author: IRVING, J,

text:
    Billy Watson BONNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01502-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.
    Rehearing Denied April 24, 2007.

      Helen Bagwell Kelly, Adam A. Pittman, Batesville, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J,

for the Court.

¶ 1. Following a jury trial, Billy Watson Bonner was convicted of conspiracy to sell methamphetamine and of the sale of methamphetamine. The trial court sentenced Bonner on both accounts, as a habitual offender, to life in prison without the possibility of parole, reduction, suspension, or probation. Aggrieved, Bonner appeals and asserts that the trial court erred in denying his motion for a judgment notwithstanding the verdict as to the conspiracy charge and that the court erred in failing to review his sentence in light of the Eighth Amendment’s prohibition against cruel and unusual punishment.

¶ 2. We find no error; therefore, we affirm Bonner’s conviction and sentence.

FACTS

¶ 3. On October 24, 2003, Leigh Void, a confidential informant, approached Keith Beck to purchase methamphetamine. Beck informed Void that he did not have any methamphetamine and, in turn, contacted Bonner from whom had purchased methamphetamine on prior occasions. Beck arranged for a sale to occur at his home later in the day.

¶ 4. Void and Beck have slightly different accounts of the actual exchange of the methamphetamine. According to Void, when Bonner arrived at Beck’s home, Bonner pulled his 4-wheeler next to Void’s car and gave a cigarette package containing 2.2 grams of methamphetamine to Beck, who was sitting in the passenger seat. Void further testified that Beck handed the cigarette package to her, and she paid Bonner two-hundred-fifty dollars. However, Beck testified that he handed the money to Bonner who threw the cigarette package into the car.

¶ 5. Bonner made a request for a directed verdict at the conclusion of the State’s case-in-chief on the grounds that the State had failed to prove a prima facie case for conspiracy. The trial court denied the motion. Bonner did not put on any evidence and failed to renew the motion at the close of the evidence.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Judgment Notwithstanding the Verdict

¶ 6. Bonner contends that “[t]he trial court erred in denying his motion for a judgment notwithstanding the verdict as to the charge of conspiracy to sell methamphetamine” because the State failed to produce sufficient evidence establishing that he and Beck entered into a common plan to sell methamphetamine and that they knowingly intended to further that common purpose. The State responds that the trial court did not err because Bonner never filed a motion for a judgment notwithstanding the verdict. We have scoured the record and have been unable to find that Bonner ever filed such a motion. We agree with the State that we cannot place a trial court in error on a matter not presented to it for consideration. Jones v. State, 606 So.2d 1051, 1058 (Miss.1992).

¶ 7. While Bonner did not file a motion for a judgment notwithstanding the verdict, he did make an ore tenus motion for a directed verdict at the close of the prosecution’s evidence. The motion was denied, and the matter was submitted to the jury, which subsequently found Bonner guilty as charged. A perusal of the record indicates that no peremptory instruction was filed or orally requested following the close of the case.

¶ 8. On a later day, the court took up the matter of sentencing and the disposition of post-trial motions. The record reflects the following:

MS. KELLY [Attorney for Bonner]: The defendant makes a motion ore tenus for a new trial, particularly failure for [sic] the court to allow removal of the juror who we discovered during the trial of the case had adverse relations with the family members and did not reveal this in voir dire, and for failure to allow the defendant 12 peremptory challenges during jury selection.

The record does not reflect the filing of any post-trial motions.

¶ 9. It is well settled that when a motion for a directed verdict is overruled at the conclusion of the State’s evidence, and the appellant proceeds to introduce evidence in his own behalf, the point is waived. Fields v. State, 293 So.2d 430, 432 (Miss.1974) (citing Hankins v. State, 288 So.2d 866, 867 (Miss.1974); Smith v. State, 245 So.2d 583, 586 (Miss.1971)). We can find no Mississippi case addressing whether the issue is waived if the defendant offers no evidence after the motion is overruled at the conclusion of the State’s case but (1) does not renew the motion at the close of the entire case, (2) does not ask for a peremptory instruction, and (3) does not make a motion for a judgment notwithstanding the verdict after the jury finds him guilty. It seems reasonable to conclude that, if producing defense evidence waives the point, a failure to produce does not, although, based strictly on procedural considerations, there may be reasons to bring the matter to the trial judge’s attention again. The procedural posture of this case illustrates this point. As stated, Bonner argues that the trial court erred in denying his motion for a judgment notwithstanding the verdict. That did not happen, because when Bonner made his motion for a directed verdict, there was no verdict to set aside. If Bonner had made a motion for a judgment notwithstanding the verdict after the jury had returned its verdict, the issue would be properly framed.

¶ 10. No additional evidence was adduced after Bonner made his motion for a directed verdict at the close of the prosecution’s evidence. A motion for a directed verdict (no matter the procedural junction when it is made), as well as a motion for a judgment notwithstanding the verdict, challenges the sufficiency of the evidence. Wetz v. State, 503 So.2d 803, 807 (Miss.1987). “When the sufficiency of the evidence is challenged on appeal, [an appellate court] properly should review the circuit court’s ruling on the last occasion when the sufficiency of the evidence was challenged before the trial court.” Id. Bonner’s motion at the conclusion of the prosecution’s case has challenged the sufficiency of the evidence. Thus, we consider that evidence.

¶ 11. Mississippi Code Annotated section 97-1-1 (Supp.2005), provides that the crime of conspiracy is committed when two or more persons conspire to commit a crime or to accomplish any unlawful purpose. Each alleged conspirator must agree to join the other in a common plan and “each must intend to further a common and unlawful purpose.” Taylor v. State, 536 So.2d 1326, 1328 (Miss.1988). A conspiracy may be proven by the acts and conduct of the alleged conspirators; thus, no formal or express agreement is required. Thomas v. State, 591 So.2d 837, 839 (Miss.1991) (citing Clayton v. State, 582 So.2d 1019, 1022 (Miss.1991)).

¶ 12. As support, Bonner cites McDougle v. State, 721 So.2d 660, 663(¶ 13) (Miss. Ct.App.1998), where this Court reversed a defendant’s conviction, finding that there was no evidence that McDougle knew that the facilitator would bring potential customers to him to purchase illegal drugs. We find that McDougle is distinguishable from this case because Beck testified that he and Bonner entered into an agreement to sell methamphetamine and that he had purchased methamphetamine from Bonner on prior occasions. Thus, there is evidence in the record that Bonner knew that Beck would be bringing potential customers to his home to purchase illegal drugs. Beck testified to the following:

Q. [BY PROSECUTOR]: On October 24th, 2003, did you and Billy Bonner have an agreement to sell methamphetamine?
A. Yes, we did.
Q. And on October 24th, 2003, did the Defendant Billy Bonner sell methamphetamine to Leigh Void?
A. Yes, he did.
Q. Has anybody under my control told you to testify or what to say?
A. No, sir, nobody has told me to say anything.

¶ 13. In light of the testimony at trial, we find that there was sufficient evidence from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Therefore, this issue is without merit.

2. Eighth Amendment Prohibition Against Cruel and Unusual Punishment

¶ 14. Bonner relies on the three-pronged proportionality analysis announced in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to support his argument that his life sentence is violative of the Eighth Amendment to the United States Constitution. In Solem, the United States Supreme Court set the standard for proportionality as follows: “[A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 291, 103 S.Ct. 3001.

¶ 15. However, the Court limited Solem in Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), to the extent that it found a proportionality guarantee in the Eighth Amendment. “In light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Hoops v. State, 681 So.2d 521, 538 (Miss.1996) (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996)).

¶ 16. Bonner contends that the trial judge had the responsibility to review, and possibly modify, his life sentence. Bonner relies on Clowers v. State, 522 So.2d 762, 765 (Miss.1988), to support his argument. We find that Clowers offers no support for Bonner’s contention that the trial court had an obligation to automatically review, and possibly modify, his life sentence. It is true that the trial judge in Clowers refused to sentence Clowers, a habitual offender, to the statutorily-mandated sentence of fifteen years, finding instead that the mandated sentence was disproportionate to Clowers’ crime: uttering a forged $250 check. On appeal, the Mississippi Supreme Court affirmed, finding that “the trial court did not commit reversible error in reducing what it found to be a disproportionate sentence under the facts of this case.”

¶ 17. We interpret Cloivers to hold that, if warranted by the special and unique facts of a case, a trial judge may depart from the sentencing mandates of our recidivism statutes if the judge determines that the mandated sentence is disproportionate to the crime. As we have already stated, Glowers does not stand for the proposition that a trial judge must automatically review a recidivist’s statutorily-mandated sentence.

¶ 18. Bonner’s life sentence complies with Mississippi Code Annotated section 99-19-83 (Rev.2000), which provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

The Mississippi Supreme Court has held that when a trial court imposes a sentence which complies with statutory limitations, the court will not be held in error and will not have abused its discretion. Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984) (citing Contreras v. State, 445 So.2d 543, 546 (Miss.1984)).

¶ 19. In Huntley v. State, 524 So.2d 572 (Miss.1988), the Mississippi Supreme Court stated, “[t]his is not the first time that Mississippi’s habitual offender statute has been challenged as cruel and unusual punishment. This Court has consistently held that sentences under Mississippi Code Annotated section 99-19-83 do not constitute cruel and unusual punishment.” Id. at 575 (citing Jackson v. State, 483 So.2d 1353 (Miss.1986); Adams v. State, 410 So.2d 1332 (Miss.1982); Pace v. State, 407 So.2d 530 (Miss.1981); Baker v. State, 394 So.2d 1376 (Miss.1981); Hayden v. Foryt, 407 So.2d 535 (Miss.1981); White v. State, 374 So.2d 843 (Miss.1979); Bell v. State, 355 So.2d 1106 (Miss.1978)).

¶ 20. In light of the gravity of Bonner’s current offense, and his prior predicate offenses (grand larceny, forgery, and robbery), the trial court’s imposition of a life sentence does not give rise to an inference of gross disproportionality; thus, we do not proceed with an Eighth Amendment proportionality analysis.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY OF CONVICTION IN COUNT ONE OF CONSPIRACY TO SELL METHAMPHETAMINE AND CONVICTION IN COUNT TWO OF SALE OF METHAMPHETAMINE AS A HABITUAL OFFENDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, REDUCTION, SUSPENSION, OR PROBATION FOR COUNT ONE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, REDUCTION, SUSPENSION, OR PROBATION FOR COUNT TWO, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

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

      . Void and Beck had previously been involved in a sexual relationship.

      . A motion for a directed verdict may be made either at the close of the prosecution's case or at the close of all the evidence, while a motion for a judgment notwithstanding the verdict is proper only after an adverse verdict has been returned.


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    Robert Lee GILES, Roberto Giles, A Minor, by and Through His Father and Next Friend, Robert Lee Giles, and Antonio Giles, A Minor, by and Through His Father and Next Friend, Robert Lee Giles, Appellants v. Robert A. BROWN and Leake County, Mississippi, Board of Supervisors, Appellees.
    No. 2005-CA-01734-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied May 29, 2007.
    Don H. Evans, Jackson, attorney for appellants.
    Michael Jeffrey Wolf, Jackson, attorney for appellees.

      Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J„

for the Court.

¶ 1. Robert Giles and Robert Brown, a Leake County constable, were involved in a car accident that left Giles and his sons, Antonio and Roberto, injured. The Giles-es sued Brown, but after discovery in the matter, the Leake County Circuit Court granted summary judgment on behalf of Brown. Aggrieved, the Gileses appeal and assert that the court erred in granting summary judgment, because evidence exists that Brown acted either intentionally or with reckless disregard for the consequences of his actions.

¶2. Finding error, we reverse and remand in part and affirm in part.

FACTS

¶ 3. On September 17, 2003, Giles and his children were riding their ATV 4-wheeler along Highway 488 near Carthage, Mississippi. Brown received a call that there were individuals riding an ATV on the highway, which is against the law. Brown set out in response to the call and encountered Giles. Brown, with emergency lights activated, pulled behind Giles. Giles pulled off the road onto an unidentified piece of property. Brown asked Giles for his license, and Giles informed Brown that his license was suspended. Neither man left his respective vehicle during the exchange.

¶ 4. What happened next is disputed. According to Brown, Giles became belligerent and eventually cursed at Brown before leaving and returning to the highway on his ATV. Brown testified that he followed with lights and siren activated until Giles made a sudden turn, causing the accident at issue. Brown testified that he did not know whether he had hit Giles’s vehicle or Giles’s children. Brown indicated that he had attempted to slow down and avoid the accident, but was unable to do so and went into a ditch. Brown suggested that he might have been able to avoid the accident if Giles had activated his turn signal or given some other indication that he was about to turn.

¶ 5. According to Giles, he explained to Brown that he did not have his license, but did live nearby and suggested that he would take Brown to his house so that Brown could confirm that Giles lived nearby. Giles believed that if he did so, Brown would be more likely to let him go with simply a warning. Giles testified that he never cursed at Brown. Giles averred that he then pulled out onto the road, with the understanding that Brown would follow him to his house. Neither Giles nor his sons could recall hearing Brown’s siren or seeing any emergency lights as Brown followed them down the road. In fact, Giles testified that he never looked back to confirm that Brown was following him. He simply assumed that, because of their exchange and his slow pace, Brown would follow. Giles testified that he slowed down considerably for his turn, although he admitted that he did not activate a turn signal or otherwise indicate that he was about to turn. Giles testified that Brown’s vehicle hit the ATV, causing Giles and his sons to fall off and causing the ATV to collide with a third vehicle at the intersection.

¶ 6. It is not clear exactly how fast the parties were traveling. Brown indicated that they might have been going as fast as forty to forty-five miles per hour, while the Gileses estimated their speed to be closer to twenty to twenty-five miles per hour. Giles and his sons also testified that they slowed down significantly for the turn that eventually resulted in the accident. Amber Wilcher, the driver of the vehicle that was hit by the ATV at the intersection, testified that she saw Brown hit Giles’s vehicle before the ATV collided with her car. She also thought that Brown’s vehicle might have collided with her own. Apparently no photographs were taken of the damage to the various vehicles, or such photographs were not included as part of the record. An accident report was filled out, but the version of events related was clearly given by Brown, as the officers filling out the report made no independent findings to explain what had happened. As a result of the accident, Giles suffered an injury to his right foot which required thirteen stitches, Roberto had scrapes on his body, and Antonio suffered two broken legs and a broken pelvis. Criminal charges were filed against Giles as a result of the accident, and he pled guilty to reckless driving, improper equipment, improper restraint, and two simple assault charges.

¶ 7. After discovery, the court granted summary judgment, largely based on a finding that the affidavit given by Wilcher as to how the accident occurred was not reliable because of conflicting deposition testimony. The court also declined to give any significant weight to the affidavits of Antonio and Roberto because the affidavits “may be flawed due to their age.” The court noted that Giles’s deposition testimony indicates that he was, at all times, watching the road in front of him and he therefore had little knowledge of what happened behind him or how Brown collided with the ATV. The court found that Brown was not acting with reckless disregard in his following of the vehicle, and also noted that both Antonio and Roberto acknowledged that “they knew it was illegal to ride the ATV on public highways and in the manner in which they drove.” In its reasoning, the court noted that Giles had pleaded guilty to several misdemeanors as a result of the incident and found that “[t]his is significant in that it mitigates against Plaintiffs claim that Robert Brown was driving recklessly.... Brown perceived a crime had been committed in his presence, and he was in hot pursuit.”

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

Standard of Review

¶ 9. We review a lower court’s grant of summary judgment de novo. Citifinancial Retail Servs. v. Hooks, 922 So.2d 775, 779(¶ 16) (Miss.2006). Summary judgment is only properly granted when no genuine issue of material fact is shown to exist. Id. at 779(1117) (citing M.R.C.P. 56(c)). “[T]he non-moving party should be given the benefit of every reasonable doubt.” Id. (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Id. at 779(¶ 18) (quoting Tucker, 558 So.2d at 872).

Standard for Recovery Under Mississippi Tort Claims Act

¶ 10. The Gileses’ recovery is governed by the Mississippi Tort Claims Act (MTCA), which is found at Mississippi Code Annotated section 11-46-1, to 11-46-23. The Gileses argue that section 11-46-9(l)(e) applies, while Brown and Leake County (Brown) argue that both 11 — 46— 9(l)(c) and ll-46-9(1)(d) apply. In response to Brown’s contention that he is also immune under 11 — 46—9(1)(d), the Gileses argue that it makes no sense to apply section ll-46-9(1)(d), because section 11 — 46—9(1)(c) specifically applies to claims arising out of an act committed by an employee of a governmental entity while that employee was performing a law enforcement function. We agree with the Gileses that section 11 — 46—9(1)(c) is the applicable section based on the facts of this case. See Collins v. Tallahatchie County, 876 So.2d 284, 289(¶ 16) (Miss.2004) (clarifying the holding in L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1186 (Miss.1999) to make clear that the exercise by a governmental entity of conduct that is “of a discretionary nature” does not mean that the governmental entity is exercising or performing a discretionary function within the meaning of section 11-46-9(1)(d)).

¶ 11. Under 11 — 46—9(l)(c), Brown has immunity from liability unless he acted with reckless disregard for the Gileses’ safety and well-being when the Gileses were not engaged in criminal activity. Miss.Code Ann. § 11 — 46—9(1)(c) (Supp. 2005). “Reckless disregard” has been defined by the Mississippi Supreme Court as “a higher standard than gross negligence [that] ‘embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.’ ” City of Greenville v. Jones, 925 So.2d 106, 110(¶ 11) (Miss.2006) (quoting City of Jackson v. Powell, 917 So.2d 59, 71(¶44) (Miss.2005)). The Mississippi Supreme Court has also directed that the “criminal activity” contemplated by the statute must have “some causal nexus to the wrongdoing of the tortfeasor.” Powell, 917 So.2d at 69(¶ 36) (quoting City of Jackson v. Perry, 764 So.2d 373, 379(¶25) (Miss.2000)).

Criminal Activity

¶ 12. The Gileses contend that they presented evidence showing a genuine issue of material fact on this point because “the offenses to which Giles pleaded guilty, e.g., improper restraints, etc., were not related to the accident.” The Gileses also note that Antonio and Roberto have not been charged with any criminal counts as a result of the incident. The Gileses further contend that, even if Antonio and Roberto were engaged in some sort of criminal activity, “that activity was not causally connected to Brown’s assaulting them with his police car.”

¶ 13. We find that this limitation bars Giles from proceeding with his case, but does not bar his children from proceeding. Despite Giles’s argument that his offenses “were not related” to the incident, we find that the offenses do bear a “causal nexus” to Brown’s wrongdoing. Simply put, Giles’s criminal activity was driving on the highway on an ATV and driving with a suspended license, among other offenses. We fail to see how there is no causal nexus between Giles’s illegal driving on the highway and Brown’s collision with him on the same highway. Clearly, if Giles had not been engaged in the criminal activity in question, there would have been no accident. This is especially true of Giles’s decision to proceed down the road away from Brown instead of stopping and receiving a ticket after Brown’s initial stop of him. Giles pled guilty to “reckless driving,” defined by Mississippi Code Annotated section 63-3-1201 (Rev.2004) as driving “any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property....” We fail to see how a conviction for reckless driving would not bear a causal nexus to the accident in question.

¶ 14. Unlike their father, Giles’s children were neither charged with, nor convicted of, any crime. While they both admitted that they knew it was against the law for them to be riding the ATV on the highway and riding without their helmets on, we find that this does not rise to the level of criminal activity contemplated by the statute. Unlike their father, the children could not have been charged with reckless driving, as they were not driving, nor could the children have been charged with driving with a suspended license. Therefore, the “criminal activity” limitation would not be sufficient to dismiss the children’s case at summary judgment.

Reckless Disregard or Intentional Act

¶ 15. The Gileses contend that there was sufficient evidence to produce a genuine issue of material fact regarding whether Brown acted with reckless disregard, either by acting intentionally or acting willfully or wantonly. They argue that the court erred in discounting the affidavit opinion of Wilcher because of her deposition testimony. The Gileses contend that the court improperly “evaluated the proof as though [it] were conducting a bench trial even though all of the evidence was submitted via deposition transcripts and affidavit.”

¶ 16. We note at the outset that “[c]red-ibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge when he is ruling on a motion for summary judgment.” Stegall v. WTWV, Inc., 609 So.2d 348, 352-53 (Miss.1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). After reviewing the evidence in this case and the lower court’s ruling, we find that there was a genuine issue of material fact regarding whether Brown acted with reckless disregard.

¶ 17. Wilcher swore in her affidavit that she felt that “the Constable was following too close to the 4-wheeler with the two children on the back.” Wilcher also swore that she felt that “Brown was at fault because he tried to use his vehicle to bump the 4-wheeler to make it stop.... The Constable could clearly see the two children on the back of the 4-wheeler and I do not believe that he should have bumped the ... 4-wheeler.... ” Wilcher stated that “Robert Brown was angry after the accident. He was stating that it was Robert Giles [sic] fault for fleeing. Robert Brown did not seem to be concerned about the two children either.... ” Wilcher further averred:

I do not feel that Robert Giles was going too fast to make his turn and, it is my opinion that the reason the accident occurred is that Robert Brown bumped the back of the 4-wheeler to make it stop or he was driving so close that when Robert Giles slowed down to make the turn, he was too close to avoid hitting them.

Finally, Wilcher stated that it was her opinion that Brown “was too reckless in his manner of stopping Robert Giles.”

¶ 18. Many of Wilcher’s statements were called into question during her deposition testimony. For example, Wilcher testified that her belief that Brown was following too closely was simply an “opinion.” She testified that she had no facts upon which to base that opinion, and that her opinion was mere speculation. Regarding her assertion that Brown used his vehicle to “bump” the Gileses, Wilcher testified in her deposition that that assertion was also just an “opinion.” Wilcher testified that Brown’s collision with Giles could have been an “absolute accident.” Wilcher testified that her assessment of the situation — that Brown was attempting to use his vehicle to hit Giles and make him stop — was something that someone else had suggested to her. Wilcher testified that the cause of the accident was not “entirely clear” to her. Wilcher also testified that she was not sure how fast the vehicles were going or how far apart they were before the accident. As to her statement that Brown was reckless in his pursuit of Giles, Wilcher testified during her deposition that she did not know what “reckless” means and it was a word that was put on her affidavit by Giles’s attorney, who prepared the affidavit. Wilcher testified that she did not know whether it was “speed or distance or a sudden turn by Mr. Giles that caused [the] accident.” Wilcher also testified that Giles’s right turn was sudden and unexpected.

¶ 19. Many of the concessions made by Wilcher during her deposition by Brown’s attorney were rehabilitated somewhat during her examination by Giles’s attorney. Wilcher testified that she qualified her assertions regarding the other individuals’ intents as speculation because she would had “no way of knowing what anybody was thinking.” Wilcher also testified later in her deposition that her belief that Brown attempted to stop Giles by running into the ATV was still her opinion, based on what she had observed. Wilcher testified that she believed that Brown was following too closely to Giles, especially since Giles had two children in plain view on the back of his vehicle. Wilcher explained that, although she could not tell how far apart the vehicles were, she believed whatever distance they were apart was not far enough. Wilcher testified that Brown had enough speed after hitting the ATV to continue on and hit her vehicle. Wilcher testified that there was no reason apparent to her why Brown could not have stopped his vehicle to avoid the accident if he had tried. Wil-cher also testified that it was obvious to her that Giles was reducing his speed in order to turn, and testified that the reduction in speed would have been obvious to Brown as well. Wilcher, when asked again about Brown’s level of intent, stated “I feel like it was not intentional but he could have stopped I feel like.” However, Wil-cher also testified that “[Brown] said that it was [Giles’s] fault because [Giles] was running from [Brown]. It seemed [Brown] was trying to chase [Giles] basically.” When questioned regarding her contact with the Giles’s attorney and what they had told her to say, Wilcher testified that the attorney had stressed to her that what would be important was “what I [Wilcher] was saying, what I thought was important.” Wilcher also testified that she did not know the Gileses but that she was friends with two of Brown’s children.

¶ 20. In its decision granting summary judgment, the court found:

Balancing [Wilcher’s] deposition with her affidavit the Court finds her affidavit remarks to be more subjective than objective ... there is a decided conflict in that she retreats (in her deposition) from her affidavit remark where she originally said that she believed Brown was at fault.... In essence, in her deposition she finally declared she ‘had no idea’ as to what Brown was intended [sic] to do. Accordingly, here too the Court gave only limited weight to her affidavit.

With all due respect to the lower court, a summary judgment motion does not place a court in the role of weighing testimony and determining the credibility of witnesses. As explained in Stegall, such determinations are improper for a court to make at the summary judgment stage. Although at times inconsistent, it was still clear from Wilcher’s deposition that she believed that the accident was the result of Brown either intentionally hitting Giles or following him so closely that he was unable to stop before hitting him. Furthermore, the testimony of all the parties indicated that this was a low-speed chase, occurring at forty-five miles per hour at the most, and the vehicles had slowed because Giles was preparing to make his turn. Since it is apparent that this was a low-speed chase, it is not clear to this Court why Brown was unable to stop before hitting the ATV.

¶ 21. Wilcher’s affidavit and deposition, combined with the other evidence in the case, presented a genuine issue of material fact regarding whether Brown acted with reckless disregard while pursuing Giles. Therefore, summary judgment was improper as to Roberto and Antonio. We affirm the court’s finding as to Giles, not because there was no evidence that Brown acted recklessly, but because there was significant evidence that Giles was engaged in criminal activity that had a causal nexus to the accident. However, we reverse and remand the court’s judgment as to Roberto and Antonio because there are genuine issues of material fact as to: (1) whether the children were engaged in criminal activity,- given the absence of criminal charges or convictions; (2) whether any criminal activity on the part of the children had a “causal nexus” to the accident; and (3) whether Brown acted with reckless disregard in his pursuit of Giles.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART, IN ACCORDANCE WITH THE OPINION ABOVE. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE APPELLANTS AND ONE HALF TO THE APPELLEES.

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

      . At the time of the accident, Antonio was 14 years old and Roberto was 12 years old.

      . It is not clear whether Giles and his sons are the individuals that Brown received a call about.

      . Section 11 — 46—9(l)(d) grants immunity to a governmental entity and its employees for claims arising out of the entity's or employee’s exercise, performance, or failure to exercise or perform a discretionary function or duty, even if the discretion was abused.

      . Giles contends that he only pled guilty to the reckless driving charge and the other charges because he was coerced to do so by Brown under the threat of additional charges. Such an accusation may go to reversing Giles's criminal convictions, if proved, but until the convictions are reversed, we must treat the convictions as binding. Furthermore, we note that the record contains no evidence of coercion on Brown's part, other than Giles's accusations.


author: GRIFFIS, J.,

text:
    Jolee A. BURRUS, Appellant v. Ronald A. BURRUS, Appellee.
    No. 2005-CA-00356-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied April 24, 2007.

      T. Jackson Lyons, Jackson, attorney for appellant.
    Michael G. Piazza, Jackson, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK AND GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Jolee A. Burrus appeals the chancellor’s judgment that modified an earlier judgment of divorce. The chancellor ruled that Jolee’s cohabitation with another man justified the termination of alimony payments owed by her former husband, Ronald A. Burrus. Also, the chancellor determined that custody of their children should be modified and primary custody granted to Ronald. On appeal, Jolee challenges these findings.

FACTS

¶ 2. Ronald and Jolee were married in 1982. They were divorced on April 10, 2003. In their judgment of divorce, they agreed to joint legal and physical custody of their three children, Christopher, Amanda and Rachel, with the children spending the school year with Jolee. Ronald agreed to pay $700 each month to Jolee in child support and $1,100 each month, for the first eighteen months, in alimony. After the first eighteen months, Ronald’s alimony payment would increase to $1,200 each month. The alimony was to continue until Jolee remarried or upon further order of the court.

¶ 3. After the divorce, Jolee began a relationship with James Burrus, who is Ronald’s brother. James was a convicted sex offender, who was recently released from prison in Texas. Jolee’s relationship with James is at the center of this controversy.

¶ 4. On May 11, 2004, Ronald filed a sworn complaint for modification and for other relief. Ronald asked the court to grant him custody of the children, require Jolee to pay child support, terminate the periodic alimony, and enter a monetary judgment against Jolee.

¶ 5. Also, on May 11,-2004, Ronald filed a sworn motion for ex parte temporary relief. In the motion, Ronald claimed that Jolee “allows a convicted sex offender to reside in the home with the minor children present. That such sex offender has just been released from prison, having been found guilty on four (4) counts of indecency with a child/sexual contact in the State of Texas.” Ronald alleged that such “living conditions” present an “immediate and irreparable injury, loss or damage” to the children. Ronald asked for immediate custody and a suspension of his child support payments. By order dated May 11, 2004, the Honorable Jim Persons entered an ex parte order that temporarily removed the children from Jolee’s custody, placed the children in Ronald’s custody, and suspended Ronald’s child support obligation until a full hearing could be held.

¶ 6. On May 13, 2004, Ronald filed a motion for temporary relief. In this motion, Ronald asked the court to grant him temporary custody of the children, require Jolee to pay child support, and to require Jolee to provide him with the children’s personal belongings.

¶ 7. On May 28, 2004, Jolee filed a petition for citation of contempt, a motion to set aside ex parte order, her affirmative defenses and answer to the motion for temporary relief, and a counter-complaint for modification and for other relief.

¶ 8. In the petition for citation for contempt, Jolee alleged that Ronald violated several terms of their judgment of divorce and should be held in contempt as a result. For example, Jolee alleged that Ronald exposed the children to immoral activities by having a woman spend the night in his home when the children were present, failed to foster and encourage a positive relationship between the children and the other parent, failed to execute a quitclaim deed; failed to maintain adequate medical and dental insurance, failed to reimburse her for all medical expenses, failed to pay all alimony amounts, and failed to maintain life insurance because his brother James was named as the beneficiary.

¶ 9. In the motion to set aside the ex parte order, Jolee alleged that the allegations of Ronald’s motion were without merit and were “made in retribution for [Jo-lee] being involved in a relationship with [Ronald]’s brother.”

¶ 10. In the answer and counterclaim, Jolee denied Ronald’s allegations and asked the court to increase the child support and alimony payments, order reimbursement of medical expenses, allow her to claim two of the children as dependents on tax returns, and require Ronald to pay her one-half of his 2003 tax refund.

¶ 11. On June 9, 2004, a hearing was held before Chancellor Sandy Steckler. The chancellor entered a temporary order that set aside the ex parte order and returned temporary custody of the children to Jolee subject to further order of the court. Ronald’s child support payments were reinstated. The order also placed other restrictions on Jolee and Ronald. They were ordered not to discuss the litigation with the children, Jolee was “enjoined from permitting any contact between Jim Burrus and the parties’ minor children,” and both were enjoined from having overnight guests of the opposite sex. The chancellor’s order included language that would allow the ban on contact with James Burrus to be reconsidered after James presented the court a psychological evaluation declaring he was no longer a threat to the children’s safety.

¶ 12. The chancellor heard testimony on September 13, 2004, and October 13 and 15, 2004. On September 14, 2004, the chancellor entered a temporary order that transferred custody of one child, Rachel Marie Burrus, to Ronald. The order stated that Jolee announced that she had no objection to the transfer of temporary custody of Rachel to Ronald.

¶ 13. At the conclusion of the hearing on October 15, 2004, the chancellor took this matter under advisement. During the hearing, Jolee testified that she would consent to allow Rachel to reside with Ronald. On November 23, 2004, Jolee filed a notice of withdrawal of consent. The notice attached a document entitled “Election Pursuant to Miss.Code Ann. § 93-11-65.” Rachel signed this “Election” and indicated that she would elect to live with Jolee. The document was notarized and witnessed by Amanda.

¶ 14. On January 14, 2005, the chancellor issued his judgment of modification. In the judgment, the chancellor modified custody of the children, terminated Ronald’s child support obligation, terminated Jolee’s alimony payments, imposed a child support obligation on Jolee, and found Jo-lee in contempt of court. It is from this order that Jolee appeals.

STANDARD OF REVIEW

¶ 15. This Court will not “disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

ANALYSIS

I. Did the chancellor err as a matter of law in ruling that Jolee’s brief affair with a third party amounted to “cohabitation” justifying the termination of alimony, or alternatively, did the chancellor lack substantial evidence that Jolee was supporting the third party justifying terminating alimony payments?

¶ 16. Jolee’s first issue argues that the chancellor erred when he terminated her periodic alimony. Jolee claims that her sexual relationship with James Burrus did not amount to “cohabitation.”

¶ 17. Periodic alimony may be terminated based on cohabitation or a de facto marriage. In her recent book, Professor Deborah H. Bell, Mississippi Family Law § 9.10[2](2005), summarized this principle as follows:

[a] Cohabitation and presumed support. In 1997, the supreme court discarded the fact-based test for determining whether an alimony payee’s cohabitation involves mutual financial support. The court reasoned that an alimony payor lacks the necessary information to prove mutual support between cohabitants. Accordingly, the court adopted a presumption that cohabitation is accompanied by financial support. [Scharwath v. Scharwath, 702 So.2d 1210, 1211 (Miss.1997); see Alexis v. Tarver, 879 So.2d 1078, 1082 (Miss.Ct.App.2004) ]
A short period of cohabitation may not trigger the presumption. A chancellor properly refused to reduce alimony to a recipient whose friend and two sons moved into her house for five weeks after a hurricane. Her friend did not share her bedroom, bought groceries only once, and moved when his home was repaired. [Tillman v. Tillman, 809 So.2d 767, 770 (Miss.Ct.App.2002) ] In a factually unusual case, a chancellor properly conditioned an award of rehabilitative alimony on the wife’s moving from her boyfriend’s home and establishing her own residence. [Alexis v. Tarver, 879 So.2d at 1082]
[b] De facto marriage. Alimony may also be terminated even in the absence of cohabitation if a court finds that a payee is avoiding marriage to continue alimony. Alimony was terminated to a payee who was engaged without immediate plans to marry, even though there was little evidence of mutual financial support, on the basis that she had entered a de facto marriage. The court found significant that the couple appeared to forego marriage to obtain the benefits of alimony, stating that “equity should not require the paying spouse to endure supporting such misconduct.” [Martin v. Martin, 751 So.2d 1132, 1136 (Miss.Ct.App.1999) ]
The de facto marriage test was restated recently to include an element of financial support. The court of appeals stated that alimony may be terminated where a recipient and another person “so fashioned their relationship, to include their physical living arrangements and their financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Applying this test, no de facto marriage existed based on proof that a woman spent several weekends with a man, that he stayed at her house overnight five or six times, and that he purchased groceries on those occasions. [Pope v. Pope, 803 So.2d 499, 504 (Miss.Ct.App.2002) ]

¶ 18. The chancellor found that Jolee’s cohabitation with James was a material change of circumstances that allowed modification of the alimony award. The chancellor made the following findings of fact and conclusions of law:

Testimony and evidence show that until his most recent incarceration, Jolee and James cohabited without the benefit of marriage and mutually supported each other. James had a key to Jolee’s home and kept his clothes there. James had an automatic teller machine card to Jo-lee’s account and her authority to use it. During the year 2004, Jolee spent in excess of $7,500.00 on James paying for his psychological evaluation, his car tag, his attorney fees, his clothes, his cell phone, cell phone bills, materials for his job as a self-employed carpenter and painter, and his motel room charges when he was attempting to evade being arrested. According to her testimony, she receives approximately $1,800.00 per month from Ronald,.... During September of 2004 Jolee spent $7,521.39 running her household, which included her support of James. Some of James’ most recent criminal charges are in Texas. At the time of the modification trial Jolee had paid approximately $4,500.00 in attorney fees for James. In return, James Burras continually performed and provided “in kind” household services and chores in Jolee’s home, including maintenance and repair of the home. Jolee testified that approximately mid-September of 2004 she injured her foot and allegedly broke up with James because he had started drinking again. However, James continued to stay at the house and help Jolee because of her injury. According to the testimony, the only reason Jolee and James Burras did not marry was so they would continue to be supported by the monies received from Ronald.

At the time of trial James Burras was in jail on contempt charges. Although Jo-lee testified that their relationship was over, she continues to visit him during this most recent incarceration. Additionally, Jolee testified, as did her children, that she had recently gotten a tattoo that says, “James’ girl” which she showed to her middle child Amanda.

“[Pjroof of cohabitation creates a presumption that a material change in circumstances has occurred, [citation omitted] This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support within his or her de facto marriage.” Scharwath v. Scharwath, 702 So.2d 1210, 1211 (Miss.1997). Jolee readily admitted she and James cohabited without the benefit of marriage. Accordingly, it was her burden to prove a lack of mutual support in order to overcome the presumption of a material change in circumstances warranting a modification or cessation of periodic alimony. Based upon the testimony and facts recited herein, the court finds that Jolee did not meet her burden.

¶ 19. Jolee’s argument before this Court is two fold. First, Jolee cites us to Hammonds v. Hammonds, 641 So.2d 1211, 1217 (Miss.1994), where the supreme court held that when “determining the effect of post-divorce cohabitation on a recipient spouse’s alimony entitlement, financial, rather than moral aspects of the cohabitation are to be considered.” Jolee argues that the moral aspect of couples living together must not be considered. While, this is a correct statement of the law, it appears from the findings that the chancellor actually took into account the financial aspects of Jolee and James’s relationship. As mentioned above, the judge considered that Jolee had spent more than $7,500 on James in less than one year. Also, the judge found that James would complete chores and work around the house providing support “in kind.” The judge considered the financial aspects of the cohabitation and did not base the decision on the moral aspects as Jolee argues.

¶ 20. Second, Jolee argues that the chancellor simply was wrong in determining that Jolee and James were cohabiting. Jolee alleges that the relationship lacks the permanency required to be cohabitation supported by her testimony that the relationship lasted from May to mid-September, only four and one-half months long. The chancellor appears to have doubted Jolee’s claim that the relationship was over. This is apparent from the statement that “[a]lthough Jolee testified that their relationship was over, she continues to visit him during this most recent incarceration.” In addition, Jolee and the children testified that James never stayed more than a week or two at a time and most of the time he left late at night and did not sleep over. Testimony from both parties stated that James had his own residence in Bay St. Louis, while Jolee lived in Long Beach.

¶ 21. Jolee also cites Ellis v. Ellis, 651 So.2d 1068 (Miss.1995). In Ellis, Glenda Ellis spent the night at Smith’s apartment several times a week and on other nights Smith would leave Glenda’s home at about 11:00 p.m. Id. at 1070. Smith had not paid any of Glenda’s utilities or house payments and did not keep clothes or receive mail at her house. Id. The court stated that from the facts “it [was] unclear whether Glenda Moore Ellis cohabited with another man although she had substantial contact with him for a long period of time and he was a frequent overnight guest.” Id. at 1071. The supreme court remanded the case for a determination if Glenda cohabited with Smith and whether she received support from him or he received support from her. Id. While the supreme court was unsure of cohabitation, the chancellor did not make a specific finding of cohabitation, it left the determination of cohabitation to the discretion of the chancellor.

¶ 22. The facts here are similar. Jolee and James were in a relationship for a similar period of time, had similar visitation arrangements, yet from the facts before us, the support that Jolee and James provided each other was much more substantial than what was established in Ellis. Here, the chancellor, in his discretion, found that the evidence showed Jolee cohabited with James, and Jolee provided sufficient financial support to justify a material change in circumstances that would support the termination of alimony.

¶ 23. Jolee also cites us to Pope v. Pope, 803 So.2d 499 (Miss.Ct.App.2002). Mrs. Pope became involved with a man after the divorce and spent a number of weekends in his company. Id. at 504(¶ 11). He helped pay for the weekend encounters and stayed overnight five or six times in her home. Id. On the occasions that he stayed overnight, he had helped buy groceries. Id. There was also evidence that Mrs. Pope had loaned him $4,000, and she testified that it had been paid back. Id. The chancellor found that this proof was insufficient to find cohabitation. Id. at (¶ 13). This Court affirmed the determination of the chancellor stating that:

if the alimony recipient and another individual have so fashioned their relationship, to include their physical living arrangements and their financial affairs, that they could reasonably be considered as having entered into a de facto marriage, then the obligor may be relieved of his obligation to pay alimony the same as if his former spouse had entered into a de jure marriage.

Id. at (¶ 12) (citing Scharwath, 702 So.2d at 1211 (¶ 6-7)).

¶ 24. Similar to Pope, Jolee loaned money to James. Jolee admitted that she did not know how much money had been loaned. Jolee testified that the entire amount had not been repaid, but that James was to repay with cash or by performing work on Jolee’s house. Unlike Pope, it appears that James had spent more than five or six occasions with Jolee. The most important distinction between the two cases is the finding of the chancellor. In Pope, the chancellor found the proof to be insufficient to amount to cohabitation, while the chancellor here found that the evidence amounted to cohabitation. Thus, we turn to the chancellor’s finding and analyze it based on the appropriate standard of review to determine if he was in error.

¶ 25. For this Court to overturn the chancellor’s finding of cohabitation, the chancellor must be manifestly wrong, clearly erroneous, or he applied the wrong legal standard. Crow, 622 So.2d at 1228. Here, the chancellor applied the proper standard when he found cohabitation based on the financial aspects of the relationship and not the moral aspects of the relationship. Hammonds, 641 So.2d at 1217. Upon proof of cohabitation, the chancellor accurately applied the presumption that Jolee was required to present proof suggesting that there was no mutual support within the relationship. Scharwath, 702 So.2d at 1211(¶ 7). The chancellor then found that Jolee had not overcome this burden and failed to prove lack of mutual support. Since the chancellor applied the proper legal standard, we look to the evidence to determine if he was manifestly or dearly erroneous.

¶26. After thoroughly examining the record, we find that there is evidence to support the chancellor’s conclusion that James and Jolee have arranged their physical living arrangements and financial affairs as a couple evidencing a de facto marriage, as required in Pope.

¶ 27. Accordingly, we find no merit to this issue and affirm the chancellor’s judgment.

II. Did the chancellor err as a matter of lato in concluding that Jolee’s “cohabitation” with a third person occurred, creating a material change of circumstances, or alternatively, did the chancellor abuse his discretion in modifying custody of the two minor children from Jo-lee’s primary physical custody?

¶ 28. Jolee argues that the chancellor erred when he modified custody and gave Ronald physical custody of the children. Jolee claims that the chancellor erred in finding that there was a material change of circumstances that adversely affected the children and in considering the Albright v. Albright, 437 So.2d 1003 (Miss.1983) factors.

¶29. In Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003), the supreme court held:

In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002). See also Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).
In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody. Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992).
In considering whether there has been such a change in circumstances, the totality of the circumstances should be considered. (Spain v. Holland, 483 So.2d 318, 320 (Miss.1986)). Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children. Id. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997). Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 30. Here, the chancellor applied the three-step analysis. The chancellor began his analysis with the first two factors. The chancellor determined that there was a substantial or material change in circumstances that adversely affected the children’s welfare. The chancellor found:

Jolee admitted that since the entry of the Judgment of Divorce she cohabited with the brother of her ex-husband, James Burrus, that James is a convicted felon, and although she does not believe he is actually guilty, his felony convictions were for four (4) counts of indecency with a 14 year old minor to which he plead guilty. Jolee admitted that she, James Burrus and her children resided in the same household. Jolee admitted that since the divorce she had been unable to consistently have the youngest child, Rachel, at school at the appropriate time. The evidence presented also showed that Jolee would sleep for days at a time, awaking only to eat and returning to bed, and that the middle child, Amanda, received virtually no discipline from her mother. The Court finds that Jolee’s behavior since the divorce is adversely affecting her children.

¶ 31. Having met the first two factors, the chancellor conducted an Albright analysis. The chancellor found the following factors to be neutral: age, health, sex of the child; continuity of care; physical and mental health and age of the parents; emotional ties of the parent and the child; and the home, school and community record of the child. The chancellor found the following factors to favor Ronald: parenting skills, willingness, and capacity to provide primary child care; employment of the parent and responsibilities of that employment; moral fitness; and stability of home. The chancellor found no factors in favor of Jolee, but discussed the preference of the child. At the time of the hearing, Rachel was eleven and not of legal age to state a preference. Nevertheless, she expressed her desire to live with Ronald and Jolee agreed. As a result a temporary order was entered. After the trial, Jolee filed pleadings that indicate that Rachel stated her preference to live with Jolee. Amanda expressed her desire to remain in the custody of Jolee. However, the chancellor determined that it would not be in Amanda’s best interest to honor her stated preference.

¶ 32. The chancellor held:

“The Supreme Court has said that ‘only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.’ ” Thompson v. Thompson, 799 So.2d 919, 923 (Miss.Ct.App.2001) (quoting Morrow v. Morrow, 591 So.2d [829,] 833 (Miss.1991)). In this case, based on the foregoing facts and findings, and after having fully considered the Albright factors, the Court finds that the actions of Jolee subsequent to the entry of the divorce judgment have jeopardized the mental and emotional health of her minor children such that modifications of the custody provisions of the Judgement of Divorce are warranted.

¶ 33. We find that there was sufficient evidence to support the chancellor’s decision to modify custody. Accordingly, we affirm the chancellor on this issue.

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

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

      . Christopher was emancipated prior to the enlry of the chancellor's judgment.


author: KING, C.J.,

text:
    Roger Lionel HANCOCK, Appellant v. David Steven WATSON, Appellee.
    No. 2005-IA-00413-COA.
    Court of Appeals of Mississippi.
    Jan. 9, 2007.
    Rehearing Denied May 22, 2007.

      Chuck McRae, William B. Kirksey, Jackson, attorneys for appellant.
    Robert D. Jones, Meridian, Palmer, Eddie Briggs, DeKalb, attorneys for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Roger Lionel Hancock brought this interlocutory appeal following the trial court’s denial of his motion to dismiss. Hancock asserts that the trial court erred in its conflicts of law analysis, its failure to find lack of subject matter jurisdiction, and its statute of limitations analysis.

PROCEDURAL HISTORY

¶ 2. David Watson filed his complaint in the circuit court of Hinds County, alleging alienation of affection, on April 23, 2004. Hancock filed a motion to dismiss and a motion for a more definite statement on June 2, 2004, contending that the complaint did not sufficiently allege facts in support of the claim that would enable Hancock to respond properly. After a hearing on October 27, 2004, the trial court ordered Watson to file an amended complaint that more specifically stated the facts upon which Watson based his claim. The trial court stated that it would consider the motion for a more definite statement moot and would take the motion to dismiss under advisement, with a warning to Watson that the court would grant the motion to dismiss if the amended complaint did not comply with his order. Following the filing of the amended complaint, in which Watson alleged Hancock conducted an affair with Lori Watson in 1999 and 2000, Hancock filed a second motion to dismiss.

¶ 3. Following a hearing in February 2005, the court denied both motions to dismiss. The trial court also denied Hancock’s motion to reconsider and request for permission to file an interlocutory appeal. Hancock then advised the trial court that despite the trial court’s denial, he was proceeding with an interlocutory appeal. On March 1, 2005, Hancock filed a petition for interlocutory appeal with the Mississippi Supreme Court. The court granted the petition and assigned the case to this Court on May 10, 2005.

FACTS

¶ 4. David and Lori Watson, both residents of Tennessee, were married in 1989. During the first ten years of their marriage, the couple had two children. According to the allegations of David Watson’s amended complaint, Hancock began a sexual affair with Lori in 1999. The last incident alleged in the amended complaint occurred in 2000. The affair ended without Watson ever knowing that the affair existed. Lori continued in her marriage to Watson, giving birth to the couple’s third child in August 2002.

¶ 5. On May 19, 2003, while Lori was six months pregnant with the couple’s fourth child, Watson learned of the affair. On November 12, 2003, Watson filed for divorce, citing May 20, 2003, as the date of separation. A Tennessee court granted the irreconcilable differences divorce on February 20, 2004. Despite the divorce, the couple continued to reside together in the house that had served as the marital residence and to share responsibilities in raising their four children.

ANALYSIS

¶ 6. Hancock argues that, for a variety of reasons, the trial court should have applied Tennessee law. Tennessee has abolished alienation of affection as a viable cause of action; therefore, Hancock argues, the trial court, applying a choice of law analysis, should have granted Hancock’s motion to dismiss for failure to state a claim for which relief can be granted. Alternatively, Hancock argues that even if Mississippi law applied, the statute of limitations has expired, and Watson is procedurally barred from bringing his claim.

¶ 7. Watson contends that the trial court properly applied Mississippi law because Watson is bringing a claim for a tort that occurred in Mississippi. Watson also disputes Hancock’s assertion that the statute of limitations has expired. Watson contends that whether the trial court applied the one-year or the three-year statute of limitations, his complaint is not proeedurally barred because he filed the claim within one year of his discovery of the affair.

1. Choice of law analysis

¶ 8. The situation before the Court is a classic conflict of laws issue. In Mississippi, alienation of affection is a viable cause of action. See Bland v. Hill, 735 So.2d 414, 418(¶ 17) (Miss.1999) (stating that the court “deeline[s] the invitation to abolish the tort of alienation of affection.”). See also Kirk v. Koch, 607 So.2d 1220 (Miss.1992) (upholding an award of $50,000 on an alienation of affection claim). In Tennessee, however, both the legislature and judiciary have abolished alienation of affection as a viable cause of action. See Tenn.Code Ann. § 36-3-701 (2006) (abolished in 1989); Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn.1991) (stating that “in the final analysis, the action does not protect marriage or the family — its only real justification — and the harm it causes far outweighs any reason for its continuance.”) (citation omitted).

¶ 9. Choice of law analysis is a three step process. See Zurich Am. Ins. Co. v. Goodwin, 920 So.2d 427, 433-34 (¶¶ 9, 11, 13) (Miss.2006). First, the Court must determine whether the conflicting laws are substantive or procedural. See id. at 433(¶ 9). The Court must then classify the substantive area of law — contract, tort, or property — applicable to the conflicting laws, as each area of law has its own choice of law provisions. See id. at 433(¶ 11). Finally, the Court must apply the appropriate analytical provisions to the conflict. See id. at 434(1113).

¶ 10. In the case before the Court, the first two steps in the process are easily resolved. Clearly, the conflicting laws are substantive, as the outcome will determine whether Watson has a viable cause of action. If Tennessee law applies, the suit must be dismissed, as alienation of affection has been abolished in Tennessee. Categorizing the substantive area of law for an alienation of affection claim is also a simple step. Alienation of affection claims are tort actions. Accordingly, the Court will apply the test adopted by the Mississippi Supreme Court to resolve tort choice of law questions — the “most significant relationship test” set forth in the Restatement (Second) of Conflicts of Law Section 145. See McDaniel v. Ritter, 556 So.2d 303, 310 (Miss.1989). The Restatement section provides as follows:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

Restatement (Second) of Conflicts of Law § 145 (2003).

¶ 11. After reviewing the limited facts available in the record, given that this appeal is before the Court as an interlocutory appeal of the trial court’s denial of Hancock’s motion to dismiss, the Court finds that it is unable to complete the conflict of law analysis due to the lack of factual information available from the record. Although the amended complaint alleges that Lori Watson conducted her affair with Hancock in the State of Mississippi, those allegations do not end the inquiry as to the place where the injury or the conduct causing the injury occurred.

¶ 12. An alienation of affection claim requires a finding of the following elements: “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Bland v. Hill, 735 So.2d 414, 417(¶ 13) (Miss.1999) (citations omitted). Moreover, “[a] claim for alienation of affections does not require that the plaintiff prove an adulterous relationship.” Id. Due to the nature of the marital relationship and the type of conduct necessary to create a loss of affection or consortium, application of these elements cannot be satisfied simply by an allegation that an extra-marital affair took place. Unlike a tort claim arising from an automobile accident, determining the location of an alienation of affection claim is not a simple matter of naming the site of the incidents of Hancock’s sexual encounters with Lori. To determine where the injury or the conduct causing the injury occurred would require an in-depth inquiry into the scope of the relationship between Lori and Hancock — including, for example, the manner and frequency and content of their communications outside of their face-to-face meetings. The record provides us with no such additional information.

¶ 13. Accordingly, the Court remands this case to the trial court so that the trial court may direct the parties to engage in discovery on the details of the communications and actions between Hancock and Lori which Watson contends led to the alienation of Lori’s affections. After that discovery is complete, the trial court should then be able to apply “the most significant relationship” test and complete the conflicts of law analysis.

2. Statute of Limitations Analysis

¶ 14. Both parties stated initially in their briefs that alienation of affection claims are governed by a three-year statute of limitations. Hancock argues alternatively, however, that because Watson is pleading an intentional tort rather than negligence, the one-year statute of limitation set forth in Mississippi Code Annotated Section 15-1-35 should apply.

¶ 15. Alienation of affection is an intentional tort with no specifically prescribed statute of limitations; therefore, the three-year statute of limitations applies to alienation of affection claims. Carr v. Carr, 784 So.2d 227, 230(¶ 8) (Miss. Ct.App.2000). See also Miss.Code Ann. § 15-1-49 (Rev.2003). On May 19, 2003, Watson discovered that his wife, Lori, engaged in an affair with Hancock between 1999 and 2000. He filed his claim for alienation of affection on April 23, 2004, less than a year after he discovered the affair but more than three years after the affair ended.

¶ 16. Accordingly, the crux of the statute of limitations issue in this case lies in the accrual of the claim for alienation of affection. Under Mississippi law, “[a] claim of alienation of affection accrues when the alienation or loss of affection is finally accomplished.” Carr, 784 So.2d at 229-30(¶ 8) (citations omitted). The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated. The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

¶ 17. Watson argues that the claim accrued when he learned of the affair in May 2003 because it was his discovery of the affair that led to the divorce. Hancock, however, argues that he has had no contact with Lori since the affair ended in 2000; therefore, the cause of action could have accrued no later than the date of his last contact with Lori. Because his last contact with Lori was more than four years ago, Hancock argues that the statute of limitations has expired.

¶ 18. Again, due to the procedural posture of this case, the Court is unable to determine when the cause of action accrued. Based on the limited facts before the Court, however, it appears that Watson was never aware that the affair existed until several years after it had ended. Additionally, it appears that Watson, not Lori, ended the marriage, as he is the one who initiated the divorce. The limited information available for this Court to review indicates that although Lori was engaged in an affair, she continued to live with Watson in the matrimonial home and maintained the appearance, at least, of a stable married family, as evidenced by Watson’s ignorance of the affair. After the affair ended, Lori continued her marriage to her husband and proceeded to have two more children with him.

¶ 19. On remand, the Court instructs the trial judge to direct the parties to engage in discovery that will ascertain when “the alienation or loss of affection [was] finally accomplished.” Watson’s arguments before this Court — in both his brief and during oral argument — have left the Court, in light of Lori’s decision to remain with her husband during the course of the affair and afterward, with the impression that Watson is arguing that the cause of action accrued upon his discovery of the affair. In other words, Hancock’s affair with Lori caused his affections to be alienated. Under Bland, 735 So.2d at 421(¶ 33) (Miss.1999), a claim for alienation of affection must be proven with evidence “that the acts of the defendant in alienating the affection of the spouse were done with malice or that there were circumstances or aggravation.... ” Again, Lori’s affections must be the focus of the discovery. Watson’s affections have no relevance in the statute of limitations analysis.

¶ 20. Alternatively, Watson’s arguments have raised questions with this Court as to whether Watson is simply disguising a claim for criminal conversation , which has been abolished in Mississippi, as a claim for alienation of affection. These issues can be resolved, in conjunction with the question of the accrual of the claim, only after further discovery between the parties.

¶ 21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS COURT’S OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. CARLTON, J., NOT PARTICIPATING.

      . As this case is currently before this Court following an interlocutory appeal of the denial of Hancock's motion to dismiss, the facts available to this Court are derived from Watson’s amended complaint and Hancock's two motions to dismiss (including exhibits).

      . The divorce decree converted ownership of the marital home to the Watsons as tenants in common for a period of twenty-four months from the date of the divorce decree. Thereafter, the house was to be sold and the proceeds divided equally.

      . Restatement (Second) of Conflicts of Law § 6 sets forth the general principles and factors to be considered in a choice of law analysis, including policy considerations, uniformity of results in the application of the analysis, and ease in application of the analysis. See Restatement (Second) of Conflicts of Law § 6(2).

      . The Mississippi Supreme Court abolished the tort of criminal conversation, defined as “no more or less than an act of adultery between the defendant and the plaintiffs spouse,” in Saunders v. Alford, 607 So.2d 1214, 1216 (Miss.1992).


author: BARNES, J.,

text:
    INDUSTRIAL AND MECHANICAL CONTRACTORS OF MEMPHIS, INC., Appellant/Cross-Appellee v. TIM MOTE PLUMBING, LLC, Appellee/Cross-Appellant.
    No. 2005-CA-01414-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.
    Rehearing Denied May 8, 2007.

      Christian T. Goeldner, Southaven, attorney for appellant.
    Paul R. Scott, Batesville, attorney for appellee.
    Before MYERS, P.J., GRIFFIS, and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. This contractual dispute arose from work performed by a subcontractor, Tim Mote Plumbing, LLC (“Mote”) pursuant to a contract between the parties. The Chancery Court of DeSoto County held in favor of the contractor, Industrial and Mechanical Contractors of Memphis, Inc. (“IMC”), awarding damages sustained by IMC in remedying Mote’s defective work. Satisfied in all other respects with the chancellor’s judgment, IMC appeals the chancery court’s denial of legal fees, fees to which IMC asserts it is entitled pursuant to the contract. Mote cross-appeals the amount of damages awarded to IMC, contending that the damage amounts awarded to IMC were inconsistent with the chancellor’s findings of fact with respect to Mote’s breach. Finding merit only in Mote’s cross-appeal, we affirm the chancellor’s denial of attorney’s fees but reverse and remand for a determination of damages attributable solely to Mote’s failure to “tie in” a water pipe beneath the parking lot.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In July of 2002, Barney Brothers of Mississippi, Inc. contracted with IMC, a general contractor, for the construction of a commercial building. Pursuant to this engagement, IMC entered into a subcontract with Mote, as plumbing subcontractor, for the installation of the plumbing system. According to the subcontract between IMC and Mote, Mote was to be paid by three separate draws. IMC paid the first two draws without incident. IMC refused, however, to remit payment on the third and final draw, citing defects in the work performed by Mote.

¶ 3. The instant action began when Barney Brothers, notified by Mote of IMC’s refusal to pay the final draw, filed an interpleader complaint in chancery court, naming both companies as defendants to the action. IMC timely filed its answer to the interpleader action. Additionally, IMC filed a cross-complaint against Mote, alleging that Mote breached the contract between the parties and asserting that Mote was liable for: (1) the costs of remedying the defective work, (2) legal fees incurred as a result of Mote’s breach, and, (3) a contractual penalty of twenty percent of the costs associated with remedying the defective work.

¶ 4. At trial on the merits of the cross-claim, IMC presented evidence that Mote breached the contract in several respects. First, IMC contended that Mote failed to properly “tie-in” a water pipe, resulting in a leak beneath part of the parking lot. To remedy this defect, a hole was dug in the pavement, and the water pipe was excavated and properly “tied-in” to prevent further leakage. When the pipe was repaired, a pavement patch was applied to the hole in the pavement. According to testimony, Barney Brothers was not satisfied with the difference in appearance between the pavement patch and the remainder of the parking lot. In order to make the parking lot look uniform, IMC hired Driveways, Inc. to resurface and restripe the entire parking lot. Second, evidence was also presented at trial alleging that Mote breached the contract by failing to properly compact the trenches in which Mote laid sewage and water pipes. Because of this alleged breach, IMC incurred additional expenses digging up and properly compacting these pipe trenches. Finally, IMC asserted that Mote breached the contract when Mote employees punched holes in the sheetrock walls inside the building in an effort to locate water cutoff valves, requiring IMC to repair the holes at IMC’s expense.

¶ 5. The chancellor held in his opinion that IMC “failed to meet its burden of proof with reference to every aspect of the litigation except for the damage and repairs to the parking lot.” Specifically, the chancellor held that testimony elicited at trial indicated that there “was a lot of rain which could have directly affected compaction. There was also not sufficient proof to support that part of the liability (compaction of parking lot) on the part of Mote and the damages.” As to the damage to the sheetrock, the court found “that the damages to the sheetrock was caused by IMC’s crews sheetrocking before the plumbers were finishing ‘top in’ therefore requiring Mote to punch holes in the sheetrock.” The only proof which rose to the level of preponderance of the evidence, according to the court, was the evidence of Mote’s failure “to ‘tie in’ a pipe underneath the parking lot, thereby causing a leak.” The chancellor awarded IMC damages in the amount of $3,816. Although Mote contests the evidentiary basis for this amount, the chancellor’s intention was presumably to compensate IMC only for damages sustained as a result of Mote’s failure to “tie in” the water pipe beneath the parking lot.

¶ 6. At the conclusion of the bench trial, IMC filed a post-trial “Motion for Award of Attorney’s Fees.” IMC claimed that it was entitled to reimbursement for all of its attorney’s fees pursuant to a clause in the subcontract which obligated Mote to pay IMC’s attorney’s fees “[i]f it becomes necessary for [IMC] to employ an attorney to enforce its rights against [Mote].” The chancellor denied this motion without explanation.

¶ 7. IMC appeals only the denial of attorney’s fees; Mote maintains that the chancellor did not abuse his discretion in denying IMC’s requested legal fees, contending that IMC is entitled to fees only with respect to the one claim upon which it prevailed, and asserting that IMC failed to provide any evidence that would have allowed the chancellor to allocate fees. In its cross-appeal, Mote does not challenge the chancellor’s findings of fact with respect to the company’s failure to properly “tie in” the pipe underneath the parking lot. Instead, Mote argues that the chancellor erroneously included in his damage computation amounts which, according to trial evidence, included costs to remedy Mote’s alleged failure to compact. Mote contends that this constitutes manifest error in light of the chancellor’s holding that the evidence was insufficient to establish Mote’s liability for failure to compact. Mote challenges the award of a twenty percent contractual penalty only insofar as it was applied to an erroneous damage amount.

STANDARD OF REVIEW

¶ 8. It is well settled that this Court will not reverse a chancellor’s findings of fact “unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied.” Columbia Land Dev., LLC v. Sec’y of State, 868 So.2d 1006, 1011(¶14) (Miss.2004) (citing Vaughn v. Vaughn, 798 So.2d 431, 433 (Miss.2001); Tucker v. Prisock, 791 So.2d 190, 192 (Miss.2001)). For questions of law, however, we apply a de novo standard. Id. “Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 110(¶ 5) (Miss.2005) (quoting Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002)).

¶ 9. IMC’s entitlement to attorney’s fees involves the construction of a contract provision. Since we cannot determine, based on the chancellor’s order denying IMC’s motion for attorney’s fees, whether his decision was based on legal or factual grounds, we will review his decision as to attorney’s fees de novo. See Curtis v. Curtis, 796 So.2d 1044, 1049(¶ 17) (Miss.Ct.App.2001).

DISCUSSION

I. WHETHER THE CHANCELLOR’S FINDINGS OF FACT WITH RESPECT TO MOTE’S BREACH AND IMC’S DAMAGES ARE INCONSISTENT

¶ 10. The question that we must answer when reviewing a chancellor’s damage award is not merely whether we would have awarded more or less damages; rather, our inquiry on appeal is whether there is substantial evidence to support the chancellor’s findings. Edge v. Booneville, 226 Miss. 108, 109, 83 So.2d 801(1955).

¶ 11. In his opinion, the chancellor found that IMC proved that Mote breached the contract only with respect to Mote’s failure to “tie in” a water pipe underneath the parking lot. The chancellor further held that there was insufficient proof “to support that part of the liability (compaction of parking lot) on the part of Mote and the damages.” The chancellor awarded damages to IMC as follows:

¶ 12. Mote does not challenge the chancellor’s findings of fact as regards the company’s liability for failure to “tie in” the pipe beneath the parking lot. Mote concedes that there is substantial evidence in the record to support the chancellor’s findings of fact in all respects except one. According to Mote, the chancellor erroneously based his damage computation upon evidence which included damages for failure to compact, damages which the chancellor held were not established. We agree.

¶ 13. During trial, Harry Soldán, the owner of IMC, testified as to various damage amounts that IMC incurred as a result of Mote’s breach. In conjunction with Sol-dan’s testimony, a four-page itemized invoice from Driveways, Inc. was entered into evidence as exhibit four. Soldán, explained during his testimony which amounts were incurred as a result of remedial work. It is not clear from Soldan’s testimony, however, or from exhibit four, which amounts were incurred solely as a result of Mote’s failure to “tie in” the water pipe beneath the parking lot, as Soldán testified that some of the remedial work was performed because of Mote’s failure to compact. In any event, the damage amounts awarded by the chancellor do not appear anywhere in Soldan’s testimony nor do they appear in exhibit four. In other words, the amounts of $2,970, and $210, respectively, do not appear anywhere in Soldan’s testimony or in the itemized invoice from Driveways, Inc., nor does any combination of amounts contained within the invoice add up to these amounts. The amounts of $2,970 and $210 do, however, match exactly amounts contained in exhibit three.

¶ 14. Exhibit three is a handwritten list describing four particular alleged breaches by Mote, and the monetary amounts incurred by IMC in remedying these alleged breaches. This list was prepared by Jimmy Hodnette, IMC’s supervisor in charge of the building project in question. Of particular relevance are items three and four, which provide as follows:

3. [Mote] didn’t compact sewer & water lines in parking lot, it rained we had to put extra soil cement in trenches to [stabilize] sub soil.
Driveway Inc. — $2970.00
4. He didn’t compact sewer clean out in front of bldg after he dug it up, Because his men didn’t tie pipe in. Asphalt settled & IMC had to reasphalt.
Hodnette — $210.00

Hodnette’s testimony at trial confirmed that the amounts contained in items three and four to exhibit three, as the descriptions imply, included costs incurred to remedy Mote’s alleged failure to compact sewer and water lines. These amounts— $2,970 and $210 — match exactly the amounts awarded to IMC as damages in the chancellor’s opinion. These amounts do not appear anywhere else in the record.

¶ 15. Consequently, we can reach no other conclusion but that the chancellor based his damage computation on the amounts contained in items three and four to exhibit three. The description of these items, item three in particular, include damages attributable to Mote’s alleged failure to compact, liability for which the chancellor specifically held was not established. According to our supreme court, where a “chancellor’s award ... is not supported by substantial evidence but rather on the chancellor’s mistaken view of the evidence,” the chancellor’s judgment must be reversed. Browder v. Williams, 765 So.2d 1281, 1287-88 (¶¶32, 36) (Miss.2000). We find that to be the case here as the chancellor’s damage award erroneously included damages that resulted from alleged breaches which the court found were not proven by IMC. Accordingly, we reverse and remand for further evidentiary findings as to the damage amounts attributable solely to Mote’s failure to “tie in” the water pipe.

II. WHETHER THE CHANCELLOR ERRED BY NOT AWARDING REASONABLE ATTORNEY’S FEES TO IMC

¶ 16. IMC asserts on appeal that the chancellor erred by refusing to award reasonable attorney’s fees as specifically provided for in the parties’ contract. Mote counters that, at most, IMC is entitled to attorney’s fees only with respect to the claims IMC proved at trial. Furthermore, Mote contends that IMC did not provide sufficient evidence to allow the chancellor to distinguish among fees attributable to IMC’s meritorious claim and fees attributable to IMC’s unproven claims. Therefore, Mote contends, the chancellor did not abuse his discretion in denying attorney’s fees. We agree.

¶ 17. Because the chancellor failed to make any factual or legal conclusions in his order denying IMC’s motion for attorney’s fees, and because this issue involves “[questions concerning the construction of [a] contraet[ 1,” we are left to analyze the chancellor’s decision de novo. Facilities, Inc., 908 So.2d at 110(¶ 5); see also Curtis, 796 So.2d at 1049(¶ 19) (finding that chancellor’s failure to adopt findings of fact on adultery requires a de novo review on appeal). Our analysis requires, first, a determination as to the meaning of the attorney fee clause contained in the contract. In other words, we must determine the circumstances under which Mote is required to reimburse IMC’s attorney’s fees and the extent of the required reimbursement. Second, we must determine whether IMC provided sufficient evidence from which an appropriate fee award can be determined.

¶ 18. Attorney’s fees can only be awarded pursuant to a relevant contractual provision, statutory authority, or where punitive damages are also proper. Hearn v. Autumn Woods Office Park Property Owners Ass’n, 757 So.2d 155, 164(¶49) (Miss.1999). The contract between IMC and Mote provided as follows:

It is agreed that in the event the Subcontractor fails or refuses to perform the work to the reasonable satisfaction of Contractor or Owner or fails to perform other conditions of this Agreement, and does not remedy, or commence diligently to remedy, such failure or refusal within three (8) working days after receipt of written notice from Contractor specifying such default, the Contractor may, without taking over the work, furnish the necessary materials and/or employ the workmen necessary to remedy the situation and charge the cost thereof to the Subcontractor, plus twenty percent (20%) to defray the overhead cost of Contractor. If Contractor takes over and completes this Subcontract, or relets same, due to default of Subcontractor, same shall not release Subcontractor for all damages suffered by Contractor due to the default of Subcontractor.
If it becomes necessary for Contractor to employ an attorney to enforce its rights against Subcontractor, Subcontractor agrees to pay a reasonable attorney’s fee to such attorney plus all costs of litigation incurred by Contractor.

¶ 19. We agree with IMC’s contention that enforcing a contract “without enforcing the clause addressing attorney fees would be contrary to the law.” Theobald v. Nosser, 752 So.2d 1036, 1042(¶24) (Miss.1999). This Court has held, however, that although “a case [may be] appropriate for the award of attorney’s fees, the actual award of attorney’s fees is still dependent upon specific proof.” Romney v. Barbetta, 881 So.2d 958, 962(¶20) (Miss.Ct.App.2004).

¶ 20. Mote contends that IMC asserted four distinct bases in support of its claim that Mote breached the contract between the parties. Mote then reasons that, since IMC proved breach based upon only one of these grounds, IMC is entitled to attorney’s fees only with respect to the proven ground. Since IMC did not present evidence from which the chancellor could distinguish the attorney’s fees, Mote asserts that the chancellor’s denial of attorney’s fees was appropriate. Mote cites A & F Properties, LLC v. Lake Caroline, Inc., 775 So.2d 1276 (Miss.Ct.App.2000) in support of its arguments.

¶ 21. In A & F Properties, we were faced with a contractual clause similar to the clause at issue in the case sub judiee. A & F Properties, 775 So.2d at 1282-83(¶ 21). The contract dispute in that case involved the alleged breach of several distinct contractual provisions. One contract provision in dispute involved the duty of one of the parties to build an access road. Id. at 1276(¶ 3). Another disputed provision involved the right of one of the parties to have subdivision lots conveyed to it pursuant to a selection formula set out in the contract. Id. There, we determined “that the parties were entitled only to the fees for enforcing the specific contract provisions on which they prevailed.” Id. at 1283(¶ 22).

¶ 22. Similarly, the attorney’s fee clause in the instant case entitles IMC to reimbursement only for fees incurred enforcing the claim upon which it prevailed. According to the fee clause, Mote’s duty to pay IMC’s attorney’s fees is triggered if and when “it becomes necessary for [IMC] to employ an attorney to enforce its rights against [Mote].” The trial court determined that IMC did not have a “right” to damages or other relief with respect to any claim except the proven claim that Mote failed to “tie in” the water pipe beneath the parking lot. Fees incurred prosecuting all other claims, consequently, were not incurred by IMC “to enforce its rights against [Mote].” Accordingly, as IMC had rights only with respect to Mote’s failure to “tie in” the water pipe beneath the parking lot, Mote is liable for reasonable attorney’s fees incurred in enforcing those particular rights. All other fees were not “necessary” within the meaning of the fee clause and could not, therefore, be “reasonable” as required by the fee clause.

¶ 23. Having found that IMC is entitled to attorney’s fees associated with its prevailing claim, we must now determine whether there is sufficient evidence in the record to distinguish the reimbursable fees from the non-reimbursable. In support of its motion for attorney’s fees, IMC submitted an itemized attorney bill, a summary of the proceedings, and an attorney affidavit. None of these items describe the nature of the attorney’s fees in such a way that we can determine which expenses relate to which claims. In A & F Properties, as in the instant case, we held that each party was entitled to attorney’s fees incurred only in connection with the “specific contract provisions” on which it prevailed. Id. at 1283(¶ 22). “Most of the remainder of the fees, such as those for ... defense of the road widening claim and those for ... pursuing the [unsuccessful] lot selection claim, must be paid by the party that incurred them.” Id. Although we found that both parties were entitled to some reimbursement, we nonetheless reversed and rendered the jury award of attorney’s fees because “[n]either bill was itemized in a way to determine what charges were billed on each issue.” Id.

¶ 24. While we note that the chancellor in the instant case did not specify the grounds upon which he based his denial of IMC’s motion for the award of attorney’s fees, we nonetheless find that the chancellor did not commit reversible error as the record does not contain sufficient evidence from which the chancellor could have identified which fees were reimbursable. “When a party proves liability but fails to present competent evidence on damages, that is a failure of proof and no damages should be awarded.” Id. at 1283(¶ 23); see also Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss.1987) (reversing award of attorney’s fees and rendering judgment for no fees where proof was insufficient as a matter of law). “While certainty is not required, a party must produce the best that is available to him.” A & F Properties, 775 So.2d at 1283(¶ 25) (quoting Eastland v. Gregory, 530 So.2d 172, 174 (Miss.1988)).

¶ 25. We find that IMC had its chance to produce sufficient evidence but failed to do so. It would be inappropriate to give IMC another chance to present adequate evidence, especially in light of the fact that IMC was aware that it had prevailed on only one claim prior to filing the motion for award of attorney’s fees. As we have stated, “[a] new opportunity at a new trial to present evidence is granted when judicial or jury error requires a reversal of the initial trial and the proper judgment is uncertain.” Id. at 1284(¶ 27). The error in this case lies with IMC. Had IMC provided evidence from which the attorney’s fees could be distinguished, we would be obligated to reverse the chancellor’s judgment and remand for a determination of the “reasonable” fees to which IMC was entitled. That is not the case, however. Thus, we affirm the chancellor’s denial of IMC’s motion for the award of attorney’s fees.

CONCLUSION

¶ 26. We conclude that the chancellor’s damage award was based on amounts which included, at least in part, damages to which IMC was not entitled, and thus, was not supported by substantial evidence. On cross-appeal, we, therefore, reverse and remand this issue to the DeSoto County Chancery Court for a determination of the amount of damages suffered by IMC solely as a result of Mote’s failure to properly “tie in” the water pipe. The twenty percent contractual penalty is then to be applied to that amount. We also find that, while IMC was entitled to some attorney’s fees pursuant to the contract between the parties, IMC failed to provide sufficient proof to distinguish fees incurred in prosecuting the single claim upon which it prevailed. Accordingly, on direct appeal, we affirm the chancellor’s denial of IMC’s motion for award of attorney’s fees.

¶ 27. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED ON DIRECT APPEAL AND REVERSED AND REMANDED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . The interpleader complaint was largely uncontested by either defendant. Consequently, Barney Brothers was allowed to interplead the sum of $2,496.67, the amount Mote claimed it was owed on the final draw.

      . The record reflects that IMC raised this issue during the trial itself. The chancellor agreed, and Mote did not object, that IMC could submit its request for attorney’s fees by posttrial motion.

      . The contractual provision at issue in A & F Properties provided as follows:
      If it becomes necessary to insure the performance of the terms and conditions of this Contract by any party hereto having to employ an attorney, then the party admitting default, or the party adjudicated as the defaulting party by a court of competent jurisdiction, shall pay reasonable attorneys' fees and the court cost incurred, if any.

        Id. at 1282-83(1121).