author: CARLTON, J., for the Court.

text:
    Richard H. POWELL, Appellant v. Amy Sue POWELL, Appellee.
    No. 2006-CA-01892-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Marcie Tanner Southerland, Vicksburg, Jennifer Powell Fortner, attorneys for appellant.
    James L. Farrior, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. Richard H. Powell appeals from an order of the Chancery Court of Harrison County, which denied his motion for modification of child custody and petition for contempt and granted Amy Sue Powell’s motion for an upward modification of child support. Aggrieved, Richard now appeals and raises the following issues:

1. Whether the chancellor erred in finding that there had been no material change in circumstances adverse to the minor children since the original decree.
2. Whether the chancellor erred in failing to apply the Albright factors.
3. Whether the chancellor erred in considering testimony regarding pre-divorce conduct.
4. Whether the chancellor erred in failing to hold Amy in contempt.
5. Whether the chancellor erred in granting an upward modification of child support.

¶2. We affirm the denial of Richard’s petition for contempt. However, we find that the chancellor faded to consider the totality of the circumstances in denying Richard’s petition for modification of custody. Therefore, we reverse the chancellor’s judgment and remand this case for a new trial with directions for the chancellor to reconsider the issues of modification of child custody and child support.

FACTS

¶ 3. Richard and Amy were divorced by final decree of the Chancery Court of Harrison County on September 20, 2000. The decree approved and incorporated by reference a separation and property settlement agreement wherein the parties agreed to joint legal custody of the minor children, namely, C.S.P., Rebeccah Morgan Powell, Sarah Lauren Powell, and Andrew Theron Powell, with Amy having physical custody of the children subject to Richard’s reasonable visitation rights. Additionally, Richard agreed to pay child support in the amount of $500 per month.

¶4. After the divorce, Amy began a relationship with Larry Kennedy. In August 2001, Amy moved herself and the children from Gulfport, Mississippi to Saucier, Mississippi to live with Kennedy. While in Saucier, C.S.P., age twelve at the time, was raped in the woods behind Kennedy’s house. Amy did not notify Richard of this event until he returned home from working offshore. While she resided in Saucier, Amy was employed at the Long Beach Yacht Club in Long Beach, Mississippi.

¶ 5. In August 2004, Amy quit her job and relocated herself and the children to Lexington, Mississippi. They moved into a house, and Amy put a down payment on the house. Shortly after taking up residence in Lexington, Amy and her mother, Mary, got into an argument which escalated to the point that Mary pulled a gun on Kennedy. Amy was unemployed while in Lexington. Consequently, she was eventually unable to make payments on her home. Amy’s uncle took over payments in November 2004 to enable the children to complete the school year.

¶ 6. In July 2005, Amy attempted to move to Denham Springs, Louisiana. She planned on residing with a friend; however, before Amy left for Denham Springs her living arrangement fell through for reasons not relevant to this appeal. With no place to live, Amy and the children moved in with her grandmother in Springfield, Missouri. While in Springfield, Amy obtained employment with Hampton Inn as a desk clerk. In early August 2005, Amy moved herself and the children into an apartment.

¶ 7. On January 17, 2006, Richard filed a petition for modification of child custody and a petition for contempt. His petition for modification alleged that Amy was unable to provide a stable environment in which to raise their children due to her frequent relocation and sporadic employment. Richard’s petition for contempt claimed that Amy failed to exchange information and failed to confer with Richard before making decisions concerning the health, education, and welfare of their children.

¶ 8. On June 11, 2006, Amy decided to relocate herself and the children again. They moved to Houma, Louisiana. Hampton Inn allowed Amy to transfer her employment to a location near Houma. Notwithstanding her employment, Amy was unable to secure a home for herself and the children. Amy and the children moved into a friend’s fish camp. On June 27, 2006, Amy filed an answer and a counter-complaint seeking an upward modification of child support. Amy and the children were still living at the fish camp at the time of trial.

¶ 9. Trial took place on July 10, 11, and 12, 2006. At the time, Amy did not know where her children would attend school, which was scheduled to start within the next few weeks. She claimed that she planned on moving out of the fishing camp, but she did not know where or when. At the conclusion of trial, the chancellor denied Richard’s motion for modification of custody, finding that there had been no material change in circumstances adverse to the children. Richard’s petition for contempt was also denied upon a finding that insufficient evidence was presented to show that Amy’s conduct was willful. The chancellor then granted Amy’s motion for modification of child support, finding that both the children’s needs and Richard’s income had increased since the original decree. Richard’s support obligations were increased to an amount equal to twenty-four percent of his adjusted gross income.

STANDARD OF REVIEW

¶ 10. A chancellor’s findings will not be disturbed on appeal “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sand-erson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citation omitted).

DISCUSSION

1. Whether the chancellor erred in finding that there had been no material change in circumstances adverse to the minor children since the original decree.
2. Whether the chancellor erred in failing to apply the Albright factors.

¶ 11. A modification of custody requires the noncustodial parent to prove: (1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child. Giannaris v. Giannaris, 960 So.2d 462, 467-68(¶ 10) (Miss.2007). Modification must be based on conduct of the custodial parent that poses a danger to the mental or emotional health of the child. Id. at 467(¶ 9) (quoting Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). In determining whether a material change in circumstances has occurred, the chancellor must consider the totality of the circumstances. Creel v. Cornacchione, 831 So.2d 1179, 1183(¶ 15) (Miss.Ct.App.2002) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)). See also Hill v. Hill, 942 So.2d 207, 210(¶ 8) (Miss.Ct.App.2006) (citation omitted) (“The change in circumstances is one in the overall living conditions in which the child is found.”).

¶ 12. In denying Richard’s motion for modification of custody, the chancellor stated, “There is really only one main allegation that I find that comes close to stating a substantial and material change in circumstances, and that is the question of the amount of moves Ms. Powell has had.” The chancellor ultimately concluded that Amy’s frequent relocation did not constitute a material change in circumstances adverse to the children.

¶ 13. We first address Richard’s claim that the chancellor erred by failing to apply the Albright factors to determine whether a change of custody was in the best interests of his children. “In a custody modification proceeding, the question of which parent will better serve the welfare of the children as custodial parent is not reached unless the chancellor has previously found a material change in circumstance detrimental to the child’s best interest.” McCracking v. McCracking, 776 So.2d 691, 694(¶ 10) (Miss.Ct.App.2000) (citing McGehee v. Upchurch, 733 So.2d 364, 369(¶ 21) (Miss.Ct.App.1999)). Because the chancellor found no material change in circumstances, the occasion to consider the Albright factors did not arise. Therefore, this issue is -without merit.

¶ 14. Richard next argues that the chancellor erred in determining that no material change of circumstances had occurred since the original decree. Richard asserts that the chancellor’s decision ignored evidence that supports a finding that the children’s overall living conditions had materially changed to their detriment. We agree.

¶ 15. We find that the chancellor failed to consider the totality of the circumstances to determine whether the children’s overall living conditions had changed to their detriment. Consequently, we find that the chancellor applied an incorrect, or rather, an incomplete legal standard. Our review of the record reveals that Richard presented a number of factors, in addition to Amy’s frequent relocation, which support his claim that a material change of circumstances had occurred.

¶ 16. Amy correctly asserts that relocation of the custodial parent does not alone constitute a material change in circumstances. Cooley v. Cooley, 574 So.2d 694, 699 (Miss.1991) (overruled on other grounds). However, a material change in circumstances may be established where a custodial parent’s relocation is one of several supporting factors. See Jernigan v. Jernigan, 830 So.2d 651, 653-54(¶¶ 2-6) (Miss.Ct.App.2002); Fletcher v. Shaw, 800 So.2d 1212, 1215-17 (¶¶ 10-14) (Miss.Ct.App.2001); Deborah H. Bell, Mississippi Family Law, § 5.11[5][b] (1st ed.2005).

¶ 17. In the instant case the chancellor failed to consider the totality of the circumstances to determine whether a material change of circumstances had occurred. The chancellor’s findings did not mention C.S.P.’s rape or Amy’s reluctance to provide professional counseling for her. Likewise, the chancellor’s findings failed to acknowledge Amy’s unstable cohabitation with Kennedy. Beyond all this, the chancellor failed to consider the negative effects of the unstable environment created by Amy’s nomadic relocation and sporadic employment. Amy’s intermittent employment resulted in an unstable home environment for the children. At the time of trial, the children had been enrolled in three different schools over the past five years, and Amy planned to enroll the children in a fourth school in the upcoming weeks. Andrew was two years behind in school, although his grades had improved just prior to trial. Sarah had a speech impediment and needed continuing speech therapy. Also, the children testified regarding the difficulties they experienced in adjusting to their ever-changing educational and social environments.

¶ 18. Because the record makes clear that several significant factors were not given due consideration by the chancellor at trial in such a factually intense case, we reverse the chancellor’s judgment and remand this case for a full consideration by the chancellor.

3. Whether the chancellor erred in considering testimony regarding pre-divorce conduct.

¶ 19. Under this assignment of error, Richard argues that the chancellor erred in considering testimony regarding the family’s pre-divorce relocations. We review a trial judge’s decision to admit evidence under an abuse of discretion standard of review. Rushing v. Rushing, 724 So.2d 911, 914(¶ 11) (Miss.1998).

¶ 20. On cross-examination, Richard was asked whether he, Amy, and the children moved eleven or twelve times during their marriage. He responded in the affirmative. Richard made no objection to this question at trial. Accordingly, he has waived the issue on appeal. Robison v. Lanford, 850 So.2d 91, 98(1125) (Miss.Ct.App.2001). However, we will address the merits briefly in the interests of explanation.

¶ 21. Richard claims that principles of res judicata precluded the consideration of the couple’s pre-divorce moves. Indeed, prior findings under a divorce decree are res judicata as to any issues that were or might have been litigated at the time of the divorce decree. Childers v. Childers, 717 So.2d 1279, 1280(¶ 6) (Miss.1998). “The familiar rule that a judgment for alimony, custody or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions.” Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990) (citations omitted).

¶ 22. Under the facts of the instant case, we find no error in the chancellor’s limited consideration of the family’s pre-divorce moves. Our supreme court has explained that “[i]n considering modification of child custody, the chancellor must allow full and complete proof with respect to all circumstances and conditions directly or indirectly related to the care and custody of the children, existing at the time of the original divorce decree and at the time of the modification hearing.” Smith v. Todd, 464 So.2d 1155, 1157 (Miss.1985) (emphasis added). To determine whether a change of circumstances has occurred since the original decree, it is often necessary that post-divorce circumstances be measured against pre-divorce circumstances. Thus, it is necessary to understand the conditions existing at the time of the original decree.

¶ 23. In the instant case, the chancellor considered the fact that Richard, Amy, and the children moved frequently before the divorce to determine whether Amy’s post-divorce relocations constituted a material change in circumstances. From the chancellor’s order, it is apparent that he simply concluded that the children had become accustomed to frequent relocation during Richard and Amy’s marriage, and thus the chancellor found no change in circumstances had occurred by Amy’s post-divorce relocations. Amy’s suitability under the conditions existing at the time of the original decree was not at issue. We find that the chancellor acted within his discretion in considering the pre-divorce relocation of the parties. This issue is without merit.

4. Whether the chancellor erred in failing to hold Amy in contempt.

¶ 24. Richard asserted in his petition for contempt that Amy: (1) failed to confer with him before making decisions regarding the health, education, and welfare of the children; (2) failed to exchange information regarding the health, education, and welfare of the children; and (3) moved to Missouri, making his right to visitation impossible.

¶ 25. After hearing testimony from both parties, the chancellor refused to hold Amy in willful and contumacious contempt of court. Specifically, the chancellor found that the parties do not communicate well with each other, but Amy’s conduct did not rise to the level of willful and contumacious contempt of court. “It is a defense to a contempt proceeding that the person was not guilty of willful or deliberate violations of a prior judgment or decree.” Mizell v. Mizell, 708 So.2d 55, 64(¶ 52) (Miss.1998) (citation omitted). As the resolution of this issue turns largely on Amy’s credibility, we are hesitant to reverse the decision of the chancellor who, “by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990) (citations omitted).

¶ 26. Our review of the record does not reveal evidence which would render the chancellor’s decision clearly erroneous or manifestly wrong. Accordingly, we affirm the chancellor’s exercise of discretion on the issue of contempt. This issue is without merit.

5. Whether the chancellor erred in granting an upward modification of child support.

¶ 27. Having determined that the chancellor erred in his resolution of Richard’s petition for modification of custody, we find it unnecessary to consider this issue on this appeal. We direct the chancellor to reconsider the issue of child support on remand.

CONCLUSION

¶ 28. We affirm the chancellor’s refusal to hold Amy in contempt. Because the chancellor failed to consider the totality of the circumstances in deciding the issue of child custody, we reverse the chancellor’s judgment and remand this case for a new trial. On remand, the chancellor is directed to reconsider the issue of child custody giving due consideration to the totality of the circumstances. Because it is possible that custody may be modified on remand, the chancellor is also directed to reconsider the issue of child support.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . Amy testified that she did not have a number to contact Richard while he was offshore. She stated that she called him to tell him about the rape as soon as he returned.

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).

      . Amy only sought counseling for C.S.P. by having the school counselor talk with her about the incident on several occasions. Amy also rejected Richard’s suggestion that C.S.P. receive more professional treatment.

      . As explained above, the chancellor made this assumption without considering the totality of the circumstances, i.e., the negative impact of Amy’s frequent post-divorce moves, the lack of continuity in education and therapy, C.S.P.'s rape, and Amy's unstable cohabitation with Kennedy.


source: Caselaw Access Project

license: Public Domain

text:
    Jimi Levar WATTS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-02102-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Ray T. Price, Hattiesburg, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. Jimi Levar Watts was indicted on January 30, 2006, by a grand jury in George County, Mississippi, for possession of a controlled substance. After being convicted by a jury on October 19, 2006, Watts was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $50,000, as well as lab fees and court costs. He now appeals that verdict and raises two issues for our consideration. He first claims that the trial court erred in denying his motion for directed verdict of acquittal, claiming that the state had not presented enough evidence at trial to prove his guilt beyond a reasonable doubt. Second, he contends the trial court erred by allowing testimony regarding information received from a confidential informant. Finding no error, we affirm the circuit court.

FACTS

¶ 2. On May 18, 2005, Keith Churchwell, a police officer assigned to the South Mississippi Narcotics Task Force, saw Watts driving his wife’s black Ford Expedition. Officer Churchwell was driving to the sheriffs department to meet with fellow officers when he saw Watts. Shortly after Officer Churchwell arrived at the sheriffs department, he and other officers received information from a confidential informant that Watts was involved in illegal drug activity in The Grove, an area in Lucedale, Mississippi, known for such activity. Officer Churchwell testified that approximately fifteen or twenty minutes passed between his seeing Watts driving the Expedition and the confidential informant giving them the information.

¶ 3. Officer Churchwell, along with Stacy Eubanks, an agent with the Mississippi Bureau of Narcotics, and fellow officers Bobby Fairley and Tony Keel left the sheriffs department and went to The Grove. There, they observed the black Expedition that Watts had been driving. The officers approached Watts, who was sitting on a tire in front of the vehicle. Watts was in a vacant lot, approximately ten to twelve feet away from the Expedition. Agent Eubanks spoke to Watts, patted him down as a safety precaution, and asked him if he could look inside the vehicle. Watts agreed to allow Agent Eu-banks to search the car. Eubanks walked toward the vehicle, however, Watts told him to wait. Watts explained to Agent Eubanks that he had just gotten the vehicle out of the mechanic’s shop, and he did not know what was inside the vehicle. Watts makes no claim on appeal that the search of his car was illegal.

¶ 4. Upon looking in the driver’s side window, Agent Eubanks noticed a brown paper bag on the driver’s seat. The bag was rolled down so that Eubanks was able to see immediately that the bag contained a plastic bag with cocaine inside it. Agen-tEubanks retrieved the bag of cocaine from the vehicle and handed it over to Officer Churchwell. The officers arrested Watts and allowed his wife to come to the scene to pick up the vehicle. They did not question her about the drugs found in the car. They did not attempt to obtain fingerprints from the bag of cocaine, nor did they follow up on Watts’s assertion that the car had been in the mechanic’s shop just before the officers arrived.

¶ 5. Watts had a jury trial on October 19, 2006. At the close of the state’s case, Watts moved for a directed verdict of acquittal, which the circuit court denied.

DISCUSSION

¶ 6. Watts raises two issues for our consideration on appeal. He first claims that the trial court erred in denying his motion for directed verdict of acquittal, claiming that the state had not presented enough evidence at trial to prove his guilt beyond a reasonable doubt. Second, he finds error with the trial court for allowing hearsay testimony regarding information received from a confidential informant.

I. Whether the trial court erred in denying Watts a directed verdict of acquittal.

¶ 7. The standard of review this Court applies to motions for directed verdict or for JNOV is as follows:

Requests for a directed verdict and motions JNOY implicate the sufficiency of the evidence. The standard of review for the legal sufficiency of the evidence is well-settled: We must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Gleeton v. State, 716 So.2d 1083, 1087 (¶ 14) (Miss.1998) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 8. Watts claims that the prosecution did not present sufficient evidence to support his conviction beyond a reasonable doubt. The prosecution made its case on the theory of constructive possession, “a legal fiction used by courts when actual possession cannot be proven.” Fultz v. State, 573 So.2d 689, 690 (Miss.1990). In Mississippi, proximity to the contraband along with “any other scintilla of evidence of possession” may establish constructive possession. Id. The test to be applied in a constructive possession case is as follows:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subjected to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Curry v. State, 249 So.2d 414, 416 (Miss.1971).

¶ 9. In Mississippi, “one who is the owner in possession of the premises is presumed to be in constructive possession of the articles found in or on the property possessed.” Pool v. State, 483 So.2d 331, 336 (Miss.1986) (quoting Hamburg v. State, 248 So.2d 430, 432 (Miss.1971)). Watts asserts that because he did not own the car where the drugs were found, the state was required to present additional evidence to show that he was in constructive possession of them. Our supreme court has held that “when the defendant is not the owner of the premises the state must show additional incriminating circumstances to justify a finding of constructive possession. Id. (citing Boches v. State, 506 So.2d 254, 259 (Miss.1987)). The cocaine was not actually found on Watts himself, but rather in the car he had been seen driving. Further, Watts was not in the car at the time the officers approached him.

¶ 10. Watts relies heavily on Fultz, which is slightly similar to the case before us. In Fultz, the defendant was stopped by police officers while driving a car owned by his sister. The defendant was arrested, and upon an inventory search of the vehicle, the officers found drugs in a duffle bag in the trunk. The officers did not dust for fingerprints on the trunk of the car or on the bags containing the drugs. They also failed to question the owner of the vehicle when she arrived to retrieve it. The supreme court in Fultz held that “poor police work, and the absence of any evidence connecting the defendant with the trunk or any of its contents” warranted a reversal of the conviction. Id. at 691.

¶ 11. Watts’s case differs in two important ways from Fultz. First, while the car Watts was driving was in fact titled in his wife’s name, testimony at trial revealed that Watts drove the car on a regular basis and was the only person the officers had ever observed driving the car. The officers could easily recognize the car because of its color and distinctive Nascar tag. Second, the drugs were not found in the trunk or in any other concealed place in the car. Rather, Agent Eubanks found the cocaine on the driver’s seat of the car. The officers testified that the bag was not crumpled, as they would expect if someone had been sitting on it, but it was rolled down so that the drugs were visible from outside the car.

¶ 12. Because he was not the actual owner of the car, Watts claims more evidence was needed to convict him. Watts cites several cases in support of his position. Of the cases he mentions, only one was reversed for a lack of additional incriminating circumstances. In Hudson v. State, 362 So.2d 645, 647 (Miss.1978), the Mississippi Supreme Court reversed the convictions of Vincent and Randolph Hudson for possession of marijuana. One of the defendants was asleep in a car when police arrived and officers found drugs under the hood of the car. Id. at 646 The other defendant was inside a café near where the car was parked. Id. The car belonged to their mutual friend and traveling companion, who was never questioned. Id. The supreme court in that case found that there was not enough evidence to convict them because they did not own the car, the drugs were hidden under the hood, there was no proof of dominion and control over the marijuana, and there was no proof of other incriminating evidence. Id. at 647.

¶ 13. Though Watts was outside the vehicle when the officers approached, he had been seen driving the car only minutes before they arrived. His proximity to the vehicle showed that he exercised dominion and control over it and its contents. He was in an area known for drug activity, in close proximity to a vehicle a police officer had seen him driving earlier that day. The facts revealed that Watts regularly drove his wife’s Expedition. The drugs were not hidden within the car; rather, they were situated in an obvious position on the driver’s seat. Watts had to place the bag of cocaine there when he exited the car, or he sat on it while driving. The State presented sufficient evidence at trial that a reasonable and fair-minded jury could find Watts guilty of possession of a controlled substance. Therefore, this assignment of error fails.

II. Whether the trial court erred in allowing hearsay testimony regarding the confidential informant’s call to police.

¶ 14. Before trial, Watts filed a motion to exclude hearsay testimony related to the confidential informant and testimony related to why police officers went to The Grove area. The confidential informant was not called as a witness, and Watts objected to testimony regarding the information as being hearsay exclusions and violating his Sixth Amendment right to confrontation. The circuit court entered an order limiting the State’s testimony related to the informant “to the fact that information was received concerning illegal narcotic activity and the Defendant, Jimi Levar Watts.” That order prohibited the State from presenting testimony that information was received from a confidential informant or what the informant actually told officers.

¶ 15. In Stubbs v. State, 878 So.2d 130, 134(¶ 7) (Miss.Ct.App.2004), this Court held as follows:

“The standard of review for this Court regarding the admissibility of evidence is abuse of discretion of the trial court and reversal may be had only where that discretion has been abused. Unless the trial judge’s discretion is so abused as to be prejudicial to the accused, an appellate court will not reverse.... However, the discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.”

¶ 16. At trial, Agent Eubanks stayed within the parameters set by the circuit court. He testified: “BasicallyU we had received information about Jimi Watts concerning illegal narcotics activity on South Pine Street there in The Grove in Luce-dale.” Officer Churchwell testified at trial that the officers “received some information of illegal narcotics activity in The Grove area concerning Jimi Watts.” The district attorney mentioned the confidential informant in closing arguments, saying: “We have testimony from officers that the defendant was seen driving this exact vehicle by himself maybe 15 minutes before information was received regarding illegal narcotic activity and the defendant.” Watts claims these statements are hearsay, and the circuit court had already ordered that the statements be limited. Therefore, Watts contends these statements should not have been admitted at trial.

¶ 17. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, the testimony in court regarding the confidential informant’s statement was not offered to prove that Watts was actually involved in criminal drug activity. Rather, it was offered to explain why police officers went to the scene in the first place. Therefore, the statement was not hearsay. “[WJhen an officer’s testimony about the substance of a conversation with an informant is offered to show the reason for the officer’s presence at the scene of investigation, an informant’s tip is admissible to show why an officer acted as he did and was present at the said 'scene.” Jackson v. State, 935 So.2d 1108, 1114(¶9) (Miss.Ct.App.2006) (citing Clemons v. State, 732 So.2d 883, 888(¶ 19) (Miss.1999)). The circuit court did not err in allowing this testimony.

¶ 18. Further, the circuit court instructed the jury regarding the testimony related to the confidential informant. The jurors were instructed as follows:

[T]he testimony concerning information received by law enforcement as to drug activity involving Jimi Watts may not be considered by you as evidence of guilt in this case. The Court further instructs the jury that this information may be considered by you only as to the reason for the officers’ presence near the defendant at the time of the arrest.

We presume that jurors follow the instructions of the circuit court. King v. State, 857 So.2d 702, 724(¶ 62) (Miss.2003). Watts has not overcome this presumption, and this assignment of error fails.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $50,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    John Griffin BOWIE, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00898-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.
    John Griffin Bowie, Appellant, pro se.
    Office of the Attorney General by Desh-un Terrell Martin, Charles W. Maris, attorneys for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. This case is before the Court on appeal from the Harrison County Circuit Court’s dismissal of John Bowie’s motion for post-conviction relief. We find no error and affirm the dismissal.

FACTS

¶ 2. On April 4, 1988, Bowie waived his indictment and pleaded guilty in Harrison County Circuit Court to a charge of burglary of a business. The trial court accepted his plea and sentenced him to serve seven years in prison. Bowie filed his motion for post-conviction relief on December 12, 2005, which the trial court dismissed as being time-barred. He filed a subsequent motion for post-conviction relief on January 10, 2007. The trial court dismissed that subsequent motion as a successive writ as set forth under Mississippi Code Annotated section 99-39-23(6) (Rev. 2000). It is from the denial of that motion for post-conviction relief that Bowie now appeals. Bowie completed his sentence, but he is currently incarcerated on a separate conviction.

DISCUSSION

¶ 3. “In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002). Questions of law, however, are reviewed de novo. Robinson v. State, 904 So.2d 203, 204(¶ 3) (Miss.Ct.App.2005).

¶ 4. Bowie’s first post-conviction relief motion was dismissed because it was filed in 2005, more than seventeen years after he made his guilty plea in 1988. The post-conviction relief statute requires any motion for relief to be filed within three years after a guilty plea has been entered. Miss.Code Ann. § 99-39-5(2) (Rev.2007). His second motion for post-conviction relief asserted that he could overcome the statute of limitations because his claim fell within one of the enumerated exceptions in the statute. The statute allows a prisoner to file subsequent motions for relief and motions after expiration of the statute of limitations if he can show: (1) that there has been an intervening decision of the United States Supreme Court or of the Mississippi Supreme Court that would have actually adversely affected the outcome of his conviction or sentence; (2)that he has new evidence that was not discoverable at the time of trial; (3) that his sentence has expired; or (4) that his probation or parole has been revoked unlawfully. Id. Bowie alleges in his current motion for post-conviction relief that his sentence on the charge for which he seeks relief has expired and his plea was involuntary.

¶ 5. Indeed, Bowie’s sentence has expired. Bowie admits in his brief that he completed his sentence for business burglary from 1988 and that he is currently incarcerated on another charge. Bowie seeks relief related to his 1988 sentence, because he claims that sentence was used to enhance the sentence he currently serves. The post-conviction relief statutes provide him with no relief, however, as this Court has held that “unless he is being held under the sentence of which he complains, the post-conviction relief statutes provide no remedy.” Elliott v. State, 858 So.2d 154, 155(¶ 5) (Miss.Ct.App.2003). Furthermore, the limited record presented to this Court shows that part of Bowie’s plea agreement on the 1988 burglary charge included dropping the sentencing enhancement as a habitual offender. Thus, even without the conviction he seeks to overturn, Bowie could have been convicted as a habitual offender.

¶ 6. In his petition, Bowie requested an evidentiary hearing so that he can show that his case falls under an exception to the statute of limitations. This Court has recognized that a “post-conviction relief petition which meets basic pleading requirement[s] is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that [the] petitioner can prove no set of facts in support of [his] claim which would entitle him to relief.” Taylor v. State, 782 So.2d 166, 168(¶4) (Miss.Ct. App.2000) (quoting Robertson v. State, 669 So.2d 11, 13 (Miss.1996)). Because he completed his sentence and is currently-incarcerated for a separate conviction, Bowie lacks standing to seek post-conviction relief. We therefore affirm the trial court’s dismissal of the motion for post-conviction relief as a successive writ and also on the basis that Bowie lacked standing.

¶ 7. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . There is currently a separate motion to dismiss this appeal filed by the State that will be resolved separately.


author: ROBERTS, J., for the Court. CARLTON, J.,

text:
    Thelma KOESTLER, Appellant v. Marilyn Elizabeth KOESTLER, Appellee.
    No. 2006-CA-01959-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Marcie Tanner Southerland, Vicksburg, Sharon Anglin Counts, Jennifer Powell Fortner, attorneys for appellant.
    No Brief Filed, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. Marilyn Elizabeth Koestler successfully petitioned the Hinds County Chancery Court to have her mother, Thelma Koestler, involuntarily committed to the Mississippi State Hospital at Whitfield (Whitfield). Thelma was discharged just days after she arrived at Whitfield. Thelma appeals and raises several issues centered on the prospect that the chancellor erred when he granted Marilyn’s petition to have Thelma committed. After careful consideration of a very sparse record, we find the chancellor erred. Accordingly, we reverse the chancellor’s judgment and render judgment for Thelma.

FACTS AND PROCEDURAL HISTORY

¶ 2. Thelma admitted herself in the Senior Behavioral Health Services wing of the Mississippi Baptist Memorial Hospital (Baptist). Though there are various allegations regarding Thelma’s mental health, it seems undisputed that Thelma was depressed because Leo, her husband of more than fifty years, had been diagnosed with terminal cancer.

¶3. On October 11, 2006, Thelma’s daughter, Marilyn, filed an application and affidavit to commit Thelma. By her affidavit, which we quote in its entirety with its original capitalization, Marilyn submitted:

CLIENT IS PRESENTLY AT BAPTIST GERI-PSYCH UNIT. DR. COOK HAS FOUND THAT CLIENT IS INCOMPETENT AND IS RECOMMENDING COMMITMENT. HUSBAND RECENTLY DIAGNOSED WITH CANCER. CLIENT IS MISMANAGING MEDICATION FOR HUSBAND. SHE HAS ADMITTED SUICIDAL THOUGHTS, EITHER WITH GUN OR OVERDOSE. PRESENT SYMPTOMS: THREAT TO OTHERS AND TO SELF; AGGRESSIVE, MANIPULATIVE, PARANOID. PREVIOUS TREATMENT: SOME ONE-ON-ONE COUNSELING WHICH SHE DIDN’T PURSUE. MEDICALS: KNEE PROBLEMS. RISK OF VIOLENCE AND SUICIDE.

On October 16, 2006, the Hinds County Chancery Clerk filed a writ to take Thelma into custody and retain custody of her at the Hinds County Detention Center (HCDC). The writ indicates that Thelma was taken into custody on that date.

¶ 4. On the same day, the chancellor (1) appointed an attorney to represent Thelma, (2) ordered a pre-evaluation of Thelma, (3) appointed Doug Packer, M.D., and psychologist David Powers, Ph.D., to examine Thelma, and (4) assigned a special master to conduct a hearing as to whether Thelma should be involuntarily committed. At some point that same day, Thelma received notice that a hearing would take place at noon on that day.

¶ 5. That morning, Hinds Behavioral Health Services (HBHS) conducted a pre-evaluation of Thelma and found: (1) Thelma was not a threat to herself or others; (2) she was able to take care of herself; (3) she exhibited no antisocial or criminal behavior; (4) she did not abuse alcohol or drugs; and (5) she had no manic, psychotic, or dementia-like behavior. The pre-evaluation further indicated that Thelma was depressed because Leo was dying of cancer, and Thelma might have been suffering from “caretaker’s stress.” Ultimately, HBHS recommended that Thelma be monitored on an outpatient basis because she was no danger to herself or others.

¶ 6. At noon, the special master conducted the ultimate hearing on Marilyn’s petition for commitment. Four people testified during the hearing: (1) Dr. Packer; (2) Tiffany Parker, a social worker with the “geri-psyeh” unit at Baptist; (3) Dr. Powers; and (4) Thelma. Dr. Packer did not testify as to Thelma’s mental health and did not recommend any course of action as to whether Thelma should be committed.

¶ 7. Parker testified as to Dr. William Cook’s opinions and recommendations as to whether Thelma should be committed. To be specific, Parker read a letter from Dr. Cook into evidence. Counsel for Thelma objected and argued that Dr. Cook’s letter was inadmissible hearsay. The special master overruled Thelma’s objection and allowed Parker to read Dr. Cook’s letter into the record. That letter reads as follows:

To Whom It May Concern,
Thelma Koestler was admitted October 2, 2006 for treatment for depression, suicidal ideations and delusions. She has a history of poor compliance with her medication and a higher level of treatment was indicated. Her husband is dying of cancer and has been given approximately six months to live.
Based on my inpatient psychiatric evaluation so far has [sic] the following diagnoses:
1. Major Depressive Disorder, recurrent, severe
2. Severe Borderline Personality Disorder
3. Cognitive Disorder, Not Otherwise Specified
It is my understanding that Mrs. Koestler adjusted her husband’s medications without physician approval. These adjustments apparently worsened his quality of life. It is also my understanding that her husband has been doing much better while is [sic] in the hospital and not acting as his caregiver. Individuals with Borderline Personality Disorder can appear calm at times and then extremely rageful in a few seconds. The prognosis is extremely poor, even with ongoing psychiatric treatment.
Based on my understanding of Mrs. Koestler, the family dynamics and the prognosis for her psychiatric illness I would recommend that Mrs. Koestler visit her husband only under the supervision of a competent family member. I do not feel that Mrs. Koestler is competent, at this time, to make decisions for her medical care, or financial decisions.

¶ 8. After Parker read Dr. Cook’s letter into the record, the special master asked Parker, “Can you briefly tell me what Dr. Cook has said and what his opinions are with regard to her commitment?” Parker responded:

Yes, sir. He has diagnosed her with major depressive disorder, recurrent, and severe cognitive disorder, not otherwise specified, as an Axis 1 diagnosis.
Severe borderline personality disorder as an Axis II diagnosis. And he feels at this time Ms. Koestler is not competent and does not show any insight into her illness, and his recommendation is for her to receive treatments — more long-term treatments — than our facility can provide at the state hospital.

As to whether Thelma was a danger to herself or others, Parker testified, “She is incompetent to make decisions regarding to her medical care. In light of that, she might potentially be a harm to herself due to confusion.”

¶ 9. Thelma’s attorney cross-examined Parker. During cross-examination, Parker testified that Dr. Cook did not clarify what kind of medical treatment Thelma was incompetent to decide. Parker explained, “[Dr. Cook] just is making general terms regarding her well being might not. [sic] She’s already asked to go AMA and he feels like she needs continued treatment and he doesn’t feel that she’s competent to make that [decision].” Parker further testified, “We’ve been told that she has withheld medicine for her husband who has got [sic] lung cancer.” Parker elaborated that she had no personal knowledge that Thelma withheld medicine from Leo because “[t]hat’s only what we’ve been told.” Parker noted that Thelma had never attempted suicide and that Thelma could feed and clothe herself “with some assistance.” When Parker testified that Thelma “needs either supervision to moderate assistance with her daily living skills,” counsel for Thelma asked Parker to elaborate. Parker testified, “cooking and that type of thing, just to make sure the stove gets turned off and that type of thing.”

¶ 10. Dr. Powers testified after Parker. Dr. Powers testified that he “briefly” had an opportunity to conduct a mental examination of Thelma. During Dr. Powers’s testimony, the following exchange between Parker, presumably in the audience, and Dr. Powers transpired:

Dr. Powers: Do you know to what [Dr. Cook] refers in cognitive disorder [sic]? We’re missing that one altogether.
Parker: It’s — he says — his diagnosis, cognitive disorder, not otherwise specified.
Dr. Powers: What did he mean by that, do you think?
Parker: A cognitive disorder not other than — other than dementia.
Dr. Powers: Do you think there’s been some damage done to her thinking? I’m just curious more than anything else on that one—
Parker: Yes, sir. I haven’t — all of our patients have an MRI, but I haven’t seen or read the results of that, so I’m not—
Dr. Powers: Thank you.

After that exchange, Dr. Powers testified:

We have basically deferred to her treating psychiatrist. We have a letter from Dr. Cook indicating he believes she needs to be in the hospital for an extended period of time, I assume to get her stable on her meds. We defer to him. He’s been seeing her every day. We’ve recommended inpatient care. That would be the least restrictive. The prognosis is guarded.

¶ 11. During cross-examination, Dr. Powers testified, “If I didn’t have [Dr. Cook’s] letter, [outpatient treatment] would have been my recommendation.” Dr. Powers elaborated that his recommendation of commitment was based solely on Dr. Cook’s letter and the “testimony of the affiant.”

¶ 12. Though Marilyn filed the application and affidavit for commitment, neither she nor her brother, Carl, testified. Thelma was the final witness. Thelma testified that she “[hjadn’t planned to” hurt herself or anyone else. She testified that she was able to take care of herself, and she was “more confused and frustrated than anything.” She did not remember withholding any medication from Leo. She testified that she took care of Leo all the time until “two weeks ago.”

¶ 13. Thelma’s attorney asked her if there was anything else she wanted to tell the special master. At that point, the following exchange transpired:

Thelma: Well, I have a lot of things to tell you but I’m so frustrated and upset right now I can’t even begin to guess where to start. This letter that Dr. Cook said the thing about me adjusting her husband’s medication without physical or physician approval, I don’t know what that means. I don’t know what they’re referring to. I don’t know what cognitive disorder means. Oh, no, I can’t take care of myself, right? Is that what she’s saying?
The Court: I think — honestly, I think that letter’s poorly worded. I don’t think that the doctor’s trying to say that you’re totally incompetent. I think there is some concern by Dr. Cook and your family members, that you could benefit from getting your medication. I’m sure it’s been a strain on you with your husband just recently being diagnosed with cancer.
What he’s saying is he thinks that you need to be in the hospital so that you can get a little bit more leveled out and that it could be — I don’t think anybody’s talking about any kind of long-term situation or that you’re incompetent in the way that all of us think of that. I think it’s more — and also this about your family, your family — I’ve talked to all of your family members and they love you very much and they’re here because they’re concerned, not trying to take anything away from you but rather to get you back and to do what they think is in the best interest of you and your husband.
Thelma: Well, the problem — can I talk to you?
The Court: Yes, ma’am.
Thelma: The problem is, when my husband was diagnosed with cancer, the doctor said that he had 9 to 12 months to live, and he took chemo and he took three treatments and he couldn’t take it any more and he’s been off of it now for a good while and they haven’t taken another scan. So we don’t know how long my husband’s going to live.
The Court: Well, let me ask you this. Would you be willing to just to go back to Baptist? And I believe that if you’ll just do what they ask you to do, it won’t be a very long stay. That would be—
Thelma: Well—
The Court: — in my opinion the best thing to do.
Thelma: — I’m scared to death my husband’s going to die while I’m not there.
The Court: Yes, ma’am. Well, I understand that and I don’t know what to do. Mr. Barnett [counsel for Thelma], based on this letter of Dr. Cook, again I don’t — it’s the thing, I’m going to find that she needs just to go back out to Baptist Hospital. I’m going to talk to the Court about make [sic] sure there’s not other — I don’t — there’s some other things in this order that I want to take out that we can talk about later. But, anyway, that’s going to be the ruling of the Court and I think this is in your best interest. And I think if you’ll just do what they tell you there and everything, they’re not — they’re going to try to get you back and back home. That’s what they’re here to do. They’re not trying to keep people that—
Thelma: How long am I going to have to stay there?
The Court: I’m just a lawyer. I don’t know. I have no idea, so. It depends on you. And you seem like an intelligent lady who will do what they tell you to do and that’s what we need to do. Okay? Thank you, ma’am. Thank you, Mr. Barnett.

¶ 14. The chancellor entered an order of commitment, and Thelma returned to Baptist where she waited for a bed to become available at Whitfield. On October 24, 2006, Thelma was transferred to Whitfield, where she underwent further psychological testing.

¶ 15. According to Thelma’s brief, on November 2, 2006, Dr. Sharon Martin conducted a family conference at Whitfield. Dr. Martin informed Thelma’s family that Thelma would be released the next day pursuant to a provisional discharge. According to Thelma, Dr. Martin said she should have never been committed to involuntary inpatient treatment. Thelma’s brief also states that Dr. Martin observed questionable motives for having Thelma involuntarily committed.

STANDARD OF REVIEW

¶ 16. We will not disturb a chancellor’s findings of fact unless they are not supported by substantial evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss.Ct.App.2000). Additionally, we will not disturb a chancellor’s findings unless they were manifestly wrong or clearly erroneous. Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss.2001). We review questions of law de novo. Ladner v. Necaise, 771 So.2d 353, 355(¶ 3) (Miss.2000).

ANALYSIS

¶ 17. Before we delve into Thelma’s issues on appeal, we must discuss the fact that Marilyn did not file a response brief. Under the circumstances, we have two alternatives:

When the record is complicated or of large volume, and the case has been thoroughly briefed by appellant with a clear statement of the facts, and with applicable citations of authorities, so that the brief makes out an apparent case of error, we will not regard ourselves as obliged to look to the record or to search through it to find something by which to avoid the force of appellant’s presentation, but will accept appellant’s brief as confessed and will reverse. Or when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

Ballard v. Bingham, 919 So.2d 104, 105(¶ 5) (Miss.Ct.App.2005) (citing W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 382, 140 So. 527, 527-28 (1932)).

¶ 18. The record before us is very brief. The court papers consist of forty-one pages, and the transcript is only thirteen pages long. Suffice it to say, the record is in a condition that allows for convenient examination. Therefore, we will not accept Thelma’s brief “as confessed” and reverse. That is, we will consider the merits of Thelma’s claims, and we will not find that Marilyn has defaulted.

I. WHETHER THIS ACTION FALLS UNDER THE EXCEPTION TO THE MOOTNESS DOCTRINE, “CAPABLE OF REPETITION YET EVADING REVIEW.”

¶ 19. Because Thelma was discharged from Whitfield, she concedes that her appeal could be considered moot. In general, we will dismiss an appeal “when no useful purpose could be accomplished by entertaining it, when so far as concerns any practical ends to be served the decision upon the legal questions involved would be merely academic.” Strong v. Bostick, 420 So.2d 1356, 1359 (Miss.1982) (citation omitted).

¶ 20. There are exceptions to that general rule. Thelma submits that her appeal falls under one of those exceptions. We may entertain moot appeals if a matter is “capable of repetition yet evading review.” See In re Bauman, 878 So.2d 1033, 1037(¶ 15) (Miss.Ct.App.2004). There are two qualifiers to a finding that a moot appeal is capable of repetition yet evading review: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again. Id.

¶ 21. Bauman was a civil commitment action. Id. at 1035(¶5). The appellant had been committed and then subsequently discharged. Id. at 1037(¶ 14). This Court found that, though the appellant was discharged prior to his appeal, his appeal fell under the capable of repetition yet evading review exception. Id. at 1038(¶ 17).

¶ 22. We follow the precedent we set in Bauman and find that Thelma’s appeal falls squarely under the “capable of repetition yet evading review” exception to the mootness doctrine. Thelma’s commitment was very brief. She did not have time to appeal before her discharge. Further, there is a reasonable expectation that Thelma could be subject to the same action. According to Thelma’s brief, during her confinement at Baptist and Whitfield, Thelma’s children successfully filed a petition for conservatorship over her. Thelma also claims she was removed as the beneficiary of Leo’s life insurance and removed as the executrix of Leo’s will. While we do not find that these matters occurred as a matter of fact, such a finding is not as pertinent to our present purposes as is the possibility that Thelma could be subject to the same action. Considering Dr. Martin’s concern regarding the “questionable motives” behind Thelma’s commitment and the lack of an opposing argument, we find that this matter falls within the previously-mentioned exception to the mootness doctrine. Accordingly, we will consider the merits of Thelma’s arguments on appeal.

¶ 23. To be entirely clear, this opinion is in no way to be construed as establishing a bright line rule. That is, we do not find as a matter of law that when an individual is committed, subsequently discharged, and then later appeals, that his or her appeal automatically falls within the exception discussed above. We merely find that Thelma’s appeal falls within this exception.

II. WHETHER THIS COURT SHOULD REVIEW THIS INVOLUNTARY COMMITMENT BASED UPON THE “PLAIN ERROR” DOCTRINE.

¶24. Thelma notes that, in many instances, her counsel at the hearing failed to object to certain arguments that she raises for the first time on appeal. According to Thelma, we should review those arguments under the plain error exception to the contemporaneous objection rule. Because our finding, to some degree, depends on the nature of the argument, we will consider this issue as we consider those issues that Thelma raises for the first time on appeal.

III. WHETHER THE CHANCERY COURT ERRED IN ALLOWING INTO EVIDENCE THE HEARSAY LETTER WRITTEN BY DR. WILLIAM COOK, JR.

¶25. Thelma claims the special master erred when he allowed Parker, a social worker, to read Dr. Cook’s letter into evidence. We quoted Dr. Cook’s letter above, so there is no need to repeat it here. In any event, Thelma objected and submitted that Parker was prohibited from reading Dr. Cook’s letter into evidence because it was inadmissible hearsay. The special master overruled Thelma’s objection without elaborating as to why he found it permissible for Parker to read Dr. Cook’s letter into evidence. Thelma claims the special master erred. We agree.

¶ 26. We review a trial court’s decision regarding the admission of evidence for abuses of discretion. Burton v. State, 875 So.2d 1120, 1122 (¶ 6) (Miss.Ct.App.2004). In other words, we will not disturb a trial court’s decision unless it is clearly wrong. Id. We will find an abuse of discretion if a party shows clear prejudice resulting from an undue constraint on his or her own case or an undue lack of constraint on the opposing party. Id.

¶ 27. “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c) (internal quotations omitted). “A ‘statement’ is ... an oral or written assertion.” M.R.E. 801(a)(1). Dr. Cook’s letter is most definitely a written assertion. It follows that Dr. Cook’s letter qualifies as a statement.

¶ 28. Dr. Cook did not testify at the hearing. Parker read Dr. Cook’s letter into evidence. Accordingly, Dr. Cook’s letter was a statement “other than one made by the declarant while testifying at the ... hearing.” What is more, Dr. Cook’s letter was offered in evidence to prove the truth of the matter asserted — that Thelma should be committed to inpatient treatment. We must find that Dr. Cook’s letter falls within the definition of hearsay. “Hearsay is not admissible except as provided by law.” M.R.E. 802.

¶ 29. What is more, “[Betters that are written specifically for litigation purposes stating that a party to a trial is competent, incompetent, sane or insane are hearsay when offered as evidence unless accompanied by the testimony of the declarant.” Rice v. State, 815 So.2d 1227, 1229(¶9) (Miss.Ct.App.2001). There can be no doubt that Dr. Cook’s letter was written specifically for litigation purposes. Dr. Cook addressed his letter “To Whom it May Concern.” It is dated October 13, 2006-the same date the chancellor directed the chancery clerk to issue the writ to take Thelma into custody. Within the letter, Dr. Cook specifically recommended that Thelma undergo inpatient treatment at the “MS State Hospital.” Even during civil commitment proceedings, “[t]he rules of evidence applicable in other judicial proceedings shall be followed.” Miss.Code Ann. § 41-21-73(3) (Rev.2005). We find that the special master abused his discretion when he allowed Parker to read Dr. Cook’s letter into evidence.

¶ 30. It is not enough that we find that the special master erred. To find reversible error, we must find that Thelma experienced prejudice as a result of the special master’s error. Thelma most definitely experienced prejudice as a result of the special master’s decision to allow Parker’s reading of Dr. Cook’s letter. The only inpatient treatment recommendation was by way of Dr. Cook’s letter. HBHS’s pre-evaluation report recommended outpatient treatment. As detailed above, had Dr. Powers not been aware of Dr. Cook’s opinion, Dr. Powers would have recommended that Thelma undergo outpatient treatment. It is readily apparent that, but for the special master’s decision to admit Dr. Cook’s letter into evidence through Parker, there would have been no recommendation for inpatient treatment. We find that the special master abused his discretion and committed reversible error when he allowed the presentation of the evidence at issue.

¶ 31. Without Dr. Cook’s letter, it is impossible that there could be clear and convincing evidence that Thelma should be committed to involuntary inpatient treatment. Clear and convincing evidence is so clear, direct, weighty, and convincing that it enables “the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.” Moran v. Fairley, 919 So.2d 969, 975(¶ 24) (Miss.Ct.App.2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir.1995)). “Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level.” Id. Suffice it to say, a complete lack of evidence does not rise to the level of clear and convincing evidence.

¶ 32. The dissent would find that Dr. Cook’s letter was properly received into evidence by way of Dr. Powers, who relied on the substance of Dr. Cook’s letter in forming his own opinion. While Mississippi Rule of Evidence 703 allows an expert to use certain other sources in forming his or her own opinion, Rule 703 is not a vehicle for admissibility of otherwise inadmissible evidence. M.R.E. 703. Moreover, it is not intended to allow an expert to abdicate his or her opinion or defer his or her opinion to that of another expert.

¶ 33. What is more, Dr. Powers did not base his opinion solely on Dr. Cook’s letter. For clarification of Dr. Cook’s letter, Dr. Powers had a running colloquy with Parker, the social worker who had earlier impermissibly read Dr. Cook’s letter into evidence. That colloquy proceeded as follows:

Dr. Powers: Do you know to what [Dr. Cook] refers in cognitive disorder? We’re missing that one altogether.
Parker: It’s — he says — his diagnosis, cognitive disorder, not otherwise specified.
Dr. Powers: What did he mean by that, do you think?
Parker: A cognitive disorder not other than — other than dementia.
Dr. Powers: Do you think there’s been some damage done to her thinking? I’m just curious more than anything else on that one—
Parker: Yes, sir. I haven’t — all of our patients have an MRI, but I haven’t seen or read the results of that, so I’m not—

Dr. Power: Thank you.

(Emphasis added).

¶ 34. Then, instead of forming his own opinion, Dr. Powers deferred his opinion to that of Dr. Cook’s. Dr. Powers specifically stated, “[w]e have basically deferred to her treating psychiatrist” and “[w]e defer to him.” Dr. Powers also said, “If I didn’t have this letter, [outpatient treatment] would have been my recommendation.”

¶ 35. In Jones v. State, 776 So.2d 643, 650(1122) (Miss.2000), Dr. Steven Hayne, a forensic pathologist, testified that a forensic anthropologist was present during an autopsy and that the forensic anthropologist’s comments were “confirmatory” of his findings. Dr. Hayne also testified that the forensic anthropologist’s comments were “something that is reasonably and customarily relied upon by forensic pathologists ... in forming opinions.” Id. Jones appealed and claimed the circuit court erred when it admitted Dr. Hayne’s hearsay testimony. Id. The supreme court affirmed and held that, pursuant to Mississippi Rule of Evidence 703, the circuit court did not err when it allowed Dr. Hayne’s testimony. Id. at (¶ 23).

¶ 36. In Alexander v. State, 759 So.2d 411, 420(¶ 31) (Miss.2000), Dr. Hayne testified and used another expert’s autopsy report “in forming his own opinion as to the victim’s cause of death.” Id. (emphasis added). Alexander appealed and claimed the circuit court erred when it allowed Dr. Hayne to testify using the other expert’s autopsy report. Id. The supreme court held that, pursuant to Mississippi Rule of Evidence 703, an expert may “base his opinion on the opinions of others which are not in evidence so long as experts in the field ordinarily rely on such opinions in forming their own opinions.” Id. at (¶ 30) (emphasis added). The supreme court also provided the following example, “a psychiatric expert may rely on the reports of a patient’s psychiatric history in arriving at his diagnosis.” Id. (citing Gray v. State, 728 So.2d 36, 56-57(¶86) (Miss.1998)).

¶ 37. While Rule 703 permits the formation of an opinion by using certain contemplated forms of information, it is not a vehicle for admissibility of otherwise inadmissible evidence. Dr. Powers could have used Dr. Cook’s letter as a basis to form his own independent opinion, but he did not do so. He used Dr. Cook’s letter, and he had to clarify Dr. Cook’s letter with Parker, who was in no way qualified to elaborate on such matters. There was no testimony or other evidence that psychologists ordinarily rely on letters from psychiatrists that are explained and elaborated upon by unqualified social workers. Even if that suggestion was present, it would not have rendered Dr. Cook’s letter admissible. Accordingly, we reverse the chancellor’s decision and render judgment for Thelma. Based on the resolution of this issue, there is no need to analyze Thelma’s remaining issues. We decline to address those issues that are entirely moot. However, we consider certain procedural issues to develop previously unaddressed questions in our state jurisprudence.

IV. WHETHER THE CHANCERY CLERK ERRED WHEN HE ISSUED THE WRIT DIRECTING THE SHERIFF TO TAKE THELMA INTO CUSTODY.

¶ 38. An involuntary commitment proceeding begins with the filing of an affidavit. To conduct an involuntary commitment hearing, a relative or “interested person” must file an affidavit pursuant to section 41-21-65 of the Mississippi Code Annotated (Supp.2007). That affidavit, must meet certain statutory criteria. Section 41-21-65 provides:

The affidavit must contain factual descriptions of the proposed patient’s recent behavior, including a description of the behavior, where it occurred, and over what period of time it occurred. Each factual allegation must be supported by observations of witnesses named in the affidavit. Affidavits shall be stated in behavioral terms and shall not contain judgmental or conclusory statements.

¶ 39. The chancellor must then determine whether to direct the chancery clerk to issue a writ directing the sheriff to take the proposed patient into custody. The chancellor’s decision hinges on whether the affidavit meets the criteria of section 41-21-65. If the affidavit fails to set forth factual allegations and witnesses sufficient to support the need for treatment, the chancellor must refuse to direct the clerk to issue the -writ. Miss.Code Ann. § 41-21-67(1) (Rev.2005). However, if the chancellor finds that the affidavit meets the requirements of section 41-21-65, and the chancellor so directs, the chancery clerk shall issue a writ of custody. Miss. Code Ann. § 41-21-67(1) (Rev.2005).

¶ 40. According to Thelma, without a chancellor’s direction, a chancery clerk has no authority to issue a writ. The chancery clerk issued the writ to take Thelma into custody on October 13, 2006, and filed it three days later. Thelma claims the writs were defective because the chancellor did not sign either one. Thelma did not raise this issue during her hearing before the special master. We will not consider an issue unless the trial court first had an opportunity to consider it. Martindale v. Wilbanks, 744 So.2d 252, 255(¶ 11) (Miss.1999). However, Thelma submits that we should review this issue for plain error. We may only review an issue for plain error if the error of the trial court impacted one of Thelma’s fundamental rights. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 897(¶ 35) (Miss.2001).

¶ 41. We decline to review this issue for plain error because the point is moot based on our resolution of Thelma’s hearsay issue. However, we interpret Thelma’s argument to mean that, because the record contains no finding by the chancellor that Marilyn’s affidavit sufficiently met the requirements of section 41-21-65, the clerk should not have issued the writ of custody. There appears to be no statutory authority for Thelma’s proposition. Be that as it may, we urge chancellors to make such findings and to place them among the record to prevent future confusion.

V. WHETHER THELMA RECEIVED ADEQUATE NOTICE OF THE HEARING.

¶ 42. The record indicates that Thelma received notice of the hearing on the actual date of the hearing. Thelma did not raise this issue during the hearing. However, Thelma suggests that the chancellor committed plain error when he allowed the hearing to take place on the same day she received her notice.

¶ 43. According to the legislative procedure, “If the chancellor or clerk finds, based upon the physicians’ and any psychologist’s certificate and any other relevant evidence, that the respondent is in need of treatment ..., the clerk shall immediately set the matter for a hearing. The hearing shall be set within (7) days of the filing of said certificate unless an extension is requested by the respondent’s attorney.” Miss.Code Ann. § 41-21-71 (Rev.2005). Pursuant to Mississippi Code Annotated section 41-21-73(1) (Rev.2005), “[w]ithin a reasonable period of time before the hearing, notice of same shall be provided the respondent and his attorney ...” Whether one received reasonable notice depends on the facts of the case. Jenkins v. Jenkins, 757 So.2d 339, 344(¶ 11) (Miss.Ct.App.2000).

¶ 44. Based on our resolution of Thelma’s hearsay issue, this issue is moot for all practical purposes. However, we must note that, under similar circumstances preserved by a proper objection, it is entirely possible that Thelma did not receive adequate notice. It is clear that Thelma received notice of the hearing on the day of the hearing. The record does not indicate just when Thelma received notice of the hearing. However, the notice indicates that the hearing began at noon. As Thelma points out, “[ajssuming the chancery clerk’s office opened at 8:00 a.m. ... the maximum notice Thelma would have received would have been four hours.”

¶ 45. The North Dakota Supreme Court considered a similar issue in Byzewski v. R.O., 652 N.W.2d 327 (N.D.2002). In Byzewski, R.O. was subjected to a civil commitment proceeding. Id. at 327(¶ 2). At the time of his hearing, R.O. claimed he received insufficient notice of the hearing and moved for a continuance. Id. The trial court overruled R.O.’s request. Id. at 328(¶ 2).

¶46. On appeal, R.O. submitted that the trial court erred when it overruled his request for a continuance. The corresponding North Dakota statute required that notice be given sufficiently in advance of an involuntary commitment hearing “to permit preparation for the hearing.” Id. at 329(¶ 11) (citing Section 25-03.1-12, N.D.C.C.). The North Dakota Supreme Court reversed the trial court. Id. at 330(¶ 13). In so doing, the Byzewski court noted that R.O. received less than twenty-four hours’ notice of the hearing. Id. at 329-30(¶ 12). Further, as with Thelma, R.O. was not provided counsel until just prior to hearing. According to the Byzew-ski court, “with less than twenty-four hours’ notice, R.O.’s attorney would not have had sufficient time to gather the information from her client and find physicians to testify on R.O.’s behalf.” Id. At 329(¶ 12).

¶ 47. Though we do not reach the merits of the issue, we must note that the reasoning in Byzewski is persuasive, though we neither adopt nor reject it by this opinion. Suffice it to say that it is entirely possible that a maximum of four hours would not amount to “reasonable notice.” Assuming Thelma had four hours notice, during those four hours, she underwent a medical exam, a pre-evaluation, a psychological exam, she was taken into custody, and transported from the Baptist hospital in Jackson, Mississippi to the HCDC in Raymond, Mississippi where she met her attorney for the first time. We urge chancellors to be cautious in providing adequate notice to those who face involuntary commitment.

¶48. Though Thelma does not raise this issue, our review of the record reveals one final matter that bears discussion. Mississippi Code Annotated section 41-21-73(4) (Rev.2005) provides:

If the court finds by clear and convincing evidence that the proposed patient is mentally ill .... and, if after careful consideration of reasonable alternative dispositions, including, but not limited to, dismissal of the proceedings, the court finds that there is no suitable alternative to judicial commitment, the court shall commit the patient for treatment in the least restrictive treatment facility that can meet the patient’s treatment needs.... Alternatives to commitment to inpatient care may include, but shall not be limited to: voluntary or court-ordered outpatient commitment for treatment with specific reference to a treatment regimen, day treatment in a hospital, night treatment in a hospital, placement in the custody of a friend or relative or the provision of home health services.

“The court shall state the findings of fact and conclusions of law that constitute the basis for the order of commitment.” Miss. Code Ann. § 41-21-73(6) (Rev.2005). “The findings shall include a listing of less restrictive alternatives considered by the court and the reasons that each was found not suitable.” Id.

¶ 49. Thelma’s commitment order is a form order. That form contains a section that reads, “The following (out-patient care) (alternative living arrangements) (others) (has) (have) been considered as alternative to institutionalization and have been found (not) suitable for the following reasons[.]” The chancellor did not circle or otherwise indicate any of the possible responses. Underneath that section is a blank area of ruled lines. The chancellor only entered “N/A” on those lines. We interpret sections 41-21-73(4) and 41-21-73(6) to require written findings of fact and conclusions of law even when the chancellor finds no reasonable alternatives to commitment. That is, we urge chancellors to detail their reasoning as to why there were no suitable less restrictive alternatives. Though we do not reach the question of whether the absence of such findings result in reversible error, we can safely state that the statutes at issue require such findings. Not only that, such findings aid in appellate review.

¶ 50. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED AND JUDGMENT RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

DISSENTING:

¶ 51. I disagree with the majority’s finding that the trial court committed reversible error by admitting Dr. Cook’s letter into evidence through Parker. Because Dr. Powers permissibly relied on Dr. Cook’s letter pursuant to Mississippi Rule of Evidence 703, I find any error to be harmless. Accordingly, I respectfully dissent.

¶ 52. At the hearing, Dr. Powers offered his expert opinion based on his evaluation of Koestler, as well as the letter of her treating physician, Dr. Cook. Rule 703 allows an expert to base his opinion on inadmissible evidence provided that the evidence is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject!.] •••” The Mississippi Supreme Court has held that the opinion of a non-testifying expert is a type of evidence normally relied upon by experts in forming their own opinion; thus, it is not inadmissible hearsay when relied on by a testifying expert. Alexander v. State, 759 So.2d 411, 420 (¶¶ 29-31) (Miss.2000) (citing Gray v. State, 728 So.2d 36, 56-57 (¶¶ 79-87) (Miss.1998)). See also Jones v. State, 776 So.2d 643, 650 (¶¶22-23) (Miss.2000) (expert allowed to testify that forensic anthropologist was present at autopsy and made statements that conformed to the expert’s opinion). In my view, Dr. Powers permissibly relied on and adopted Dr. Cook’s letter in forming his own opinion, and he testified accordingly. As a result, the trial court was exposed to the findings contained in Dr. Cook’s letter.

¶ 53. As the majority notes, Dr. Cook’s letter was read into evidence by Parker. As Parker did not testify as an expert, I agree that the trial court erred in admitting the letter through her testimony. However, I find any error to be harmless. The substance of the letter was also put before the trial court through Dr. Powers’s expert opinion testimony, which rendered Parker’s reading of the letter insignificant. Consequently, I would affirm the trial court’s judgment to involuntarily commit Koestler.

      . The record contains a "certificate of examining physician/psychologist.” By that document, Dr. Powers and Dr. Packer certified that they examined Thelma on October 16, 2006, the date of the hearing. The certificate provides for options as to whether they recommended commitment to a treatment facility, but no response is indicated. Instead, there is a handwritten note by Dr. Powers in which he noted his deference to Dr. Cook's opinion.

      . This information is not included in the record. The only mention of this ever having occurred is by way of Thelma's brief. However, because Marilyn did not file a brief, Thelma’s version of subsequent events is entirely unchallenged.

      . Rule 703 provides that:
      The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.


author: ISHEE, J., for the Court.

text:
    HURDLE & SON and MS Casualty Insurance Company, Appellants v. Michael A. HOLLOWAY, Appellee.
    No. 2006-WC-02101-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      J. Keith Pearson, Oxford, Sarah Jane Lewis, attorneys for appellants.
    Barrett Jerome Clisby, Oxford, James Kizer Jones, attorneys for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Due to a work-related accident in February 1996, Michael Holloway was rendered a quadriplegic. Since his discharge from the hospital in May 1996, Holloway has been cared for by his mother and stepfather, Nettie and James Wiseman, at their home. Holloway has been receiving benefits under the workers’ compensation statute, and the Wisemans have been compensated for their care of Holloway at a rate of seven dollars per hour for sixteen hours each day.

¶ 2. In August 2002, Holloway filed a motion requesting that Hurdle & Son and Mississippi Casualty Insurance Company (employer and carrier) be required to pay for a life-care planner and that the Wise-mans be compensated for their care of Holloway at a rate of seven dollars per hour for twenty-four hours each day. After a hearing by an administrative law judge, an appeal to the full Workers’ Compensation Commission (the Commission), and a subsequent appeal to the Circuit Court of Marshall County, the employer and carrier were ordered to compensate the Wisemans for twenty-four hour care.

¶ 3. Aggrieved, the employer and carrier appeal, asserting that: (1) the evidence presented at the initial administrative hearing violated their due process rights under the Fifth and Fourteenth Amendments, as they received ineffective notice of Holloway’s intention to introduce evidence and examine witnesses, resulting in them being unable to conduct adequate discovery and otherwise prepare properly for the hearing; and (2) that the circuit court improperly re-weighed evidence in its review of the case and was in error when it overturned the ruling of the Commission. Finding that the constitutional rights of the employer and carrier were violated, we reverse the decision of the circuit court and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. On February 20, 1996, Holloway was involved in an automobile accident that left him a complete quadriplegic. After several months spent in different hospitals, Holloway was discharged from the North Mississippi Medical Center in May 1996. Since his release, he has been cared for by his mother and stepfather, the Wisemans, at their home in Marshall County.

¶ 5. After an initial round of litigation over whether Holloway was entitled to benefits under the Workers’ Compensation Act, this Court affirmed previous administrative rulings granting Holloway workers’ compensation benefits in Hurdle v. Holloway, 749 So.2d 342 (Miss.Ct.App.1999). Since that time, the Wisemans have been compensated for their in-home care of Holloway at a rate of seven dollars per hour, for sixteen hours a day, seven days a week.

¶ 6. In August 2002, Holloway filed several motions requesting that employer and carrier be required to pay for a life-care planner, that the Wisemans be compensated for their care of Holloway at a rate of seven dollars per hour for twenty-four hours each day, and that Holloway’s counsel receive a lump-sum award of fees in excess of $2,000,000. Those motions were all set to be heard by an administrative law judge.

¶ 7. When the parties came before the administrative law judge for a hearing on the various motions, it became apparent that counsel for the employer and carrier had not been properly notified that Holloway’s attorneys had requested a court reporter and that they sought to introduce substantive evidence during the hearing. Nevertheless, the administrative law judge allowed the hearing to proceed over the objections of counsel for the employer and carrier because Holloway and his witnesses had traveled a long distance. In June 2003, the administrative law judge found for the employer and carrier on every issue presented at the hearing, but noted that if she had not, she would have been compelled to hold another evidentiary hearing on the same issues in order to give counsel for the employer and carrier time to conduct discovery and prepare cross-examinations for Holloway’s witnesses.

¶ 8. Holloway appealed the ruling of the administrative law judge to the full Workers’ Compensation Commission, which affirmed the ruling of the administrative law judge in May 2004. Holloway next appealed the decision of the Commission to the Circuit Court of Marshall County. The circuit court, sitting as an appellate court, reversed the Commission and the administrative law judge on the issue of compensation for twenty-four hour care and affirmed on the issues of appointment of a life-care planner and the award of attorneys’ fees. It is from this decision that the employer and carrier appeal.

STANDARD OF REVIEW

¶ 9. With respect to decisions by a circuit or chancery court concerning the actions of an administrative agency or board, we apply “the same standard of review that the lower courts are bound to follow. We will entertain the appeal to determine whether the order of the administrative agency (1) was unsupported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party.” Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(¶ 15) (Miss.2002) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215-16 (Miss.1993)).

¶ 10. Furthermore, “[a] circuit court sitting as an appellate court reviewing a decision ... may not substitute its judgment for the judgment and discretion of the administrative agency on facts introduced.” Pascagoula Mun. Separate Sch. Dist. v. Barton, 776 So.2d 683, 684(¶ 5) (Miss.2001) (citing County Bd. of Educ. v. Parents & Custodians of Students, 251 Miss. 195, 208, 168 So.2d 814, 818-19 (1964)). Finally, the circuit court “must sustain the legal action of the agency if that action is based on substantial evidence.” Id. at 685(¶ 5).

DISCUSSION

¶ 11. The employer and carrier raise two arguments on appeal. These are: (1) that their due process rights under the Fifth and Fourteenth Amendments were violated in the initial administrative hearing, in that counsel for employer and carrier were improperly notified of Holloway’s intention to present evidence and examine witnesses during that hearing, compromising their ability to conduct adequate discovery and otherwise properly prepare for the hearing; and (2) that the circuit court improperly re-weighed evidence in violation of its standard of review, sitting as an intermediate appellate court, and erroneously reversed the rulings of the Commission and the administrative law judge. Finding that the circuit court was in error and violated the due process rights of the employer and carrier when it partially reversed the decision of the administrative law judge and the full Commission, we need not reach the second issue raised in this appeal.

¶ 12. Our supreme court has previously held that, at a bare minimum, due process in an administrative hearing requires notice and an opportunity to be heard. State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 248 (Miss.1989). These requirements by themselves do not require any mechanism for discovery be afforded to either party. However, when the procedures of an administrative agency allow for more than these minimum requirements, such as allowing for some form of discovery, courts in this state have recognized a strong interest in ensuring that those procedures are followed, as “the failure to abide by recognized discovery rules impacts whether a decision is seen as arbitrary and capricious, and an [sic] violation of due process.” Bermond v. Casino Magic, 874 So.2d 480, 484-85(¶ 11) (Miss.Ct.App.2004) (citing Mid-Delta Home Health, Inc. v. Robertson, 749 So.2d 379, 386-87(¶28) (Miss.Ct.App.1999)). Finally, this Court has held in the past that “it is an ‘immutable’ aspect of due process that a person against whom evidence is to be used be afforded an opportunity to refute the evidence.” Id. at 485(¶ 11) (citing Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)).

¶ 13. In this case, it is clear from the record that Holloway failed to follow the proper procedures for setting an evidentia-ry hearing before the administrative law judge. Among other things, the Procedural Rules of the Mississippi Workers’ Compensation Commission require that, in order to controvert an issue, a claimant must file a petition to controvert, giving the employer and carrier an opportunity to answer and conduct discovery. Miss. Workers’ Comp. Comm’n P.R. 2-4, 7. Pre-hearing statements must then be filed with the administrative law judge, and only then can an evidentiary hearing take place. Miss. Workers’ Comp. Comm’n P.R. 5. In this case, none of the procedures listed above were followed. Counsel for the employer and carrier were never notified, through a petition or otherwise, that Holloway intended to present evidence and examine witnesses at the motion hearing until their appearance before the administrative law judge.

¶ 14. As a consequence, and as the administrative law judge noted in her ruling, the proper course of action would have been to reschedule the hearing after following the proper procedure. The issue concerning the procedural defects of the hearing was rendered moot solely because, after hearing all of the evidence Holloway intended to present, the administrative judge effectively granted a directed verdict to the employer and carrier, a decision which was later affirmed by the full Commission.

¶ 15. Under these facts, the circuit court had two options in this case. It could have affirmed the judgments of the Commission and the administrative law judge, or it could have reversed and remanded for a new administrative hearing on the merits in order to cure the constitutional defects present in the initial hearing. It did not, however, have the authority to conduct an independent evaluation of the evidence the administrative law judge allowed into the initial hearing and to reach new legal conclusions concerning those facts. This is precisely what the circuit court did when it partially reversed the decisions of the full Commission and the administrative law judge and ordered the employer and carrier to provide additional compensation to the Wisemans for their care of Holloway. Consequently, we find that the circuit court violated the procedural due process rights of the employer and carrier in doing so and reverse the decision of the circuit court on this issue with instructions to remand the case back to the Commission for a new hearing on the merits.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS REVERSED. THIS MATTER IS REMANDED TO THE CIRCUIT COURT OF MARSHALL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


text:
    Darin BRASEL, Appellant v. The HAIR COMPANY and Roffler International, LLC, Appellees.
    No. 2006-CA-02148-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Jason Lee Shelton, attorney for appellant.
    Dana Gail Deaton, Edwin Hughes Priest, Chris H. Deaton, Tupelo, attorneys for appellees.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. In September 2004, Darin Brasel sued The Hair Company and Roffler International, LLC for invasion of privacy. Specifically, Brasel asserted that The Hair Company and Roffler had intentionally appropriated his likeness for commercial gain by taking photographs of him after he received a haircut at The Hair Company and by displaying those photographs on Roffler’s website.

¶2. Prior to trial, The Hair Company and Roffler filed for summary judgment. The circuit court initially denied their motion, but after they filed a motion to reconsider, the circuit court granted summary judgment in favor of The Hair Company and Roffler in November 2006. Aggrieved, Brasel now appeals, asserting that the circuit court’s grant of summary judgment was in error. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 3. Mike McBunch, owner of The Hair Company, regularly cut Brasel’s hair. On one occasion, after finishing a haircut, McBunch asked Brasel if he could photograph him to use as an example of his work. Brasel consented without limitation, and McBunch took several photographs of Brasel in the foyer of his shop. Some time later, Roffler asked McBunch to submit photos of his work for use on its website. Although the exact relationship between McBunch, The Hair Company, and Roffler in this case is not made clear in the record, McBunch responded to Rof-fler’s request by sending Roffler a collection of photographs demonstrating his work. He included photographs of Brasel in the collection he submitted to Roffler.

¶ 4. During a subsequent haircut, Brasel learned from McBunch that his photograph was being used on Roffler’s website. In September 2004, Brasel sued The Hair Company and Roffler for invasion of privacy. After conducting discovery, The Hair Company moved for summary judgment in May 2005. Roffler joined The Hair Company’s motion for summary judgment in July 2005, and the circuit court denied the motion later that month.

¶ 5. In November 2006, after conducting over a year’s worth of additional discovery, The Hair Company and Roffler filed a motion with the circuit court asking it to reconsider its earlier denial of summary judgment. That motion was granted, and the circuit court subsequently granted summary judgment to The Hair Company and Roffler. It is from that ruling that Brasel appeals.

STANDARD OF REVIEW

¶ 6. We review a lower court’s grant of summary judgment de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶9) (Miss.2002). In reviewing a grant of summary judgment, we view the evidence in the light most favorable to the non-moving party, and examine all evidentiary matters before the lower court at the time the judgment was granted. Id. at 1177(¶ 9). If no genuine issue of material fact exists upon review, then a grant of summary judgment in favor of the moving party is appropriate. Id.

DISCUSSION

¶ 7. Brasel sued for invasion of privacy, specifically, the appropriation of his likeness for a commercial purpose. Four theories are recognized for the tort of invasion of privacy. These are: “(1) the intentional intrusion upon the solitude or seclusion of another; (2) the appropriation of another’s identity for an unpermitted use, (3) the public disclosure of private facts, and (4) holding another to the public eye in a false light.” Candebat v. Flanagan, 487 So.2d 207, 209 (Miss.1986) (citing Deaton v. Delta Democrat Publ’g Co., 326 So.2d 471, 473 (Miss.1976)). In order to prevail on a claim based on appropriation of one’s likeness for commercial gain, a plaintiff must show that the defendant: (1) appropriated his name or likeness, (2) without consent, (3) for use in a commercial enterprise. Harbin v. Jennings, 734 So.2d 269, 272(¶10) (Miss.Ct.App.1999) (citing Candebat, 487 So.2d at 209).

¶ 8. In this case, Brasel consented to being photographed by McBunch without placing any limitations on how McBunch could use the photographs. These facts alone are enough to defeat Brasel’s claim for relief and to support a grant of summary judgment, because Bra-sel fails to satisfy the last two elements of his claim that the pictures were taken without his consent and for an unpermitted use. Under these facts, The Hair Company, by and through McBunch, obtained permission to use the photographs however they saw fit, including sending them to Roffler for display on its website. Accordingly, we affirm the judgment of the circuit court granting summary judgment in favor of The Hair Company and Roffler.

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

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