author: SOUTHWICK, J.,

text:
    FELICIANA BANK & TRUST, Appellant v. MANUEL & SESSIONS, L.L.C., Appellee.
    No. 2005-CA-01296-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      Jay Max Kilpatrick, Jackson, attorney for appellant.
    Bruce M. Kuehnle, Natchez, attorney for appellee.
   SOUTHWICK, J.,

for the Court.

¶ 1. A bank brought suit for damages resulting from the cutting of timber on land in which it held a deed of trust. The defendant was granted summary judgment because a deed of trust was found not to provide a security interest in timber. We disagree. Therefore we reverse and remand.

FACTS

¶ 2. Louis Owen Ducote owned approximately fifty-one acres of land in Wilkinson County, Mississippi. In 1995, Ducote borrowed $20,000 from Feliciana Bank & Trust, then in 1998 he borrowed $100,000 from the same bank. Each time he conveyed the Wilkinson County property in trust to Feliciana to secure the loan. The deeds of trust were then filed in the land records.

¶ 3. On August 19, 1999, Ducote signed a piecemeal timber sale contract with Pat Conerly Forestry Services. Under this contract Conerly was “to secure a logging contractor, to manage all logging activities, to perform all activities normally performed by a forester, to secure market price and to sell and disburse stumpage through Woodville Logging.” Ducote warranted the title to the timber and agreed to hold Conerly harmless from any third party claim of ownership.

¶4. Woodville Logging Services is a Mississippi corporation. Tom Manuel and Jody Sessions are its principals. Wood-ville contracts with mills and then acts as a broker to acquire timber to be sold to the mills. The defendant’s initial motion for summary judgment states that ‘Woodville Logging Services, Inc. is a corporation owned by the Defendant, Manuel & Sessions, L.L.C.” That named defendant is a limited liability company owned solely by Tom Manuel and Jody Sessions.

¶ 5. Conerly’s affidavit asserted that he asked Manuel & Sessions, L.L.C. to find a mill that would purchase the Ducote timber. Conerly also asked if it could recommend a logger to cut the trees. Manuel & Sessions recommended Benjamin Groom, who regularly obtains work from Manuel and Sessions. Conerly selected the trees to be cut. Groom cut and delivered the trees to a mill. The record implies that the timber was cut in the spring of 2001. Conerly states that the mill paid Manuel & Sessions, and the money was then disbursed to Groom, Conerly, and Ducote. Ducote received $13,500 for the timber.

¶ 6. At some point after the timber was cut, Feliciana foreclosed because Ducote defaulted on the loan. Feliciana purchased the property at the foreclosure sale and later sold the property to Bryan Development Company, but Feliciana did not recover the full amount of the debt.

¶ 7. In 2002, Feliciana filed a complaint against Manuel & Sessions, arguing that it had a valid security interest in the timber on Ducote’s property. Feliciana sought $60,000 under the doctrine of waste. In 2005, Manuel & Sessions filed for summary judgment, arguing that no perfected security interest in the timber existed because Feliciana did not file in accordance with the Uniform Commercial Code. After a hearing, the motion was granted. Felici-ana perfected this appeal.

DISCUSSION

¶ 8. We perform a de novo review of a trial court’s decision on a motion for summary judgment. Wilner v. White, 929 So.2d 315, 318 (Miss.2006). We examine all the evidence in a light favorable to the non-moving party. If the moving party carries its burden of proving that there is no dispute of material fact and that it is by law entitled to judgment, we will affirm. Id.

1. Effect of Uniform, Commercial Code on timber deed of trust

¶ 9. The trial court found that a Uniform Commercial Code section had altered the long-standing efficacy of deeds of trust on land as security interests in the timber that grows on the land. The interplay of the UCC with the common law of real property is not a new issue. The UCC itself recognizes that the codified commercial law might impact on traditional real property concepts. In a provision in the section on sales, the Code provides this:

Section 75-2-107. Goods to be severed from realty; recording.
(1) [Contract for the sale of minerals or of a structure to be removed from realty].
(2) A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) or of timber to be cut is a contract for the sale of goods within this chapter whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance.
(3) The provisions of this section are subject to any third party rights provided by the law relating to realty records, and the contract for sale may be executed and recorded as a document transferring an interest in land and shall then constitute notice to third parties of the buyer’s rights under the contract for sale.

Miss.Code Ann. § 75-2-107 (Rev.2002). How to read this section alongside other Mississippi law is one of the principal issues on this appeal.

¶ 10. In Mississippi, timber is part of the realty until cut. South Miss. Electric Power Ass’n v. J.F. Miller Timber Co., Inc., 314 So.2d 346, 348 (Miss.1975). The adoption of the Uniform Commercial Code in Mississippi and specifically the just-quoted section 75-2-107(2) altered some traditional principles. This code is a nationally-created, nationally-adopted set of statutes that after enactment by this state’s legislature is to be interpreted within the entire legal environment. Pre-exist-ing law inconsistent with the Code would be replaced; consistent law would not be.

¶ 11. A deed of trust may specifically refer to timber and create explicit obligations such as not to cut without authorization. Taylor v. Fed. Land Bank of New Orleans, 162 Miss. 653, 656, 138 So. 596, 597 (1932). Conveyances of real property, though, without further elaboration and whether the conveyance is in trust, in fee simple or otherwise, grant everything that is part of the realty. Albritton v. Williams, 198 So. 573, 574 (Miss.1940). In Albritton, several deeds of trust either specifically on timber or specifically excluding timber had been executed. Id.; Albritton v. Williams, 184 Miss. 857, 186 So. 324 (1939). The Mississippi Supreme Court held that when a deed of trust was executed “without reserving the timber, [it] thereby conveyed the timber, for ordinarily timber is a part of the land on which it stands.” Albritton, 198 So. at 574. Since growing timber is part of the realty, a conveyance of the realty without excepting the timber will also convey that timber.

¶ 12. The deed of trust in issue conveyed to the trustee “the land described,” as well as “improvements and appurtenances now or hereafter erected on, and fixtures,” which is sufficient language to cover everything that is by law part of the realty. The Code section quoted above is “subject to any third party rights provided by the law relating to realty records.... ” Miss.Code Ann. § 75-2-107(3) (Rev.2002). That certainly appears to be a legislative effort to make the UCC rest peaceably alongside real property law.

¶ 13. What the trial court found had undermined these long-existing rules was that in addition to the previously quoted section on sales, the Mississippi Legislature had also adopted a section that defined “standing timber that is to be cut and removed under a conveyance or contract for sale” as “goods.” Miss.Code Ann. § 75-9-102(a)(44) (Rev.2002). Security interests in “goods” are created by a filing under Article 9 of the UCC. The bank argues that it complied with the financing statement filing obligations. Feliciana’s compliance with the UCC filing procedures is questionable, but we conclude that a traditional deed of trust filing was sufficient.

¶ 14. The trial court in essence concluded that the Mississippi commercial code displaced the common law on the securing of interests on timber. Under that view, either a deed of trust no longer applies to timber at all, or the security is lost as soon as a conveyance or contract for sale of timber occurs. The legislature has certainly defined standing timber as personal property upon the execution of a contract for its cutting. Someone involved in that cutting may make a UCC filing to secure the interest that has been obtained. Prior to such a contract, though, the UCC does not cause timber to be classified as “goods.” Absent any statutory forcing of a change in the common law, the timber prior to a contract for its cutting would remain real property. The UCC does not purport to cancel the reach of a pre-exist-ing deed of trust which at least would secure timber that is not subject to a contract for harvesting. Consequently, the most the UCC would have done is cancel the lien of a deed of trust as soon as a contract for a timber sale occurs. If cancellation is the result of the Code, there would be no lasting security over timber created by a deed of trust.

¶ 15. We conclude that the proper analysis is not one of cancellation but of priority. Historically, a deed of trust granted a security interest in all property that was part of the realty. Under the UCC, though, if a typical deed of trust is executed after a contract for the cutting of the timber has been executed but before the actual harvesting of the trees, the deed of trust will either not apply to the timber at all because the timber is now personalty, or else the deed of trust will be subordinate to a prior UCC filing. Conversely, if the deed of trust predates any contract to cut the timber, the security interest vests in timber and cannot be divested simply by a contract for sale. Again, the matter is one of priority. A related statute makes clear that security interests in crops and fixtures filed under real property law remain valid encumbrances, but that competing security interests created under Article 9 of the UCC create issues of priority. Miss.Code Ann. § 75-9-334 (Rev.2002). Similarly, the previously quoted section on sales relating to timber recognizes the continuing effect of real property rules when it states that timber sales under the UCC “are subject to any third party rights provided by the law relating to realty records.... ” Miss.Code Ann. § 75-2-107(3).

¶ 16. The bank had a perfected security interest in the timber. The rights of any subsequent purchasers of that timber were subordinate to the interest of the bank. The bank’s failure to perfect its interests under the UCC was irrelevant to its right to remain secure.

2. Mortgagee’s cause of action for ivaste

¶ 17. Since Feliciana had a recorded security interest in the timber, the next issue is whether it has a cause of action for the cutting. In one precedent involving the Federal Land Bank, the court said that a “stranger who enters upon mortgaged land, and cuts and removes timber therefrom without the consent of the mortgagee, and thereby destroys or materially impairs the value of the security, is liable to the mortgagee” for the value of the timber removed. Taylor, 162 Miss. at 656, 138 So. at 597. Loss of value is shown by “proof that at a foreclosure sale the mortgaged property brought less than the mortgage debt.” Id. The total value of the Taylor timber was $300. The timber cutters paid the delinquent taxes of $92 on the property and paid the remaining $208 to the bank. Taylor, 162 Miss, at 656-57, 138 So. at 597. The removed timber materially impaired the value of the security and the bank was entitled to the entire $300 from the timber cutters. Id.

¶ 18. Feliciana also cites a precedent in which we found that individuals who held a recorded option to purchase real property, could after exercising the option bring a claim for waste against the entity who cut the timber without their permission. McCorkle v. LouMiss Timber Co., 760 So.2d 845, 853 (Miss.Ct.App.2000). That precedent may be exceptional in its allowing those who had executory or contingent interests to subject owners of fee interests and their assigns to impeachment for waste. Still, both McCorkle and Taylor recognize that owners of certain recorded interests in real property may, after coming into possession, claim loss of value resulting from timber having been earlier cut without their consent. This principle is consistent with the rule that a mortgagee who had not foreclosed could not sue a trespasser who had taken turpentine from the secured property. Farmers’ Loan & Trust Co. v. Avera, 7 So. 358 (Miss.1890). Under Taylor, creditors with secured interests may bring suit for the value of timber cut from the property if after a foreclosure sale there is a shortfall. Considering that $13,500 was paid for the timber and Feliciana did have a shortfall, we find no question that cutting the timber diminished Feliciana’s security.

¶ 19. In summary, the deed of trust was recorded at the time of the timber cutting, and the value of the security was diminished by taking timber. Buy from any owner, then cut and run are not proper practices for the timber industry. Once Feliciana foreclosed on its recorded deed of trust, it could bring suit for devaluation of its recorded security.

3. Action for waste against Manuel & Sessions

¶ 20. Whether a claim for waste exists against this defendant, Manuel & Sessions, is the final issue. The defendant’s role in the cutting is unclear. Con-erly asserted that the landowner Ducote contracted with him to cut the timber. Conerly then contacted Manuel & Sessions because it had a contract with a mill where Conerly wished to sell this timber. Manuel & Sessions allegedly agreed to allow the timber to be sold to a mill under its contract. Conerly indicated that the company recommended using a logger named Benjamin Groom. Conerly followed the recommendation.

¶21. Slightly differently, Manuel & Sessions stated that its wholly-owned subsidiary, Woodville Logging Service, actually brokered the timber to a mill with which Woodville Logging regularly did business. Woodville Logging allegedly was the one that distributed the funds to the landowner Ducote, to Conerly, and to Groom. Conerly’s affidavit said it was Manuel & Sessions that had a “delivered price contract” with the mill. He also asserted that the mill paid Manuel & Sessions, which kept part of the proceeds and then made disbursements to the others.

¶ 22. The record contains no executed documents reflecting the defendant’s agreement to engage in any transaction regarding this timber. Feliciana argues that Manuel & Sessions “was intricately involved” with logging and the sale of this timber to the mill. The defendant admittedly had a brokering function at least through its subsidiary, Woodville Logging. The company’s affidavit states that neither Manuel & Sessions nor Woodville Logging ever contracted to purchase or cut, or actually cut, purchased, or had possession or title to any of the subject timber.

¶23. Feliciana alleges that the defendant’s liability is shown by the precedent in which the Federal Land Bank foreclosed on property and then brought suit against the timber cutter. Taylor, 162 Miss. at 656, 138 So. at 596. As quoted above, “a stranger who enters upon mortgaged land, and cuts and removes timber without the consent of the mortgagee,” was liable to the mortgagee for the value of the timber if the worth of the security was diminished. Id., 162 Miss. at 657, 138 So. at 597. Taylor’s facts are distinguishable because its deed of trust expressly prohibited the cutting of the timber and Feliciana’s did not, but that difference is immaterial since the timber was part of the property subject to the mortgage. Taylor cited only one authority for its decision, which stated that a mortgagee has a claim against a “stranger” who does any act “which destroys or impairs the value of his security, although the right is conditioned upon the fact of the mortgage debt remaining still unpaid, wholly or in part.” 41 C.J. Mortgages § 641 (1926), at 652. The language of Taylor and its cited authority both focus on impairing the value of the security and not on violating a specific provision of the deed of trust concerning timber cutting. Id.

¶ 24. Liability for diminishing the value of this land is evaluated under the doctrine of “waste,” which is a “substantial injury done to the inheritance, by one having a limited estate, during the continuance of his estate.” Moss Point Lumber Co. v. Bd. of Supervisors of Harrison County, 89 Miss. 448, 526, 42 So. 290, 300 (1906). If the Manuel & Sessions participated in a legally relevant manner in the timber cutting, then it would be a proper defendant.

¶ 25. The evidence on summary judgment supports that either the defendant or its wholly owned subsidiary brokered the timber to a mill, then distributed the proceeds. It is conceded that Manuel & Sessions, L.L.C. is a limited liability company. Its subsidiary Woodville Logging Service, Inc., is described as a Mississippi corporation with Tom Manuel and Joseph Sessions as the principals. A limited liability company may purchase, own, or otherwise hold shares in corporations. Miss.Code Ann. § 79-29-109(2)(e) (Rev.2001). If the only involvement in the timber cutting, sale, and distribution of funds by anyone with a connection to Manuel & Sessions was by its wholly owned subsidiary corporation, then the defendant would be a proper defendant only under legal principles that in rare circumstances allow the corporate entity to be ignored. If a corporation acts wrongfully, the corporation is to be sued and not its owners. To pierce the corporate veil and reach the owners takes proof that was not offered or even suggested in this case.

¶ 26. The determinative issue on this appeal is whether this defendant engaged in acts subjecting it to liability. “Waste is a tort defined as the destruction, alteration, misuse, or neglect of property by one in rightful possession to the detriment of another’s interest in the property.” 8 Powell on Real Property § 56.01 (Wolf ed.2000). Liability for torts is shared among all who are joint tortfeasors. Whether the defendant committed a tort depends on the evidence. Either Manuel & Sessions or Woodville Logging brokered the timber. The record contains no explanation of what a timber broker does. We accept, then, that the word “broker” is to be understood in its colloquial sense as an entity that brings a buyer and seller together. Compensation is paid for the service, allegedly here out of the proceeds paid by the mill. Conerly’s affidavit also states that the actual timber cutter, Benjamin Groom, was recommended by Manuel & Sessions, but there is no evidence that he was an employee or had any legally relevant connection to the defendant.

¶ 27. The actual timber cutter would be liable to a mortgagee when the cutting occurs without the latter’s consent. Taylor, 138 So. at 597. A broker of the timber who had no involvement in the transaction other than to link a seller with a buyer does not clearly appear to be within Taylor’s reach. However, Manuel & Sessions’ role — if any — as to this timber is unclear. We have concern but not conviction that liability has not been shown. A party seeking summary judgment must prove that it is entitled to judgment as a matter of law. M.R.C.P. 56(c). When “additional facts will add clarity and a greater assurance of a just disposition on the merits,” summary judgment may be denied. Hudgins v. Pensacola Constr’n Co., 630 So.2d 992, 993 (Miss.1994). In part because the trial judge did not rule on the basis that we are discussing, and also because of the ambiguities in the record of what the defendant did, we invoke the Hudgins suggestion and remand.

¶ 28. Whether Feliciana may recover from Manuel & Sessions remains to be shown. On remand, the trial court should determine Manuel & Sessions’ factual role and then any legal responsibility for the cutting of this timber, thereby assessing whether compensable damage to this plaintiff was the result of any actions or omissions by this defendant.

¶ 29. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Will KING, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02005-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      Will King, Appellant, pro se.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before MYERS, P.J., BARNES, and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Will King appeals from the Circuit Court of Coahoma County’s order denying his motion to vacate his judgment and sentence, which was considered a post-conviction relief petition by the court. We affirm the circuit court’s denial of the motion. We remand the case, however, for correction of the sentencing order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Will King was indicted on five felony counts by a grand jury in the Circuit Court of Coahoma County on June 10, 1997. Counts I and II charged King with the sale of oxycodone, a Schedule II controlled substance, within 1,500 feet of a school building, on two different dates. Miss.Code Ann. § 41 — 29—139(a)(1) (Rev. 2005). Counts III and IV charged King with possession with intent to sell oxyco-done and hydrocodone (another Schedule II controlled substance), respectively, within 1,500 feet of a school building. Miss.Code Ann. § 41-29-139(a)(2) (Rev. 2005). Count V charged King and another individual with aiding and abetting to sell oxycodone within 1,500 feet of a school building. Because of the fact that King was selling illegal drugs within a certain distance of a school, he was subject to an enhanced penalty under Mississippi Code Annotated section 41-29-142 (Rev.2005) for all five counts. Further, King was charged as a second and subsequent offender under Mississippi Code Annotated section 41-29-147 (Rev.2005), and a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2000), for all five counts. Additionally, for Counts III and IV, King was subject to an enhanced penalty for carrying a .50 caliber firearm on this occasion. Miss.Code Ann. § 41-29-152 (Rev.2005). On July 30, 1997, King pled guilty to all five counts of the indictment.

¶ 3. At the sentencing hearing on August 21, 1997, King was sentenced to thirty years in the custody of the Mississippi Department of Corrections for “five counts of his violation of the controlled substance laws.” Specifically, King was sentenced to fifteen years for each count, with Count II to run consecutively to Count I, and Counts III, IV, and V to run concurrently with Count II. Aggrieved of his sentence and the validity of his guilty plea, King filed a timely motion for post-conviction relief on September 30, 1999. The motion was denied by the Circuit Court of Coaho-ma County. On June 26, 2001, this Court affirmed the circuit court’s denial of King’s motion for post-conviction relief. King v. State, 788 So.2d 868 (Miss.Ct.App.2001).

¶ 4. King attempted to file a “Motion to Vacate Judgment and Sentence,” dated January 13, 2005; however, the circuit court, in its order, noted this motion was never filed with the circuit court. However, the circuit court decided to consider the motion as if it had been properly filed. The circuit court also considered this motion as a petition for post-conviction relief, even though it was entitled otherwise. On May 13, 2005, the circuit court denied King’s motion on the grounds it was time-barred, having been filed more than three years after his sentence was final. Moreover, since King had already filed a motion for post-conviction relief in September of 1999, the court barred the current motion as a successive writ under Mississippi Code Annotated section 99-39-27(9) (Rev. 2000). King now appeals the circuit court’s denial of his motion.

STANDARD OF REVIEW

¶ 5. Our Court will not alter findings by the trial court unless they are found to be clearly erroneous. Smith v. State, 822 So.2d 298, 299(¶ 3) (Miss.Ct.App.2001) (quoting Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). For questions of law, our standard of review is de novo. Id.

ANALYSIS

¶ 6. King appeals the denial of his self-styled “Motion to Vacate Judgment and Sentence.” He argues the following: he suffered from an illegal sentence and his guilty plea was involuntary; the trial judge failed to fulfill the requirements of Uniform Rules of Circuit and County Court Rule 8.04(A)(3) and (A)(4)(b) because the judge did not adequately determine a factual basis for his guilty plea and King did not understand the consequences of his plea; his counsel was ineffective; his illegal sentence met the “cause” and “actual prejudice” standards of Mississippi Code Annotated sections 99-39-21(4) and -21(5) respectively; and the trial court abused its discretion in dismissing his post-conviction motion as successive.

¶ 7. If a prisoner pleads guilty, the statute of limitations for the prisoner to bring a petition for post-conviction relief is three years after the entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2005). The circuit court’s dismissal or denial of a petition for post-conviction relief, whether formally entitled as such or not, constitutes a final judgment and bars any successive petitions. Miss.Code Ann. § 99-39-27(9) (Supp.2005).

¶ 8. In the case sub judice, King filed a “Motion to Vacate Judgment and Sentence,” dated January 13, 2005, over seven years after the entry of his guilty plea on July 30, 1997. The circuit court was correct in considering this motion a petition for post-conviction relief. Further, King had already timely filed a petition for post-conviction relief on September 30, 1999, which was denied by the circuit court. Therefore, we find King’s current motion is not only procedurally barred by the statute of limitations, but is also barred as a successive writ. Miss. Code Ann. §§ 99-39-5(2), -27(9) (Supp. 2005). We thus affirm the circuit court’s denial of that motion.

¶9. King is correct in asserting, however, that his sentences for Counts III and IV as recorded in the sentencing orders are inconsistent with his indictment charges. From the plea colloquy record, it is evident that the circuit judge clearly distinguished between the charges of sale of a controlled substance in Counts I and II, and possession with intent to sell a controlled substance in Counts III and IV. As to each count, the district attorney read the indictment, and King admitted his guilt, adding additional details of the crimes such as “[tjhat’s the pills ... [t]hey was in my house” pertaining to Count III and “that was the one that was in that bank bag” relating to Count IV. At the sentencing hearing, the judge did not specify on the record the nature of the five counts except that they were “for violation of the controlled substance laws.” We see no error in this procedure as the court had the discretion to sentence King to the same term of imprisonment regardless of whether the charges were for “sale” or “intent to sell” a controlled substance. See Miss.Code Ann. § 41-29-139 (Rev.2005). In the sentencing orders, however, Counts III and IV erroneously reflect that King pled guilty to “sale” of a controlled substance instead of “possession with intent to sell” a controlled substance.

¶ 10. King’s arguments in this case are similar to his contentions in his prior appearance before this Court wherein he claimed his sentencing order was void because of an error in the wording of Count IV which incorrectly stated King was convicted of the sale of oxycodone instead of hydrocodone. At that time we ruled that error was not prejudicial to King. We find the same is true on the current motion. As previously mentioned, the sentencing errors have no prejudicial effect on King: they appear to be a mere scrivener’s error. Every court has the inherent ability to correct its own records at any time. Harvey v. State, 919 So.2d 282, 285(¶ 9) (Miss.Ct.App.2005) (quoting Fields v. State, 840 So.2d 796, 801(¶ 10) (Miss.Ct.App.2003)). In order to correct the circuit court record, we remand this case to the Circuit Court of Coahoma County to correct the charges of the sentencing orders on Counts III and IV to reflect the correct charges as contained in King’s indictment and plea petition: “possession with intent to sell,” and not “sale” on Counts III and IV.

¶ 11. Accordingly, we affirm the decision of the Circuit Court of Coahoma County denying King’s motion, and remand this case for correction of the sentencing orders pertaining to Counts III and IV.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. THE CASE IS REMANDED FOR CORRECTIONS TO THE SENTENCING ORDERS AS INDICATED IN THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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

      . At the plea hearing, the State asked the court to drop the habitual offender charge, as negotiated in the plea agreement. The court agreed but kept the sale of controlled substances near a school and subsequent offender sentence enhancements intact.


author: KING, C.J.,

text:
    Trevor JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00163-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.

      Eileen M. Maher, Natchez, attorney for appellant.

      Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Trevor Jackson appeals his conviction for burglary of a storehouse. After the jury found Jackson guilty, the trial court sentenced him as a habitual offender and imposed a life sentence. On appeal, Jackson raises two issues. First, Jackson contends that the trial court erred in permitting the district attorney to amend the indictment the day of the trial to include the habitual offender sentence enhancement. Second, Jackson argues that the trial court erred in failing to grant his motion for a directed verdict and his motion for a judgment notwithstanding the verdict.

FACTS AND PROCEDURAL HISTORY

¶2. On the morning of November 4, 2003, an employee of the Super Saver Food Store in Centerville, Mississippi, arrived at work to find that someone had broken into the store through an air-conditioning duct some time after closing the night before and had stolen cash from the employees’ lockers. The employee contacted the owner, who then contacted the police. The owner advised the police that each employee placed that day’s cash receipts into his or her designated locker. He estimated that $8000 had been taken from the store.

¶ 3. The store was monitored twenty-four hours a day by a security camera. The owner produced the tape, and he and the police chief walked the short distance to the owner’s residence to watch it. The surveillance tape showed a man walking back and forth in the store after hours. The man held a white towel over his face. The police chief testified that he immediately recognized Trevor Jackson as the intruder in the videotape based on the man’s mannerisms, walk, and build. The chief subsequently showed the videotape to several other officers, who agreed that the intruder was Jackson.

¶ 4. Based on their identification of Jackson from the video, the Centerville police department obtained an arrest warrant for Jackson. On November 6, 2003, police arrested Jackson at his girlfriend’s apartment. Jackson’s girlfriend gave the police permission to search her apartment. In their search of the apartment, Centerville police discovered clothes and shoes believed to have been worn in the burglary and $999 dollars in cash. A search of the girlfriend’s car also produced a white towel.

¶ 5. Jackson was indicted on February 25, 2004. The indictment charged Jackson with one count of Burglary of a Storehouse. Trial was set for October 6, 2004. A day before the trial, the district attorney filed a motion to amend the indictment to charge Jackson as a habitual offender, an amendment that would allow the court to sentence Jackson to life in prison if a jury found him guilty at trial. The trial court conducted a hearing on the motion to amend the indictment on the morning of trial.

¶ 6. Jackson’s attorney opposed the motion to amend as untimely. He argued that he was entitled to five days’ notice on the motion and stated that he was unaware of the motion until the morning of trial. The district attorney stated that he had discussed the amendment with Jackson and his attorney in June 2004 but had opted not to file the amendment earlier as an incentive to encourage Jackson to consider a plea agreement. The district attorney stressed that the amendment itself was not a surprise to Jackson.

¶ 7. In response, Jackson’s attorney stated as follows:

Judge, I’m not denying that we did discuss the possibility of the amendment to the indictment, I’m just saying that I feel like with any other motion, I’m due my five days of notice. Certainly, if they would have amended the indictment a week ago, or a month ago, two months ago, we could still entertain the plea possibilities.

The trial court held that amendments to indictment could be made on the day of trial, provided that the defendant was not unfairly surprised by the amendment. The trial court concluded that the amendment was proper, as Jackson had prior notice of the possibility of the sentence enhancement.

¶ 8. The trial court added, however, that under the circumstances, he would agree that Jackson should be able to enter into the previously discussed plea agreement and would, in fact, permit Jackson to do so. Jackson and his attorney discussed that option, both in open court and off the record. Jackson decided that he wanted to proceed to trial.

¶ 9. During the trial, the Centerville police chief and two officers testified that they recognized Jackson’s mannerisms, walk, and build from the video. The State also introduced the clothing and the money found in Jackson’s girlfriend’s apartment.

¶ 10. At the close of the State’s case, Jackson’s attorney made a motion for a directed verdict, which the trial court denied. Jackson rested without conducting a defense, and the case was submitted to the jury. The jury returned a verdict of guilty, at which time Jackson’s attorney made a motion for judgment notwithstanding the verdict. The trial court denied that motion as well and sentenced Jackson to life in prison.

STANDARD OF REVIEW

¶ 11. Jackson’s first issue, the trial court’s decision to permit the district attorney to amend the indictment the day of the trial, is an issue of law and “enjoys a relatively broad standard of review.” Peterson v. State, 671 So.2d 647, 652 (Miss.1996).

¶ 12. With regard to Jackson’s second issue, both a motion for directed verdict and a motion for judgment notwithstanding the verdict “implicate the sufficiency of the evidence.” Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998). Accordingly, the Court must,

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

Id.

I. Amendment of the Indictment

¶ 13. Jackson argues that he was unfairly surprised by the motion to amend the indictment. Additionally, Jackson argues that while the court addressed the issue with Jackson’s trial counsel at the hearing, the trial court never asked Jackson directly whether he knew of the district attorney’s intention to amend the indictment to name Jackson as a habitual offender.

¶ 14. Uniform Circuit and County Court Rule 7.09 governs the amendment of indictments. The rule states as follows:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

UCCCR 7.09. In Mississippi, “[i]t is permissible to amend the indictment on the date of trial and to charge the defendant as a habitual criminal under Mississippi Code Annotated § 99-19-88, when defense counsel is aware of the State’s intentions and the defendant is fully aware of the State’s intentions during plea negotiations.” Forkner v. State, 902 So.2d 615, 624(¶ 28) (Miss.Ct.App.2004) (citing Ellis v. State, 469 So.2d 1256 (Miss.1985)).

¶ 15. During the hearing on the motion to amend, the trial court recited the prohibition against amendments that unfairly surprise a defendant and questioned Jackson’s counsel accordingly. Jackson’s counsel advised the trial court that he was aware that the district attorney was considering amending the indictment to include the enhanced sentence. The trial court then stated that given the timing of the filing of the motion, he would give Jackson the opportunity to reconsider the plea agreement that the district attorney offered during plea negotiations. Jackson and his attorney spoke both on and off the record regarding the plea agreement, and Jackson advised the trial court that he wanted to proceed to trial.

¶ 16. The Court holds that the trial court did not err in granting the district attorney’s motion to amend the indictment. Jackson’s counsel admitted that he was aware that the district attorney was considering amending the indictment to name Jackson as a habitual offender in June 2004. The trial court also asked Jackson if he was aware of the impact of the amendment and gave him time to discuss the amendment with his attorney. The Court finds no error in Jackson’s assertion that the trial court failed to question Jackson directly regarding his knowledge during plea negotiations of the district attorney’s intent to amend the indictment. Moreover, any error in the trial court’s decision not to question Jackson directly regarding his knowledge of the district attorney’s intent during plea negotiations was corrected by the trial court’s statement that it would reopen the plea negotiations to permit Jackson to take the plea agreement previously discussed by the parties. Jackson and his counsel discussed that option, and Jackson rejected it.

II. Denial of the motion for a directed verdict and motion for judgment notwithstanding the verdict.

¶ 17. Jackson contends that the trial court erred in denying his motion for a directed verdict and his motion for judgment notwithstanding the verdict for the following reasons: (1) the amount of money found on Jackson at the time of his arrest ($999) was significantly less than the $3000 that the store owner testified was taken during the burglary; (2) the police chief and other officers’ identification of Jackson by his walk and his mannerisms from the store surveillance tape was suspect; and (3) police could not conclusively identify the clothing and shoes seized from Jackson as those worn by the suspect in the surveillance video.

¶ 18. Applying the appropriate standard of review cited in Gleeton, the Court cannot find that the trial court erred in denying Jackson’s motions. Both the motion for a directed verdict and the motion for judgment notwithstanding the verdict address the sufficiency of the evidence. The police chief and two other officers testified that they recognized Jackson from the store’s surveillance video. Based on their identification, the police obtained an arrest warrant. The search of the apartment where Jackson was arrested turned up $999 and several items of clothing similar to those worn by the suspect in the surveillance video. The jury apparently accepted the testimony of the police officers in returning a guilty verdict. Giving the prosecution the benefit of all inferences which support the verdict and relying on the jury to address all matters of weight and credibility of the evidence, the Court finds that Jackson’s second point of error is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY OF CONVICTION OF BURGLARY OF A STOREHOUSE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Jackson was asleep at his girlfriend’s apartment when the police arrived. The cash was in a bag on the bed where Jackson had been sleeping. The $999 recovered was divided into forty (40) twenty-dollar bills and 199 one-dollar bills. The one-dollar bills were bound in bank wrappers.


author: MYERS, P.J.,

text:
    Norma HOWARD, Appellant v. CITY OF BILOXI, Appellee.
    No. 2005-CA-00829-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.

      Victor Boyd Pringle, Biloxi, Carey R. Varnado, Hattiesburg, Timothy P. Kottem-ann, Biloxi, attorneys for appellant.
    Ronald G. Peresich, Gina Bardwell Tompkins, Biloxi, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS, and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Ms. Norma Howard appeals from an order of the Circuit Court of Harrison County, Mississippi, Honorable Jerry 0. Terry, Sr. presiding, which granted the motion of the City of Biloxi, Mississippi, for summary judgment. This case involves a determination as to whether Ms. Howard has provided any evidence which would create a genuine issue of material fact that would allow her to recover for her injuries sustained on City of Biloxi property, notwithstanding the immunity provided to the City under the Mississippi Tort Claims Act section 11-46-1 (Rev.2004).

STATEMENT OF FACTS

¶ 2. On March 27, 2003, Howard tripped and fell over a crack in the sidewalk, which has been described by the parties and the lower court as a ½” to 1½” unevenness, leading to the Lameuse Street entrance of the downtown Biloxi library. The library building and the realty on which the library sits are owned by the City of Biloxi and operated by the Harrison County Library System.

¶ 3. Howard filed her complaint against the City of Biloxi, alleging that the City negligently maintained the premises of the library by: (1) placing and/or allowing the uneven concrete which was not in compliance with relevant safety standards; (2) failing to inspect the premises for dangerous conditions, such as the presence of the uneven sidewalk; and (3) failing to warn the Howard of the uneven concrete. Howard alleged that the City had both actual and constructive knowledge of the uneven concrete, but failed to fix the concrete. Further alleged was that the City of Biloxi was on “notice” of the uneven concrete by employees of the library. Following the discovery period, the City of Biloxi moved for summary judgment and Howard timely responded. The trial court granted the City’s motion for summary judgment, holding that Howard failed to show evidence that the City acted outside of its immunity provided by the Mississippi Tort Claims Act.

STANDARD OF REVIEW

¶ 4. In order to reverse the trial judge’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary-matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979(¶7) (Miss.2001). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136(¶5) (Miss.2005). While Howard cites multiple issues in her appeal, these issues are combined and discussed under the general issue of whether the trial court erred in granting the City’s motion for summary judgment.

DISCUSSION

¶ 5. The Mississippi Tort Claims Act provides the exclusive civil tort remedy against a governmental entity, and as such, dictates the elements a plaintiff must satisfy to recover against the City of Biloxi. The Act, as it relates to the present case, provides immunity to the City in pertinent part:

Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.

Miss.Code Ann. § 11 — 46—9(l)(v) (Rev. 2004). In order for Howard to get beyond the statutory immunity provided by the Act, Howard had to show that:

(1) an injury was suffered;
(2) the injury was caused by a dangerous condition on the property of the Library caused by the negligent or other wrongful conduct of a City employee;
(3) the City had either actual or constructive notice of the defect;
(4) the City had an adequate opportunity to protect or warn of this defect; and
(5) the condition was not open and obvious to one exercising due care.

¶ 6. It is conceded by the parties that Howard fell and suffered an injury. However, in order to recover for this injury, Howard would have to show that she suffered an injury due to a dangerous condition existing because of negligence or other wrongful conduct of a City employee. Except in a case where a defect occurred because of negligence or wrongful conduct, “[sjuch a defect [is] not in itself sufficient proof to render the city liable for the failure to maintain its sidewalks in a reasonably safe condition for the use of persons exercising ordinary care and caution.” City of Biloxi v. Schambach, 247 Miss. 644, 654, 157 So.2d 386, 390 (1963).

¶ 7. Admittedly, a municipality has a non-delegable duty to exercise ordinary care to keep and maintain its sidewalks and other public ways in a reasonably safe condition for the use of persons exercising ordinary care and caution. City of Tupelo v. Vaughn, 246 So.2d 88, 89 (Miss.1971); Schambach, 247 Miss, at 655, 157 So.2d at 391. In the case at bar, Howard argues that the City delegated the responsibility of maintaining the sidewalks of the library to the head librarian and urges this Court to find that the librarian was negligent in failing to maintain the sidewalks surrounding the library. However, a “municipality cannot be expected to maintain its sidewalks and street crossings in a perfectly level condition, and where the defect consists of some slight variation between the elevation of adjoining paving blocks, flagstones, or curbstones, or irregularity in the junction of the sidewalk and curb, no liability is imposed.” Schambach, 247 Miss. at 655, 157 So.2d at 391.

¶ 8. We follow the lead of the Schambach court that dealt with a sidewalk located in the City of Biloxi and take judicial notice that “it is almost, if not quite, impossible for municipalities to prevent crevices in the streets and sidewalks as the one involved, which as a rule are the result of expansion and contraction from heat and cold.” Id. at 392 (also discussing the trial testimony and exhibits showing that the “sandy soil of the Gulf Coast on which [the] sidewalk was laid [ ] contracts and expands and sinks causing the sidewalk to be uneven and wavy”). Municipalities, such as the City of Biloxi, cannot be charged with the duty to maintain sidewalks in “an absolutely perfect condition so as to render an accident impossible.” Id. at 391. Pedestrians are charged with their own responsibility to exercise ordinary care to avoid naturally caused sidewalk defects. Id.

¶ 9. Although Howard argues that the City of Biloxi was negligent because it failed to inspect the sidewalk, formal inspection programs are not necessarily required to And that a municipality has upheld its duty to maintain its sidewalks. Bond v. City of Long Beach, 908 So.2d 879, 882(¶ 8) (Miss.Ct.App.2005). While this Court has recognized that the implementation of an inspection program is “certainly prudent,” we also have stated that “[n]o municipality is laden with the burden of making its sidewalks perfectly level or in a condition which eliminates the possibility of an accident.” Id.

¶ 10. Howard was “required to show evidence of circumstances from which it could reasonably be concluded that the city had notice of the defect.” Burton v. Philadelphia, 595 So.2d 1279, 1281 (Miss.1991). Howard argues that the City of Biloxi had both actual and constructive.notice of the dangerous condition; however, she presents no supporting evidence to attest to this fact. Instead, in support of her argument that the City had actual or constructive notice of the defect in the sidewalk leading to the Lameuse Street entrancé of the library, Howard attaches two affidavits of bystanders who either witnessed her fall or noticed her lying on the ground shortly thereafter.

¶ 11. Howard also points out that on two previous occasions the sidewalk was in need of repair and that the repairs were made. Howard reasons that these occasions provided the City with notice that the sidewalks were in disrepair at the time of her fall. Our review of the record reveals that the two previous occasions cited by Howard were in reference to another sidewalk located outside the library. Howard’s injury occurred at the Lameuse Street entrance to the library and the two previous repairs were made to the sidewalk leading to the Jackson Street entrance. When questioned on this point at oral argument, counsel for Howard described this fact as a “distinction without a difference.” However, we do not agree.

¶ 12. • Additionally, in support of her argument, Howard refers this Court to the deposition testimony of the head librarian regarding the relocation of certain public events due to the overgrown oak trees. Howard reasons that the event relocation, due to the oak trees, constitutes notice that the oak trees were causing dangerous defects to the pavement. However, a closer study of the deposition transcript reveals that the event was moved due to the overhanging limbs of the oak trees. We find Howard’s argument concerning the overhanging limbs unavailing and insufficient to show that the City was on notice of a defect in the sidewalk.

¶ 13. The City of Biloxi provided affidavits from city personnel and from the head librarian, both of whom are responsible for maintaining reports of incidences occurring on the municipal property at issue. The affidavits attested to the fact that the City of Biloxi had received no notice of the condition of the sidewalk that Ms. Howard tripped and fell over. Even when reviewing the evidence in the light most favorable to Ms. Howard, we still cannot find that there exists a genuine question of material fact as to whether the City of Biloxi had actual or constructive notice of a defect in the Lameuse Street entrance sidewalk. Because we cannot find that any evidence was presented to show the City’s actual or constructive notice of the defect in the sidewalk, it is illogical to charge the City with the duty to protect or warn of the defect.

¶ 14. Lastly, Howard was required to show that the defect in the sidewalk was not open and obvious in order to withstand the immunity provided to the City under the Mississippi Tort Claims Act. The Act provides that a municipality “shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.” Miss.Code Ann. § 11^46-9(1)0). Howard argues that the fact that no one reported the unevenness in the sidewalk joints is evidence, in and of itself, that the condition was not open and obvious. Howard further argues that even if the defect in the sidewalk had been open and obvious, that this condition would only mitigate damages based on comparative negligence and not operate as a complete bar to recovery.

¶ 15. From our review of the photographs presented by Howard, the disparity in elevations of the adjoining sections of concrete was a condition that was open and obvious to one exercising due care. The supreme court dealt with an issue similar to the issue presented here in Vaughn, 246 So.2d 88. In Vaughn, the court reviewed the photographs depicting a defect in a sidewalk which occurred as a result of time and attrition due to long use. Id. Upon review of the photographs, the court found on their own initiative that the defect was obvious for a considerable distance. Id. at 89. Based on this finding, the court held as a matter of law that the City of Tupelo was not liable to the plaintiff. So, too, does this Court hold that photographs provided by Howard clearly depict an open and obvious defect.

¶ 16. The doctrine of comparative negligence prevails in Mississippi. With the adoption of that doctrine came the supreme court ruling of Tharp v. Bunge Corp., 641 So.2d 20, 24 (Miss.1994), abolishing the “open and obvious” defense which acts as a complete bar on recovery in negligence actions. However, actions brought against an entity invoking the protection of the Mississippi Tort Claims Act differ from the general negligence action. Suits brought against municipalities for injuries caused by a dangerous condition on its property require a showing of the entity’s failure to warn. Miss.Code Ann. § 11-46-9(1)0). We have already found that in this case there was no duty to warn of the condition of the sidewalk as cities have no legal mandate to inspect and repair raised sidewalks. See supra. The open and obvious defense is an absolute bar to recovery in a case brought under the Tort Claims Act for the failure to warn of a dangerous condition. City of Natchez v. Jackson, No.2005-CA-00043-COA (¶ 33), 941 So.2d 865, 2006 WL 2672188 (Miss.Ct.App. Sept. 19, 2006) (citing City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 64(¶ 11) (Miss. 2005)). Because this court finds that the condition of the sidewalk was open and obvious, and because there existed no duty for the City of Biloxi to warn of the condition, this finding operates as an absolute bar to recovery under the Act.

CONCLUSION

¶ 17. Having reviewed the trial court’s grant of the City of Biloxi’s motion for summary judgment de novo, we find that the grant was warranted. In order to overcome the statutory immunity granted to the City of Biloxi under the Mississippi Tort Claims Act, Howard had the burden to show that a duty was breached by an employee of the City. However, Howard failed to provide any evidence that would create a genuine issue of material fact. Therefore, we find that the trial court did not err in granting the motion for summary judgment.

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

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


author: IRVING, J.,

text:
    Kay BROWN, as Conservator of the Estate of Samuel Wilson Brown, Ward, Melvin N. Brown and Jimmy Brown, Appellants, v. Charles AINSWORTH, Appellee.
    No. 2005-CA-00329-COA.
    Court of Appeals of Mississippi.
    Nov. 28, 2006.

      Stephen L. Beach, Jackson, attorney for appellants.
    Richard Redfern, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Kay Brown, as conservator of Samuel Wilson Brown’s (Samuel) estate, Melvin Brown, and Jimmy Brown (the Browns) filed a petition to set aside a deed conveying property from Samuel to Charles Ains-worth, on the grounds of undue influence and incompetency. After hearing all the evidence, the Simpson County Chancery Court found that no undue influence had been exerted and that Samuel was competent when he conveyed the property to Ainsworth. Aggrieved, the Browns appeal and assert the following errors, which we quote verbatim:

1. Did the Chancery Court commit manifest error in finding no suspicious circumstances which would shift the burden of proof regarding undue influence and the validity of the deed of the subject property to Charles Ainsworth?
2. Did the Chancery Court Judge commit manifest error in failing to further examine the restoration of reason and legal competency of Samuel Wilson Brown, Deceased?
3. Did the Chancery Court Judge commit manifest error in failing to find that there was undue influence exerted over Samuel Wilson Brown, deceased, by Charles Ainsworth?
4. Did the Chancery Court Judge commit manifest error in discounting the testimony of expert witnesses over the testimony of a lay person?

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Samuel owned around 122 acres of real property in Simpson County, upon which he also lived in a house. The property was acquired by him through his father’s estate. The evidence is uncontested that Samuel suffered from severe mental and physical problems. As a result, Samuel was placed under a conservatorship that was overseen by various members of his family, most recently his sister, Kay. Samuel was placed under the conservator-ship in the 1970s, but the conservatorship was lifted and Samuel was restored to reason by a court order in 1995. The conveyance at issue in this case was made in 1998, and the petition to set aside the conveyance was filed in 2000. Evidence indicates that Samuel suffered from physical problems near in time to the signing of the conveyance. Samuel was placed back under a conservatorship in 1999, after the conveyance of the property but before the petition to set aside the conveyance. Samuel passed away before the matter came to trial and therefore was not questioned as a witness.

¶ 4. Samuel and Ainsworth became friends and would often go to livestock events together. Additionally, evidence indicated that the two men were close and “Samuel Wilson Brown would confide in Charles Ainsworth.” With regard to the conveyance in dispute, Ainsworth drove Samuel to Samuel’s attorney and paid for the deed that conveyed Samuel’s property to Ainsworth. However, evidence indicated that Ainsworth did not drive Samuel to his doctor’s appointments, and Samuel was, at times, able to care for himself and manage his own affairs. Testimony by Tommy Welch, a former county official who knew Samuel, indicated that Samuel had told Welch that he wanted to transfer the subject property to Ainsworth. Welch also testified that Samuel even described how he was going to set about conveying the property. Also notable, as pointed out by the court below, Samuel conducted business, handled money, and signed conveyances both before and after the 1998 conveyance with no complaint from his family and no claim that he was incompetent to conduct his own business.

DISCUSSION AND ANALYSIS OF THE ISSUES

Standard of Review

¶ 5. We will not disturb a chancellor’s fact findings on appeal unless those findings are “manifestly wrong, clearly erroneous, or not supported by substantial credible evidence.” City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 518(¶22) (Miss. 2005) (citing Brown v. Miss. Dep’t of Human Servs., 806 So.2d 1004, 1005(¶ 4) (Miss.2000)). If substantial evidence supports the chancellor’s findings, we will not reverse, even though “we might have found otherwise as an original matter.” Id. at 518-19(¶ 22) (citing In re Guardianship of Savell, 876 So.2d 308, 312(¶4) (Miss.2004)). “While we give deference to a chancellor’s determination of fact, we review the chancellor’s determinations of law de novo.” Id. at 519(¶ 23).

1. Burden of Proof

¶ 6. In this claim of error, the Browns claim that they proved that there was a confidential relationship between Samuel and Ainsworth, such that the burden of proof to show that there was no undue influence exercised in the convey-anee shifted to Ainsworth. Only upon a finding that there was a confidential relationship would the burden shift to Ains-worth to show that there was no fraud or undue influence exercised in the course of the conveyance. Greenlee v. Mitchell, 607 So.2d 97, 105 (Miss.1992) (citing Miner v. Bertasi, 530 So.2d 168, 171 (Miss.1988)). “Without the existence of a confidential relationship, undue influence must be proved from the evidence without the benefit of any presumption.” Id.

¶ 7. A confidential relationship arises where “a dominant, over-mastering influence controls over a dependent person or trust, justifiably reposed.” Wright v. Roberts, 797 So.2d 992, 998(¶17) (Miss. 2001) (citing Murray v. Laird, 446 So.2d 575, 578 (Miss.1984)). There are several factors that a court looks at when determining whether a confidential relationship is present:

(1) whether one person has to be taken care of by others,
(2) whether one person maintains a close relationship with another,
(3) whether one person is provided transportation and has [his] medical care provided for by another,
(4) whether one person maintains joint accounts with another,
(5) whether one is physically or mentally weak,
(6) whether one is of advanced age or poor health, and
(7) whether there exists a power of attorney between the one and another.

Id. at 998(¶ 18) (quoting In re Estate of Dabney, 740 So.2d 915, 919(¶ 12) (Miss.1999)).

¶ 8. The court in this case specifically addressed the confidential relationship factors. The court specifically found that Ainsworth did not provide care for Samuel. The court found that Ainsworth sometimes drove Samuel around, but that Samuel also “drove his own vehicle.” The court did not specifically address the issue of joint accounts or power of attorney, but we note that no evidence at trial indicates that Ainsworth and Samuel had joint accounts or that Ainsworth had powér of attorney. The court did find that Ains-worth and Samuel had a close, personal relationship and that Samuel confided in Ainsworth as a friend. The court also noted that Samuel had both mental and physical problems that were often severe, even requiring hospitalization around the time of the execution of the deed.

¶ 9. We find that the court did not err in finding that the Browns failed to prove that there was a confidential relationship between Samuel and Ainsworth. Ains-worth did not provide medical care or other significant care for Samuel, he did not share joint accounts with him, and he did not enjoy power of attorney. While Samuel had mental and physical problems, the evidence presented did not indicate that those problems prevented him from making his own decisions or running his own life to the point where it would be easy for another person to exert control over his decisions. Furthermore, while Samuel and Ainsworth enjoyed a closé friendship, none of the evidence presented about that relationship indicated that Ainsworth controlled Samuel in any way. Therefore, the court did not err in finding that there was no confidential relationship between Ains-worth and Samuel. Since. there was no confidential relationship, the burden of proof remained with the Browns to show that undue influence was exerted over Samuel in the execution of the deed to Ainsworth.

2. Competency Proceeding

¶ 10. In this suggestion of error, the Browns claim that the circuit court should have addressed the validity of the 1995 competency proceeding, which restored Samuel to reason. However, as correctly pointed out by the court below, this was not an action to challenge the 1995 competency proceeding. Although the 1995 restoration of reason does bear slightly on the issue of Samuel’s competency at the time of the deed, the crucial question is still whether Samuel was competent when he executed the deed in question on April 3, 1998.

¶ 11. As to the competency proceeding, if the Browns wish to challenge the validity of the proceeding, that challenge would have to have been made in a separate action from this one.

3. Undue Influence

¶ 12. The Browns contend that, even if they failed to show that there was a confidential relationship between Samuel and Ainsworth, the chancellor still erred in finding that Ainsworth did not exercise undue influence over Samuel in the execution of the deed.

¶ 13. “In order to set aside a deed on grounds of undue influence, evidence must show that the will and free agency of the grantor were destroyed and the deed actually reflects the will of the person exerting the influence.” Greenlee, 607 So.2d at 105 (citing Costello v. Hall, 506 So.2d 293, 298 (Miss.1987)). In Greenlee, the only evidence that existed regarding the free agency of the grantor was the testimony of the grantor’s son, the beneficiary of the deed. Id. No evidence indicated that the deed was the intent of the grant- or; in fact, the son asked his parents to deed him the property, drafted the deed, and obtained signatures for the deed. Id. Under these circumstances, the Mississippi Supreme Court affirmed the chancellor’s determination that undue influence was exercised in the course of the deed’s execution.

¶ 14. The facts are notably different in the present case. Welch testified that Samuel had told him that he wanted to leave his property to Ainsworth. No evidence presented in this case indicates that Samuel’s “will and free agency” were destroyed by Ainsworth. Therefore, the court did not err in declining to set the deed aside on the ground of undue influence.

A Competency and ExpeH Witnesses

¶ 15. On this allegation of error, the Browns contend that the court erred in declining to rule on the basis of their expert witness, Dr. Wood Hyatt. We note at the outset that the court clearly considered the testimony of the Browns’ expert witnesses: “this Court has considered all the evidence.... I’ve also heard testimony from local friends, neighbors and acquaintances and expert witnesses. And this Court has considered and studied the demeanor, voracity [sic], competence and credibility of all those witnesses.” (emphasis added).

¶ 16. Although many of these facts have already been disclosed, we have created a chronology of the relevant events in this case, which will be helpful to an understanding of this issue:

06/20/1961: Samuel’s father executes a will leaving Samuel all of his property, without reservations or restrictions. Samuel’s mother is given a life estate to all of Samuel’s father’s property.
1961: Although there are apparently no records of it, Kay Brown testified that Samuel was admitted to Whitfield for the first time in 1961.
07/02/1965: Samuel is admitted to Whitfield and is diagnosed as having schizophrenic reactions/schizoaffective type.
1971: Samuel’s father passes away.
04/03/1975: Samuel is again diagnosed as a schizophrenic/schizoaffective type and is prescribed some form of medication that is given to him by injection.
05/14/1975: Samuel is again admitted to ■Whitfield, and his doctor notes four prior visits to Whitfield.
07/25/1977: John Brown, Samuel’s brother is appointed as conservator over Samuel.
05/05/1978: John Brown resigns as conservator and Melvin Brown, another brother, is appointed as his successor. Melvin is appointed despite the fact that he can neither read nor write.
06/12/1978: Samuel is admitted again to the mental hospital at Whitfield. His chart apparently notes that this was his sixth admission to Whitfield.
1980: Samuel’s mother, with whom he was living at the time, passes away.
05/12/1980: Another admission to Whitfield, with a note that Samuel had been admitted many times previously due to his schizophrenia.
08/24/1987: Samuel is released after a roughly two-month stay at Whitfield, diagnosis is schizophrenia.
09/03/1993: Samuel has an annual exam that notes that his blood pressure is elevated.
11/11/1994: Samuel signs a deed selling the timber on his land. He gets $70,000 in return.
11/15/1994: Samuel allegedly uses his proceeds from the sale of his timber to purchase land for his nephew, David Brown (Melvin’s son). Samuel purchases the land for David because he believes that David will put a chicken farm on the land and Samuel wants to help David.
05/19/1995: Dr. Sherry Meadows finds that Samuel is “capable of managing his personal business matters. He was totally lucid in our conversation and fully cognizant of all details of our conversation.”
08/15/1995: David Brown sells the property that Samuel gave him.
11/06/1995: Samuel is restored to reason and the conservatorship is dissolved. The dissolution of the conservatorship is backdated to 11/10/1994. The timber company notes in its filings that Melvin Brown has never filed an accounting as conservator of Samuel.
04/03/1998: Samuel executes the deed transferring his property to Ains-worth.
05/19/1998: Samuel is admitted to the hospital for extremely high blood pressure and is diagnosed with diabetes.
09/1999/10/27/1999: Samuel goes to Seattle to visit a brother who is dying. The next day family Mends inform the family that Samuel is “acting crazy.” Samuel is ultimately admitted to Whitfield on 10/27/1999, under the care of Dr. Paul Jackson. He is discharged several months later. Dr. Jackson testified that he believed that some of Samuel’s 1999 problems had a “recent” onset. On cross-examination, Dr. Jackson clarified that recent would probably mean less than a year.
12/17/1999: Kay Brown is appointed as Samuel’s conservator. Samuel is still in "Whitfield at the time of the appointment.
03/17/2000: Samuel is released from Dr. Jackson’s care at Whitfield into the care of his family.
06/08/2000: Melvin deeds a piece of property to Samuel. At trial, Melvin claimed that he deeded the property to Samuel because the property was given to Melvin as payment for trees that were cut off of Samuel’s property.
07/23/2002: Samuel passes away.

¶ 17. The same level of competency is required to execute a deed as is required to execute a will. Whitworth v. Kims, 604 So.2d 225, 228 (Miss.1992). Even if an individual has suffered from a severe mental defect, “[temporary or intermittent insanity or mental incapacity does not raise a presumption that such disability continued to the date of execution.” Id. (quoting Young v. Martin, 239 Miss. 861, 871, 125 So.2d 734, 738 (1961)). A grantor who has executed a facially valid deed, such as the one presently at issue, is presumed to be competent, and the party challenging the validity of a deed bears the burden of showing, by clear and convincing evidence, that the grantor lacked the capacity to execute the deed. Id.; Mullins v. Ratcliff, 515 So.2d 1183, 1190 (Miss.1987); Richardson v. Langley, 426 So.2d 780, 784 (Miss.1983). The Whitworth court specifically noted that “mental incapacity or insanity, ⅛ not always permanent, and a person may have lucid moments or intervals when that person possesses necessary capacity to convey property.’ ” Whitworth, 604 So.2d at 229 (quoting Smith v. Smith, 574 So.2d 644, 653 (Miss.1990)). However, where an individual has been shown to be permanently insane, significant evidence is required to show that the individual was lucid and competent at the time of the execution of the deed. Williams v. Wilson, 335 So.2d 110, 113 (Miss.1976).

¶ 18. Although it is clear that Samuel had suffered from mental health problems, he was not operating under the restrictions of a conservatorship at the time of the 1998 deed and he had been restored to reason several years earlier. Therefore, we cannot say that the lower court was clearly erroneous in finding that Samuel was not permanently insane. Although great efforts were made by the Browns to attack the validity of the 1995 proceeding that restored Samuel to reason, we have already discussed the court’s refusal to overrule the restoration proceeding. We further note that, although he claims he was coerced into doing so, Melvin did, as Samuel’s conservator at the time, sign off on the restoration to reason. It would be impossible for the court to both refuse to readjudicate or overturn Samuel’s restoration to capacity and for the court to find Samuel permanently insane such that the burden of proof shifted to Ainsworth to show that Samuel was lucid at the time the will was signed. Therefore, the presumption of sanity remained intact at the time of the 1998 deed, and the Browns bear the burden of proving that Samuel was not competent to execute the deed to Ainsworth.

¶ 19. The critical time period that we must look at is the time of the execution of the deed. Mullins, 515 So.2d at 1190. Notably, there is no medical evidence to indicate that Samuel suffered from any debilitating mental problems between 1987 and 1999. Although Samuel had been admitted for mental treatment to Whitfield around a dozen times between 1965 and 1987, there is no further indication in his medical records that he suffered any significant mental problems after 1987, at least until his apparent psychotic episode in 1999. The twelve years from 1987 to 1999 are silent as to Samuel’s mental condition. However, we note that the evidence at trial clearly showed that Samuel had visited doctors for other purposes during those years, such as for his blood pressure and his diabetes. The lack of Whitfield admissions during those years indicates that the other doctors that Samuel saw found nothing wrong with his mental state, or at least did not believe that he needed immediate psychological care. In other words, for over ten years before the execution of the deed to Ainsworth, Samuel suffered from no mental problems severe enough to require commitment to Whitfield. Additionally, we note that no effort appears to have been made after the dissolution of the conservatorship in 1995 to reinstate the conservatorship. During these years, Samuel apparently bought and sold livestock, and purchased property for his nephew — a transaction whose validity has not been challenged by the Browns to date. In fact, Samuel apparently undertook several transactions on his own. When questioned as to why those transactions had not been contested, Kay Brown testified, “I didn’t always like what he did, but when it comes down to an outsider coming in and. taking property that my father worked for that is basically the family that should inherit it, yes, I had a problem with that.” In other words, Samuel appeared to be competent, in the eyes of his family, to make transactions as long as those transactions were not unfavorable toward the Brown family.

¶ 20. The only evidence indicating that Samuel suffered from severe mental problems at the time of the 1998 deed is in the form of lay testimony by the Browns and other family friends. These witnesses testified that Samuel lived in a state of filth, with trash piled up in his house, and animals roaming unchecked throughout the home. The witnesses testified that Samuel did not have running water or heat, and would burn milk cartons during the winter to keep warm. Although not normal, this testimony is not sufficient to show that Samuel was incompetent at the time he executed the deed. An individual may live in a state of extreme filth and still retain the requisite competency to execute a deed. Therefore, the court did not clearly err in finding that this lay witness testimony did not constitute the required clear and convincing evidence to show that Samuel was incompetent.

¶21. Dr. Hyatt testified that, in his opinion, Samuel was incompetent to execute the 1998 deed. However, Dr. Hyatt did not know Samuel in 1998, and only met him after being hired to help the Browns prepare for their lawsuit against Ains-worth. Dr. Hyatt came to his opinions after studying all of Samuel’s medical records and speaking to Samuel and other family members. Although the court was required to take Dr. Hyatt’s testimony under consideration, we do not find that Dr. Hyatt’s testimony was such that the court was required to agree with his assessment that Samuel was incompetent in April of 1998.

¶ 22. Dr. Hyatt was not a treating physician brought in to help Samuel. He was a doctor employed solely for the purpose of helping the family win their lawsuit against Ainsworth. In other words, Dr. Hyatt is far from being a disinterested party. Second, although Dr. Hyatt opined that Samuel was incompetent, the testimony was amply clear that Dr. Hyatt did not know Samuel or Samuel’s mental state on the date of the deed. Instead, Dr. Hyatt’s opinion appeared to be based, in large part, on two facts: first, Dr. Hyatt believed that Samuel should not have been restored to reason in 1995; second, Dr. Hyatt apparently put great weight on the fact that Samuel did not discuss the deed with the Browns before deeding his property to Ainsworth. However, this Court knows of no requirement that an individual discuss a decision regarding his own property with his family before disposing of that property. Dr. Hyatt admitted that Samuel had the ability to make simple contracts, such as sales of cattle. Dr. Hyatt simply believed that Samuel could not make more complex contracts such as the deeding of property. However, it is not clear to this Court, and may not have been clear to the lower court, why the sale of cattle is any less complex than a simple gift of property to a friend.

¶ 23. As to the medical basis for Dr. Hyatt’s opinion, Dr. Hyatt appeared to rely almost entirely on Samuel’s diagnosis and his history, while apparently ignoring the fact that there was no evidence of any mental problems between 1987 and 1999. We note again that Dr. Hyatt admitted that Samuel’s 1999 breakdown could have been caused by Samuel’s visit to his dying brother. We also find it particularly telling that Dr. Jackson, Samuel’s actual treating physician, was unwilling to say that Samuel would have been incompetent to sign a deed on April 3, 1998. Dr. Jackson, who had not been hired by the Browns solely as an expert, admitted that he only knew Samuel after the 1998 deed was executed, and, therefore, could not make any determination as to Samuel’s competency at the time of the execution. Dr. Hyatt indicated that Dr. Jackson had done some sort of test that was intended to determine Samuel’s mental state for the year prior to Dr. Jackson’s treatment of Samuel. Even accepting that test’s findings as accurate, the results of the test would only be relevant as far back as October 1998, six months after the deed was executed.

¶ 24. The court made it clear in its bench opinion that it was considering the doctor’s testimony. The question of Dr. Hyatt’s credibility is a determination properly left with the trial court, which was not required to accept Dr. Hyatt’s testimony, especially when that testimony was called into question repeatedly during cross-examination. See Owen v. Owen, 928 So.2d 156, 168(¶ 35) (Miss.2006). Therefore, regardless of the fact that this Court might have ruled differently, the lower court was not clearly erroneous in finding that Dr. Hyatt’s testimony did not overcome the presumption of competency. The Browns argue that the chancellor was required to make a detailed finding on the record as to his view of each witness’s credibility. As support, the Browns cite Fortenberry v. Parker, 754 So.2d 561, 564(¶ 14) (Miss.Ct. App.2000) (citations omitted), where we stated that “[i]t is well-settled that ‘where conflicting testimony is presented, expert and otherwise, the chancellor is required to make a judgment on the credibility of the witnesses in order to resolve the questions before the court.’ ” We see nothing in our language that indicates a requirement that a chancellor must make a detailed finding as to his feelings about the credibility of various witnesses. Instead, as our language clearly indicates, a chancellor must make a determination as to which witnesses are most credible when conflicting testimony has been presented. The chancellor in this case clearly made such a determination after examining the testimony of both Dr. Jackson and Dr. Hyatt.

¶ 25. In this case, no testimony was offered to indicate Brown’s actual mental state on the date of the execution of the deed, April 3, 1998. With the exception of Ainsworth, no witness could recall with any detail Samuel’s mental state on the day in question. However, the attorney who drafted the deed testified that, although he did not specifically recall how Samuel acted or looked, he did not remember him appearing incapable. The lawyer’s secretary, who also saw Samuel that day, testified similarly.

¶26. The Mississippi Supreme Court has indicated that there are certain situations in which a transfer of property by one with a “[w]eakness of intellect” should be treated with heightened scrutiny, such as when a confidential relationship exists or when property is given for “grossly inadequate consideration.” Mullins, 515 So.2d at 1190 (citations omitted). At best, the evidence in this case indicates that Samuel may have suffered from a “weakness of intellect” at the time of the deed. Although the testimony here made it clear that Ainsworth did not give Samuel anything for the transferred land, Welch’s testimony indicated that Samuel had told Welch that Samuel wanted to give the property to Ainsworth as a gift. The Mullins court specifically noted that “inter vivos deeds of gift are a perfectly respectable mode of conveyance.” Id. (citing Ross v. Brasell, 511 So.2d 492, 496 (Miss.1987); Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987)). As stated by the Mississippi Supreme Court, “A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice.” Burnett v. Smith, 93 Miss. 566, 572, 47 So. 117, 118 (1908).

¶ 27. In Mullins, a grantor who did not begin school until he was twelve years old and did not attend past the fourth or fifth grade was deemed competent to deed property to a couple who had helped take care of him. Id. at 1190-91. As in our case, the grantor was given the land in question by his parents, who conveyed it to the grantor “without reservation or restriction, ‘clearly indicating their confidence in [the grantor] and his ability to handle his own affairs at that time.’ ” Id. at 1189. Although Samuel’s family protested very strongly that he was completely incompetent to care for himself, we note that his parents also conveyed the family home to him, “without reservation or restriction.” Although Samuel’s first commitment to Whitfield may have taken place after the drafting of his father’s will, the will was executed in 1971, several years after Samuel’s first admission to Whitfield. The family appears to have felt confident that Samuel was competent to manage the property until at least 1977, when the first conservatorship was put in place. We also note that, although Samuel was under Melvin Brown’s technical care from 1978 until 1994, nothing indicates that the conserva-torship was active during those years. Instead, it appears that Samuel largely cared for himself during those years, with little to no intervention from his family.

¶ 28. In this situation, the burden is on the party attacking the validity of a deed to show that the grantor was not competent to make the deed. In the absence of such proof by the Browns, the presumption of competency that Samuel enjoyed supports the lower court’s finding that Samuel was competent to execute the deed to Ainsworth. The court was not clearly erroneous or manifestly wrong for finding that Samuel was competent to execute the deed.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF SIMPSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Samuel suffered from diabetes and high blood pressure, and was, in fact, hospitalized as a result of these conditions shortly after the conveyance in question. Samuel also suffered from severe mental problems. Testimony indicated that, at the time of the conveyance, Samuel allowed animals to roam his house, which was filthy. Trash was kept in the house and Samuel burned milk cartons in the fireplace to warm himself. The house had no running water and Samuel suffered from poor physical hygiene as a result. Furthermore, Samuel had been treated for mental illness multiple times since the 1960s, and had been treated as a ward under a conserva-torship since the 1970s. Testimony indicated that Samuel would sometimes have outbursts, would talk to himself, would fall asleep abnormally, or would talk erratically. Samuel had been prescribed drugs to help take care of his mental problems, but he did not always take his medicine.

        . We have used the spelling of Dr. Hyatt’s name used in the record. However, we note that a different spelling, “Hiatt” is used in the Browns' brief and in some of the exhibits included as part of the record. For consistency’s sake, we spell Dr. Hyatt's name as it is spelled in the trial transcript.

      . We have summarized Samuel's admissions to Whitfield based on Dr. Hyatt’s testimony, as Samuel's medical records were not included as part of the record. However, we note that Dr. Hyatt testified during cross-examination that Samuel was first admitted to Whitfield in 1961, possibly as a result of Samuel’s fears about being drafted for the army. However, during his direct testimony, Dr. Hyatt indicated that the first medical record he had from Whitfield was dated 1965. Dr. Paul Jackson also testified that Samuel was first treated for mental illness in 1965. The record, therefore, is not clear as to whether Samuel was first treated in 1961 or 1965.

      . In 1999, Samuel and Melvin went to Seattle to visit another brother who was dying. A day after returning to Mississippi, Samuel was involved in a car wreck and apparently was in a mental state where he was completely unable to care for himself. Around the same time, he was admitted to Whitfield under the care of Dr. Paul Jackson. Samuel was released again in 2000, but only to the care of his family. Dr. Hyatt specifically admitted during cross-examination that Samu-els 1999 breakdown could have been caused by the visit to Seattle, and that the visit, at the least, almost certainly contributed to Samuel’s distressed mental state.