign insurance documents.

¶ 18. Lois Kirtland testified that she assisted at Kirtland Trucking in certain business affairs, including dispatch, payroll, and filing, but had no duties with regard to obtaining insurance. Kirtland could not recall whether he gave his wife specific authority to sign his name to cancel the workers’ compensation policy. Mrs. Kirtland admitted signing Mr. Kirt-land’s name on a blank cancellation form but does not recall what policy was being canceled. This was not unusual since Kirt-land Trucking had filed for bankruptcy and had been out of business for approximately three years. Many policies had been canceled or changed to other equipment.

¶ 19. Even without specific authority from Kirtland, his wife’s signature on the blank document entitled “Cancellation Request/Policy Release” effectively canceled the coverage. First, Mrs. Kirtland admitted to signing her husband’s name to the form. Second, the insurance agent testified that the cancellation had been discussed with Kirtland prior to its execution. The insurance agent produced handwritten notes taken during a phone conversation with Mr. Kirtland on February 9, 2000, asking the agent to drop workers’ compensation insurance. The insurance agent followed up on their conversation by faxing the policy release to Kirtland Trucking. The form was faxed back on the same day bearing the signature “Robert D. Kirt-land.”

¶ 20. Given these facts, substantial evidence existed for the Commission to deny benefits. Kirtland was aware of the cancellation request and consented to its execution. We affirm.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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