author: GRIFFIS, J.,

text:
    William Eugene (Bill) DAVIS, Sr., Appellant, v. Dorothy Littleton TRUE, John L. True, Patricia Ann True Schmidt, Mary Juanita True Hegwood, James T. (Jim) True, Janice Elizabeth Davis McGraw, and William Eugene (Billy) Davis, Jr., Appellees.
    No. 2006-CA-01011-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Omar D. Craig, Oxford, attorney for appellant.
    Dennis M. Baker, attorney for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Dorothy Littleton True, John L. True, Patricia Ann True Schmidt, Mary Juanita True Hegwood, James T. True, Janice Elizabeth Davis McGraw, and William Eugene Davis, Jr. (“Billy, Jr.”) brought this action against William Eugene Davis, Sr. (“Bill, Sr.”) after he had the body of his deceased wife exhumed and reburied elsewhere. The chancellor held that Bill, Sr. had unlawfully disinterred his deceased wife’s body and ordered him to rebury it in its original resting place. Bill, Sr. appeals and argues that the chancellor considered incorrect factors in its decision. We find no error and affirm.

FACTS

¶ 2. Bill, Sr. was married to Frances Elizabeth True Davis for over fifty-one years. The couple had three children: Janice, Debra, and Billy, Jr. Frances passed away on November 20, 2004. Besides her husband and children, she was survived by her mother Dorothy and siblings John, Patricia, Mary, and James.

¶ 3. Bill, Sr., his children, and Frances’s family agreed to bury her at the foot of her father’s grave in the True family section of Hopewell Baptist Church Cemetery. Frances’s wish was to be buried as close to her father’s grave as she could be. She was buried there on November 24. To the right of Frances’s grave a space was reserved for Bill, Sr. A double headstone was placed over both sites, bearing Frances’s and Bill, Sr.’s names and statistics.

¶ 4. Bill, Sr. remarried on July 4, 2005. This caused a considerable amount of friction between him, Janice and Billy, Jr. Janice was furious there was another woman in her mother’s house. Janice was concerned that the new wife would get the family homestead instead of Janice, Debra, and Billy, Jr. Janice threatened that if Bill, Sr. remarried, she would not allow him to be buried next to Frances and would remove the double headstone. Bill, Sr. was told that Billy, Jr. threatened to have Bill, Sr. cremated so he could not be buried next to Frances.

¶ 5. Concerned that he would not be buried next to Frances in the True family plot and wanting to be buried next to Frances and his new wife, he approached the funeral home about having Frances’s grave relocated to the Davis family section of the same cemetery. He was directed to the county coroner who gave him permission for the exhumation and reburial. He had Frances’s body reburied in the Davis family section in November, 2005. The new grave is fifty yards southeast of the original gravesite.

¶ 6. Dorothy, John, Patricia, Mary, James, Janice, and Billy, Jr. sued Bill, Sr. to have Frances’s body moved back. The lower court found the body was unlawfully disinterred and ordered it reinterred in its original grave. Aggrieved, Bill, Sr. appeals.

STANDARD OF REVIEW

¶ 7. Questions of law are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ANALYSIS

¶ 8. The sole issue that Bill, Sr. raises is whether the chancellor “used incorrect factors in considering whether or not a body may be moved once it has been interred.” Bill, Sr. believes that instead of applying a five factor test, the chancellor was restricted to considering whether there were “compelling reasons” to relocate Frances’s body. Appellees respond the chancellor applied the correct test. We agree.

¶ 9. This question was settled in Hood v. Spratt, 357 So.2d 135 (Miss.1978). The supreme court adopted what it termed as the “compassionate approach of permitting a surviving spouse to remove the body of a deceased spouse to another burial site for compelling reasons and in the absence of a waiver of such right.” Id. at 136-37. To make this determination, the court held that certain factors must be considered where appropriate. Id. at 137. Namely, these include: (1) public interest, (2) wishes of the decedent, (3) rights and feelings of those entitled to be heard by reason of relationship, (4) rights and principles of religious bodies or other organizations which granted interment in the first burial site, (5) and whether consent was given to interment in the first burial site by the one claiming the right of removal. Id.

¶ 10. In weighing the factors, “the surviving spouse ha[s] a paramount right to designate the burial site and, if the parties were living in normal marital relations, a very strong case would be required to justify judicial interference with the survivor’s wish.” Id. (citing Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904)). Further, “to what extent the desires of the decedent should prevail against those of the surviving spouse was left an open question, but as against the remoter connections, such wishes, especially if strongly and recently expressed, would usually prevail.” Id. A decedent’s express testamentary wish to be buried in the original site will be a strong factor against reinterment. Novelli v. Carroll, 278 Pa.Super. 141, 420 A.2d 469, 473 (1980) (discussing Pettigrew and its progeny).

¶ 11. The chancellor applied these exact factors to the case at bar. Bill, Sr. does not argue that the chancellor incorrectly analyzed or weighed these factors. However, he insists that the sole question is whether he as the surviving spouse has a compelling reason to relocate Frances’s body. We conclude that the chancellor applied the proper factors and was not in error as a matter of law. Accordingly, we find no error and affirm.

¶ 12. Although it was not included in the precise issue identified by the appellant, the appellant’s brief also seems to argue that the chancellor erred in weighing the Hood factors. Out of an abundance of caution, we will address this issue albeit under a different standard of review. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002). The chancellor, by [his/] her presence in the courtroom,' is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses. Howard v. Fulcher, 806 So.2d 328, 332(¶ 15) (Miss.Ct.App.2002). “It is necessarily the case that, when conflicting testimony on the same issue is presented, the chancellor sitting as trier of fact must determine which version he finds more credible.” Id.

¶ 13. At the conclusion of trial, the chancellor stated:

The Court finds the facts as follows:

Following a 51-year marriage, [Frances], succumbed to cancer dying on the 20th day of November of 2004. Prior to her death, it is undisputed that her desire was to be buried, first of all, in Hopewell Church located in Yalobusha County, Mississippi, and more specifically, as close to her father, Meshack Turner True, as she could be. All parties acknowledge that they have been advised by the decedent at one time or the other that those were, in fact, her wishes.
Apparently, acquiescing to her request, [Bill, Sr.], along with all of the plaintiffs and other family members, agreed to bury her following her death on the 24th day of November in a grave at the feet of her father in that same cemetery in what is known within that cemetery as the True family plot. It’s noted that another empty ploy to the right of [Frances], was unoccupied and remains empty.
In July or specifically July 4 of 2005, [Bill, Sr.] remarried, marrying Josephine Davis, the former wife of his now deceased brother, which apparently caused considerable friction between [Bill, Sr.] and his children, as well as relatives of [Frances]. In August of 2005 without court authority, [Bill, Sr.] had the body of [Frances] disinterred and re-buried some 50 yards away in that same Hopewell Cemetery in what is commonly known as the Davis family plot, again within that same cemetery.
As for reasons for the disinterment and removal of the body to a new grave site, [Bill, Sr.] stated that his reason for moving same was so that he could be buried between his former wife, Frances Davis, and his current wife, Josephine Davis, at the time in which they all are deceased. Further, he testified that his reasons for removing the body was so that he could be buried along with both of his wives believing that the surviving children would have his body cremated, and that the True family would not allow him to be buried in the True family plot alongside of Frances. Specifically and notably, he offers no evidence whatsoever to substantiate that claim other than mere speculation, specifically with respect to the True family.
I first look to the public interest. There’s been no specific argument nor evidence which indicates that the general public has an interest in this removal, and I find that that particular factor is inapplicable.
We look then to the wishes of the decedent. Clearly, the wishes of [Frances] were to be buried as close as possible to her father who is interred in the True family plot. That is undisputed and confessed by all parties.
We look then to the element of the rights and feelings of those entitled to be heard by reasonable relationship. Overwhelmingly, the children, siblings, and mother of [Frances] desire for [her] to be buried where she originally was before being moved by the unilateral actions of [Bill, Sr.]. Other than [Bill, Sr.], there is no evidence that any others are interested in the body being allowed to remain where it is as this point in time.
We look then to the rights and principles of religious bodies or other organizations which granted interment of the first burial site. There are none to be considered at this point in time, and no evidence presented with respect thereto.
Finally, we look at whether consent was given to interment of the first burial site by the one claiming the right of removal. Here [Bill, Sr.] claims the right of removal. It is undisputed that at the time that interment was first made and burial was first made on the 24th day of November of 2004, that all parties, including [Bill, Sr.], were in agreement that, A, [Frances] wished to be buried where she originally was, and all family members, including [Bill, Sr.], were happy to have [Frances] interred at the feet of her father in that plot.
Considering all of those factors in the totality of the circumstances and applying the evidence as set forth before this Court, the Court finds that by clear and convincing evidence that the body should not have been moved and should be re-interred in the original site at the feet of the decedent’s father.

¶ 14. An examination of the record reveals these findings are supported by substantial credible evidence.

¶ 15. It was undisputed that Frances wanted to be buried “as close to her father as possible” in the Hopewell Cemetery. Every family member who testified, including Bill, Sr., acknowledged this. James testified that in the hospital, a week before Frances passed away:

Bill was on one side of the bed. I was on the other side of the bed. Frances held my hand and his hand and told us that she wanted to be buried by her daddy or as close to her daddy as we could get her.
Q. And what comments, if any, did either one of y’all make?
A. He said that he was going — he would put her as close as he could to her daddy.

John testified that they were burying her at the foot of her father’s grave because that’s where she wanted to be buried. Janice testified, “[Frances] talked to me a number of times about where she wanted to be buried, and she’s done that her entire life.She was very meticulous about how she wanted things done. She wanted it — she was very orderly about that. She had written down in a book everything that she wanted to happen with her funeral, and she told us a lot.” Janice testified that after the grave site was selected:

My dad came in. I was in the kitchen. He walked over to me, and he said, we found a grave site, and he started to tell me. He started to cry. And my brother finished by telling me exactly where they had chosen the grave site, and everybody was in agreement. My sister, myself, my brother, and my father all said that’s exactly where my mother would want to be buried.

She testified that at Frances’s funeral, after she was laid to rest, Bill, Sr. said, “[W]ell Mrs. Frances, I guess you’re happy now. You’re just right where you wanted to always be, right at the foot of your father.” Mary and Patricia likewise testified that Bill, Sr. said this. Bill, Sr., admitted making this statement. Patricia testified that the original burial site corresponded with the wishes Frances communicated to her. Dorothy testified at the funeral home, that Bill, Sr. told her he had put Frances right where she wanted to be. Dorothy also testified that the day before Frances went in the hospital for the last time, she told Dorothy that was where she wanted to be buried. There was substantial credible evidence to support the chancellor’s finding under this factor.

¶ 16. As for the rights and feelings of those entitled to be heard, James testified, “I wanted her to be buried where she wanted to be buried.” Janice testified she wanted her mother returned to her original burial site, because she wants to respect her mother’s dying wish. Mary testified that there is no road to the new burial site to where she can easily take her elderly mother Dorothy to visit Frances’s grave. Mary testified that her mother is not able to walk the distance to the new grave. Patricia testified that she wanted to “move Frances back where she had written — she had told us for years what she wanted to have as her final resting place.” Dorothy testified that before Frances was removed, Dorothy visited her grave two or three times a week. Since Frances was moved, “I haven’t been able. It’s too far. I can’t walk.” She testified, “[Frances] said, Mama, keep flowers on my grave. I can’t go and put flowers on her grave. I haven’t been able to since he moved her body, but I kept flowers there, and the girls helped me keep flowers there for her.” Dorothy also testified she wanted Frances moved back because that was her dying wish.

¶ 17. Bill, Sr. testified on direct that:

I got information that I wasn’t going to be allowed to be in the True site. I think that came from some information Janice had sent to Billy for court in Florida. And I also was told that the plans for me was they would cremate me when I died. There was no plans for me in the cemetery with Frances in the True Plot.

On cross-examination, however, Bill, Sr. could not identify the source of the cremation threat. Someone he could not identify told him that Billy, Jr. had threatened to have him cremated. Bill, Sr. and Billy, Jr. were adversaries in an eviction action in Florida court. Bill, Sr. testified he desired to be buried in the middle of his two wives Frances and Josephine. There was no room to the right of Bill, Sr.’s original site for Josephine to be buried, because there is a road there. But Bill, Sr. admitted that to be buried in any particular plot in the cemetery, one just has to get permission from the church. He also testified that he had made arrangements with the funeral home to prevent his cremation.

¶ 18. Janice testified that she never had a discussion about cremating her father’s body against his wishes and would not agree to that. Janice did admit to not wanting her father and his new wife buried next to her mother in the True plot. Dorothy likewise testified that she had never been party to a conversation that Bill, Sr. would be cremated or not allowed to be buried next to Frances. Dorothy testified she had nothing against Bill, Sr. Bill, Sr. could not identify any threat from the True family against his burial next to Frances.

1119. As for Bill, Sr.’s consent to the original burial site, James testified that Bill, Sr. picked out the first burial site after Frances passed away. John testified that everyone, including Bill, Sr. acquiesced in Frances’s first burial site. He testified that after a family meeting about where to bury Frances, Bill, Sr. and Billy, Jr. accompanied funeral home personnel to verify there was room to bury her in the chosen spot. The cemetery caretaker Carl Vick and gravedigger Randy Paul Morgan testified that Bill, Sr. was the one who selected the burial site. Finally, Bill, Sr. testified he and Billy, Jr. selected the original burial site.

¶ 20. We find there is substantial credible evidence to support the chancellor’s findings and weighing of the Hood factors. The only concern Frances expressed as to her burial was to be buried next to her father. The chancellor was justified in finding that there was no evidence that the rest of the True family or even Bill, Sr.’s daughter Debra, had ever threatened to prevent Bill, Sr. from being buried next to Frances in the True Plot. There is further evidence that all Bill, Sr. has to do is request permission from the church, of which he is a deacon. The chancellor was also justified in determining that Bill, Sr.’s primary concern was to be buried next to both his wives and he was not really operating under a fear of not being allowed to be buried next to Frances in the True plot. Accordingly, we affirm.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF YALOBUSHA 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.

      . While we are not bound by Novelli, we find it persuasive, given the supreme court’s prior approval of Pettigrew.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Ulysses BOWNES a/k/a Ulysses Bowens, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-01723-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Ulysses Bownes, pro se.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On February 25, 2002, a jury in the Marshal County Circuit Court convicted Ulysses Bownes for the murder of Roosevelt Faulkner. Bownes was sentenced to serve life in prison in the custody of the Mississippi Department of Corrections. He appealed his conviction, and it was affirmed by this Court in 2003. Bownes v. State, 861 So.2d 1061 (Miss.App.2003). The record reflects that Bownes never filed a petition for writ of certiorari with the supreme court. Nevertheless, Bownes filed a motion for post-conviction relief with the trial court that was denied. He appealed that denial and asserts the following issues:

I. He was denied his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process during a photo lineup.
II. He received ineffective assistance of counsel.
III. He was denied his right to a speedy trial.
IV. There was cumulative error sufficient to warrant reversal.
V. The court erred in refusing to give jury instruction D-5.
VI. The verdict reached was against the overwhelming weight of the evidence.

¶ 2. Lacking jurisdiction, we dismiss the appeal.

ISSUES AND ANALYSIS

¶ 3. Mississippi Code Annotated section 99-39-7 (Rev.2000) provides, in part,

[wjhere the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this chapter shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi ... and an order granted allowing the filing of such a motion in the trial court.

Referring to section 99-39-7, we have stated that “[t]his procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct.App.2000). Since Bownes’s conviction was affirmed on direct appeal, section 99-39-7 required that he seek leave from the supreme court to file a motion for post-conviction relief. Id.

¶ 4. The record in this case contains no such authorization from the supreme court permitting Bownes to file his post-conviction motion with the trial court. “Because Doss failed to obtain the required permission from the supreme court, the trial court lacked jurisdiction to entertain his request for post-conviction relief. Likewise, this court lacks jurisdiction to entertain an appeal of that action.” Id. at 1017(¶ 17). Similarly, Bownes’s failure to comply with section 99-39-7 means his appeal is not properly before this Court. We must, therefore, dismiss it for lack of jurisdiction.

¶ 5. THE APPEAL FROM THE CIRCUIT COURT OF MARSHALL COUNTY IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

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


author: ROBERTS, J.,

text:
    Brandy MAGNUSEN, Appellant v. PINE BELT INVESTMENT CORPORATION, Appellee.
    No. 2006-CA-01235-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Catouche Judge Body, attorney for appellant.
    L. Clark Hicks, Hattiesburg, attorney for appellee.
    Before KING, C.J., GRIFFIS, BARNES, and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. In this premises liability case, Brandy Magnusen sued Pine Belt Investment Corporation after she was attacked at a Burger King franchise owned and operated by Pine Belt. Magnusen alleged that Pine Belt had actual or constructive knowledge that an atmosphere of violence existed at the Burger King. Pine Belt denied liability.

¶ 2. Pine Belt filed a motion for summary judgment and alleged that there was no evidence to support a theory that a pattern of criminal activity existed in the vicinity of the Burger King. The circuit court agreed and granted Pine Belt’s motion for summary judgment. Magnusen appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Around 8:00 p.m. on August 22, 2003, Magnusen intended to use the drive-through line at Burger King in Poplarville, Mississippi. Magnusen felt as though the line was too long, so she never ordered. As she approached the parking lot exit, a truck moved and blocked her exit. Another truck blocked her in from behind. According to Magnusen, when she got out of her truck, six men “started beating on [her].” After the six men stopped hitting Magnusen, a Burger King employee went outside and told Magnusen that employees called an ambulance and the authorities. The employee invited Magnusen inside so Magnusen could rinse out her mouth.

¶ 4. An ambulance arrived shortly before Magnusen’s mother. Magnusen’s mother drove Magnusen, nineteen years old at the time, to Gulfport Medical Regional Hospital. There, x-rays revealed that Magnu-sen’s jaw was broken on both sides. An oral surgeon repaired Magnusen’s jaw with plates and screws on both sides. Additionally, Magnusen’s jaw was wired shut for six months.

¶ 5. On August 30, 2004, Magnusen filed a complaint in the Pearl River County Circuit Court. Magnusen sued Pine Belt Investment Corporation, the owner of the particular Burger King franchise, and alleged that Pine Belt was liable for her injuries because Pine Belt failed to provide adequate security for her. Magnusen also alleged that a pattern of criminal activity existed in the general vicinity of the premises.

¶ 6. On October 24, 2005, Pine Belt filed a motion for summary judgment. Pine Belt claimed that summary judgment was appropriate because there was no atmosphere of violence on the premises. Pine Belt also submitted that there was no genuine issue of material fact as to causation.

¶ 7. On May 8, 2006, the circuit court granted Pine Belt’s motion for summary judgment. The circuit court found no genuine issue of material fact as to whether there was an atmosphere of violence on the Burger King premises. The circuit court also found no genuine issue of material fact existed as to whether Pine Belt proximately caused Magnusen’s injuries. Magnusen appeals.

STANDARD OF REVIEW

¶ 8. This Court conducts a de novo review of orders granting or denying summary judgment. Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). According to Rule 56 of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’ ” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (quoting Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 433 (Miss.1988)).

¶ 9. The moving party bears the burden of showing that no genuine issue of material fact exists. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). Additionally, the circuit court must view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Furthermore, the circuit court must consider motions for summary judgment with a skeptical eye. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986). It is better for the circuit court to err on the side of denying the motion. Id.

ANALYSIS

¶ 10. “A claim of negligence has four elements: duty, breach, causation, and damages.” Price v. Park Management, Inc., 831 So.2d 550(¶ 5) (Miss.Ct.App.2002). To prove that the circuit court should not have granted Pine Belt’s motion for summary judgment, Magnusen had to demonstrate that a genuine issue of material fact existed regarding the fact that: (a) Pine Belt owed her a duty, (b) Pine Belt breached that duty, (c) damages, and (d) “a causal connection between the breach and the damages, such that the breach is the proximate cause of [her] injuries.” Crain v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994) (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)).

¶ 11. The duty Pine Belt owed to Magnusen depends on whether Magnu-sen was a licensee, an invitee, or a trespasser. This question of status can be a jury question, but where the facts are not in dispute, the question of status becomes a question of law. Little v. Bell, 719 So.2d 757(¶ 17) (Miss.1998). Here, there is no factual dispute that Magnusen was on the premises of Burger King as a drive-through customer. A person who goes upon the premises of another as a result of an express or implied invitation of the owner or occupant for their mutual advantage is classified as an invitee. Id. at (¶ 15). As such, Magnusen was an invitee and Pine Belt was duty bound to “keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not [in] plain and open view.” Id. at (¶ 16). Said differently, a premises owner owes an invitee a duty to exercise reasonable care to protect an invitee from reasonably foreseeable injury at the hands of another. Crain, 641 So.2d at 1189. That being so, we must determine whether Magnusen’s injury, caused by a third party, was “reasonably foreseeable.”

¶ 12. An act may be considered reasonably foreseeable if the premises owner had cause to anticipate the third party act. Id. “Cause to anticipate” a third party act may arise from (1) actual or constructive knowledge of the third party’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence existed on the premises. Id. When determining whether a defendant had actual or constructive knowledge that an atmosphere of violence existed, pertinent factors for consideration are: (1) “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and (2) “the frequency of criminal activity on the premises.” Id. at 1189— 90.

¶ 13. According to the affidavit of Ba-shir Shams, the owner of Pine Belt, “[t]here was no pattern of violent criminal activity or other similar activity on the Burger King premises prior to the time that ... Magnusen was involved in the incident. There was no frequency of similar criminal activity or other violent activity on the premises prior to the incident.” Otherwise, the circuit court considered Magnusen’s deposition and sixteen police reports from 1998 until Magnusen’s attack in August of 2003. Magnusen’s deposition did not establish that Burger King had actual or constructive knowledge that a violent atmosphere existed at Burger King. Rather, Magnusen said she was unaware of any prior criminal activity at Burger King.

¶ 14. As for those sixteen police reports, four of them involved crimes against employees. In March of 2003, a Burger King employee complained that someone took her purse from her car while it was parked with the doors unlocked and the driver’s side window rolled down. The report indicates that the employee suspected that a co-worker was to blame. In September of 2002, an employee reported that someone took her purse after she left it to take her break. In June of 2001, an employee reported that someone hit her car and left the scene. In July of 2000, an employee reported that some of her coworkers were making threatening comments directed at her.

¶ 15. Three other police reports involved theft from Burger King. During September of 2002, employees arrived to open the restaurant and found that someone had broken into the restaurant and unsuccessfully tried to break into the safe. In August of 2000, someone stole a blower motor from the air conditioning unit on the roof of the restaurant. Finally, in December of 1999, an employee forgot to drop off the deposit bag and, the next morning, the deposit bag was $351 short.

¶ 16. Other police reports detailed random crimes committed at or around Burger King. In April of 2003, an anonymous female called in a bomb threat at Burger King. During February of 2002, a drunk driver passed out in line at the drive through. In December of 2002, someone tried to pass a counterfeit $100 bill.

¶ 17. Three reported incidents involved assaults on one particular employee. That employee claimed that, in January of 2001, two men “jumped” the employee from behind and passed a note that said they were going to kill him. The same employee filed two other reports in February of 2001. One report indicated that, as the employee was on his break, someone grabbed him by the shirt and hit him on the left side of his head. The report detailed that the employee had no head trauma. A second report indicated that, as the employee took out the trash, someone cut the employee with a razor blade and then held the razor to the employee’s throat. These three reports have no bearing on our consideration because the employee later confessed that he fabricated all of them.

¶ 18. Two more reports involve lost purses by customers. In December of 2001, a customer left her purse in the restaurant and, when she returned, it was gone. In April of 1998, a customer left her purse, but employees set it aside. When she went to claim her purse, the employees could not find it.

¶ 19. Finally, one report involved an assault on a customer in the drive-through line. During June of 2003, a man approached a woman as she waited in her car. The man tried to open the woman’s car door, but the door was locked. The man then grabbed the woman’s shirt and tried to pull her out of her car through the driver’s side window. The person waiting ahead of the woman left his car and pushed the attacker away.

¶ 20. In Stevens v. Triplett, 933 So.2d 983(¶ 9) (Miss.Ct.App.2005), this Court found that summary judgment was appropriate in a premises liability case when a plaintiff presented police reports that demonstrated “only a handful of violent crimes in the area in the five years preceding the incident in question” and none of those crimes occurred on the defendant’s property. Here, there is proof that some crimes occurred on Burger King’s property, but only one of those crimes could be considered violent. After careful consideration, we agree with the circuit court that Mag-nusen presented no genuine issue of material fact as to whether Burger King had actual or constructive notice that an atmosphere of violence existed on its property. Accordingly, there is no genuine issue of material fact that this attack on Magnusen was not reasonably foreseeable by Pine Belt and Pine' Belt owed Magnusen no duty to protect her from that unforeseeable attack. We therefore affirm the circuit court’s decision to grant summary judgment in Pine Belt’s favor.

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

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

      . There exact motive for the attack on Magnu-sen is unclear. During her deposition, Mag-nusen said she did not know why she was attacked. Magnusen had a Stone County license plate at the time. Speculated theories include inter-county rivalries between Stone County and Pearl River County and accusations of initial aggression and name-calling by unspecified people from Stone County. An incident report from the Poplarville Police Department appears in the record, but no one was arrested for the attack on Magnusen.


text:
    Marie BATEMAN and Lawrence Pelletier d/b/a Magic Wiggler Worm Ranch, Appellants, v. Martin T. GRAY, Sr. and Martin T. Gray, Jr., Appellees.
    No. 2006-CA-01441-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      James L. Martin, Madison, attorney for appellants.
    John Denver Fike, attorney for appel-lees.
    Before KING, C.J., GRIFFIS, BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This is an interference in business relations case. On behalf of their business, Magic Wiggler Worm Ranch, Marie Bateman and Lawrence Pelletier sued Martin Gray, Sr. and Martin Gray, Jr. and claimed the Grays interfered in Magic Wiggler’s business relationship with Cal-Maine Farms. The Grays successfully moved for summary judgment. Aggrieved, Magic Wiggler appeals and claims the circuit court erred when it granted the Grays’ motion for summary judgment. Additionally, Magic Wiggler claims the trial judge erred when he did not recuse himself. Finding no error, we affirm.

FACTS

¶ 2. Marie Bateman and Lawrence Pelle-tier established Magic Wiggler Worm Ranch on a ten acre tract of property in Raymond, Mississippi. Over time, Magic Wiggler’s operation grew to the point that it required 30,000 pounds of cow manure per week. Magic Wiggler acquired manure pursuant to a verbal agreement with Cal-Maine Farms.

¶ 3. On June 20, 2003, Bateman and Pelletier visited Martin Gray, Jr. They wanted to borrow Gray’s front end loader to unload their weekly load of manure. Two days later, Martin Gray, Sr. visited Magic Wiggler. According to Bateman and Pelletier, Gray asked many questions about the worm farm. The next day, Bateman and Pelletier went to Cal-Maine to pick up their weekly load of manure. According to Bateman and Pelletier, they were told that, because the Grays had complained that Magic Wiggler generated excessive flies, Cal-Maine would not give any more manure to Bateman and Pelletier. Further, a Cal-Maine employee told Bateman and Pelletier that the Mississippi Department of Environmental Quality could fine Cal-Maine $20,000 if the Grays complained.

¶ 4. Bill Gill, the manager of Cal-Maine’s dairy farm, told Bateman and Pel-letier to talk to the Grays and that, if the Grays did not mind, Cal-Maine would continue supplying Magic Wiggler with manure. Bateman and Pelletier spoke with Martin Gray, Jr. As a result, Martin Gray, Jr. said he would call Gill and tell him to resume supplying manure.

¶ 5. Bateman and Pelletier contacted MDEQ and requested an inspection. A representative of the MDEQ solid waste division inspected Magic Wiggler and, according to Bateman’s affidavit, the representative concluded that Magic Wiggler was in compliance with MDEQ regulations.

¶ 6. Meanwhile, Gill resumed supplying Magic Wiggler with manure. On August 26, 2003, Bateman and Pelletier went to Cal-Maine to pick up a load of manure. Gill told Bateman and Pelletier that Martin Gray, Jr. had complained again. As such, Gill would not supply Magic Wiggler with manure. Bateman explained that MDEQ had inspected the property and found it satisfactory. Regardless, Gill maintained that Cal-Maine would no longer supply Magic Wiggler with manure.

¶ 7. Bateman and Pelletier contacted the Mississippi Department of Health and requested an inspection. On September 5, 2003, MDH inspected Magic Wiggler’s property and, according to Bateman’s affidavit, MDH found no evidence of flies. According to Bateman and Pelletier, they had no other supply of manure and, as a result, they lost all their worms and ceased to operate.

PROCEDURAL HISTORY

¶ 8. On August 23, 2004, Bateman and Pelletier filed a complaint on behalf of Magic Wiggler in the First Judicial District of the Hinds County Circuit Court. Bateman and Pelletier sued for “tortuous interference with business relations” and “intentional tort.” They requested $7,790,000 in compensatory damages and $1,000,000 in punitive damages. The Grays denied liability.

¶ 9. On March 29, 2006, the Grays filed a motion for summary judgment. Following a hearing, the circuit court granted the Grays’ motion for summary judgment. Bateman and Pelletier appeal.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED WHEN IT GRANTED THE GRAYS’ MOTION FOR SUMMARY JUDGMENT.

¶ 10. Magic Wiggler claims the circuit court erred when it granted the Grays’ motion for summary judgment because genuine issues of material fact existed. According to Magic Wiggler, the predominant issue of material fact is whether Magic Wiggler’s operations generated excessive flies.

¶ 11. We conduct a de novo review of a circuit court’s decision to grant summary. Baldwin v. Holliman, 913 So.2d 400(¶ 17) (Miss.Ct.App.2005). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact.” M.R.C.P. 56(c). We must also consider the evidence in the light most favorable to the non-moving party. Baldwin v. Holliman, 913 So.2d 400(¶ 17) (Miss.Ct.App.2005).

¶ 12. For summary judgment purposes, a fact is “material” if it tends to resolve any of the issues properly raised by the parties. Id. at (¶ 18). A mere allegation by the non-moving party that a dispute over whether a material fact exists will not defeat a movant’s otherwise properly supported motion for summary judgment. Id.

¶ 13. To prove a prima facie claim of tortious interference with a business relationship, a plaintiff must prove that:

(1) the acts were intentional and willful;
(2) the acts were calculated to cause damage to a plaintiff in its lawful business;
(3) the acts were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and
(4) actual damage and loss resulted.

Progressive Cas. Ins. Co. v. All Care, Inc., 914 So.2d 214, 218-19(¶5) (Miss.Ct.App.2005).

¶ 14. Bateman and Pelletier alleged that the Grays intentionally interfered in Magic Wiggler’s verbal agreement relationship with Cal-Maine. When the Grays filed their motion for summary judgment, they attached Gill’s affidavit as an exhibit. Gill was the director of Cal-Maine Farms’s dairy division at the time Cal-Maine stopped supplying Magic Wiggler with manure. By his affidavit, Gill swore that, “out of kindness and generosity,” he allowed Cal-Maine’s dairy division to give Bateman and Pelletier manure for use on Magic Wiggler’s worm farm. Gill also swore that Martin Gray, Sr., Martin Gray, Jr., and Don Nail complained that Magic Wiggler produced excessive flies.

¶ 15. Gill went on to say that he told Bateman and Pelletier that Cal-Maine would not provide any more manure based on the possibility that the manure caused fly problems. Because Bateman and Pel-letier maintained that there was no fly problem, Gill sent a Cal-Maine employee to inspect Bateman and Pelletier’s property. That employee reported that there were “fly issues” on Bateman and Pelletier’s property.

¶ 16. Gill noted that, in September of 2003, Martin Gray, Sr. and Martin Gray, Jr. both called him and told him that they had no objections to Cal-Maine providing Magic Wiggler with manure. Even so, Gill decided that Cal-Maine would not supply Magic Wiggler with any more manure. Gill reached his decision based on the following reasons:

Prior to [complaints by the Grays and Don Nail], I had been informed and noticed that Bateman and Pelletier’s trailer, in which we loaded the manure upon, was not water tight and that there was manure spillage on the Cal-Maine driveway as the manure loaded trailer was being transported from the Cal-Maine Dairy to the Bateman and Pelletier’s worm farm.
Considering the amount of cow manure disposed of by Bateman and Pelle-tier was not a significant percentage of the amount of cow manure produced by the Dairy, it soon became a nuisance to the Dairy to stop work and load Bate-man and Pelletier’s trailer.
However, by [the time the Grays said they had no objections to Cal-Maine’s supplying Magic Wiggler with manure], I had decided that it was not advantageous for Cal-Maine to continue supplying Bateman and Pelletier with manure due to the hassle involved and the potential to create bad publicity for and ill will toward Cal-Maine Farms, Inc.
* * ⅜
Cal-Maine Farms, Inc. Dairy Division’s decision to discontinue providing Bateman and Pelletier with cow manure was not the result of Martin T. Gray, Sr. and/or Martin T. Gray, Jr.’s complaints about excessive flies on Bateman and Pelletier’s farm.
* * *
Martin T. Gray, Sr. and/or Martin T. Gray, Jr. have never threatened to sue Cal-Maine Farms, Inc. Dairy Division nor have they threaten[ed] to report Cal-Maine Farms, Inc. Dairy Division to the Mississippi Department of Environmental Quality.

¶ 17. When Bateman and Pelletier responded to the Grays’ motion for summary judgment, they attached six documents to support their position. Bateman’s affidavit set forth her version of events. Three of Bateman and Pelletier’s neighbors signed affidavits and swore that Magic Wiggler never caused them to have problems with flies. Notably, Bateman and Pelletier included the affidavit of Willie Thompson. Thompson was the Cal-Maine employee that Gill sent to inspect Magic Wiggler’s property. Thompson’s affidavit was in direct contrast to Gill’s affidavit on one point in particular. According to Thompson, when he inspected Magic Wiggler’s property, he “did not see any fly problem.” Finally, Bateman and Pelletier included a letter from Jerome Goddard, Ph.D., a medical entomologist employed by the Mississippi State Department of Health. According to Dr. Goddard, he inspected Magic Wiggler’s property and, as of September of 2003, he found no evidence of excessive flies.

¶ 18. At the summary judgment hearing, the Grays argued that summary judgment was appropriate because Bateman and Pelletier could not contradict Gill’s contention that he did not stop giving manure to Magic Wiggler because of the Grays. Instead, Gill stopped giving manure to Magic Wiggler because: (1) Bate-man and Pelletier’s trailer allowed manure to spill out on Cal-Maine’s driveway, (2) Bateman and Pelletier only used a fraction of the manure produced by Cal-Maine’s dairy farm, and (3) it was a nuisance to stop operations at Cal-Maine to load Bate-man and Pelletier’s trailer.

¶ 19. Bateman and Pelletier focus their position on the premise that there was a genuine issue of material fact as to whether Magic Wiggler generated excessive flies. That may very well be, but there is no dispute that the Grays withdrew their complaint regarding flies on Magic Wiggler’s property. That is, the Grays told Gill that they had no problem with Cal-Maine supplying Magic Wiggler with manure.

¶ 20. Gill stated the reasons behind his decision to stop giving manure to Bateman and Pelletier. None of those reasons involved the Grays or any complaint of excessive flies. Instead, Gill stopped giving manure to Bateman and Pelletier because they spilled it on Cal-Maine’s property when they left, because it was a fraction of the amount that Cal-Maine produced, and because loading their trailer interrupted their normal operations.

¶ 21. Assuming, for the sake of discussion, that Gill stopped giving Bateman and Pelletier manure because of the Grays’ complaints, there is no evidence, beyond bare accusation, that the Grays complained to Cal-Maine “with the unlawful purpose of causing damage and loss” or that they complained “without right or justifiable cause.” Progressive, 914 So.2d at 218-219(115).

¶ 22. A mere allegation by the non-moving party that a dispute over whether a material fact exists will not defeat a movant’s otherwise properly supported motion for summary judgment. Baldwin, 913 So.2d at (¶ 18). While there may be a dispute regarding whether Magic Wiggler’s operations generated excessive flies, there is no genuine issue of material fact as to whether the Grays calculated to cause damage to Magic Wiggler. Likewise, there is no genuine issue of material fact as to whether the Grays acted maliciously. Even if we assume facts in the light most favorable to Magic Wiggler, the undisputed evidence shows only that the Grays complained. Magic Wiggler presented no evidence of the Grays’ intent. Accordingly, we cannot find that the circuit court erred when it granted the Grays’ motion for summary judgment.

II. WHETHER THE TRIAL JUDGE ERRED WHEN HE DID NOT RE-CUSE HIMSELF SUA SPONTE.

¶ 23. Magic Wiggler claims the trial judge should have recused himself. Magic Wiggler did not file a motion to recuse. Uniform Circuit and County Court Rule 1.15 states: “Any party may move for the recusal of a judge ... if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law.” However, one must do so within thirty days “following notification to the parties of the name of the judge assigned to the case.” “[I]f it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted.” Id.

¶ 24. According to Magic Wiggler, the trial judge had a personal relationship with Martin Gray, Sr. in that the trial judge attended meals at Martin Gray, Sr.’s lodge “on numerous occasions.” Magic Wiggler submits that it did not know of the trial judge’s association with Martin Gray, Sr. prior to the final judgment in this matter. However, as the Grays point out, according to a portion of Magic Wiggler’s website, “[w]e already know the judge assigned to our ease, knows the defendants personally well, so our chances for a change of venue do not look promising.” Pursuant to Magic Wiggler’s own website, Bateman and Pelletier doubted the trial judge’s impartiality during the litigation at trial level.

¶ 25. Assuming, for the sake of argument, that Bateman and Pelletier could not have reasonably brought their allegation before the trial judge, we are still not inclined to reverse. “This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased.” Hathcock v. S. Farm Bureau Cas. Ins. Co., 912 So.2d 844(¶ 9) (Miss.2005). “To overcome the presumption, the evidence must produce a ‘reasonable doubt’ (about the validity of the presumption); that is, one must question whether ‘a reasonable person, knowing all of the circumstances, would harbor doubts about the judge’s impartiality.” Id. One may overcome this presumption “only by showing beyond a reasonable doubt that the judge was biased or unqualified.” Id. Further, “In determining whether a judge should have recused himself, this Court must consider the trial in its entirety and examine every ruling to determine if those rulings were prejudicial to the moving party.” Id. at (¶ 11).

¶ 26. “No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.” Article 6, Section 165 of the Mississippi Constitution of 1890. Pursuant to Miss.Code Ann. § 9-1-11 (Rev.2002):

The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties.

¶ 27. There is no evidence that the trial judge was connected with the Grays by affinity or consanguinity. Likewise, there is no evidence that the trial judge had an interest in the outcome. Rather, all that is before us is Bateman and Pelletier’s bald allegation that the trial judge was partial to the Grays because he ate at the Grays’ lodge at some time on some vague and undetermined occasions. What is more, the context of those meals is entirely undeveloped. The record contains nothing but Bateman and Pelletier’s vague allegation.

¶ 28. Pursuant to Canon 3(E) of the Code of Judicial Conduct, “[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law.” Canon 3(E)(1)(a) states that a judge should disqualify himself if “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed eviden-tiary facts concerning the proceeding.” “In the absence of a judge expressing a bias or prejudice toward a party or proof in the record of such bias or prejudice, a judge should not recuse himself.” Hathcock, 912 So.2d at 852(¶ 23). As in Hathcock, the record contains no evidence that the trial judge had a personal bias or prejudice concerning either Bateman and Pelletier or the Grays. Similarly, the record contains no evidence that the trial judge had personal knowledge of disputed evidentiary facts. In light of Bateman and Pelletier’s untimely vague and obscure allegations, without more, we cannot find reasonable doubt as to the trial judge’s impartiality. Accordingly, we find no reversible error.

¶ 29. THE JUDGMENT OF THE FIRST JUDICIAL DISTRICT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . http://www.magicwiggler.coin/Suit.htm.


author: WOODALL, Justice.

text:
    JIMMY DAY PLUMBING & HEATING, INC. v. Brian SMITH.
    1051115.
    Supreme Court of Alabama.
    March 9, 2007.

      Christopher J. Zulanas and Michael J. Douglas of Friedman, Leak, Dazzio, Zula-nas & Bowling, P.C., Birmingham; and Robert G. Boliek, Jr., Birmingham, for appellant.
    Frank H. Hawthorne, Jr., and Randy Myers of Hawthorne & Myers, LLC, Montgomery, for appellee.
    Robert A. Huffaker and T. Grant Sexton, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amid curiae American Institute of Architects (Montgomery Chapter), Associated General Contractors, and Associated Builders and Contractors, in support of the appellant.
   WOODALL, Justice.

Jimmy Day Plumbing & Heating, Inc. (“Day”), appeals from a judgment for Brian Smith in Smith’s personal-injury action against Day. We affirm.

This case arises from a motor-vehicle accident that occurred on April 18, 2003. On that date, Smith, who was then 21 years old, was operating a motorcycle on a public road. Alan Nelson, who was driving a pickup truck in the line and scope of his employment with Day, entered that roadway from a driveway and failed to yield the right-of-way to Smith’s motorcycle as it approached the driveway. Nelson claimed that as he approached the roadway from the driveway his vision was obscured by a tree and that Smith was traveling at a high rate of speed. As the result of Nelson’s failure to yield the right-of-way, the motorcycle and the truck collided, causing Smith to suffer serious and permanent injuries.

Smith sued Day in the Montgomery Circuit Court. In March 2006, a jury returned a verdict for Smith, awarding him compensatory damages of $1.5 million. Day filed postjudgment motions, which the trial court denied, and Day appealed. On appeal, Day contends that it is entitled to a new trial, or, in the alternative, a substantial remittitur. We disagree.

I.

First, Day alleges that a juror’s “failure to disclose his prior similar lawsuit resulted in probable prejudice to [it], requiring a new trial.” Day’s brief, at 18. The juror Day refers to is T.C. Before voir dire examination, T.C. completed a juror questionnaire, indicating in response to one of the questions that he had never sued anyone. During voir dire, the prospective jurors were asked whether any of them had ever filed a lawsuit, and T.C. remained silent. T.C. served on the jury that returned the verdict for Smith.

After the verdict was returned, Day filed a motion for a new trial based, in pertinent part, on T.C.’s failure to disclose the fact that he had filed a lawsuit. Attached to the motion was a copy of a complaint filed by T.C. in the Montgomery Circuit Court on November 18, 1997. In the complaint, T.C. sought damages for injuries allegedly resulting from an accident that occurred on July 31, 1997. According to the complaint, T.C. “was riding a bicycle ... when he was struck by a vehicle driven by the [defendant].” Also attached to the motion for a new trial was a copy of the jury verdict returned in T.C.’s case on July 16, 2001, awarding T.C. damages in the amount of $2,800.

Included with Day’s motion for a new trial was a copy of the traffic-accident report regarding the accident in which T.C. had been involved on July 31, 1997. According to the report, T.C.’s bicycle was struck by an automobile as the driver of the automobile pulled away from a stop sign and approached the edge of the intersecting highway. The report indicates that both T.C., who appears to have been traveling on a sidewalk, and the automobile, which had not yet entered the intersection, were traveling at approximately two miles per hour. Further, the report shows that T.C.’s bicycle was not disabled and that T.C. suffered no visible injury. However, according to the report, T.C. complained of pain and was taken to a hospital in a private vehicle.

The trial court denied Day’s motion for a new trial. Unless we conclude that the trial court exceeded the broad scope of its discretion in denying Day’s motion, we must affirm.

“ ‘While we agree ... that a juror’s silence during voir dire could be a basis for granting a new trial, we must stress that the initial decision on this issue is within the trial court’s sound discretion. Hayes v. Boykin, 271 Ala. 588, 126 So.2d 91 (1960). Further, the trial court’s decision on this matter will not be disturbed on appeal unless the appellant establishes that the decision was arbitrarily entered into or was clearly erroneous.’

“Carter v. Henderson, 598 So.2d 1350, 1354 (Ala.1992).

“ ‘The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant. Freeman v. Hall, 286 Ala. 161, 238 So.2d 380 (1970). Not every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial. Wallace v. Campbell, 475 So.2d 521 (Ala.1985).

“ ‘The determination of whether the complaining party was prejudiced by a juror’s failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Freeman, supra.’

“Union Mortgage Co. v. Barlow, 595 So.2d 1335, 1342 (Ala.1992).”

Holly v. Huntsville Hosp., 925 So.2d 160, 162 (Ala.2005). Our review is limited, because “[t]he trial court is in the best position to determine whether there was probable prejudice as a result of a juror’s failure to respond to questions during voir dire.” Land & Assocs., Inc. v. Simmons, 562 So.2d 140, 149 (Ala.1989).

In determining whether a juror’s silence resulted in probable prejudice to the movant, the trial court is entitled to consider a broad range of factors.

“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.”

Freeman v. Hall, 286 Ala. 161, 167, 238 So.2d 330, 336 (1970). As Day correctly notes, “[t]he Freeman factors have never been presented as either an exclusive or mandatory list.” Day’s brief, at 23.

In the context of a juror’s failure to disclose requested information, “a material fact [is] ‘ “one which an attorney[,] acting as a reasonably competent attorney, would consider important in making the decision whether or not to excuse a prospective juror.” ’ ” Conference America, Inc. v. Telecommunications Coop. Network, Inc., 885 So.2d 772, 777 (Ala.2003)(quoting Gold Kist v. Brown, 495 So.2d 540, 545 (Ala.1986)). In considering the materiality of a fact, the court may consider “the obvious tendency of the true facts to bias the juror,” as well as “direct testimony of trial counsel that the true facts would have prompted a challenge against the juror.” Ex parte Dobyne, 805 So.2d 763, 773 (Ala.2001).

Day argues that “what is perhaps the most crucial Freeman factor — materiality — was established without doubt.” Day’s brief, at 20. We disagree.

According to Day, “the existence of [T.C.’s] prior lawsuit establishes an ‘obvious tendency of the true facts to bias the juror.’ ” This is so, according to Day, because T.C.’s “lawsuit ... involved facts that were strikingly similar to the instant case.” Day’s brief, at 22 (emphasis added). However, the trial court, acting within its discretion, could have concluded that Day had not offered convincing evidence in support of these allegations.

It is true that T.C., like Smith, was struck by a vehicle that was entering a roadway from a side street. Day argues that “[the officer’s accident-report diagram] also shows that the car in [T.C.’s] case would have emerged from the intersecting street from behind a vision obstruction — a hedgerow — at the time it collided with [T.C.’s] bicycle, just as it [was] alleged here that a tree also had obscured [Nelson’s] vision.” Day’s brief, at 22. However, this argument is purely speculative. Although the diagram of T.C.’s accident reveals the presence of a hedgerow, its dimensions are not indicated, and there is no factual basis for a reasonable inference that the hedgerow actually, or even allegedly, obstructed the view of the operator of the vehicle that struck T.C.’s bicycle.

Day also argues:

“No reasonable lawyer would have allowed [T.C.] to sit as a juror hearing an automobile accident case involving an intersection collision with a motorcycle when [T.C.] previously had been the plaintiff in an automobile accident case involving an intersection collision with a bicycle — especially in view of the fact that the jury in [T.C.’s] ease was not particularly generous, allowing for only $2,800 in damages. Given these facts, any reasonable lawyer would have had to regard juror [T.C.] as particularly susceptible to an exaggerated sympathy for plaintiff Brian Smith’s case, not to mention outright bias. Indeed, any reasonable lawyer would have had to consider whether [T.C.] suffered from some hidden resentment resulting from the limited award he received, a resentment that would incline him to ‘right the wrong’ by making sure that Smith obtained a more generous recovery in the instant case.”

Day’s brief, at 22-23. The trial court, acting within its discretion, could have concluded that arguments such as these are rankly speculative and overlook substantial differences between T.C.’s accident and Smith’s accident.

As previously stated, the accident report indicated that T.C. suffered no visible injury as a result of the accident. Day offered no evidence concerning T.C.’s injuries and the damages he sought; therefore, there is no factual basis for Day’s allegation that “the jury in [T.C.’s] case was not particularly generous.” Further, Day offered no testimony from T.C.; consequently, there is no factual basis for the contention that T.C. likely had “some hidden resentment” resulting from the verdict in his favor.

Significant factual differences between the two accidents are apparent. While Day argued that Smith was traveling approximately 65-70 miles per hour as he approached the point at which the accident occurred, it appears that T.C. was traveling approximately only two miles per hour at the time of his accident. Further, while T.C. approached the point of impact from a sidewalk, Smith was traveling on a public roadway. Also, while T.C.’s aeci-dent involved very little property damage and only minor injuries, Smith’s accident involved a substantial impact and resulted in multiple serious injuries.

Day also argues that T.C.’s “lawsuit was in no way ‘temporally remote’ ” from his jury service in this case. Day’s brief, at 24. However, Day cites no relevant Alabama authority as to what constitutes temporal remoteness in a case such as this. The trial court, in the exercise of its discretion, was entitled to consider the length of time between the trial of this case in March 2006 and T.C.’s accident in July 1997, in addition to the length of time between the trial of this case and the conclusion of T.C.’s lawsuit in July 2001.

We agree with Day that “there was no ambiguity with respect to the questions about prior lawsuits in either the juror questionnaire or the voir dire of the jury.” Day’s brief, at 25. However, because Day offered no testimony from T.C., the trial court was unable to consider any reason for T.C.’s failure to disclose his prior lawsuit.

Having considered the materials submitted by Day in support of its motion for a new trial, as well as Day’s arguments in support of its contention that T.C.’s silence resulted in probable prejudice to it, we conclude that Day has not demonstrated that the trial court exceeded the broad scope of its discretion in denying the motion for a new trial insofar as the motion was based on T.C.’s silence.

II.

Day next contends that “[t]he trial court also erred to reversal [by excluding] evidence of [Smith’s] reckless conduct — his pulling “wheelies’[] just minutes before the -wreck — by limiting the testimony on [Smith’s] pre-accident conduct to simple speeding.” Day’s brief, at 35. We disagree.

A trial court’s ruling on the admission or exclusion of evidence will be reversed only if it is shown that the trial court exceeded its discretion in so ruling.

“Admission of evidence as to the speed or manner of operation of an automobile prior to the time of an accident is a matter for the trial court’s discretion. Deese v. White, 294 Ala. 123, 313 So.2d 166 (1975); Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810 (1971); Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436 (1968); Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (1954); Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289 (1946); Whittaker v. Walker, 223 Ala. 167, 135 So. 185 (1931); Davies v. Barnes, 201 Ala. 120, 77 So. 612 (1917). This discretion should be exercised in light of the facts of the case and the probative value of the contested evidence as opposed to its prejudicial effect.

“As stated in the leading treatise on the law of evidence in Alabama:

“‘The courts of this state adhere rather uniformly to the rule that the admissibility of evidence regarding the speed of a motor vehicle before reaching the scene of the accident depends upon the facts of each ease and must be left to the sound discretion of the trial court. This discretion, of course, is not without direction. The job for the trial court is to look at the speed or conduct prior to the accident and to determine if there is a high probability that it continued up until the accident. The issue is whether the prior moment of speeding is too remote to permit an inference that substantially the same rate of speed was probably maintained up to the time of the accident in question.... ’
“C. Gamble, McElroy’s Alabama Evidence (3d ed.1977), § 45.04 (citations omitted; emphasis added).”

Ex parte Houston County, 435 So.2d 1268, 1270 (Ala.1983). Under the facts of this ease, we cannot say that the trial court exceeded the broad scope of its discretion in excluding evidence that Smith was allegedly performing “wheelies” before the accident.

The maximum lawful speed at the location of the accident was 45 miles per hour. One of Day’s witnesses, Scott Blankenship, testified that, in his opinion, Smith was traveling approximately 65 to 70 miles per hour as he approached the point where the accident occurred. Although Blankenship had watched Smith operating the motorcycle during the 10 to 15 minutes preceding the accident, and although the trial court did not limit Day’s questioning of Blankenship concerning Smith’s speed, Day examined Blankenship only as to Smith’s speed as he neared the point of impact. Neither Blankenship nor any other witness testified that Smith was “pulling “wheelies’ ” as he approached the accident scene. Under these circumstances, the trial court, in the exercise of its discretion, was free to conclude that the probative value, if any, of evidence that Smith had been performing “wheelies” before the accident was substantially outweighed by its prejudicial effect. See Rule 403, Ala. R. Evid. (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....”).

III.

Day also argues that it is entitled to a new trial because of what it describes as “the jury’s improper consideration of ... extraneous prejudicial information.” Day’s brief, at 15. Its argument is without merit.

In support of its motion for a new trial, Day offered affidavits from three jurors. Representative of those affidavits was the affidavit of juror M.L.C., which stated, in pertinent part:

“The other jurors and I determined an amount to compensate Brian Smith for his damages. We then decided to award Mr. Smith money for attorney fees and income taxes we assumed he would have to pay although we received no evidence of any amounts recoverable for attorney fees and taxes. The other jurors and I did not know what amount Mr. Smith might have to pay for attorney fees and taxes, but based upon information obtained from outside the evidence presented at the trial, we assumed it would be a significant sum and decided to award additional money to pay attorney fees and income taxes we believed Mr. Smith might have to pay. These amounts were combined and included with the amount we decided to award Mr. Smith to compensate him for his injuries to reach our total verdict amount.”

According to Day, this testimony reveals “the jury’s improper consideration of the extraneous prejudicial information of [Smith’s] tax liability and attorney’s fees in making its award of damages.” Day’s brief, at 15.

Rule 606(b), Ala. R. Evid., provides, in pertinent part:

“[A] juror may not testify in impeachment of the verdict ... as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”

(Emphasis added.) Rule 606(b) embodies the important “distinction under Alabama law, between ‘extraneous facts,’ the consideration of which by a juror or jurors may be sufficient to impeach a verdict, and the ‘debates and discussions of the jury,’ which are protected from inquiry.” Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala.2001). In Sharrief, this Court explained that distinction:

“This Court’s cases provide examples of extraneous facts. This Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia. See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997).
“The problem characteristic in each of these cases is the extraneous nature of the fact introduced to or considered by the jury. The improper matter someone argues the jury considered must have been obtained by the jury or introduced to it by some process outside the scope of the trial. Otherwise, matters that the jurors bring up in their deliberations are simply not improper under Alabama law, because the law protects debates and discussions of jurors and statements they make while deliberating their decision. CSX Transp. v. Dansby, 659 So.2d 35 (Ala.1995). This Court has also noted that the debates and discussions of the jury, without regard to their propriety or lack thereof, are not extraneous facts that would provide an exception to the general rule of exclusion of juror affidavits to impeach the verdict. Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955).”

798 So.2d at 652-53. See also Bethea v. Springhill Mem’l Hosp., 833 So.2d 1, 7-8 (Ala.2002).

Nothing contained in the affidavits offered by Day indicates that the jury actually considered any extraneous facts. The affidavits provide no evidence indicating that the jury consulted any outside source of information or that any juror was influenced by any outside information. The affidavits merely reflect some of the jurors’ discussions, which, “without regard to their propriety or lack thereof, are not extraneous facts that would provide an exception to the general rule of exclusion of juror affidavits to impeach the verdict.” Sharrief, 798 So.2d at 653. Consequently, the trial court did not err in denying Day’s motion for a new trial insofar as that motion was premised on the jury’s consideration of tax liability and attorney fees in determining the damages award.

IV.

As alternative relief, Day argues that this Court should order a “substantial remittitur.” Day’s brief, at 39. However, in its three-sentence argument concerning the alleged excessiveness of the compensatory damages, Day cites only a single case in support of a general proposition of law and offers no discussion of the nature and extent of Smith’s obviously serious injuries. Such an argument is insufficient to invoke our review of the damages.

Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on.” Further, “it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005)(citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)). This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003)(quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).

V.

Day has failed to demonstrate that it is entitled to a new trial or to a remittitur of the compensatory damages. Consequently, the judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.

      . We have not overlooked Day’s assertion that its "trial counsel state[d] in [its] brief in support of the motion for new trial that counsel would have challenged [T.C.] for cause or would have exercised a peremptory strike had trial counsel known of the prior lawsuit.” Day's brief, at 21. However, statements in briefs submitted in support of a motion are not evidence to be considered by the trial court. Ex parte Coleman, 861 So.2d 1080, 1084 (Ala.2003).

        . A "wheelie” is "a maneuver in which a wheeled vehicle (as a bicycle) is momentarily balanced on its rear wheel or wheels.” Merriam-Webster’s Collegiate Dictionary 1424 (11th ed.2003).

      . We have not overlooked Clarke-Mobile Counties Gas District v. Reeves, 628 So.2d 368 (Ala.1993), a plurality decision of this Court, upon which Day relies. However, in that case, unlike this case, a juror’s affidavit revealed that extraneous facts had been made known to the jury during its deliberations.


text:
    Charles KEENE and Sandra Keene v. Mark HAYDEN and Angela Hayden.
    1051673.
    Supreme Court of Alabama.
    March 9, 2007.
    Donald G. Madison, Montgomery, for appellants.
    Regina B. Edwards and Brandon C. Stone of Regina B. Edwards, P.C., Wet-umpka, for appellees.
   WOODALL, Justice.

Charles Keene and Sandra Keene sued Mark Hayden and Angela Hayden in the Elmore Circuit Court. The Haydens filed a motion to compel arbitration, which the trial court granted on July 12, 2006, and the Keenes appealed. We reverse and remand.

This dispute arises from a real-estate sales contract between the Keenes and the Haydens. In that contract, the Keenes agreed to purchase approximately two acres of land owned by the Haydens. The contract required the Haydens to make certain improvements to the land before the sale. After a dispute arose between the Keenes and the Haydens concerning the dimensions of the property to be conveyed by the Haydens, the Keenes sued the Haydens.

The real-estate sales contract contained an arbitration clause that provided, in pertinent part, “any controversy, claim, complaint, or dispute arising between the parties, ... or arising out of this agreement, is to be settled exclusively by binding arbitration.” In response to the complaint filed by the Keenes, the Haydens, relying upon the arbitration clause in the contract, moved the trial court “to dismiss [the] action and/or compel arbitration to resolve [the] dispute between the parties.” The trial court granted the Haydens’ motion, ordering that “[t]he case is dismissed and compelled to arbitration for resolution within 60 days.” From that order, the Keenes appealed. See Rule 4(d), Ala. R.App. P.

This Court stated the relevant legal principles in Adcock v. Adams Homes, LLC, 906 So.2d 924, 929 (Ala.2005):

“ ‘We review de novo the trial court’s ruling on a motion to compel arbitration. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999).’ Massey Automotive, Inc. v. Norris, 895 So.2d 215, 217 (Ala.2004). “‘A ‘party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce,’ ” ’ Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003) (quoting Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001)), within the meaning of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (‘the FAA’). This is so, because the FAA makes specifically enforceable a “written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy ... arising out of such contract or transaction.’ 9 U.S.C. § 2.
“ ‘[T]he term “involving commerce” in the FAA [is] the functional equivalent of the ... familiar term “affecting commerce” — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power.’ Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003)(emphasis added). ‘Congress’ Commerce Clause power “may be exercised in individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent “a general practice ... subject to federal control.” ’ 539 U.S. at 56-57, 123 S.Ct. 2037 (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co. 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). Nevertheless, ‘[t]he party moving for arbitration must “ ‘produce some evidence which tends to establish its claim’ ” ’ that the transaction involved interstate commerce. White, 869 So.2d at 1131 (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.l995)(opinion on application for rehearing) ).”

Considering these well-established principles in the context of this case, the disposi-tive issue is whether the Haydens carried their burden of producing evidence tending to show that the real-estate sales contract they and the Keenes had entered into involved interstate commerce.

The Keenes argue that “[i]t is clear in this case that no evidence was submitted to establish an interstate nexus required to allow enforcement of an arbitration provision.” Keenes’ brief, at 16. We agree. In support of their motion to compel arbitration, the Haydens offered a single document, namely, the real-estate sales contract between the Keenes and them. They offered no evidence, by affidavit or otherwise, tending to establish that the transaction underlying the contract involved interstate commerce. On appeal, the Haydens point out that they “argued in their response to the Keenes’ objection to the motion to compel arbitration that interstate commerce was involved in the attempted sale of the subject property.” Haydens’ brief, at 18. Although that is true, arguments of counsel are not evidence. Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004); Ex parte Coleman, 861 So.2d 1080, 1084 (Ala. 2003); and Fountain Fin., Inc. v. Hines, 788 So.2d 155,159 (Ala.2000).

For the foregoing reasons, the order of the trial court dismissing the case and compelling arbitration is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.

      . We have not overlooked the Haydens' contention that there was a postdispute agreement to arbitrate the Keenes’ claims against them. However, their motion to compel arbitration was based upon the predispute agreement, and the record before this Court contains no evidence of any postdispute agreement.