author: IRVING, J.,

text:
    Kristopher R. PEACOCK, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02190-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.
    Thomas W. Powell, attorney for appellant.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
    Before KING, C.J., IRVING, CHANDLER and CARLTON, JJ.
   IRVING, J.,

for the Court.

¶ 1. Kristopher Peacock was convicted by a jury of murder and was sentenced by the Hinds County Circuit Court to serve a term of life in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals and asserts: (1) that the court erred in setting aside his guilty plea on a related charge of shooting into a vehicle and (2) that his conviction for murder cannot stand because it constitutes double jeopardy.

¶ 2. Finding no merit, we affirm.

FACTS

¶ 3. As Peacock makes no argument regarding either the weight or the sufficiency of the evidence against him, we give only a brief description of the events that led to this appeal. On August 16, 2003, Peacock was a passenger in a Ford Probe that was traveling north on State Street in Jackson, Mississippi. Somewhere around downtown Jackson, the car in which Peacock was riding encountered a car driven by Robert Stubbs. Stubbs allegedly made disparaging remarks about the vehicle that Peacock was in, and verbal exchanges continued between the occupants of the cars at several red lights. At the intersection of State Street and High Street, Peacock pulled out a handgun and fired at least six shots at Stubbs’s vehicle. One of the bullets hit Stubbs in the head, fatally wounding him. After several months, Peacock was arrested and charged with murder and firing into a vehicle.

¶4. Shortly before trial, Peacock entered an open guilty plea regarding the pending charge for firing into an open vehicle. After a brief colloquy, the court accepted his guilty plea, although it deferred sentencing until after Peacock’s trial on the murder charge. After the jury was selected and impaneled, Peacock moved to dismiss the murder charge against him on the basis of double jeopardy. In short, Peacock contended that the acceptance of his guilty plea on the charge of firing into an open vehicle precluded his prosecution for murder. The court withheld its ruling on Peacock’s motion until later in the trial, at which time it found that the two counts did not expose Peacock to double jeopardy.

¶ 5. During trial, the court called the parties together for a conference outside the jury’s presence. At that time, the court announced that it had erred in accepting Peacock’s guilty plea and that it was sua sponte withdrawing its acceptance of the plea. The court stated that it should not have accepted the plea because the proof offered at the plea colloquy did not match the facts charged in the indictment. The State asked for permission to retire the count to the files, and the court granted the request. Peacock asked for a recess to deal with the unexpected rejection of the guilty plea, but the court declined to grant a recess. Trial continued, and Peacock was found guilty and sentenced to life imprisonment. After trial, Peacock raised both double jeopardy and the withdrawal of his guilty plea as issues in post-trial motions.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Withdrawal of Guilty Plea

¶ 6. Peacock contends that, because a valid guilty plea waives jurisdictional defects in an indictment, the court erred in withdrawing his guilty plea. The court found that the evidence offered for Peacock’s guilt at the plea colloquy was inconsistent with the facts that were charged in the indictment, insomuch as the indictment charged Peacock with shooting into a vehicle, while the evidence offered at the colloquy indicated only that Peacock shot at a vehicle. The court stated that additional evidence should have been elicited to make the proof offered conform with the indictment. Since the evidence was only that Peacock shot at a vehicle, the court set aside the guilty plea.

¶ 7. We note at the outset that the court’s acceptance of Peacock’s guilty plea had not become a final judgment, as the court had not sentenced Peacock and was still in the same term when it set aside the guilty plea. The Mississippi Supreme Court has noted: “all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may be set aside, vacated, modified or annulled by that court.” Johnson v. State, 925 So.2d 86, 97 n. 7 (Miss.2006) (emphasis added) (quoting Robinson v. State, 585 So.2d 757, 758 (Miss.1991)). Therefore, the court was entitled to set aside Peacock’s guilty plea, as it was still in the same term during which it had accepted Peacock’s plea. Furthermore, although the court was entitled to set aside the plea, we also note that the court gave an additional reason for doing so: that the proof offered in support of the plea did not match the facts charged in the indictment. Clearly the court was entitled to correct this error, given that it was still in the same term, Peacock had not been sentenced, and the guilty plea therefore had not yet become a final judgment.

¶ 8. Additionally, although we find no error in the court’s decision to set aside the plea, we also note that even had there been error, it would be harmless. Contrary to Peacock’s contentions, as we discuss below, there was no double jeopardy implication raised by the State’s decision to prosecute him for both murder and shooting into a vehicle. Therefore, any error in setting aside the guilty plea was harmless, as Peacock could have been convicted of both shooting into a vehicle and of murder. The only effect of setting aside the plea was that Peacock did not receive an additional conviction and resulting sentence for shooting into a vehicle.

2. Double Jeopardy

¶ 9. Peacock contends that he should not have been prosecuted for both shooting into a vehicle and murder, as prosecution for both subjects him to double jeopardy.

¶ 10. The test for whether a prosecution raises double jeopardy concerns was promulgated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Mississippi has since adopted the test, which states that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not.” Culp v. State, 933 So.2d 264, 280(¶ 55) (Miss.2005) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180).

¶ 11. Here, the crimes charged require additional facts separate from each other. Notably, murder, unlike shooting into a vehicle, requires the deliberate killing of an individual. On the other hand, shooting into a vehicle requires only that an individual willfully shoot into or at a vehicle, whereas murder does not require the defendant to have shot into a vehicle. Clearly, the two are distinct crimes that may both be charged. In fact, this Court has affirmed convictions where an individual shot into a vehicle, thus killing someone, and was convicted of both shooting into a vehicle and murder or manslaughter as a result. See Steele v. State, 852 So.2d 78 (Miss.Ct.App.2003) (affirming conviction where defendant convicted of both depraved heart murder and shooting into a vehicle); Ratcliff v. State, 752 So.2d 435 (Miss.Ct.App.1999) (affirming conviction for both manslaughter as a lesser-included offense of murder and shooting into a vehicle). We further note that the facts in this case were such that it was not clear whether Peacock shot into the vehicle when he killed Stubbs, as there was testimony to the effect that Stubbs may have had all or part of his head outside the vehicle when he was shot. In essence, the facts are such that Peacock could be found guilty of murder and of shooting into a vehicle without any risk of exposure to double jeopardy.

¶ 12. Therefore, even if Peacock’s guilty plea had resulted in a final conviction for shooting into a vehicle, that conviction would not prevent Peacock’s prosecution for murder. No double jeopardy exists in this case.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF A TERM OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Stubbs did not own the vehicle, but had been asked to drive it by the vehicle’s owner, who was a passenger in the car.

      . Although not at issue here, we note that a defendant has the right to withdraw his guilty plea at any time prior to a conviction becoming final. Sanders v. State, 435 So.2d 1177, 1179 (Miss.1983); Sullivan v. State, 234 Miss. 611, 613-14, 107 So.2d 123, 124 (1958).

      . Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006), under which the State prosecuted Peacock, reads; "The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being;

      . Mississippi Code Annotated section 97-25-47 (Rev.2006) reads in pertinent part: “If any person or persons shall wilfully shoot any firearms or hurl any missile at, or into, any ... motor vehicle ... such person shall, upon conviction, be punished....”


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Frank McWILLIAMS, Appellant v. John H. McWILLIAMS, as Trustee of the D. Rials McWilliams Trust, and Individually; and, D. Rials McWilliams, a Minor, Appellee.
    No. 2007-CA-00170-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.

      Michael L. Knapp, attorney for appellant.
    Lindsey C. Meador, Cleveland, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The underlying facts of this appeal arise from the Sunflower County Chancery Court’s denial of Frank McWilliams’s motion to set aside a warranty deed transfer and a trust. D. Rials McWilliams, a minor, by and through his mother and next friend, Jane R. Weathersby, in defense of the D. Rials McWilliams Trust, was awarded summary judgment after the chancery court found that Frank McWilliams’ motion was time-barred .by the three-year statute of limitations. From the summary judgment, Frank appeals, asserting that the chancellor erred (1) in applying the three-year statute of limitations pursuant to Mississippi Code Annotated section 15-1-49 (Rev.2003), rather than the ten-year statute of limitations under Mississippi Code Annotated section 15-1-7 (Rev.2003); (2) in holding that the statute of limitations was not tolled by fraud; and (3) in holding that the statute of limitations was not tolled because there was a public record of the deed and trust agreement. Finding no error in the decision of the chancery court, we affirm the grant of summary judgment.

FACTS

¶2. On April 23, 1999, Frank McWil-liams, an attorney, was incarcerated in the Sunflower County jail after being arrested for burglary. While in jail, Frank executed an irrevocable trust and warranty deed naming his minor son, D. Rials McWil-liams, as beneficiary. Both of these instruments were prepared by Frank’s brother, John H. McWilliams, also an attorney. John was named as the trustee, and the instruments were backdated to September 14, 1998. The irrevocable trust and warranty deed were filed on the same day they were executed, April 23, 1999, as public records in the chancery clerk’s office of Sunflower County.

¶ 3. Over six years later, on July 25, 2005, Frank sought to set aside the warranty deed and trust, claiming fraud, undue influence, overreaching, and a lack of mental capacity due to his drug addiction. In his motion to set aside the deed and irrevocable trust, Frank alleged that his brother, John, fraudulently presented the deed transfer and trust documents for execution under the guise that the documents were actually intended to facilitate his release from jail and admittance into a drug rehabilitation center.

STANDARD OF REVIEW

¶ 4. This Court’s standard of review for a grant or denial of a motion for summary judgment is well-established:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. 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. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Arrechea Family Trust v. Adams, 960 So.2d 501, 504(¶ 6) (Miss.Ct.App.2006) (quoting Heigle v. Heigle, 771 So.2d 341, 345(¶ 8) (Miss.2000)).

DISCUSSION

¶ 5. Because each of the issues presented for review concern the same subject matter, we combine the issues as follows:

WHETHER THE CHANCERY COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE TRUST ON THE GROUND THAT FRANK McWILLIAMS’S COMPLAINT SEEKING TO SET ASIDE THE IRREVOCABLE TRUST AND DEED WAS TIME-BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS

¶ 6. Frank argues that the chancery court erred in holding that his complaint alleging a fraudulent conveyance was time-barred pursuant to the three-year statute of limitations found in Mississippi Code Annotated section 15-1-49. He asserts that his claim to set aside the warranty deed and trust should have been afforded the ten-year statute of limitations, found in Mississippi Code Annotated section 15-1-7, because this statute speaks directly to the recovery of real property. The Trust argues that the chancery court was correct in applying the catch-all statute of limitations pursuant to Mississippi Code Annotated section 15-1-49 to bar Frank’s claim, because his suit is predicated upon a claim of fraudulent conveyance, a claim which must be brought within three years of discovery of the transferred property.

¶ 7. Our supreme court has directly addressed the issue we are presented with in this appeal in O’Neal Steel, Inc. v. Millette, 797 So.2d 869 (Miss.2001). In O’Neal Steel, Inc., the supreme court affirmed a grant of summary judgment because suit to set aside an alleged fraudulent conveyance was brought outside of the applicable three-year limitations period of Mississippi Code Annotated section 15-1-49. Id. at 875(¶ 25). The ten-year limitations period set out in Mississippi Code Annotated section 15-1-7 did not apply,, as the court found that no action to recover land was involved. Rather, the three-year “catchall” limitations period of Mississippi Code Annotated section 15-1-49 applied and started running when the deed was filed and recorded. Id. at 875(¶ 20). Although the plaintiffs argued that the statute of limitations should have been tolled due to concealed-fraud, the court found that the plaintiffs failed to exercise reasonable diligence to discover the property transfer, a matter of which was public record. Id. at 876(¶ 27). Based on this finding, the court dismissed the argument.

¶ 8. Here, Frank did not bring suit to set aside the land deed transfer or resulting trust on the basis of fraud until approximately six years after the warranty deed and trust were recorded in the chancery clerk’s office. He seeks a finding that the chancery court should have applied the ten-year statute of limitations of Mississippi Code Annotated section 15-1-7, and, thus, his complaint would not be time-barred. However, when, a complaint is brought to- set aside a land transfer based upon an alleged fraudulent conveyance, the three-year statute of limitations, found in Mississippi Code Annotated section 15 — 1— 49, begins running once the complainant either discovers, or should have discovered with due diligence, the property transfer. O’Neal Steel, Inc., 797 So.2d at 875-76 (¶¶ 24-26). Therefore, Frank’s complaint, predicated upon fraud, was to be filed within three years of the transfer, or within three years of the time he would have discovered the transfer using due diligence. The ten-year statute of limitations set out in Mississippi Code Annotated section 15-1-7 cannot be applied to Frank’s suit, as this statute only governs actions to recover land and presupposes the complainant is asserting a possessory interest in the land in question.

¶ 9. Frank alternatively argues that his complaint to set aside the warranty deed and trust is not time-barred due to the tolling of the statute of limitations under the doctrine of concealed fraud. While Frank is correct in asserting that concealed fraud may toll the statute of limitations, the doctrine of concealed fraud will not toll the statute of limitations where the instrument is. recorded as a matter of public record. Carder v. BASF Corp., 919 So.2d 258, 262(¶ 14) (Miss.Ct.App.2005) (holding that “[w]hen the information is placed in the public domain, the doctrine of fraudulent concealment ceases to be applicable.”) Specifically, “where an alleged fraudulent conveyance of real property is recorded and available to the public, there can be no concealed fraud preventing the running of statute of limitations.” O’Neal Steel, Inc., 797 So.2d at 876(¶ 26). Frank cannot claim that concealed fraud tolled the applicable statute of limitations because the warranty deed transfer and irrevocable trust were filed as public records in the office of the clerk of Sunflower County. The chancellor found that the recording of the deed in the chancery clerk’s office obviates the defense of concealed fraud which would toll the statute of limitations, and we agree.

CONCLUSION

¶ 10. The three-year statute of limitations in Mississippi applies to an action to set aside a deed on the basis of fraud. Concealed fraud may toll the statute of limitations; however, concealed fraud will not toll the statute of limitations where the instrument is recorded as a matter of public record. Thus, when Frank filed his motion to set aside the irrevocable trust and warranty deed, the statute of limitations had already run. Therefore, the chancellor was correct in granting summary judgment in favor of the Trust, because there were no genuine issues of material fact left to discern. Accordingly, we affirm the grant of summary judgment.

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

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

      . Examples of suits brought subject to the ten-year statute of limitations are those to establish adverse possession, remove a cloud on title, or conformation of mineral rights. O’Neal Steel, Inc., 797 So.2d at 873(¶ 11). A petition to set aside a land transfer or warranty deed is not a suit implicating the statute of limitations found in Mississippi Code Annotated section 15-1-7. Id.


author: BARNES, J.,

text:
    Patrick Douglas ASHBURN, Appellant v. Christine Dale ASHBURN, Appellee.
    No. 2006-CA-00554-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2007.

      Kay Farese Turner, Rachael Emily Putnam, attorneys for appellant.
    Christine Dale Ashburn, appellee, pro se.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

¶ 1. This case comes on appeal from the order of the DeSoto County Chancery Court dismissing Patrick Ashburn’s complaint for divorce and ordering Mr. Ash-burn to pay all remaining guardian ad litem fees. Because Mrs. Ashburn has not filed a brief and we cannot say with confidence that the chancellor committed no error, we reverse the judgment of the chancery court and remand for proceedings not inconsistent with this ruling.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On March 26, 2002, Patrick Ashburn filed a complaint for divorce in the DeSoto County Chancery Court. Mr. Ashburn alleged in his complaint that he and Christine Dale Ashburn were legally married on July 27, 1989, and cohabited together as husband and wife until approximately March 2, 2002. At such time, according to Mr. Ashburn’s complaint, the parties physically terminated their marital relationship. The complaint further alleged that one minor child by the name of Patrick Douglas Ashburn, Jr. (“P.J.”) was born as a result of the marriage. Mr. Ashburn alleged that he was entitled to a divorce from Mrs. Ashburn based on the grounds of habitual cruel and inhuman treatment and habitual and excessive use of opium, morphine or other like drug, both pursuant to Mississippi Code Annotated Section 93-5-1 (Rev.2004). Mr. Ashburn sought an absolute divorce; custody of and support for the couple’s minor child, both temporary and permanent; and an equitable division of all marital property.

¶ 3. Following the filing of the complaint for divorce and the perfection of service upon Mrs. Ashburn, Mr. Ashburn filed a motion for default judgment based on Mrs. Ashburn’s failure to file an answer to the complaint. On May 9, 2002, Mrs. Ashburn filed an answer, wherein she generally denied that Mr. Ashburn was entitled to a divorce but did not raise any affirmative defenses. On July 15, 2002, the chancery court entered a temporary order nunc pro tunc to May 20, 2002, whereby the parties were given joint legal custody of the minor child with physical custody to be equally divided in one-week intervals in the parties’ marital home. The order also prohibited the use of alcohol or drugs in the presence of the child and ordered that no temporary child support would be paid by either party.

¶4. On September 20, 2004, Mr. Ash-burn filed a Rule 35 motion for physical and mental examination of Mrs. Ashburn, a motion for appointment of guardian ad litem, a motion to modify temporary order and grant plaintiff temporary sole physical and legal custody of the parties’ minor child, and a motion for exclusive use of the marital residence. On the same date, Mr. Ashburn also filed a petition for citation of criminal and civil contempt, wherein he alleged that Mrs. Ashburn had violated the court’s order by continuing to abuse drugs and prescription .narcotics. On October 22, 2004, the parties entered into a consent order whereby a guardian ad litem was appointed. On September 1, 2005, Mr. Ashburn filed an emergency petition seeking a temporary restraining order; designation as sole physical and legal custodial parent of the minor child; and enforcement of the guardian ad litem’s recommendations.

¶ 5. On October 4-6, 2005, the trial was held in this matter. The evidence adduced at the trial was as follows:

¶ 6. Patrick Ashburn and Christine Dale Ashburn were married on July 27, 1989, and had their only child on April 4, 1991. Mrs. Ashburn had one child from a previous relationship, Emily Augustine, whom Mr. Ashburn raised from infancy. Mr. Ashburn testified that throughout the course of the marriage, Mrs. Ashburn’s drug use continually got worse. He stated that she was taking illegal drugs and prescription drugs. According to Mr. Ash-burn, Mrs. Ashburn would go from one doctor to another trying to obtain Oxycontin and other drugs, and she would then take such drugs in excess of the recommended dosage. Mr. Ashburn testified that, in early 2002, Mrs. Ashburn was abusing drugs and that, at one point, she went with a friend to a birthday party and did not return for six weeks. Mr. Ashburn stated that, after he filed for divorce in March of 2002, Mrs. Ashburn entered rehab for approximately six weeks.

¶ 7. Mr. Ashburn testified that he and Mrs. Ashburn eventually moved back in together in their marital home in August of 2002 and that during this time he was doing all that he could to try to rehabilitate the marriage. He stated that he did so for the best interest of the children. He further testified that, although he and Mrs. Ashburn were sleeping in the same bed at times , the two were not having sexual relations other than one time in 2003. He also testified that, since 2000, Mrs. Ashburn had been in rehab at least three times, but that none of these stints in rehab resulted in Mrs. Ashburn’s conquering her drug addiction. According to Mr. Ashburn, following the time he moved back into the marital home, Mrs. Ashburn was self-medicating with her prescription drugs and taking such drugs in excess of the amount prescribed by her doctor. He further stated that this was occurring in the latter part of 2003, after the time he last had sexual relations with Mrs. Ash-burn. He stated that Mrs. Ashburn continued to increase her drug dosages and that she started getting three month’s worth of pills in a month through his insurance from work. Mr. Ashburn testified that the last time Mrs. Ashburn was in rehab was in February of 2004 due to her excessive use of prescription drugs. He stated that Mrs. Ashburn overdosed in the presence of P.J. and Emily sometime around January of 2004.

¶ 8. Mr. Ashburn testified that Mrs. Ashburn promised him after he filed for divorce that she would stop using drugs but that she had not lived up to her promise. He stated that Mrs. Ashburn entered a manic state in March 2005, during which time she was yelling at one time and sitting on the couch and drooling at another time. Mr. Ashburn further stated that, at this time, Mrs. Ashburn was extremely over-medicated and in his opinion she was in a drug-induced state. He testified that he moved out of the couple’s marital home again in June of 2005. Mr. Ashburn testified that Mrs. Ashburn had forged his name on checks written to a pharmacy and that she was facing forgery charges. According to Mr. Ashburn, Mrs. Ashburn worked periodically during the marriage, and when she was working at a catfish restaurant, the owners of the restaurant and Mrs. Ashburn were doing drugs. He also stated that Mrs. Ashburn worked part-time at a day care where her mother also worked.

¶ 9. Denean Francis, a family friend of Mr. and Mrs. Ashburn who admitted to using drugs herself in the past, testified that she saw Mrs. Ashburn snort Oxycontin through her nose in approximately 1994 or 1995, and that she believed she had observed Mrs. Ashburn under the influence of drugs between the years of 2001 and 2005. Ms. Francis testified that she believed she had witnessed Mrs. Ashburn under the influence of drugs on the day prior to Ms. Francis’s testimony. She also testified that, on December 18, 2003, Mrs. Ashburn stole a written prescription for Lortab from her home and had it filled at the pharmacy. According to Ms. Francis, Mrs. Ashburn told her that she stole the prescription so that she could commit suicide. Ms. Francis also admitted to smoking marijuana recreationally and to smoking marijuana as recently as the night before her testimony, but she stated that, on the night before, she smoked the marijuana for medical reasons.

¶ 10. Lieutenant Bobbie Jones, an employee of the Olive Branch Police Department trained in narcotics investigation and a Mend of Mr. Ashburn, testified that, two or three years prior to the trial, he had been called to the Ashburns’ home due to a domestic disturbance, specifically Mrs. Ashburn’s claim that Mr. Ashburn had physically intimidated her. Lt. Jones testified that, when he arrived at the home, Mrs. Ashburn’s pupils were “blown” and her speech was extremely slurred. He stated that, in his professional opinion, Mrs. Ashburn was under the influence of a central nervous system depressant. He stated that, at the time, he attributed most of her condition to the medication that she was on due to her medical condition. Lt. Jones further testified that he had visited Mrs. Ashburn’s home approximately twenty times in the past twelve months and that he observed Mrs. Ashburn under the influence of drugs fifteen out of these twenty times.

¶ 11. Mrs. Ashburn’s mother, Christine Isbell, testified that from August of 2002 until July of 2005, Mr. and Mrs. Ashburn and the children were living together as a family. Ms. Isbell further testified Mrs. Ashburn suffers from bipolar disorder and rheumatoid arthritis and that she was aware that her daughter had a drug abuse problem to an extent, but only specifically recalled one incident when Mrs. Ashburn was prescribed Oxyeontin, was unable to take the drug correctly, and then checked herself into rehab; and another incident in which she overdosed and was admitted to the ICU.

¶ 12. Mrs. Ashburn, testified that, after Mr. Ashburn filed the complaint for divorce in March of 2002, he left their residence for the months of June and July of 2002 and then moved back in August of 2002. She stated that initially the two shared the house week to week, with each leaving the house for the week when the other had custody. According to Mrs. Ashburn, she and Mr. Ashburn had sexual relations after Mr. Ashburn filed for divorce but prior to the time he moved out in June of 2002. She also testified that from August 2002, the time when Mr. Ashburn moved back into the marital residence, to the end of July 2005 when he moved out, the two lived together as man and wife and had sexual relations two or three times a week.

¶ 13. Mrs. Ashburn testified that she was hospitalized for fourteen days in 1998 for an addiction to morphine which had been prescribed by her doctor for rheumatoid arthritis and lupus. However, Mrs. Ashburn stated that she did not abuse the morphine; rather, she was just unable to handle it. Mrs. Ashburn testified that her physician put her on Oxyeontin in 2000, but that she did not abuse the drug and that she had no inpatient hospital treatment in 2000. According to Mrs. Ashburn, she admitted herself to the hospital in 2002 for an addiction to Oxyeontin because she had started to abuse the drug. She later testified that the last time she had a problem with Oxyeontin was late 2001. Mrs. Ashburn testified that she relapsed again in November of 2003 and that she overdosed in February of 2004 on Lortab while trying to commit suicide and was again admitted to the hospital, initially to the ICU in Germantown, Tennessee, and then to Lakeside, at which time she was put on Lithium for bipolar disease.

¶ 14. Mrs. Ashburn testified that she does not pass out at home in front of the children, but that when she was on morphine she did like to stretch out on the couch and fall asleep. She also testified that, in 2004, her children called Mr. Ash-burn and told him that they thought their mother was dying, at which time she made the aforesaid stay in ICU. Mrs. Ashburn testified that she was currently taking the prescription medications Effexor, Lithium, Neurontin, and Klonopin. She further testified that she smoked marijuana in 2001 and that she tested positive for marijuana and hydrocodone in January and May of 2001. She denied, however, that these positive drug test results were the reason her treating physician at the time, Dr. Charlotte Flumere, refused to treat her anymore. She also testified that she did methamphetamines and cocaine at the end of 2001. With regard to the aforementioned forgery charges, she stated that she had permission to sign Mr. Ashburn’s checks.

¶ 15. Mrs. Ashburn admitted to stealing Ms. Francis’s prescription at the end of 2003 and stated that she did so for the purpose of gathering pills, but denied that it was because of her drug habit. She denied that she had at any time engaged in obtaining drugs from numerous physicians, none of whom had any knowledge of the others’ treatment. She also denied that she had been addicted to morphine-type mind-altering drugs for a period of time of more than five years, admitting rather to self-medicating with pain pills since approximately the end of 2000. She testified that the self-medicating ended in 2002, when she went to rehab, but that she relapsed at the end of 2003 for about three months until February of 2004. She then testified that it would be fair to say that she self-medicated from 1999 to 2004, and that the last time she had any pain pills was February 2004. Mrs. Ashburn testified that, in March of 2005, she went manic for approximately three days which caused her doctor to raise her Lithium dosage for a period of time. In May of 2005, the guardian ad litem recommended that Mr. Ashburn and the minor child move out of the marital residence on account of the condition of the house being unfit for the child.

¶ 16. At the beginning of the trial, Mrs. Ashburn moved ore terms to dismiss the case based on the fact that she did not want a divorce and based on her claim that the parties reconciled after Mr. Ashburn filed the complaint for divorce and proceeded to live together for three years with Mr. Ashburn having full knowledge of Mrs. Ashburn’s drug use. Alternatively, Mrs. Ashburn moved in limine to restrict all testimony to only what occurred after August 2005 when Mr. Ashburn moved out of the marital home. The court denied the motion in limine and took the motion to dismiss under advisement until the conclusion of Mr. Ashburn’s case. At the close of her case, Mrs. Ashburn reiterated her motion to dismiss and moved for a directed verdict based on condonation. The court denied the motion for directed verdict.

¶ 17. At the completion of the presentation of evidence, the court denied Mr. Ash-burn’s complaint for divorce without prejudice. The court first found that there was no evidence indicating that Mr. Ashburn had been the subject of cruel and inhuman treatment. With regard to Mr. Ashburn’s other ground for divorce, habitual drug use, the court found that there was ample evidence that Mrs. Ashburn had a drug problem, but that everything prior to the last separation in June of 2005 was condoned by Mr. Ashburn through his continuing to cohabit with Mrs. Ashburn and have sexual relations with her. Specifically, the court stated the following:

In this case there was testimony if you believe the husband’s testimony of only [one] time of sex since he went back, but one time is one time. Her testimony was that it was two or three times a week. As in anything I’m the trier of the fact [sic] and I would believe that the truth is probably somewhere in between those two figures, more than he says and less than she says, though I cannot and would not try to put an exact number on that. But even one time if I took his testimony would be sufficient to condone the acts until he finally separated from her in June of 2005. The only testimony of any drug use after June of [2005] is the testimony of Lt. Bobby Jones, who said that he saw her under the influence two years ago, but he thought it was because of prescribed meds. And he saw her 15 times in the last year, but in my mind he didn’t distinguish whether that was under prescribed meds or whether it was under the type of drugs set forth in the case of Lawson v. Lawson [821 So.2d 142 (Miss.Ct.App.2002)].

¶ 18. Accordingly, the chancellor dismissed Mr. Ashburn’s complaint for divorce based on condonation. The chancellor then assessed all of the remaining guardian ad litem fees to Mr. Ashburn, with such fees to be paid on a monthly basis, and awarded sole physical and legal custody of the minor child to Mr. Ashburn. On October 21, 2005, Mr. Ashburn filed a motion to alter or amend the chancellor’s ruling, which the chancellor denied.

¶ 19. Aggrieved, Mr. Ashburn appeals arguing that the chancellor erred in allowing Mrs. Ashburn to make an ore tonus motion to dismiss Mr. Ashburn’s complaint for divorce based on condonation at the inception of the trial without providing Mr. Ashburn with at least ten days notice of such motion. Mr. Ashburn further contends that the chancellor erred in dismissing his complaint for divorce based on the affirmative defense of condonation when Mrs. Ashburn did not plead condonation. Additionally, Mr. Ashburn appeals the chancellor’s finding that he condoned Mrs. Ashburn’s habitual drug use through his continuation of sexual relations with Mrs. Ashburn. Finally, Mr. Ashburn appeals the chancellor’s assessment of all of the remaining guardian ad litem fees to him. We agree that the chancellor erred in denying Mr. Ashburn a divorce. We disagree that the chancellor erred in assessing all of the remaining guardian ad litem fees to Mr. Ashburn. Thus, we affirm in part and reverse and remand in part.

STANDARD OF REVIEW

¶ 20. “In domestic relations cases the scope of review is limited by the substantial evidence/manifest error rule.” Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citing Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)). “This Court may reverse a chancellor’s findings of fact only when there is no ‘substantial credible evidence in the record’ to justify his finding.” Id. (quoting Henderson v. Henderson, 757 So.2d 285, 289(¶ 19) (Miss.2000)). “ ‘Our review in domestic relations is limited under the familiar rule that this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.’” Id. (quoting Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994)).

¶ 21. In the case sub judice, Mrs. Ashburn did not file a brief in response to Mr. Ashburn’s appeal. The “ ‘[failure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error.’” Sanders v. Estate of Chamblee, 819 So.2d 1275, 1277(¶ 5) (Miss.2002) (quoting Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). “ ‘Where the appellant’s brief makes out an apparent case of error ..., we do not regard it as our obligation to look to the record to find a way to avoid the force of the appellants’ argument.’ ” Id.

DISCUSSION

I. Did the chancellor err in dismissing Mr. Ashburn’s complaint for divorce based on the affirmative defense of condonation when Mrs. Ashburn did not plead such defense?

¶ 22. Mr. Ashburn argues that the chancellor erred in dismissing his complaint for divorce based on the defense of condonation when Mrs. Ashburn did not plead condonation in her answer. Mr. Ashburn contends that, in a divorce action, condonation is an affirmative defense that must be specifically pled by the party asserting it or else the defense is waived.

¶ 23. Mississippi Rule of Civil Procedure 8(c), which governs affirmative defenses, states as follows:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, latches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

M.R.C.P. 8(c) (emphasis added). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Goode v. Village of Woodgreen Homeowners, 662 So.2d 1064, 1077 (Miss.1995). It is undisputed in this case that Mrs. Ashburn did not plead condonation in her answer; nor did she amend her answer to plead condonation. Thus, argues Mr. Ash-burn, because condonation is an affirmative defense, Mrs. Ashburn waived her right to rely on such defense.

¶ 24. Although Mr. Ashburn cites no Mississippi case law specifically stating that condonation is an affirmative defense, nor is this Court aware of any such authority, a review of other jurisprudence reveals that it is generally accepted that condonation is an affirmative defense that must be specifically pled. See, e.g., Hancock v. Hancock, 257 Iowa 119, 131 N.W.2d 757, 759 (Iowa 1964) (“[cjondonation is an affirmative defense which must be pleaded”); Sabia v. Sabia, 16 N.J.Super. 273, 84 A.2d 559, 561 (App.Div.1951) (“[cjondonation is an affirmative defense and must be pleaded, with the burden resting on the defendant”). Moreover, condonation falls squarely within the definition of an affirmative defense. The Mississippi Supreme Court has defined an affirmative defense as one that “assumes the plaintiff proves everything he alleges and asserts, even so, the defendant wins.” Hertz Commercial Leasing Div. v. Morrison, 567 So.2d 832, 835 (Miss.1990). “Conversely, if, in order to succeed in the litigation, the defendant depends upon the plaintiff failing to prove all of part of his claim, the matter is not an avoidance or an affirmative defense.” Id. In the case sub judice, even if Mr. Ashburn proves that Mrs. Ashburn habitually and excessively used drugs during their marriage, Mrs. Ashburn might still avoid a grant of divorce if she was able to prove that Mr. Ashburn condoned such drug use. Thus, condonation is an affirmative defense that must be specifically pled or else it is waived.

¶ 25. While the activity upon which Mr. Ashburn’s condonation defense is based occurred after Mrs. Ashburn filed her answer, Mississippi Rule of Civil Procedure 15 instructs courts to be liberal in allowing amendments to pleadings. In re Estate of Smith v. Averill, 722 So.2d 606, 610(¶ 8) (Miss.1998) (citing M.R.C.P. 15(a)). Despite being aware prior to the trial in this matter of the facts giving rise to the alleged condonation, Mrs. Ashburn at no time sought to amend her answer to plead the defense of condonation; nor is there any reason to believe that the chancellor would not have allowed such an amendment. Accordingly, Mrs. Ashburn waived the right to rely on the affirmative defense of condonation.

¶ 26. We acknowledge that one could argue that, although Mrs. Ashburn did not plead the affirmative defense of condonation, the defense was tried by Mr. Ash-burn’s consent. The Mississippi Supreme Court has held that “if evidence is offered by a party which is outside the scope of the pleadings and the other party fails to object, the opponent will be considered to have impliedly consented to the issue and the pleading will be amended accordingly,” Lahmann v. Hallmon, 722 So.2d 614, 619(¶ 16) (Miss.1998) (citing Queen v. Queen, 551 So.2d 197, 202 (Miss.1989)). “The failure to formally amend to conform with the evidence ‘does not affect the result of the trial of these issues.’” Id. (quoting M.R.C.P. 15(b)).

¶ 27. When Mrs. Ashburn moved to dismiss the complaint for divorce based on the fact that she and Mr. Ashburn had lived together as man and wife for a period of three years after the complaint was filed, Mr. Ashburn objected to such motion, but not on the grounds that condonation is an affirmative defense, or at least as much was not articulated. Rather, he objected on the grounds that no motion to dismiss had previously been filed or was pending before the court and that he had no notice of such motion. Moreover, Mr. Ashburn went on to argue, at least to an extent, the merits of the defense, stating that, although the two parties lived together in the marital home, they were not living as man and wife as they only had sex one time, and that the defense of con-donation does not apply to a continuing course of conduct such as habitual and excessive use of drugs. We also acknowledge the authority supporting the principle that, although condonation is an affirmative defense that should be specifically pled, even if such is not pled, a court has the discretion to refuse a grant of divorce if the evidence demonstrates condonation. See Polk v. Polk, 228 Cal.App.2d 763, 778, 39 Cal.Rptr. 824 (Cal.Ct.App.1964); Crews v. Crews, 130 Fla. 499, 178 So. 139, 141 (1938); 24 Am.Jur.2d Divorce and Separation § 271 (2007).

¶ 28. However, Mrs. Ashburn did not file a brief raising any of these issues. This failure is equivalent to admission of error, and we are to accept such admission unless we are confident that the chancellor committed no error. Sanders, 819 So.2d at 1277 (quoting Dethlefs, 458 So.2d at 717). In the case sub judice, we cannot say with complete confidence that the chancellor did not err in dismissing Mr. Ashburn’s complaint for divorce based on condonation. Therefore, we find that the chancellor erred in dismissing Mr. Ash-burn’s complaint for divorce based on the affirmative defense of condonation when Mrs. Ashburn did not plead such defense. In any event, as will be discussed below, regardless of whether the affirmative defense of condonation was available to Mrs. Ashburn, we find that the chancellor erred in concluding that Mr. Ashburn condoned Mrs. Ashburn’s habitual drug use.

II. Did the chancellor err in finding that Mr. Ashburn condoned Mrs. Ashburn’s habitual and excessive drug use?

¶ 29. Mr. Ashburn argues that the chancellor erred in denying his complaint for divorce based on the finding that he condoned Mrs. Ashburn’s habitual drug use by continuing to cohabit and have sexual relations with her after he filed for divorce. The chancellor found that although there was ample evidence of habitual drug use on the part of Mrs. Ashburn prior to June of 2005, Mr. Ashburn’s resumption of sexual relations with Mrs. Ashburn condoned any such drug use, and that there was no evidence of habitual drug use after June of 2005. In so holding, the chancellor relied primarily on Cheatham v. Cheatham, 537 So.2d 435, 442 (Miss.1988), in which the court stated that “mere cohabitation without resumption of sexual relations might support a finding of uncondoned adultery.” The chancellor interpreted this statement as indicating that cohabitation with a resumption of sexual relations constitutes condonation.

¶ 30. Mr. Ashburn testified that, during the time he was living in the marital home, he and Mrs. Ashburn only had sex one time in 2003 while Mrs. Ashburn testified that the two had sex two to three times a week. The chancellor did not make a specific finding as to how many times Mr. and Mrs. Ashburn had sexual intercourse between the time Mr. Ashburn moved back into the marital home and the time he moved out. Rather, the chancellor merely stated that he believed the truth to be somewhere in the middle of the two figures given by Mr. and Mrs. Ashburn, but that he could not and would not try to determine the exact number. Importantly, however, the chancellor then stated that, even if he accepted Mr. Ashburn’s testimony that the two only had sex one time, such would be sufficient to condone Mrs. Ashburn’s drug use until the two separated again in June of 2005. Given this statement, and without the benefit of a factual finding by the chancellor as to how many times Mr. and Mrs. 'Ashburn had sex during the cohabitation, this Court must assume that the chancellor’s holding' that Mr. Ashburn condoned Mrs. Ashburn’s habitual drug use was based solely on the fact that Mr. and Mrs. Ashburn had sex one time in 2003. Based on such holding, we find that the chancellor manifestly erred.

¶ 31. The defense of condonation is summarized as follows:

Condonation is the forgiveness of a marital wrong on the part of the wronged party. Condonation may be express or implied. The mere resumption of residence does not constitute a condonation of past marital sins and does not act as a bar to a divorce being granted. Condo-nation, even if a true condonation exists, is conditioned on the offending spouse’s continued good behavior. If the offending party does not mend his or her ways and resumes the prior course of conduct, there is a revival of the grounds for divorce.. In practical effect, condonation places the offending spouse on a form of temporary probation. Any subsequent conduct within a reasonable time after resumption of cohabitation which evidences an intent not to perform the conditions of the condonation in good faith, may be sufficient to avoid the defense of condonation, even though the conduct so complained of in and of itself may not be grounds for divorce. An entire course of conduct rule applies. A party’s conduct both before and after the alleged condonation can be joined together to establish the cause for divorce.

Cherry v. Cherry, 593 So.2d 13, 17-18 (1991) (citations omitted); see also Deborah EL Bell, Bell on Mississippi Family Law, § 4.03(6)(d) (2005) (citing Wood v. Wood, 495 So.2d 503, 505 (Miss.1986)) (“[cjondonation is conditional, based upon the future good behavior of the guilty spouse; [i]f the conduct recurs, the innocent spouse may obtain a divorce based in part upon conduct prior to condonation”); Miss.Code Ann. § 93-5-4 (Rev.2004) (“It shall be no impediment to a divorce that the offended spouse did not leave the marital domicile or separate from the offending spouse on account of the conduct of the offending spouse.”) “The doctrine of con-donation applies to what is generally denominated ‘non-continuing causes of divorce,’ consisting of a single act, or a series of acts of misconduct, which might be forgiven as a result of affectionate treatment; but the doctrine is not applicable to causes of divorce of a continuing character.” Manning v. Manning, 160 Miss. 318, 320, 133 So. 673, 674 (1931). Just as habitual cruel and inhuman treatment has been held to be a continuing offense, Id. at 320, 133 So. at 674, so too is habitual and excessive drug use.

¶ 32. In the case sub judice, the chancellor found that one act of sexual intercourse between Mr. and Mrs. Ashburn in 2003 was sufficient to condone any habitual drug use on the part of Mrs. Ashburn up until the time Mr. Ashburn finally moved out of the marital home in June of 2005. However, in so finding, the chancellor failed to accord appropriate significance to the evidence of Mrs. Ashburn’s drug use after the time of the sexual intercourse but before Mr. Ashburn moved out of the marital home. Specifically, it is undisputed that Mrs. Ashburn was admitted to the hospital in February of 2004 after overdosing on the prescription drug Lortab. As was noted above, a cause of action for divorce may be revived if, after the condo-nation, the offending spouse exhibits an intent not to abide by the conditions of the condonation. Cherry, 593 So.2d at 17-18. Thus, even assuming that one act of sexual intercourse between Mr. and Mrs. Ash-burn in 2003 condoned Mrs. Ashburn’s habitual drug use prior to this time, such condonation was conditioned on Mrs. Ash-burn ceasing to abuse drugs and it can hardly be disputed that Mrs. Ashburn’s overdosing on a prescription drug in 2004 evidenced an intent not to abide by such condition. Accordingly, Mr. Ashburn’s ground for divorce was revived when Mrs. Ashburn continued to abuse drugs after the condonation.

¶ 33. Although one act of drug use in 2004 might be insufficient on its own to constitute grounds for divorce, “[a]n entire course of conduct rule applies” and “conduct both before and after the ... condo-nation can be joined together to establish the cause for divorce.” Cherry, 593 So.2d at 18. The chancellor found that there was ample evidence of habitual drug use on the part of Mrs. Ashburn prior to June of 2005, at least up until her overdose in 2004, and this finding is clearly supported by substantial evidence in the record. The chancellor erred, however, in failing to find that Mrs. Ashburn’s 2004 drug use voided the 2003 condonation and revived Mr. Ashburn’s habitual drug use ground for divorce. When Mrs. Ashburn’s drug use prior to the time of the condonation in 2003 is combined with her 2004 drug use, it is clear that Mr. Ashburn was entitled to a grant of divorce on the grounds of habitual drug use. Accordingly, we reverse the chancellor’s ruling dismissing Mr. Ash-burn’s complaint for divorce and remand for an entry of divorce not inconsistent with this ruling.

III. Did the chancellor err in assessing all remaining guardian ad litem fees to Mr. Ashburn?

¶ 34. Mr. Ashburn contends that the chancellor erred in assessing all of the remaining guardian ad litem fees to Mr. Ashburn when the parties had agreed that such fees would be divided equally amongst them and based on the fact that the guardian ad litem would not have been necessary were it not for Mrs. Ashburn’s drug use and propensity for committing criminal acts. “ ‘Chancery courts have large discretion in apportioning costs. Nevertheless, the exercise of such discretion is not final, but is reviewable on appeal, and if it appear [sic] that the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.’ ” In re: K.M.J. v. W.A., 758 So.2d 402, 403(¶ 6) (Miss.2000) (quoting Canton v. Ross, 157 Miss. 788, 796, 128 So. 560, 562-63 (1930)).

¶ 35. Although the chancellor did not provide his reasoning for assessing the remaining guardian ad litem fees to Mr. Ashburn, we find no error in the chancellor’s ruling in this regard. First, Mr. Ash-burn cites to no portion of the record indicating that the parties agreed to divide all guardian ad litem fees equally. In fact, the consent order by which the parties agreed to the appointment of the guardian ad litem specifically states that, other than an initial $1,000 that was to be deposited with the guardian ad litem no later than October 12, 2004, the responsibility for such fees was reserved for determination by the court. Second, despite his contention that a guardian ad litem would not have been necessary were it not for Mrs. Ashburn’s conduct, the fact remains that Mr. Ashburn was the one who requested the appointment of the guardian ad litem. Finally, “[t]he chancery court is charged to give adequate consideration to the ‘financial abilities’ of the parties to pay any assessed fees, and then how should the same be apportioned, if any.” Id. at 404 (citing Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss.1985)). Mr. Ashburn was employed at the time of the chancellor’s ruling while Mrs. Ashburn was unemployed and admitted to having no net monthly income. Thus, Mr. Ashburn was in the best position to pay the guardian ad litem fees. Based on these considerations, we find that requiring Mr. Ashburn to pay the remaining guardian ad litem fees did not work a “manifest injustice” on Mr. Ashburn. Accordingly, we affirm the chancellor’s assessment of the remaining guardian ad litem fees to Mr. Ashburn.

¶ 36. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Mr. Ashburn testified that the two rarely slept in the same bed, and one of them either slept on the couch or made a pallet.

      . Mr. Ashburn stated that he took the pills, other than one day’s worth of medication, and locked them up in a box, but that large numbers of pills would go missing. He stated that Mrs. Ashburn blamed it on her daughter, Emily-

      .Ms. Francis testified that she called Mr. Ashburn that night and informed him of the incident. The guardian ad litem appointed in this matter, Debra Brannan, testified that Mrs. Ashburn was arrested in January of 2004 for theft based on this incident.

      . She also admitted to doing acid and powder cocaine in the past, but stated that she had not used drugs in the past four or five years except on the night before her testimony for medical reasons.

      . Mrs. Ashburn stated that the reason Dr. Flumere stopped treating her was because she brought in another doctor to take over her treatment and because Dr. Flumere wanted her to see a therapist on an outpatient basis, but she refused to do so. A letter from Dr. Flumere to Mrs. Ashburn was admitted into evidence at trial for identification purposes only, wherein Dr. Flumere stated that she would no longer be able to prescribe psychotropic drugs (specifically Effexor, Elavil, and Klonopin) to Mrs. Ashburn in light of the fact that Mrs. Ashburn had tested positive for cannabis, amphetamines/methamphetamines, hy-drocodone, and hydromorphone.

      . Although Mrs. Ashburn's counsel never specifically referred to the term condonation in arguing the motion to dismiss, the motion was based on the contention that Mr. and Mrs. Ashburn resumed cohabiting as man and wife, mentally and physically, for three years after Mr. Ashburn filed for divorce. Moreover, at the conclusion of her case, Mrs. Ash-burn asked the court to revisit the motion to dismiss, and then moved for a directed verdict based on the contention that Mr. Ashburn had not proven his case for a divorce due to his condonation or ratification. Thus, although Mrs. Ashburn's counsel did not specifically mention condonation as it pertained to the motion to dismiss, it seems clear that such was the true basis of the motion.

      .A grant of divorce on the ground of habitual and excessive drug use requires the complainant to "establish that the spouse’s use of drugs (1) was habitual and frequent; (2) was excessive and uncontrollable; (3) and was of morphine, opium or drugs with the similar effect as morphine or opium.” Lawson v. Lawson, 821 So.2d 142, 145(¶ 9) (Miss.Ct.App.2002) (citing Ladner v. Ladner, 436 So.2d 1366, 1375 (Miss.1983)).

      . See also Parker v. Parker, 519 So.2d 1232, 1234 (Miss.1988) (stating that the divorce defense of recrimination is an affirmative defense). 11

      . After the chancellor issued his ruling in open court, Mr. Ashburn raised the issue that Mrs. Ashburn never pled the defense of con-donation. Mr. Ashburn’s counsel indicated that she objected on such ground at the beginning of the trial; however, Mr. Ashburn’s counsel never stated that her objection was based on the contention that condonation was an affirmative defense. Regardless, the chancellor stated that both parties were free to pursue whatever remedies they chose based on the rules of civil procedure. Mr. Ashburn raised this issue again in his motion to alter or amend the chancellor's ruling. The chancellor denied such motion without explanation.

      . We note that this Court has held that "a defendant's pretrial motion that seeks a ruling on an affirmative defense which has not been included in the pleadings ... should be evaluated under the same rule as would apply if that defense was raised at trial. Under Rule 15(b), the evidence and the defense should be accepted unless the objecting party can ‘satisfy the court that the admission of such evidence [in support of the affirmative defense] would prejudice the maintaining of the action or defense.'" Rankin v. Clements, 905 So.2d 710, 715(¶ 18) (Miss.Ct.App.2004) (overruled on other grounds). However, in Rankin, we specifically noted that the pretrial motion at issue was not made on the "eve of a scheduled trial.” Id. at 713(¶ 10). Such is not the case here in that Mrs. Ashburn's motion to dismiss was made at the commencement of the trial in this matter. Having been apprised of a possible defense to his complaint for divorce on the day the trial started, it can hardly be disputed that Mr. Ashburn was at least somewhat prejudiced by the chancellor's entertaining the condonation defense.

      . Mr. Ashburn also argues that Mrs. Ash-burn’s motion to dismiss at the commencement of the trial was a Rule 12(b)(6) motion that became a motion for summary judgment due to Mrs. Ashburn never having raised the affirmative defense of condonation. Thus, argues Mr. Ashburn, pursuant to Rule 56 of the Mississippi Rules of Civil Procedure, he should have been given at least ten days notice before the time that the motion was heard by the court. Rule 56(c) states that a motion for summary judgment "shall be served at least ten days before the time fixed for the hearing.” M.R.C.P. 56(c). However, Mrs. Ashburn’s motion cannot be characterized as a Rule 12(b)(6) motion or a summary judgment motion because trial itself was held on the issues presented in the motion. Therefore, Mr. Ashburn’s reliance on Rule 56 is misplaced. Regardless, Mr. Ashburn's true complaint is that the chancellor denied the complaint for divorce based on the affirmative defense of condonation when such defense was not pled by Mrs. Ashburn, and we have already determined that such constituted reversible error under the circumstances of this case.

      . As was previously mentioned, a grant of divorce on the ground of habitual and excessive drug use requires the complainant to "establish that the spouse's use of drugs (1) was habitual and frequent; (2) was excessive and uncontrollable; (3) and was of morphine, opium or drugs with the similar effect as morphine or opium.” See supra n. 7. Abuse of prescription drugs has been held to constitute habitual and excessive drug use. Lawson, 821 So.2d at 145 (finding habitual and excessive drug use on the part of wife who obtained, and abused, prescription drugs through over-prescription by doctors and by getting prescriptions from multiple doctors who were unaware of each other).
      It is worth noting that the chancellor discussed Lt. Jones's testimony that he had visited Mrs. Ashburn's home approximately twenty times in the past twelve months and that out of those twenty times he observed Mrs. Ashburn under the influence of drugs fifteen times; however, the chancellor found that Lt. Jones did not distinguish as to whether Mrs. Ashburn was under the influence of prescribed medications or the type of drugs noted in Lawson. Admittedly, Lt. Jones was not clear as to whether he believed Mrs. Ashburn to have been abusing drugs during those fifteen times. However, the chancellor’s statement is somewhat peculiar because Lawson involved a situation in which the wife abused drugs such as Lortab and Hydrocodone which were prescribed to her by a physician. Thus, the prescription drugs involved in the case sub judice are either identical or substantially equivalent to those in Lawson.

      . Presumably, Mr. Ashburn is referring to his motion for the appointment of a guardian ad litem, in which he sought an order appointing a guardian ad litem with all costs to be divided equally between the parties.


author: CHANDLER, J.,

text:
    Ralph LESLIE, Appellant v. SAIA MOTOR FREIGHT and Fidelity & Guaranty Insurance Company, Appellees.
    No. 2006-WC-02065-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2007.

      Don Oliver Gleason, attorney for appellant.
    Michael Reed Martz, attorney for appel-lees.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On November 6, 2006, the Lee County Circuit Court affirmed an order of Mississippi Workers’ Compensation Commission denying workers’ compensation benefits to Ralph Leslie. The Commission’s order was an affirmance of the administrative law judge’s order finding that Leslie was not entitled to additional workers’ compensation benefits. Aggrieved by this decision, Leslie appeals. He asserts that it was error to find that he had reached maximum medical improvement and that, as such, it was improper to determine whether permanent benefits were appropriate.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Ralph Leslie worked in Tupelo as a truck driver for Saia Motor Freight from November 2000 until January 2002. On September 14, 2001, while moving a large box inside a trailer, Leslie fell and suffered a lower back injury. Leslie was instructed to go to the Med-Serve Clinic where he was examined, had some x-rays taken, and was given medications. Med-Serve then referred Leslie to Dr. Victor Gray who performed MRIs, examined him for over two months, and eventually referred him to Hill Rehabilitation for a functional capacity evaluation to determine what type of work Leslie could perform. Specifically, Dr. Gray found that Leslie had reached maximum medical improvement, that he was poorly motivated, and that his complaints were exaggerated and “secondary to the preexisting degenerative changes.”

¶ 4. After being released by Dr. Gray and being informed that he could return to work, Leslie requested to see a doctor of his own choosing. He went to Memphis to see Dr. John Brophy who also cleared him to return to work. Dr. Ernest Lowe also examined Leslie. Dr. Lowe found no physical problems with him and recommended that Leslie visit a neurosurgeon if the pain continued. Leslie had already visited Dr. Brophy, however, who was a neurosurgeon, and Dr. Brophy found nothing to support Leslie’s physical complaints. Doctors W. Craig Clark and Tom McDonald also performed neurological examinations on Leslie but discovered no abnormal physical findings.

¶ 5. Shortly after being cleared to work, approximately January 8, 2002, Saia released Leslie and another driver from employment because business was slow and they were the least senior employees. Following his termination from Saia, Leslie returned to work with other trucking companies. He first took a job with Southern Dreams, but after a few months he was again laid off because business was slow. Next, he worked for J & B Services delivering furniture. He was with J & B for eleven months until he was fired due to complaints received from J & B’s most important customer regarding Leslie’s unusual behavior. Specifically, Leslie had asked the customer to watch his truck because he thought he had been followed. Both of these jobs involved duties similar to his duties with Saia. At J & B, Leslie volunteered for the Hancock Fabric jobs, which were more physically demanding and required him to travel long distances and lift heavy furniture. Leslie testified that he made approximately $900 and $1,500 per week at those two jobs, respectively.

¶ 6. At trial, the parties stipulated to the following facts: (1) Leslie suffered an admittedly compensable injury on September 14, 2001; (2) Leslie’s average weekly wage with Saia at the time of the accident was $696.04; and (3) Saia paid temporary total disability benefits for the period of September 15, 2001 until January 18, 2002, totaling $6,012.74.

¶ 7. Leslie testified that he experienced pain since his injury and that it had affected his work performance. He also said that he had not had any accidents following his accident on September 14, 2001. Leslie testified that he could no longer meet the requirements for employment with Saia because of the injury.

¶ 8. Todd Bates, owner and president of J & B, testified that he never had any problem with Leslie’s work performance while he was at J & B. He said he was forced to let Leslie go after J & B’s largest customer called in a complaint about Leslie acting strangely while making a delivery. Bates also testified that, on Leslie’s employment application, Leslie claimed no work restrictions and stated that there was no reason that he could not perform the job. When Bates learned of the prior workers’ compensation benefits and questioned Leslie about it, Leslie assured him that he was physically fit.

¶ 9. The administrative law judge entered an order holding that Leslie was not entitled to permanent disability benefits. He placed the date of maximum medical improvement at January 8, 2002, which was the date established by Dr. Brophy, Leslie’s physician of choice. The judge noted that the opinions of the physicians who examined Leslie were that he suffered no permanent impairment and that he could return to work with no restrictions. The Full Commission affirmed the findings of the administrative law judge, and Leslie appealed to the Circuit Court of Lee County, which affirmed the order of the Commission. Leslie now appeals that decision.

ISSUES AND ANALYSIS

¶ 10. Leslie alleges that it was error to find that he reached maximum medical improvement on January 8, 2002. Furthermore, he argues that because he had not reached maximum medical improvement, it was not proper at the time to determine whether permanent benefits were appropriate.

¶ 11. The Mississippi Workers’ Compensation Commission is the ultimate fact-finder. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). Where, as here, the Commission adopts the findings of the administrative law judge without presenting its own findings of fact, this Court will examine the findings of fact made by the administrative law judge. McDowell v. Smith, 856 So.2d 581, 585(¶ 10) (Miss.Ct.App.2003). The findings of the Workers’ Compensation Commission are binding on this Court when the Commission’s decision is supported by substantial evidence. Guardian Fiberglass, Inc. v. Lesueur, 751 So.2d 1201, 1204(¶ 7) (Miss.Ct.App.1999). As such, we will not overturn the Commission’s findings of fact unless they were arbitrary and capricious. Id.

¶ 12. The initial burden of proof is on the claimant to show that he has suffered a loss of wage-earning capacity as the result of a work-related injury. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994). Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment. Howard Indus., Inc. v. Robinson, 846 So.2d 245, 259(¶ 49) (Miss.Ct.App.2002).

¶ 13. In this case, the administrative law judge found that Leslie had not met his burden of proving that he suffered from any disability nor from a loss of wage-earning capacity. There are a number of facts that support this finding. First, all of the physicians that Leslie visited cleared him to return to work with no restrictions. None of them found that Leslie suffered from any physical problems. Also, Leslie worked at a number of jobs after leaving Saia, which showed that he was able to resume his regular job duties. All of the trucking jobs required similar job duties. While he testified that the pain in his back continued, Leslie never received any complaints about his work performance. Bates testified that Leslie never complained about his back and, quite the opposite, actually told him that it was not a problem. Furthermore, according to Bates’s records, Leslie earned $62,500 in the eleven months he worked for J & B.

¶ 14. While Leslie argues that the order of the administrative law judge essentially ruled that he “had not been hurt at all,” such is not the case. The parties stipulated that Leslie suffered an admittedly compensable injury at work, and the judge stated this fact in his opinion. The judge did find, however, that the medical evidence established that Leslie had reached maximum medical improvement in January 2002 and that he was cleared to return to work with no restrictions. The judge also found that Saia paid $6,012.74 in benefits during the period from the date Leslie was injured until he was cleared to return to work. Thereafter, Leslie obtained various other trucking jobs, some of which paid significantly more than Saia.

¶ 15. After reviewing the facts and the findings of the administrative law judge, we do not find them to be arbitrary nor capricious. The judge’s findings are supported by substantial evidence indicating that Leslie had reached maximum medical improvement, was cleared to return to work by each doctor he visited, suffered from no permanent disability, and had successfully held a number of jobs following his release from Saia. We do not find the trial court was in error in affirming the ruling of the Commission; therefore, this issue is without merit.

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

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


author: GRIFFIS, J.,

text:
    Karen FRAZIER, Appellant v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2006-SA-01739-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2007.

      Yancy B. Burns, Jackson, attorney for appellant.
    John T. Kitchens, Biloxi, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Karen Frazier brought this action against the Mississippi Department of Transportation (“MDOT”) for damages arising out of a car accident. The Scott County Circuit Court granted summary judgment in favor of MDOT. Frazier appeals and argues the trial court erred in using governmental immunity to bar her claim. We affirm the trial court’s ruling.

FACTS

¶ 2. On May 7, 2003, Frazier was traveling north on Highway 13 in Scott County. While she was returning home from work, between 2:30 and 3:00 p.m., Frazier lost control of her car. Her car left the road and she hit a tree in a field. She had been driving 55 miles per hour before the collision.

¶ 3. Frazier testified that she did not remember whether there were any signs warning her about the road construction or loose gravel. Her husband, Billy Frazier, testified that he drove to the scene of the accident to check on his wife. He did not remember seeing any warning signs during this drive. He also drove home on Highway 13 after he left his wife at the hospital, and he did not remember seeing any warning signs where his wife had her accident. He does remember seeing warning signs the next day on Highway 13.

¶ 4. Earlier in the day of May 7, 2003, at approximately 9:00 a.m., MDOT began refurbishing a section of Highway 13 by pouring tar into the cracks in the highway. It also distributed slag and gravel over the road, so the tar could properly set and not damage any cars. This process is called sealing, and it is a standard maintenance procedure used by MDOT.

¶5. Mike Atkinson, the MDOT project supervisor, testified by affidavit that signs warning of loose rock, road construction, and a 45 mile per hour speed limit were set up on the day of the accident and the day before the accident. Atkinson stated that the road looked good when he left, and he did not notice any dangerous condition.

¶ 6. Tommy Phillips, a supervisor for MDOT, testified that the warning signs were in position before Frazier’s wreck and were in conformity with MDOT procedures. He testified that he received a call from the Scott County Sheriffs Office, at approximately 5:30 p.m. on May 7, 2003. The sheriffs office informed him that there had been an accident earlier that day on the section of Highway 13 that had been sealed that morning.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it: admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue, and another says the opposite. Id.

ANALYSIS

¶ 8. Frazier argues that the loose gravel constituted a dangerous condition. She argues that because MDOT created the dangerous condition it is not immune under the Mississippi Tort Claims Act. However, Frazier is only partially correct because MDOT can also retain immunity if it does not have notice of the dangerous condition. Mississippi Code Annotated Section 11-46-9 (Rev.2002) provides:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury cause by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of the governmental entity or of which the governmental entity did no have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guard rail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.

¶ 9. This statute and “the corresponding case law make it clear that a governmental entity is immune from claims arising from a non-obvious dangerous condition on government property, or failure to warn of the dangerous condition, absent actual or constructive notice of the dangerous condition.” Jones v. Mississippi Trans. Comm’n, 920 So.2d 516, 518-19(¶ 4) (Miss.Ct.App.2006). Therefore, a governmental entity charged with maintaining and repairing roads, owes a duty to warn motorist or repair roads only if it is “given notice of a dangerous condition.” Id. at 519(¶ 4). As we have previously stated, “[i]n the absence of notice, a governmental entity’s decision to maintain or repair roads, or to place traffic control devices or signs, is purely discretionary, and the entity will be immune from suit even upon proof of an abuse of discretion.” Id; Miss.Code Ann. § ll-46-9(1)(d) (Rev.2001); See Barrentine v. Mississippi Dep’t of Transp., 913 So.2d 391, 393(¶ 8) (Miss.Ct.App.2005). Thus, the decisive question under the guidelines of the Mississippi Tort Claims Act is whether MDOT had notice of the alleged defective seal. If MDOT did not have notice of the alleged dangerous condition, it is immune from liability and whether or not to use road signs to warn is discretionary [under the Mississippi Tort Claims Act].

¶ 10. Atkinson, the MDOT supervisor in charge of the project, said in his deposition that the road looked good when he and his work crew left for the day. He also said it did not look dangerous. The first time MDOT received notice that Highway 13 might be iñ a dangerous condition was around 5:30 p.m. on May 7, when Phillips, another MDOT supervisor, received a phone call from the Scott County Sheriffs Office. Thus, MDOT did not receive notice of the dangerous condition, if one existed, until well after Frazier’s accident. Furthermore, Frazier did not put forward any evidence that MDOT had notice of any defective condition. Thus, there was no genuine issue of material fact and MDOT was entitled to judgment as a matter of law.

¶ 11. Even if MDOT had notice that Highway 13 was in a dangerous condition before the accident, the uncontradict-ed evidence in this case shows that MDOT placed warning signs. Frazier and her husband infer in their testimony that there were no warning signs present on the day of the accident because they did not notice any signs while driving on Highway 13. The employees of MDOT assert that they placed the warning signs in the proper location, checked to see if they were in position before they began repairing the highway, and checked to see if the signs were in position after the accident. The trial court was correct in finding that there was no disputed issue of fact regarding whether or not signs were present even though neither Frazier nor her husband noticed them.

¶ 12. Therefore, we find that MDOT is immune from liability in this case, and we affirm the trial court’s grant of summary judgment because MDOT did not have notice that a dangerous condition existed.

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

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


text:
    Lisa STEPHENS, Appellant v. Shannon MILLER, Appellee.
    No. 2006-CA-01570-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2007.

      Tommy Dexter Cadle and Kenneth Eugene Floyd, attorneys for appellant.
    Paul Nathan Jenkins and Emily Moore Parker, Tupelo, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS-and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Lisa Stephens brought this action against Shannon Miller for injuries caused by Miller’s four-year-old daughter, Cam-bria Miller. The Itawamba County Circuit Court granted summary judgment in favor of Miller. On appeal, Stephens argues that the trial court erred when it granted summary judgment on her claim of negligent supervision and that summary judgment was not proper because Stephens was an invitee. We find no error and affirm.

FACTS

¶2. On July 19, 2004, Miller went to Stephens’s salon to get Cambria’s hair cut. Afterwards, Stephens helped Miller secure Miller’s children into their car seats in Miller’s minivan. Cambria pushed the button that closes the van’s door. The door closed and hit Stephens on her rear.

¶ 3. Stephens filed suit alleging that she was injured by Cambria’s actions and that Miller owed her a duty to properly supervise her child. Miller responded to the complaint and filed a motion for summary judgment. In Stephens’s response to Miller’s motion, Stephens signed an affidavit that stated:

Cambria engaged the automatic door, which slammed against me and caused my injuries. Immediately upon this happening, Shannon commented to me “Cambria likes to show people how the door opens and closes, and I didn’t realize she had hit the button.” That while I cannot absolutely state that the foregoing quote is the exact words of Shannon Miller, they are in essence what she stated to me after my injury.”

¶ 4. The circuit court granted the motion for summary judgment and dismissed Stephens’ claims against Miller with prejudice. From this judgment, Stephens now appeals.

STANDARD OF REVIEW

¶ 5. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the non-moving party. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

I. Negligent supervision

¶ 6. Traditionally in Mississippi, parents are not liable for the tortious acts of their minor children merely because of their parental status. Williamson v. Daniels, 748 So.2d 754, 758(¶ 11) (Miss.1999). One exception to this rule is a claim for negligent supervision. Id. Under this claim, a plaintiff must establish by a preponderance of the evidence “the existence of a duty of care, a breach of that duty, proximate causation, and compensable damages.” Id. at 759(¶ 14). To establish the element of duty of care, a plaintiff must show that the parents “failed to act as reasonably prudent parents based on notice of the child’s propensity to do harm.” Id. at 760(¶ 17). The Mississippi Supreme Court elaborated upon this by emphasizing that this “propensity to do harm” is not negligence, but it is either a criminal act or intentional tort the child has previously performed. Id. at 762(¶ 28).

¶ 7. Here, Stephens attempted to overcome Miller’s motion for summary judgment with an affidavit that claimed Miller told Stephens after the accident that Cam-bria likes to show people how the door works. Stephens claimed that this established that Miller owed her a duty to supervise Cambria because she knew Cam-bria liked to close the van’s door.

¶ 8. Stephens’s argument is not an accurate reflection of the requirements of Williamson. Stephens has failed to come forward with evidence that established Miller knew that Cambria had a propensity to do harm to others with the van door. Id. at 760(¶ 17). This requirement cannot be established by merely showing that Cambria liked to close the door. Stephens was required to establish that Cambria had previously shut the van door on someone intentionally. Id. Because Stephens has failed to establish the necessary elements for negligent supervision, we find no error in this issue.

II. Premises liability

¶ 9. On appeal, Stephens argues for the first time that Miller owed her a duty because she was an invitee during the accident. This argument was never brought before the trial court. “[W]e need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.” Alexander v. Daniel, 904 So.2d 172, 183(¶ 26) (Miss.2005) Thus, we will not address Stephens’s new argument on appeal.

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

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


text:
    Anthony M. BERRYHILL, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00243-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2007.

      Anthony M. Berryhill, Appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Anthony Berryhill pleaded guilty to murder in 1995 and was sentenced to a mandatory life sentence in the custody of the Mississippi Department of Corrections. Berryhill then filed three different motions for post-conviction relief, the most recent of which was in 2006. The Lee County Circuit Court denied Berryhill’s most recent motion. Aggrieved, he appeals and asserts five points of error that he believes entitle him to relief.

¶ 2. Finding that Berryhill’s appeal is barred, we affirm.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 3. Berryhill first requested post-conviction relief in 1997, and it is unclear as to whether Berryhill appealed the court’s denial of his 1997 petition. Berryhill again sought post-conviction relief on February 2, 2001. The trial court denied him relief, and Berryhill appealed the denial to the Mississippi Supreme Court. His appeal was ultimately dismissed for failure to file an appellate brief. The motion for post-conviction relief upon which Berryhill’s current appeal is based was filed on October 27, 2006.

¶ 4. The trial court correctly denied Ber-ryhill’s third motion as being barred as a successive writ:

[Ajny order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion ... raising the issue of the convict’s supervening insanity prior to the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably diseoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Miss.Code Ann. § 99-39-23(6) (Rev.2007). There is no evidence that the 1997 denial of post-conviction relief was reversed. Therefore, the 1997 judgment stands as a final judgment that bars Berryhill’s subsequent motions for post-conviction relief. Berryhill has made no showing that he meets any of the exceptions detailed above. Therefore, the court correctly found that Berryhill’s most recent motion for post-conviction relief is barred as a successive writ.

¶ 5. Furthermore, the State correctly points out that Berryhill’s most recent petition is also untimely. According to Mississippi Code Annotated section 99-39-5(2) (Rev.2007), Berryhill had three years after his plea of guilty in which to file a motion for post-conviction relief. His most recent motion was filed over eleven years after his plea. Therefore, his motion for post-conviction relief is also time-barred.

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . The trial court stated that the denial of Berryhill’s first motion for post-conviction relief had been affirmed by the Mississippi Supreme Court, but the State claims that the record is "unclear as to whether Berryhill sought appellate review of the 1997 denial of relief!.] ” The record is void of any document showing whether Berryhill appealed the denial of his 1997 motion.