text:
    Jim DOE, a minor by and through his Mother and next Friend, Mary DOE, Appellant v. WRIGHT SECURITY SERVICES, INC., Appellee.
    No. 2005-CA-02198-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Rick D. Patt, Shane F. Langston, Rebecca M. Langston, G. Joseph Diaz, Jr., Jackson, attorneys for appellant.
    Joel W. Howell, III, Jackson, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Jim Doe through his mother and next friend Mary Doe, brought this action for personal injuries against Wright Security Services, Inc. (“Wright”). The circuit court entered a summary judgment in favor of Wright. Jim Doe appeals and argues that summary judgment was not proper because there were genuine issues of material fact in dispute and Wright was not entitled to a judgment as a matter of law. We find reversible error, and we reverse and remand for further proceedings.

FACTS

¶ 2. In April of 1998, Jim Doe was a ten-year-old student at Capitol City Alternative School in Jackson. The school teaches children who have been either expelled from their regular Jackson Public School for violent behavior or who have committed felonies.

¶ 3. The school had a bus drop off/pick up location at Livingston Road, in front of an abandoned fire station and next to a McDonald’s restaurant. There were sixty students assigned to the bus stop. Their ages ranged from ten to seventeen. Jim Doe was one of two ten-year-olds at the stop.

¶ 4. Jackson Public School District (“JPSD”) assigned three security guards to this bus stop. Two of the guards, Willie Norwood and Leila Poindexter, were employees of JPSD. Wright provided the third guard, Joseph Williams, Jr., under a contract to provide supplemental security services for JPSD. The guards monitored the students at the bus stop, rode the bus with the students, and monitored the students at school.

¶ 5. At the bus stop, the guards were there to prevent fights, to keep the students separated and not to let students leave the bus stop unescorted. There had been a history of fights at this bus stop. At school, the guards were to escort the students to the bathroom and not let them go there together. The same rules were to apply at school and at the bus stop. The guards were to stay at the bus stop until the last child was picked up by his/her parent.

¶ 6. On April 13, 1998, at approximately 3:34 p.m., Jim Doe asked one of the male guards if he could go to McDonald’s to use the restroom. The guard gave Jim permission to go there unescorted. While in the bathroom, Jim was sexually assaulted by John Smith. Smith was a fellow alternative school student. He was fifteen, and he was known as a particular troublemaker. Nevertheless, the guards would let Smith leave the bus stop without repercussion.

¶ 7. On July 13, 1999, Jim Doe brought this action against JPSD, the City of Jackson, Stanley E. Wright, and Wright Security Services, Inc. Jim Doe brought an earlier interlocutory appeal to the supreme court. The court reversed the trial court’s exclusion of Jim Doe’s expert witness. Thereafter, Jim Doe settled with JPSD. The City and Stanley Wright were subsequently dismissed. The day before trial, which was scheduled for September of 2005, the trial court granted Wright’s motion for summary judgment. The court found no issues of material fact as to duty and foreseeability. The court determined that Wright did not have a duty to protect Jim Doe while he was at McDonald’s, and that Jim Doe’s specific injury of rape was unforeseeable. It is from this judgment that Jim Doe appeals.

STANDARD OF REVIEW

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

¶ 9. Jim Doe also argues that a de novo review is necessary because the trial court adopted verbatim the order submitted by Wright’s counsel. See Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108,111(¶8) (Miss.2004). Since our standard of review of summary judgments is de novo, whether the trial court adopts the verbatim order/judgment offered by counsel or independently authors the order/judgment does not change the standard.

ANALYSIS

I. Whether the trial court committed error by granting summary judgment in the matter on the basis that there was no duty owed to minor Jim Doe by Wright, in spite of the clear duty owed and numerous, material issues of fact remaining which should have been properly submitted to the jury.

¶ 10. The trial court held that “the incident happened off the premises in an area the guard had no duty to protect and, therefore, there was no breach of duty.” The court further concluded that “the guard followed his sole legal duty, which was to monitor, supervise, and protect the children on the premises of the abandoned station.” Jim Doe claims that the trial court was in error in this ruling. Jim Doe argues that Wright had a duty to protect him. In particular, Jim claims that the guards were hired to prevent children from leaving the drop off location alone and were not to leave the premises themselves until all children had been picked up by their parents. Wright contends that it had no duty to protect Jim after he left the bus stop.

¶ 11. To prove Wright’s negligence at trial, Jim must prove by a preponderance of the evidence that (1) Wright owed him a duty of care, (2) Wright breached that duty, and (3) this breach proximately caused (4) Jim’s damages. Lyle v. Mladinich, 584 So.2d 397, 398-99 (Miss.1991). If a triable issue of fact regarding each of these elements exists, then summary judgment must be reversed. Id at 399.

¶ 12. Whether a duty is owed is a question of law. Rein v. Benchmark Constr. Co., 865 So.2d .1134, 1143(¶29) (Miss.2004). The general duty is to act as a reasonable prudent person would under the circumstances. Donald v. Amoco Prod. Co., 735 So.2d 161, 175(¶ 48) (Miss.1999). “[T]he important component of the existence of the duty is that the injury is ‘reasonably foreseeable.’ ” Rein, 865 So.2d at 1143(¶ 29) (quoting Lyle, 584 So.2d at 399). “When the conduct of the actor is a substantial factor in bringing about the harm to another then, ‘the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.’ ” Id. at 1144-45(¶ 34) (quoting Restatement (Second) of Torts § 435 (1965)). “[Defendants ‘cannot escape liability because a particular injury could not be foreseen, if some injury ought to have been reasonably anticipated.’ ” Id. at 1145(¶ 34) (quoting Del-

ta Elec. Power Ass’n v. Burton, 240 Miss.209, 219,126 So.2d 258, 261 (1961)).

¶ 13. A duty also exists where a party contracts to undertake or otherwise assumes a duty. See, e.g., id. at 1144-45 (¶¶ 36-37); Wagner v. The Mattiace Co., 938 So.2d 879 (Miss.Ct.App.2006); Hobson v. Waggoner Eng’g, Inc., 878 So.2d 68, 76 (¶¶ 27-30) (Miss.Ct.App.2003). This duty extends to third party beneficiaries. Rein, 865 So.2d at 1145(¶ 37). As the Rein court explained:

In order for a third person beneficiary to have a cause of action, the contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third person beneficiary. This obligation must have a legal duty which connects the beneficiary with the contract. In other words, the right (of action) of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself.

Id. at 1146(¶ 38).

¶ 14. Applying these rules in Rein, the supreme court reversed a summary judgment. In Rein, a nursing home patient died as a result of a fire ant attack, while she was in bed. Id. at 1136-37(¶ 2). Her husband brought a wrongful death action against, inter alia, Natural Accents, a landscaping company retained by the nursing home. Id. at 1137(¶2). The supreme court noted there was a proposal that indicated that Natural Accents had contracted with the nursing home to provide “ant bed control.” Id. at 1148(¶ 42). The court held:

That evidence shows, as a matter of law, that Natural Accents obligated itself, by its own express terms, to some duty to inspect and treat ant beds at Silver Cross. The scope of that duty is a proper question for the trier of fact. The foreseeability of Mrs. Rein’s injuries and death to Natural Accents is also a jury question. Further, the same trier of fact should determine the significance as related to causation of the failure by Natural Accents to comply with the terms of the contract.

Id.

¶ 15. Rein instructs our decision here. The undisputed facts indicate that Wright contracted with JPSD to provide security services for the alternative school students at the Livingston Road bus stop. Thus, as a matter of law, Wright obligated itself to a duty to protect the alternative school students, including Jim. Based on the evidence submitted in opposition to the motion for summary judgment, one purpose of Wright’s contract with JPSD was to prevent violence or altercations among the alternative school students. Not only does this tend to make the incident foreseeable, but it shows as a matter of law that Wright owed a duty to minimize risks to Jim’s safety.

¶ 16. In granting the summary judgment, the trial court applied premises liability law and held that Wright did not have a duty to protect Jim once he stepped off the premises, i.e., the actual corner bus stop. In the judgment, the trial court held:

[Jim Doe]’s complaint alleges a guard employed by [Wright] failed to properly monitor, supervise, use reasonable care and/or to take adequate security precautions and/or measures to protect the children at his designated bus stop, such failure leading to [Jim Doe]’s sexual assault. To state a claim for negligence [Jim Doe] must show [Wright] owed a duty to [him], [Wright] breached that duty, and damages proximately resulted from that breach. Lyle v."Mladinich, 584 So.2d 397, 399 (Miss.1991).
The law specifically states “A security company hired to protect business premises owes no greater duty toward the patrons of that business than is owed by the business owner under the relevant premises liability law.” Balard v. Bassman Event Security, Inc., 210 Cal. App.3d 243, 247[, 258 Cal.Rptr. 343] (Cal.App.2d Dist., 1989). Furthermore, a security guard, just like a landowner, owes no duty to protect an invitee from criminal acts committed by a third party outside the boundaries of his premises. Id.

¶ 17. To support the trial court’s analysis, Wright’s brief cites three legal authorities: Lyle, Balard and Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, 664 (1985). Isaacs is cited for the proposition that “[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession or control has been unequivocally established, summary judgment is proper.” Id. Wright cites us to no controlling Mississippi authority. Thus, to uphold the summary judgment, we must conclude that this is a premises liability action, and Wright owed no duty to Jim Doe. This is where we find reversible error.

¶ 18. Indeed, this is not a premises liability case. There is no claim that Jim Doe was injured as a result of a dangerous or defective condition at the bus stop. We do not consider whether JPSD or Wright owes Jim Doe, as an invitee or business visitor, “a duty to exercise ordinary care to keep the premises in a reasonably safe condition or to warn the invitee of dangerous conditions, not readily apparent, which the owner or occupier knows of or should know of in the exercise of reasonable care.” Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). Instead, the duties of care result from Wright’s contract with JPSD to provide security services at the bus stop for the students attending the alternative school.

¶ 19. Jim Doe suggests that there were several legal duties that should be considered and, when considered, prohibit the entry of a summary judgment.

A. Duty to keep students at the bus stop

¶ 20. Elijah Buckley was the principal of the alternative school. In his deposition, Principal Buckley testified that he conducted an orientation with Wright security personnel. In the orientation, he instructed Wright that “[t]he safety and the well-being and the security of the students is first and foremost.” Buckley testified that if a child tried to leave the bus stop, the Wright guards were to call the student back and warn him not to leave. Buckley further instructed the guards to, “[m]ake sure that they [the children] stay at the designated location.” This was to be done with verbal commands and warnings. Buckley testified that there was no proper way for a security guard to allow a child off the bus stop. According to Buckley, “There’s no proper way to do it, unless the student is escorted off by the parent. The parent would come and pick up and say, ‘Now he’s in my custody, and we’ll walk across there.... ’ That would be the only proper way.”

¶ 21. Jerry Luckett was the head of JPSD security for the alternative school. He testified that when Wright personnel came on-site, the two existing JPSD officers on-site would go over policy and procedure with the Wright personnel. Specifically, Wright was instructed, “[w]hen the kids get there, be sure they — they come to the site and they stay at the site. They didn’t [sic] supposed to leave the site.” Luckett testified that the procedures did not allow Wright personnel to give any child permission to leave.

¶22. Norwood, one of the JPSD guards, testified that if he saw some students away from the bus stop, he would go over and try to escort the students back to the bus stop, provided there was one other security guard at the bus stop. Poindex-ter, another of the JPSD guards, testified that her duty as a guard was to make sure the children did not leave the bus stop.

¶ 23. There was evidence that this duty had been breached. Stanley Wright testified:

Now, I did ask Joseph — I asked him specifically — you know, I said, I asked him, ‘Well, Joe, how had you all been dealing with students leaving?” Joe’s response to me was that they had been leaving all the time. He told me, “Chief, they leave all the time. And we don’t run after them.”

¶ 24. Jim Doe testified that the guards would let the students go to McDonald’s to get something to eat. AJ1 the children had to do was ask permission, and they were allowed to go. At the time in question, Jim claims that he was given permission to go to McDonald’s. Williams, the Wright guard, also testified that when students asked permission to use the restroom he would say go and come right back. Williams testified that Smith, the sexual offender, would always walk away from the bus stop.

B. Duty to report students who wandered from the bus stop

¶ 25. Buckley instructed Wright security personnel, “I said, Now, you can’t catch a child and hold him and keep him from leaving, I said, but you must report it.” Likewise, Luckett testified that he told Wright employees they could not physically restrain a child from leaving. If he insisted on leaving, Wright was to “[g]et the child’s name, write him up, and turn it in to the principal when he got to the school.... Well, when he turned it in to the school, the school would contact the child’s parents.” Norwood testified that, in the event a student wandered from the bus stop, the procedure required the guards “[t]o write him up and turn it into Mr. Buckley the next morning in the office.”

¶ 26. Stanley Wright indicated this duty, too, was breached:

Q. Okay. If JPS required that Wright Security — security guard to write up anything about a child leaving the premises, would that write-up also go in that security guard’s file at Wright Security?
A. Yes.
Q. Okay. And in this file, there’s nothing about any students ever leaving the property at the drop-off site in Joseph Williams’ file? He never wrote that up and put a copy in his file?
A. No, he did not.

Williams testified that he never filled out such a report, because he was never told by Wright nor JPS to do it.

C. Duty to escort students to the bathroom

¶ 27. Buckley testified that if a child wanted to go to the bathroom at school, he was not allowed to go with other students and the child was to be escorted. He testified the same rules that applied at school applied at the bus stop as well. Hypothetically, Norwood testified that if a child were in danger of using the bathroom on himself while at the bus stop, he would be escorted to the nearby McDonald’s bathroom.

¶ 28. Norwood testified he never escorted and never saw another security guard escort a child over to McDonald’s. Jim testified that all the students had to do was ask permission, and the guards let the students go to McDonald’s on their own. Williams admitted that he would not escort the children to the bathroom. Just before the incident in McDonald’s, Jim was permitted to go unescorted to the McDonald’s bathroom.

D. Duty to remain at the bus stop until all students left

¶ 29. Stanley Wright testified that his guards were required to stay at the bus stop until all the children had been picked up by their parents, no matter how late. To do otherwise would have been a violation of Wright’s internal rules and Wright’s duty to provide security pursuant to its contract with JPSD. Likewise, Williams testified he was to stay there until the last child left.

¶ 30. There was evidence that this duty was breached. Norwood testified he and Poindexter stayed at the bus stop until five p.m. the day in question, but he did not know what happened to Williams. Poin-dexter testified that Williams was not at the bus stop at the time of the incident, because he had left early. There were approximately forty-two students remaining at the bus stop at this time. Jim testified that only two guards were at the bus stop, one man and one woman.

E. Duty to prevent altercations between the students

¶ 31. During orientation, Buckley instructed Wright security guards, “We keep the students separated and separate them and don’t allow them to cluster up or get in a push-and-shove match, horseplaying, or anything of that nature, and just be a supervisor.”

¶ 32. Stanley Wright testified that the duty of his security personnel assigned to the school was to “monitor what students were doing, and to try and keep them in line.” He further stated:

A. As far as the drop-off site was concerned, like in this case with Jackson Alternative School, there were students here who were at the school because they had more than likely done something wrong at one of the regular schools.
Q. Okay.
A. Our officers were required — required to catch the bus with them in the morning, and ride to the school with them because there had been a lot of incidents where they would be fighting on the parking lot before they got on the bus, or they might even fight on the bus.
So we would have to board the bus with them in the morning, go to the school, spend a day at the school with them, and then ride back to the parking lot and stay there until they got picked up.

¶ 33. Balard may be distinguished in this regard. In Balard, an adult female restaurant customer left the restaurant’s premises and went across the street where her car was parked in another lot. 210 Cal.App.3d at 246, 258 Cal.Rptr. 343. There she was sexually assaulted by men parked in an automobile. Id. About ten to fifteen minutes before the assault, the guard located outside the door of the restaurant was advised by other customers that some men were intoxicated, sitting in a car and verbally harassing patrons. Id. The California court determined that the security company owed the patron the same duty as owed by the owner of the restaurant. Id. at 247, 258 Cal.Rptr. 343. Thus, the court determined that the security company’s duty to the patron from third party criminal acts was confined to the restaurant’s premises. Id. at 250, 258 Cal.Rptr. 343. The court noted and Ba-lard conceded that the security guard was hired to protect the restaurant. Id. at 246-47, 258 Cal.Rptr. 343. The court also recognized that the guard did not have a:

“duty to control another’s conduct or to warn those who may be endangered by such conduct. However, a duty may arise where a special relationship exists giving rise to a right to such protection.” [citation omitted]. Such a special relationship exists “between a business establishment and its customers [which] as a matter of law places an affirmative ‘duty’ on the proprietor to take reasonable precautions to protect patrons from reasonably anticipative criminal conduct of unknown third parties.”

Id. Here, the security guard was hired to protect the students, not the business premises. The purpose of Wright’s presence at the bus stop was to reduce or eliminate violence by the students who attended the alternative school. Indeed, from the testimony indicated above, Wright had a duty to control the conduct of both the victim, Jim Doe, and the attacker, John Smith. This was precisely the type of conduct that JPSD attempted to prevent when it hired Wright to provide supplemental security at this bus stop.

¶ 34. Further, in a similar sexual assault case, the Mississippi Supreme Court held that “public schools have the responsibility to use ordinary care and take reasonable steps to minimize risks to students thereby providing a safe school environment.” L.W. v. McGomb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141(¶24) (Miss.1999). The court concluded that public schools had a statutory duty to minimize the risks to students and provide a safe environment; specifically, the court held that:

It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.
Miss.Code Ann. § 37-9-69 (emphasis added). This statute mandates that school personnel maintain appropriate control and discipline of students while the children are in their care. Furthermore, the State of Mississippi mandates compulsory school attendance for all children upon penalty of law. Miss. Code Ann. § 37-13-91 (Supp.1998). [footnote omitted]. Since the state requires all children to be enrolled in school, it only seems logical that the state should then require school personnel to use ordinary care in administering our public schools.

Id. at 1141-1142(¶ 25). L.W. alleged negligence in maintenance and supervision of the premises. Id. at 1143(¶ 29). The court determined that public schools “have the responsibility to use ordinary care to provide a safe school environment.” Id. (quoting Bd. of Trs. of the Pascagoula Mun. Separate Sch. Dist. v. Doe, 508 So.2d 1081, 1085 (Miss.1987)). The court reversed and remanded the trial court’s dismissal of L.W.’s complaint for damages against the school district. Id.

¶ 35. Accordingly, we hold that there was a genuine issue of material fact in dispute as to whether Wright breached the legal duty(ies) that were owed. We reverse and remand for further proceedings consistent with this opinion.

II. Whether the trial court erroneously ruled that the criminal attack on Jim Doe was not foreseeable, in spite of the evidence to the contrary and the numerous, material issues of fact remaining which should have been properly submitted to the jury on this issue.

¶ 36. Jim Doe next argues that there was a genuine issue of material fact as to whether his injuries were foreseeable. In particular, Jim notes that Wright was aware that the students were at the alternative school because they had behavioral/criminal issues. Wright responds that Jim’s sexual assault was unforeseeable, because there was no history of crimes at the bus stop and no history of sexual crimes against minors at the bus stop.

¶ 37. Causation, like duty, involves questions of foreseeability. Rein, 865 So.2d at 1143(¶ 30). Unlike duty, causation is a question of fact. Id. In premises liability cases, a criminal act is foreseeable if the owner had actual or constructive knowledge of the assailant’s violent nature, or actual or constructive knowledge that an atmosphere of violence existed on the premises. Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 416-17 (Miss.1988). Further, Jim’s particular injury of sexual assault need not be foreseeable if some injury to him was foreseeable. Rein, 865 So.2d at 1145(¶ 34) (quoting Delta Elec. Power Ass’n v. Burton, 240 Miss. 209, 126 So.2d 258, 261 (1961)).

¶38. In deciding this issue, the trial court relied on the affidavit of Ralph Day, Wright’s security expert. The court found:

As stated in Mr. Day’s testimony, there was no evidence in the exhibits reviewed that lists any history of crimes against persons having occurred at the locations where the students were dropped off and picked up in connection with their transportation to and from school facilities. In addition, there was no evidence of any sexually related crimes ever having occurred or been reported in connection with the school pick up program at this location.

This was close to an exact quotation from Mr. Day’s affidavit. In the affidavit, Mr. Day does not state what exhibits he reviewed and no exhibits were provided in the record. The trial court found this testimony uncontradicted.

¶ 39. We disagree and find that the evidence offered by Mr. Day was contradicted by several witnesses. In fact, in the very next paragraph of Mr. Day’s affidavit, he states, “Records from the Jackson Police Department were reviewed with regard to Reporting Zone 5668 where the pick up point and McDonald’s are located.” During April 25, 1997 to March 31, 1998, “[t]here were nine crimes against persons listed. They were for armed robbery, simple assault or aggravated assault.” Buckley testified he was familiar enough with the Livingston Road area to know to assign more guards to that stop than to others.

¶ 40. Besides a history of criminal activity perpetrated by third parties, more relevant is the evidence of fights between the alternative school students themselves. In fact, it was Stanley Wright who testified that the reasons Wright was there was to prevent violence among the students and in fact there had been a history of fighting at the bus stop and on the bus.

¶41. Buckley testified he told Wright personnel that they were there to prevent fights. Luckett testified that there had been a fight at the Livingston Road bus stop previously that same school year. He said that the nature of the alternative school children required tighter security to monitor the children at all times. He said the children were there because they had a history of violent and criminal behavior.

¶42. Finally, there was evidence that Jim Doe and John Smith had separate histories of altercations. The guards described Jim as a quiet child, who was one of the smallest and youngest at the bus stop. Jim testified that a fight had been started with him at the bus stop at one point by one student, and another kid “used to pick on me all the time.”

Williams testified that Smith:

was one of those kids that — that pretty much had his own way. Pretty much he run [sic] the hall in the school, you know, just jump up out of class, you know, different things.
Q. You knew him to be a problem?
A. Yes. He was all right, but he was— he was a problem, yeah.
Q. Did you ever have to break up a fight that involved [Smith]?
A. Not really [Smith], He didn’t take nothing — now, he always pick a fight.

¶ 43. We find this evidence created a genuine issue of material fact as to whether Jim’s injuries were foreseeable. Therefore, we reverse the summary judgment entered in favor of Wright and remand this case for further proceedings.

¶ 44. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . To protect the identity of the victim and his family, we use fictitious names.

      . Because the offender is a minor, we use a fictitious name to protect his identity.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Lisa COCKRELL and J.M. Cockrell, Appellants v. PANOLA COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2005-CA-02240-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      John Thomas Lamar, Senatobia, attorney for appellant.
    Thomas S. Shuler, Sardis, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. J.M. and Lisa Cockrell appeal the judgment of the Panola County Circuit Court. That court affirmed the decision of the Panola County Board of Supervisors (“Board of Supervisors”) to rezone property owned by Sheryll and Linda Martin, located adjacent to the Cockrells’ property, from agricultural to industrial. The Board of Supervisors also approved a special exception in order for the Martins to relocate a scrap metal yard to this property. The Cockrells appealed to this Court and raise three issues: (1) whether the character of the area has changed and there is a public need in order to justify rezoning, (2) whether the rezoning of this property constitutes spot zoning by the Board of Supervisors, and (3) whether the Martins’ application for a special use permit met the required elements to obtain that permit. We find that the Martins failed to prove by clear and convincing evidence a change in the area of the property at issue to warrant rezoning from agricultural to industrial. Accordingly, we reverse the judgment of the Circuit Court of Panola County which affirmed rezoning by the Board of Supervisors.

FACTS AND PROCEDURAL HISTORY

¶ 2. This dispute commenced in December of 2004, when Sheryll and Linda Martin, owners of 124 acres of real property at 2296 Holston Road in rural Panola County, filed an application to rezone their property from agricultural (A-l) to industrial (I). The Martin family owns Martin Brothers Scrap Metal, which has operated a scrap metal yard adjacent to the city limits in Sardis since 1977. They wish to relocate their Sardis scrap yard to the property in rural Panola County. At the time this rezoning application was filed, however, the Cockrells were in the midst of constructing a 10,000 square foot, plantation-style home valued at approximately $1,000,000 on 105 acres adjacent to the property on which the Martins’ proposed to relocate their metal scrap yard.

¶ 3. When the Cockrells commenced construction of their home, they relied on the fact that their property and all of the surrounding real property adjoining Hol-ston Road in the area between and around Highway 51 and Interstate 55 was zoned agricultural. The property had been zoned agricultural since July 1, 2002, when the Board of Supervisors had adopted the Panola County, Mississippi Land Use District Ordinance (“Ordinance”) prepared by the Panola County Land Development Commission (“Commission”). No property outside of the county’s municipalities was zoned industrial. Prior to July 2002, the county did not have any zoning ordinance in place. The Ordinance stated in detail its purposes, the various zoning categories and their respective special exceptions, use limitations, and the allowance of limited non-conforming uses already in existence.

¶ 4. One such non-conforming use already in existence when the Cockrells bought their property was Hanson Industries, a culvert manufacturing and storage business, located diagonally across the road from the Cockrells’ property. This business has been in operation at that location for over thirty years. Even though the property was zoned agricultural, the Ordinance effectively “grandfathered” in this business, with the limitation that the plant Could not expand unless in conformity with the Ordinance. Also, a mini-storage business, Mini Systems, that makes or stores metal warehouses, had been constructed in the last couple of years within one-half a mile from this area.

¶ 5. A series of hearings was held before the Commission which oversees the Ordinance concerning the Martins’ rezoning and special exception application. According to the Ordinance, in order for the Martins to relocate their scrap metal yard to this rural area, it was necessary for them to complete a two-step process: first, the property must be rezoned from agricultural to industrial, and then the Martins must obtain a special exception to the industrial zoning. The Commission held its first hearing on January 10, 2005, when the Martins presented evidence in defense of their rezoning request. Several nearby landowners, including the Cockrells, submitted objection letters on this date regarding the Martins’ rezoning application. Also at this meeting, the Commission told the Martins that they needed to apply for a special exception to the zoning order so as to relocate their scrap metal business from Sardis. The Commission took the matter under advisement until their next meeting on February 14, 2005. The Martins then amended their application to request the special exception as well.

¶ 6. At the February meeting, the Commission voted to approve the Martins’ rezoning request. Additionally, the Commission had a hearing on the special exception issue. Both sides presented their arguments. The Commission deferred the matter until their next meeting. On March 14, 2005, the Commission decided to grant the special exception for the Martins’ scrap metal yard -with several restrictions.

¶ 7. From the hand-drawn map included in the record as an exhibit to the Martin’s application to rezone the property submitted to the Board of Supervisors together with other, verbal descriptions of the area, it appears that the Martin property is immediately to the south of Hanson Industries, immediately to the east of the Cock-rells’ 105-acre tract, immediately to the west of a six-acre tract used for residential purposes by Mr. and Mrs. Evans since 1982, and diagonally south-east of a 273.5-acre residential tract owned by Dr. and Mrs. Black, who wish to develop their land for residences. The Blacks and the Ev-anses also opposed the rezoning and wrote objection letters to the Board. The mini-warehouse is approximately one-half mile to the west, with the Cockrell’s property and Highway 51 lying in between. All of this property surrounding the area to be rezoned remains zoned agricultural.

¶ 8. Aggrieved by the rezoning, the Cockrells properly appealed both of the Commission’s decisions to the Board of Supervisors. On April 11, 2005, the Board of Supervisors held a hearing on the Cock-rells’ appeal. The Martins had the burden of going forward at this hearing. Representatives for Martin Brothers Scrap Metal gave a history of their business and the alleged benefits to Panola County in relocating their business from Sardis. They stated that they chose this location because it would have the least impact on the fewest people. Stating that the existing Sardis scrap yard would be closing if they relocated, the Martins maintained that the move to rural Panola County would benefit the entire community because the scrap metal yard would be adjacent to fewer residences than in Sardis. Further, they contended that the entire rural area was “prime for industrial purposes” because of its location near a railroad, Highway 51, and Interstate 55, while keeping industrial traffic out of Como and Sardis. Some of this industrialization had already begun, they contended, with the expansion of Hanson Industries since 2002, when the Ordinance was approved, and the development of Mini Systems. Also mentioned was that a group called the Panola Partnership had looked at a nearby site for a future industrial park.

¶ 9. Counsel for the Cockrells, however, submitted to the Board of Supervisors a memorandum setting forth the legal limitations in order for the Board to rezone the property. Also brought forward at the hearing and documented were pollution problems that the Martin Brothers had at their Sardis location in the late 1980s involving the EPA and state pollution control agency. Additionally, the Cockrells provided photos showing the current unsightly, offensive nature of the salvage metal yard in Sardis. Charles A. Goforth, a consultant in land use planning, explained his opinion of this situation outlined in a letter submitted to the Board of Supervisors on April 8, 2005.

¶ 10. Goforth, through testimony and his opinion letter, maintained that even though the Cockrells built their home near the Hanson plant, that facility was classified as a non-conforming use, and the property was never zoned industrial. He said a non-conforming use is “one of those things ... you just leave [ ] alone and hope it goes away.... You don’t encourage it to stay by giving it any additional legal expansion potential.” Explaining that “special exceptions” were those things which were really not appropriate for the area’s zoning, Goforth stated that the salvage metal yard special exception directly violated three purposes established by the Ordinance: (1) promoting stable and attractive development, (2) conserving the value of land as a sound investment, and (3) encouraging the compatibility of adjacent land uses. After Goforth’s testimony the Board of Supervisors asked questions and took the matter under advisement. Each supervisor who was not familiar with the area was asked to visit it.

¶ 11. On April 18, 2005, the Board of Supervisors unanimously approved the change in zoning from agricultural to industrial and granted the special exception for the 124 acres of the Martins’ property. In its order, the Board of Supervisors “determined that there had been a change in the character of the surrounding area which justified the re-zoning in that the Hanson Plant had expanded since the original zoning was enacted and a public need existed for additional property to be zoned industrial so that additional employment could be created and to meet the public need of a place to dispose of metal products.” No other specific factual findings of change were articulated in this order. Again aggrieved, the Cockrells perfected their appeal to the Panola County Circuit Court and on June 6, 2005, filed a bill of exceptions to the Board of Supervisors’ decision. A hearing was held in the circuit court on November 3, 2005, and shortly thereafter that court entered an order affirming the decision of the Board of Supervisors, stating, at a minimum, the decision of the Board of Supervisors was “fairly debatable” and the court could not say that the Board of Supervisors acted arbitrarily or capriciously. The Cockrells then perfected their appeal to this Court.

STANDARD OF REVIEW

¶ 12. The zoning decisions by the board of supervisors or land development commission will only be set aside if the decisions clearly appear to be arbitrary, capricious, discriminatory, illegal, or are unsupported by substantial evidence. Kuluz v. City of D’Iberville, 890 So.2d 938, 940(¶2) (Miss.Ct.App.2004) (quoting City of Biloxi v. M.C. Hilbert, 597 So.2d 1276, 1280 (Miss.1992)). Moreover, the Mississippi Supreme Court has held repeatedly that the rezoning decision by the governing authority will not be disturbed on appeal if the question is “fairly debatable.” New Albany v. Ray, 417 So.2d 550, 552-53 (Miss.1982) (citing Bell v. City of Canton, 412 So.2d 1179 (Miss.1982); Killegrew v. City of Gulfport, 293 So.2d 21 (Miss.1974); Currie v. Ryan and City of Hattiesburg, 243 So.2d 48 (Miss.1970); Ridgewood Land Co. v. Moore, 222 So.2d 378 (Miss.1969); Paine v. Underwood, 203 So.2d 593 (Miss.1967)). Before the zoning authority rezones the property, though, it must have proof of either: (1) a mistake in the original zoning plan, or (2) that there has been a change in the character of the area to such an extent so as to justify reclassification, and that there was a public need for rezoning. Kuluz, 890 So.2d at 940(¶ 2) (quoting Bd. of Aldermen, City of Clinton v. Conerly, 509 So.2d 877, 883 (Miss.1987)).

LAW AND ANALYSIS

I. Whether the character of the area has changed sufficiently to justify reclassification in zoning and whether there is a public need for rezoning.

¶ 13. There is a strong presumption, recognized repeatedly by the Mississippi Supreme Court, that comprehensive zoning ordinances that are adopted or amended by local governing authorities are well planned and meant to be permanent. Town of Florence, Miss. v. Sea Lands, Ltd., 759 So.2d 1221,1224(¶ 11) (Miss.2000); Wright v. Mayor and Comm’rs of City of Jackson, 421 So.2d 1219, 1222 (Miss.1982) (citing Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980); Martinson v. City of Jackson, 215 So.2d 414, 417 (Miss.1968)). Zoning ordinances are presumed to be reasonable and for the public good. Sea Lands, Ltd., 759 So.2d at 1227(¶23) (citing Board of Aldermen v. Conerly, 509 So.2d 877, 883 (Miss.1987)). A presumption of reasonableness applies to rezoning as well as to the original zoning regulation, “but not with the same weight, the presumption being that the zones are well planned and arranged to be more or less permanent, subject to change only to meet a genuine change in conditions. ” Id. Because of this presumption, the burden of proof rests on the applicant wanting to rezone the property, and he must prove either mistake in the original zoning, or substantial change in the character of the area together with a public need for rezoning. Kuluz, 890 So.2d at 940(¶ 2). The initial burden of proving the change in zoning is on the property owner requesting the change, by clear and convincing evidence. Gillis v. City of McComb, 860 So.2d 833, 835(¶ 5) (Miss.Ct.App.2003) (citing City of Madison v. Shanks, 793 So.2d 576, 578(¶7) (Miss.2000)).

A. Change in the character of the area.

¶ 14. The Mississippi Supreme Court has not hesitated to reverse board of supervisors’ decisions regarding rezoning when substantial evidence of change in the character of the area is not met. See, e.g., Wright v. Mayor and Comm’rs of City of Jackson, 421 So.2d 1219, 1223 (Miss.1982); City of Oxford v. Inman, 405 So.2d 111, 112 (Miss.1981); Hughes v. Mayor and Comm’rs of City of Jackson, 296 So.2d 689, 691 (Miss.1974). It is clearly within our judicial discretion to reverse a rezoning ordinance which was adopted based on insufficient proof. Inman, 405 So.2d at 114. As far as how substantial the change needs to be to warrant rezoning, zoning authorities should ask whether the changes justify rezoning. Woodland Hills Conservation Assoc., Inc. v. City of Jackson, 443 So.2d 1173, 1182 (Miss.1983). However, use of property in accordance with the original zoning plan is not a material change of conditions warranting rezoning. Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980) (citing Jitney-Jungle, Inc. v. City of Brookhaven, 311 So.2d 652 (Miss.1975)).

¶ 15. Here, the Board of Supervisors justifies the rezoning because of a supposed change in the area, not because of a mistake in the original zoning ordinance. The Board of Supervisors, in its brief, points to the following alleged evidence of change in the character of the area. First, the Board claims that in the previous three years Hanson Industries, located adjacent to the Martins’ property and diagonal to the Cockrells’ property, had made “significant expansions” to its culvert manufacturing and distribution operations, including “occupying additional space and including additional production lines.” Second, the Board of Supervisors states knowledge of evidence that a maker of storage buildings had opened a warehouse or distribution facility, Mini Systems, one half a mile from the Martins’ property in the last three years. Finally, the Board points to previous attempts by the county’s industrial development authority, the Pa-nola Partnership, to market and develop the area about one mile to the east of the Martins’ property, on the east side of Interstate 55, as a major industrial site. Mr. Shuler, at the Board of Supervisors’ hearing, thus concluded, “[s]o there is, I think without any doubt, a movement towards the utilization of this area for industrial purposes.” The Board of Supervisors’ order determined that there had been a change in the character of the surrounding area because of the expansion of the Hanson plant since the Ordinance had been enacted in July of 2002.

¶ 16. After applying the proper standard of deference to the Board of Supervisors’ decision and reviewing the entire record, we find that the Board erred in rezoning the Martins’ property. The Martins did not meet their burden of presenting to the Board of Supervisors clear and convincing evidence of substantial change in the character of the area. The Board of Supervisors’ order determined that change in the area had occurred, and justified the decision solely because of the expansion of Hanson Industries. However, the record is devoid of any clear and convincing evidence of expansion of the Hanson plant, except for the statements made by attorney Shuler at the Board of Supervisors’ April 2005 hearing that “Hanson has within the last three years expanded its operation, made a rather significant expansion. They’re occupying more space and doing more activities. More lines, in fact, on that site, so it’s growing.” There is no evidence in the record of substantial change, such as increased traffic, facilities production, or employees at Hanson Industries.

¶ 17. We find the supreme court decision in Town of Florence instructive. In affirming the circuit court’s reversal of the rezoning order at issue, the court explained:

While it is impossible to articulate or design a particular test for determining what is sufficient evidence to show a material change and a public need to support rezoning, it does not appear that in this case Florence was presented with such evidence. Expert testimony at the hearing reflected such and evidenced the need for affordable multi-family housing, as contemplated by the recently adopted Comprehensive Plan. In addition, there was no substantial evidence showing that areas surrounding the subject property had been recently rezoned or that there were statistics or mapped circumstances of a growing change in the neighborhood. Florence was presented with some evidence that there had been several single-family residences built in the area since the 1977 rezoning, although there was no real quantification of that construction. There were no maps or charts proving the number of homes constructed, or their location or impact upon the character of the neighborhood. There was no substantial evidence to support Florence’s decision that the subject property was unsuited to the construction of multi-family residences, or that there was a need for additional land to construct single-family residences. Without comparable evidence, there can be no showing of a material change in the neighborhood.

Town of Florence, 759 So.2d at 1227-28(¶24) (emphasis added). In this case, the only expert testimony, that of Mr. Goforth, was that “the only change that’s happened in the area is the construction of the new home by the Cockrells.” Further, there were only vague references by Mr. Shuler that the Hanson plant was expanding or growing. As in Town of Florence, there were no previous rezonings, statistics or mapped circumstances of growing change and no quantification of any increases.

¶ 18. Moreover, when the original zoning ordinance was enacted in July 2002, Hanson Industries was considered a nonconforming use on agriculturally zoned property. By definition in the Ordinance itself, a nonconforming use “shall not be ... [cjhanged to another non-conforming use .... [or] [ejxtended except in conformity with this ordinance.” While not every increase in volume of business is an illegal expansion of a nonconforming use, “an enlargement of a nonconforming business so as to be different in kind in its effect on the neighborhood ” is prohibited. Eugene McQuillin, 8A The Law of Municipal Corporations § 25.207 (3rd ed.1994) (emphasis added). This Court fails to understand how Hanson Industries could have expanded to such an extent so as to change the character of the surrounding neighborhood without violating the Ordinance’s prohibition on expansion of nonconforming uses. At oral argument, the Court asked the Board’s attorney the extent of Hanson Industries’ expansion, and how the expansion was allowed with the Ordinance in place. Mr. Shuler responded that, as far as Hanson Industries, he did not know the extent of its expansion, and that it may have been in violation of the Ordinance by expanding. Rather than determining that Hanson’s expansion may have been in violation of the Ordinance, we hold that the record is inadequate to show expansion sufficient to change the character of the surrounding neighborhood.

¶ 19. In its brief, the Board of Supervisors also notes as evidence of change in character the Mini Systems operation. However, because this business is approximately one-half mile away from the Martin’s property, and all of the land surrounding the Martin’s is zoned agricultural according to the maps in the record, we do not consider it in the same “neighborhood” as the Martin’s property. In Wright v. Mayor and Comm’rs of City of Jackson, 421 So.2d 1219, 1223 (Miss.1982), the Mississippi Supreme Court reversed rezoning of an area from residential (single and two-family) to commercial (residential-townhouse) because of lack of a substantial change and public need in the neighborhood. Id. The court found that claims of an increase in population of an already industrial area and recent interstate construction were not sufficient proof of change in the neighborhood and were in conformity with the current zoning. Id. Other changes pointed to as evidence of change were deemed by the court not to occur in the subject property’s neighborhood, but were nearly two miles away with an Interstate in between. In the instant case, Mini Systems is approximately one-half mile away on the other side of Highway 51, with nothing but agricultural land in between. Further, the Board of Supervisors did not rely on Mini Systems as an indicator of change in the area. We find that the Martins have failed to establish Mini Systems as part of the “neighborhood” with their property.

¶ 20. The third “change” noted in the Board’s brief is the prior attempts by the Panola Partnership to develop an area one mile from the property at issue as a major industrial site, and its potential for future industrial development. The Board has cited no authority for the proposition that future potential for industrial development can be an indication of change in the character of this area to warrant rezoning. We reject this contention.

¶ 21. In addition to Wright, supra, the Cockrells point to two analogous cases where the Mississippi Supreme Court has reversed rezoning orders. In Hughes v. Mayor and Comm’rs of City of Jackson, 296 So.2d 689, 691 (Miss.1974), a church attempted to rezone its property to commercial, relying on the fact that part of the surrounding property was zoned commercial. Id. at 690. The Mississippi Supreme Court reversed the circuit court and the city council’s decision to rezone the property, because “[t]he record in this case is devoid of any evidence reflecting any mistake in the original zoning ... or showing that conditions in the area of the subject property have changed so substantially as to warrant a rezoning.” Id. (Emphasis added). In our case we also find the record devoid of any evidence of change.

¶ 22. In City of Oxford v. Inman, 405 So.2d 111, 112 (Miss.1981), the circuit court reversed the municipality’s rezoning of land from agricultural to multi-family residential for lack of sufficient evidence of change. Id. The city argued that development of low-rent housing and a recreational facility was clear and convincing evidence of a change in the area. Id. at 113— 14. However, the supreme court affirmed the circuit court’s reversal, stating that these developments, which were in accordance with the original zoning plan, were not evidence of a material change in conditions which warranted rezoning. Id. In our case, the Hanson plant has continued operating as a nonconforming use in accordance with the Ordinance since its inception in 2002.

¶ 23. We conclude that there is insufficient evidence in the record to warrant rezoning on the basis of substantial change in character of the neighborhood. There were no previous rezonings, statistics or mapped circumstances of growing change and no quantification of claimed expansion of Hanson Industries. As the supreme court stated in Town of Florence, ‘Without comparable evidence, there can be no showing of a material change in the neighborhood.” Accordingly, we reverse and render judgment in favor of the Cockrells.

B. Public Need.

¶ 24. While further analysis is unnecessary in light of our holding of insufficient change, we address two other intertwined points which have been fully briefed and submitted for our review. In order to obtain rezoning based upon change in character, the applicant must prove not only substantial change in the character of the area but also a public need for rezoning. Kuluz, 890 So.2d at 940(¶2). This Court finds that the evidence presented to the Board of Supervisors of the possible benefits of rezoning to the public is “fairly debatable,” and thus, had there been sufficient evidence of change in character, this Court would have affirmed the rezoning order.

¶ 25. At the April 11, 2005 hearing, and in the Board of Supervisors’ order and brief, the Board stated that there was a public need for the rezoning through the creation of additional employment and a place to dispose of metal products for Pa-nola County citizens. Also, the Board stated that generally “the area is prime for industrial purposes,” noting that running adjacent to the Martins’ property is the Canadian National Railroad, necessary for their business. The entire area has not only railroad access but easy access to Interstate 55 at the Como, Mississippi exit for the presumed heavy industrial traffic which would be created by the scrap metal yard. The Board concluded that rezoning this property “industrial” would open up additional industrial sites in the county, and not just the site of the Martins’ business. Additionally, the Board of Supervisors argues that it was entitled to consider the fact that relocating the Martins’ salvage metal yard to Panola County would benefit Sardis because of the salvage yard’s current location in a highly residential area. We agree that relocating the yard would ease Sardis’ traffic congestion created by the yard. Addressing the public need for rezoning, the Martins presented a fairly debatable argument that the move of their salvage yard from one location in the county to another would create more employment and “meet the public need to dispose of metal products” for the citizens of Panola County. This finding, however, is an insufficient basis to uphold the Ordinance where no change in character has been established.

¶ 26. The Cockrells and other property owners in the area either bought or built upon their land relying on the agricultural zoning in this predominantly rural area. Except for the one non-conforming use already in existence, Hanson Industries, they could never have expected to be neighbors to an offensive salvage metal yard that will crush, burn, and transport scrap metal by rail and road past their, and others’, residences. The rezoning is in conflict with the reason the Ordinance was adopted in the first place: to maintain property values, promote stable development, and encourage compatible land uses with the zoning in place. If allowed, the Martins’ relocated salvage yard will degrade the value of the surrounding landowners’ property, and encourage incompatible land uses. While we find the Board’s decision regarding public need to be fairly debatable, we do not find clear and convincing evidence of substantial change in the character of the area to justify rezoning.

II. Whether the Board of Supervisors’ actions constitute “spot zoning.”

¶ 27. The Cockrells also raise the issue of “spot zoning” arguing the proposed rezoning would create a dramatic change from the original zoning ordinance adopted in July of 2002. “[S]pot zoning involves amendments to existing zoning ordinances singling out a small area for a use classification which is different-whether more or less restrictive-from that of the surrounding area.” Patrick J. Rohan, Zoning and Land Use Controls, § 38A.01[1] (2006). “In the narrow sense of the term, spot zoning is the arbitrary and unreasonable reclassification of a small area within a zoning district to a use which is inconsistent with the surrounding district, where the rezoning does not conform to a comprehensive plan, serves no public purpose and is solely for private gain.” Id. Several issues can be involved in determining if spot zoning has occurred, such as the size and character of the land, and public versus private purpose of rezoning. In their brief, the Cockrells primarily address the issue of private benefit and claim that because the rezoning only benefits the Martins it is spot zoning and thus invalid. The Board of Supervisors counters that below the Board found a public need existed for additional employment and space to dispose of scrap metal, thus the zoning is not spot zoning and valid. We agree with the Board.

¶ 28. In McWaters v. Biloxi, 591 So.2d 824, 828 (Miss.1991), the Mississippi Supreme Court stated,

There is a clear cut distinction between a validly enacted amendatory zoning ordinance and a “spot zoning” ordinance. Not all amendments which change or alter the character of a use district fall within the category of “spot zoning” as we generally understand the term. The term “spot zoning” is ordinarily used where a zoning ordinance' is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith. Whether such an amendment will be held void depends upon the circumstances of each case. The one constant in the cases, as stated by the textwriter, where zoning ordinances have been invalidated due to “spot zoning” is that they were designed “to favor” someone. See 1 Yokley Zoning Law and Practice §§ 8-1 to 8-3 (3rd ed.1965). McWaters, 591 So.2d at 828 (quoting McKibben v. City of Jackson, 193 So.2d 741, 744 (Miss.1967)) (emphasis added). The textwriter further explains that “The mere fact that an area is small and is zoned at the request of a single owner and is of greater benefit to him than to others does not make out a case of spot zoning if there is a public need for it or a compelling reason for it.” 2 E.C. Yokley, Zoning Law and Practice § 13-5 (4th ed.1978). In this case, we have previously determined that the decision of the Board of Supervisors that “a public need existed for additional property to be zoned industrial so that additional employment could be created and to meet the public need of a place to dispose of metal products” is “fairly debatable” and will not be disturbed on appeal. See New Albany v. Ray, 417 So.2d at 552-53. Accordingly, we hold that while the rezoning may be of greater benefit to the Martins than to others, the fact that there is a public need for the rezoning, as found by the Board of Supervisors, protects the order from the claim of illegal spot zoning.

CONCLUSION

¶29. Because the Martins failed to produce sufficient evidence showing a substantial change in the subject area to justify rezoning since the adoption of the Ordinance in July 2002, the Board of Supervisors was in error in approving the application for rezoning. Likewise, the circuit court erred in affirming the Board of Supervisors’ order. Therefore, we reverse the decisions of the circuit court and the Board of Supervisors rezoning the subject property.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . The Panola County Board of Supervisors adopted the Land Development Standards and Regulations on March 8, 1999. They were amended on May 22, 2001 and on February 4, 2002. Among the purposes of these standards and regulations were "[t]o protect the public health, safety, and general welfare of the county.... To guide the future growth and development of the county.... To protect and conserve the value of land throughout the county ... and to minimize the conflicts among the uses of land and buildings.... To prevent ... pollution .... to preserve the integrity, stability, and beauty ... and the value of the land ... [and] to ensure appropriate development with regard to these natural features.”

      . The Ordinance states a junk or salvage yard is not a permitted use for an industrially zoned area, and can only be permitted as a "special exception,” with the limitation that it shall not "be dangerous or offensive or detrimental to the present or intended character of the ... [area] or constitute a nuisance due to the emission of dust, gas, smoke, noise, fumes, glare, odor, vibration, fire hazard or otherwise.”

      . Among these restrictions were an earthen barrier no less than nine feet tall along the road that fronts the proposed salvage yard, a line of trees planted along the road as a further shield, no business conducted after 6:00 p.m. on the weekdays and no business at all on the weekends, and a turn lane into the property to prevent traffic back up.

      . Counsel for Martin Brothers countered that these pollution problems have been rectified.

      . We note that “a mistake within the meaning of the law is not a mistake of judgment but, rather, a clerical or administrative mistake.” Town of Florence, 759 So.2d at 1225 (quoting City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982)).

      . At the hearing of the Board of Supervisors on April 11, 2005, Thomas Shuler, counsel for Martin Brothers Scrap Metal and now counsel for the Panola County Board of Supervisors on appeal, presented these factors as well.

      . However, the Board of Supervisors’ order to rezone did not mention this particular evidence of change in the surrounding area.

      . Based upon the vague description of Mini Systems’ operation in the record, we are unable to determine whether the business is manufacturing or storage or how its construction was in accordance with the Ordinance. The Ordinance outlines permissible uses in an agricultural district to include structures such as single family dwellings, nurseries and greenhouses, schools and churches, country clubs and golf courses, parks and playgrounds, or stables. By special exception, a landowner may build airports, cemeteries, or “commercial retail businesses.” When compared to the examples of “retail establishments” contained in C-l of the Ordinance ("grocery, furniture appliance, apparel, hardware, liquor, jewelry, drug stores and similar uses”), warehouse manufacture or operation does not appear to be included; rather, wholesale and warehouse activities are a separate category of permitted use within a commercial district. When asked during oral argument before this Court how Mini Systems was allowed to locate in this agriculturally zoned area, counsel for the Board could not provide any answer other than he presumed the Commission approved it.


author: LEE, P.J.,

text:
    Mary Anne BRABHAM, Appellant v. Charles Robert BRABHAM, Appellee. Mary Anne Brabham, Appellant v. Charles Robert Brabham, Appellee.
    Nos. 2005-CA-01437-COA, 2005-CA-02335-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Erik M. Lowrey, Hattiesburg, Robert R. Marshall, West Point, attorneys for appellant.
    Terry L. Caves, Laurel, Jerry Dean Sharp, attorneys for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Mary and Charles Brabham were married on June 13, 1990. No children were born of the marriage. Mary and Charles (Bob) separated on July 28, 2003. On August 5, 2003, Mary filed for divorce in the Jones County Chancery Court on the grounds of habitual cruel and inhuman treatment, habitual use of alcohol, and, in the alternative, irreconcilable differences. Shortly thereafter Bob filed an answer. An agreed temporary order was entered on October 28, 2003, wherein Bob was ordered to pay $1,000 per month as temporary alimony as well as pay Mary’s health insurance, car payments, the house note and other joint debts. Bob was allowed use of the marital home.

¶ 2. After over a year of filing amended complaints and answers by both parties wherein other grounds for divorce were asserted, both parties ultimately consented to an irreconcilable differences divorce. An order withdrawing the fault grounds for divorce was entered on the record January 13, 2005. On May 16, 2005, the chancellor issued his final judgment. The chancellor denied Mary alimony, awarded Mary fifty percent of the equity in the marital home ($2,274.16), awarded Mary ten percent of the value of Bob’s retirement account as of October 28, 2003, awarded Mary ownership of the Miata, awarded Bob the Yukon and the all-terrain vehicle, and ordered Bob to pay $3,500 towards Mary’s attorney’s fees.

¶ 3. Mary then filed a motion to amend the findings of fact, a motion for relief from judgment and a motion to amend the judgment. Bob responded. On June 28, 2005, the chancellor entered an order to clarify that Mary was to receive ten percent of the total value of Bob’s retirement account and ordered the parties to submit information reflecting the total value of the account as of October 28, 2003.

¶ 4. On June 30, 2005, Mary filed a notice of appeal, asserting the following issues: (1) the chancellor was manifestly wrong in figuring the marital estate; (2) the chancellor abused his discretion in the equitable distribution of the assets; (3) the chancellor was wrong as a matter of law in excluding certain documents from evidence; and (4) the chancellor abused his discretion in denying Mary alimony.

¶ 5. On May 5, 2005, prior to the chancellor’s final judgment, Mary filed a complaint alleging that Bob was in contempt for failing to pay the temporary support as ordered on October 28, 2003. After a hearing on the matter, the chancellor found that Bob was not in contempt. The chancellor also found Mary to be in contempt for failure to abide by the court’s June 28, 2005, order. Mary also appeals this ruling, arguing that the chancellor erred in denying her past due support. For clarity, these separate appeals have been consolidated and the issue on the second appeal will be addressed last.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1176(¶ 7) (Miss. Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(¶ 3) (Miss.Ct.App.1999).

DISCUSSION

I. DID THE CHANCELLOR ERR IN DETERMINING THE MARITAL ESTATE?
II. DID THE CHANCELLOR EQUITABLY DIVIDE THE MARITAL ESTATE?

¶ 7. In her first and second issues on appeal, Mary argues that the chancellor erred in determining and dividing the marital estate. Along with her argument that she should have received a greater portion of Bob’s retirement account, Mary contends that the chancellor should have divided the marital estate equally. However, we note that equitable distribution does not mean equal distribution. Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). The proper legal standard to be applied in equitably dividing the marital estate is found in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The Ferguson factors to be considered in determining contribution are as follows:

1. Substantial contribution to the accumulation of the property.
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family-duties, and duration of the marriage; and
e. Contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and
8. Any other factor which in equity should be considered.

Id. at 928. The chancellor correctly cited these factors in his findings of fact and conclusions of law.

¶ 8. The chancellor found that Bob made almost all of the financial contributions to the parties’ marriage and that Mary made little or no financial contribution. Bob also handled the majority of the household duties. Mary worked part-time sporadically and was not inclined to seek new employment. In anticipation of leaving Bob, Mary diverted a portion of Bob’s money into a checking account in her name to rent an apartment for six months. During this time Mary was involved with another man. The marital home was valued at $77,000 as of January 29, 2004, and Bob had been paying the note on the house every month. The chancellor awarded one-half of the home’s equity to each party-

¶ 9. The chancellor determined that Bob had earned 45.4% of his retirement during the thirteen year marriage. Ultimately, Mary was awarded ten percent of the value of the retirement account, which had a value of approximately $195,000 as of October 28, 2003. The chancellor also found that, although Mary was less financially secure than Bob, she was capable of engaging in full-time employment. Even Mary’s expert witness testified that she could return to full-time employment. Furthermore, the chancellor noted that Mary was not employed because she was receiving temporary support from Bob as well as additional financial support from her boyfriend.

¶ 10. The chancellor noted that Mary’s behavior caused the termination of the marriage. There was testimony, namely by her own children from a previous marriage, that Mary was prone to fabricating outrageous lies, including allegations of abuse and that Mary attempted to get her daughter’s husband to arrest Bob. There was also testimony that Mary abused alcohol and had serious emotional problems. Bob testified that Mary refused to have sexual intercourse with him for three years.

¶ 11. The chancellor awarded Bob the marital home, his Yukon, personal property and the majority of his retirement account. Bob’s debts included approximately $12,000 for the Yukon; an AmSouth Essential Line debt of approximately $14,769; the Discover card balance of $4,989.44; the Direct Merchants credit card balance of $2,032; the house mortgage of approximately $72,451; a final car payment of $947; and a $16,749 loan from Bob’s retirement account. Mary was awarded one-half of the equity in the marital home; her Miata valued at $12,000; approximately $19,562 from Bob’s retirement account; and a bank account in her name containing $1,000. Mary had already taken approximately $5,695 worth of personal property from the marital home. The chancellor, although awarding Mary fewer of the marital assets, did not assess any of the marital debts to Mary. Bob was also ordered to contribute $3,500 towards Mary’s attorney’s fees.

¶ 12. We find that substantial evidence exists to support the chancellor’s determination; thus, this issue is without merit.

III. WAS THE CHANCELLOR WRONG AS A MATTER OF LAW FOR EXCLUDING CERTAIN EVIDENCE?

¶ 13. In her third issue on appeal, Mary argues that the chancellor erred in excluding evidence of certain documents from the parties’ joint counseling sessions. Mary claims that the chancellor should have allowed into evidence these documents which would have supported her allegations of abuse by Bob. The chancellor, relying upon Rule 503 of the Mississippi Rules of Evidence, found that transcripts from Bob and Mary’s joint counseling sessions could not be admitted into evidence since Bob objected. Rule 503(b) states as follows:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

The chancellor also found that the exception under Rule 503(f) did not apply as Bob did not assert that his physical, mental or emotional condition was an issue in the case. Mary contends that Bob placed the issues of his physical, mental and emotional condition before the chancellor and asserts that Williamson v. Edmonds, 880 So.2d 310 (Miss.2004), is directly on point. However, Williamson concerned a legal malpractice action wherein the attorney had represented the plaintiffs in a personal injury suit and their medical condition was the sole issue. Id.

¶ 14. We can find no error by the chancellor in excluding these documents; thus, this issue is without merit.

IV. DID THE CHANCELLOR ERR IN DENYING MARY ALIMONY?

¶ 15. In her final issue on appeal, Mary argues that the chancellor erred in failing to award her alimony. Mary claims that the chancellor did not weigh the factors as enumerated in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The Armstrong factors, which are to be considered in making an alimony award, are as follows:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Id. at 1280.

¶ 16. Mary is under the impression that the sole reason the chancellor denied her alimony was her adulterous behavior. The chancellor did state her adulterous behavior as one reason for denying alimony, but it is also clear from the record that the chancellor was unimpressed with Mary’s work history, her extreme behavior, and her unwillingness to contribute either directly or indirectly to the marriage. Although the chancellor did not specifically list each Armstrong factor numerically, he considered each one of the factors in making his determination. We find no error.

V. DID THE CHANCELLOR ERR IN DENYING MARY PAST DUE SUPPORT?

¶ 17. In her consolidated issue on appeal, Mary argues that the chancellor erred in denying her past due support as required under the temporary order of October 28, 2003. Specifically, Mary claims that Bob owed her $1,620.16 in past due support. “Mississippi has allowed a payor spouse alimony credit for amounts paid to or on behalf of the payee spouse even though those payments have not taken the traditional form of a personal check marked ‘alimony.’ ” Franklin v. Franklin, 864 So.2d 970, 978(¶ 32) (Miss.Ct.App.2003).

¶ 18. Bob contends that he should be given credit for other payments made to Mary, including approximately $700 Mary withdrew from an equity line of credit which Bob had to repay. Bob testified that, while he was working in Algeria, Mary reported the equity line account card stolen, had another one re-issued and then drew money from the account. Although not required by the temporary order, Bob paid $1,236.50 in insurance on the Yukon during the separation. Bob testified that Mary was driving the Yukon during the separation. Bob also reimbursed Mary $354.32 for her medications from Rite Aid. The chancellor denied Mary relief, finding that it was acceptable for Bob to take credit for payments not listed in the temporary order, namely the car insurance and the drug bills. We find no error in the chancellor’s decision.

¶ 19. We note that, during this hearing, the chancellor found that Mary had not cooperated with his prior order granting the divorce. The chancellor then gave Mary seven days within which to sign the deed to the house and other paperwork necessary to receive her interest in Bob’s retirement account or he would authorize the issuance of a capias for her arrest.

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

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


author: MYERS, P.J.,

text:
    Augustine JARAMILLO, Jr. a/k/a Augustin Jaramillo, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01708-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.

      Craig A. Conway, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Augustine Jaramillo was found guilty by a jury and convicted of possession of cocaine with intent to distribute and the lesser-included charge of possession of cocaine in violation of Mississippi Code Annotated § 41-29-139 (Rev.2005). Jaramillo was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections, ordered to pay restitution of $300 to the crime laboratory, and fined $50,000. Jaramillo appeals, asserting trial court error in the following issues:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S PRE-TRIAL MOTION TO SUPPRESS WHEN THERE WAS NO AR-TICULABLE RATIONALE TO SEARCH APPELLANT’S VEHICLE.

II. DID THE COURT ERR IN DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT, MOTION TO DISMISS, AND MOTION FOR A NEW TRIAL AND/OR JUDGMENT NOTWITHSTANDING THE VERDICT AS THE GUILTY VERDICT WAS NOT SUPPORTED BY THE EVIDENCE?

FACTS

¶ 2. On November 4, 2004, Officer Scott Paxson initiated a traffic stop on Interstate 20 in Lauderdale County after observing a white truck bearing a California license plate swerve abruptly, causing the vehicle to cross the fog line and enter the shoulder of the interstate. As a result, Officer Paxson initiated a traffic stop of the white truck, driven by Jaramillo. While initiating the traffic stop, Officer Paxson relayed the driver’s tag information to his police dispatcher. Officer Pax-son then questioned Jaramillo regarding the ownership, insurance and registration of the truck. Jaramillo appeared nervous to the officer and his hands shook when he handed the officer the title, registration, and insurance papers. The officer then asked Jaramillo about his itinerary and destination. Jaramillo responded that he was returning to North Carolina after a week long stay in California where he was visiting a cousin. He went on to explain that he flew to California, purchased the truck from a salvage yard and was driving back to North Carolina. When the officer questioned him regarding the airline he used to fly to California and his cousin’s name, Jaramillo hesitated before answering “Southwestern” and “Josie.” When the police dispatcher relayed the tag information results, the tag information revealed that the truck Jaramillo was driving was purchased over a month before the date of the traffic stop.

¶3. At this point in the traffic stop, Officer Paxson decided to perform a license check. While awaiting the results of the license check, Officer Paxson continued to converse with Jaramillo. Jaramillo then told the officer that he had been in California for a fifteen day stay and gave the officer inconsistent answers as to his ownership of the vehicle he was driving. Officer Paxson then asked Jaramillo for consent to search his vehicle. Jaramillo obliged to the officer’s request to search the vehicle and Officer Paxson retrieved his trained narcotics-detecting canine from his police car and walked the dog around the exterior of Jaramillo’s truck. After Officer Paxson’s dog exhibited a strong interest in a possible odor of narcotics inside the vehicle, Officer Paxson returned the dog to his car and contacted Officer Read, who was already en route to the scene, along with his trained canine. Once Officer Read arrived on the scene with his narcotics-detection dog, the canine was led around the exterior of the vehicle and the dog gave a positive alert. Subsequent to the alert, the officers searched the vehicle and discovered over 4.9 kilograms of cocaine hidden in a compartment in Jaramil-lo’s vehicle. Jaramillo was arrested for possession of cocaine with the intent to distribute.

DISCUSSION

I. DENIAL OF JARAMILLO’S MOTION TO SUPPRESS

STANDARD OF REVIEW

¶4. In criminal appeals, a presumption of correctness attaches to any ruling by the trial court. Carr v. State, 770 So.2d 1025, 1027(¶7) (Miss.Ct.App.2000) (citing Hansen v. State, 592 So.2d 114, 127 (Miss.1991)). When reviewing a trial court’s ruling on a suppression hearing, we must assess whether substantial credible evidence supports the trial court’s finding, considering the totality of the circumstances. Price v. State, 752 So.2d 1070(¶ 9) (Miss.Ct.App.1999) (citing Magee v. State, 542 So.2d 228, 281 (Miss.1989)). The admissibility of evidence lies within the trial court’s discretion and will only be reversed if this discretion is abused. Crawford v. State, 754 So.2d 1211, 1215(117) (Miss.2000).

ANALYSIS

¶ 5. Jaramillo argues that the trial court erred by failing to exclude from evidence the cocaine seized because the evidence was obtained in violation of his Fourth Amendment right against an unreasonable search and seizure. According to Jaramil-lo, law enforcement officials obtained the cocaine through an illegal, warrantless dog sniff search of the truck without consent or probable cause. He further asserts that in order for a narcotics-trained canine to be allowed to perform a sniff, there must first exist reasonable and articulable suspicion. He asserts, therefore, the introduction of the fruit born from the search violated his rights against illegal search and seizure. See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

¶ 6. We first address Jaramillo’s argument that the search of his vehicle was without consent. At the hearing on Jar-amillo’s motion to suppress, Officers Pax-son and Read and Agent Lea testified without contradiction that Jaramillo gave free and voluntary consent to search his vehicle. The trial judge found that Jaram-illo’s consent, alone, was dispositive of the motion to suppress. However, the trial judge went on to find that sufficient probable cause was established so as to uphold the constitutionality of the stop of the vehicle, as well as the later search of the vehicle and seizure of the cocaine found within.

¶ 7. Jaramillo’s next contention, that the dog-sniff search was performed without probable cause in violation of the Constitution, is thwarted by the United States Supreme Court decision of Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Even without reasonable, articulable suspicion, the performance of a dog sniff of the outside of a vehicle by a trained canine during a routine, valid traffic stop is not a violation of one’s Fourth Amendment rights against unreasonable searches and seizures. Had the traffic stop been prolonged unreasonably for the purpose of a canine sniff, Jaramillo may have been able to challenge the constitutionality. But, Jaramillo does not contend that the Fourth Amendment violation against him occurred due to an extension of the time he was stopped. He contends, rather, that his rights were violated by the use of the drug detecting dogs in the search.

¶ 8. The Supreme Court of the United States has spoken to the issue of the use of drug dogs during the course of a traffic stop. Caballes, 543 U.S. 405, 125 S.Ct. 834. The Supreme Court held that “the use of a well-trained narcotics-detection dog — one that ‘does not expose noncontra-band items that otherwise would remain hidden from public view' — during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Id. at 409, 125 S.Ct. 834 (quoting United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Notwithstanding the uncontested fact that Jaramillo consented to the search of his vehicle during the traffic stop, we find that the use of narcotics-detection dogs during a stop based on probable cause did not violated the Fourth Amendment to the United States Constitution. We, therefore, uphold the decision of the trial court in denying Jaramillo’s motion to suppress.

II. DENIAL OF MOTIONS FOR DIRECTED VERDICT, NEW TRIAL, AND TO DISMISS

¶ 9. Jaramillo asserts that the trial court erred in denying his motions for a directed verdict, for a new trial, and to dismiss all charges. Motions for directed verdict challenge the legal sufficiency of the evidence and we will reverse only when the evidence is such that “reasonable and fair-minded jurors could only find the accused not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Motions for a new trial challenge the weight of the evidence presented to the jury, and we will only reverse if we find that the lower court abused its discretion in denying the motion. Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005). “In considering a motion to dismiss, the trial judge should consider ‘the evidence fairly, as distinguished from in the light most favorable to the plaintiff,’ and the court should dismiss the case if it would find for the defendant.” Michael v. State, 918 So.2d 798, 803 (Miss. Ct.App.2005) (quoting C.T. v. R.D.H. (In re D.N.T.), 843 So.2d 690, 710-11 (¶50) (Miss.2003) (quoting Century 21 Deep S. Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992))). “[A]ll evidence introduced by the prosecution is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and, if there is sufficient evidence to support a verdict of guilty, the motion ... must be overruled.” Odem v. State, 881 So.2d 940, 945(¶15) (Miss.Ct.App.2004) (citing Roberson v. State, 595 So.2d 1310, 1320 (Miss.1992)).

¶ 10. The trial judge denied Jaramillo’s motion for directed verdict ruling that the State had offered sufficient proof that Jar-amillo was in possession with intent of the requisite amount of cocaine in violation of our controlled substance law. In our review of the trial court’s denial of motions for directed verdict and JNOV, we must consider whether a fair-minded juror could find Jaramillo guilty based upon the evidence that the State put forward showing that the accused committed the acts he is charged with.

¶ 11. In this case, the State’s evidence consisted of several exhibits entered into evidence, as well as included testimony from Officers Paxson and Chris Read, Agents Greg Lea and Anthony Ball, and a .forensic scientist. Officers Paxson and Read testified as to their involvement in discovering the cocaine hidden in the vehicle driven by Jaramillo. Agents Lea and Ball testified as to their involvement in the processing of the case against Jaramillo. The forensic scientist testified as to the compilation of the substances found to be cocaine that were discovered in Jaramillo’s vehicle.

¶ 12. Based on the record before this Court, we find that the trial court did not err in denying Jaramillo’s motions for a directed verdict, for a new trial, or to dismiss all charges. The jury considered the evidence and returned a verdict against Jaramillo. We find that there was sufficient evidence to find Jaramillo guilty. Further, based on the evidence before the jury, we find no error in the trial court’s denial of Jaramillo’s motion for a new trial. The jury sits as the fact-finder and determines the credibility of the witnesses and gives value to the weight of the evidence against the accused. Ward v. State, 881 So.2d 316, 323 (¶ 31) (Miss.Ct.App.2004). In viewing the evidence in the light most favorable to the verdict, we find that a reasonable juror could have found Jaramil-lo guilty of possession with intent based on the evidence presented. Therefore, the verdict was not so contrary to the weight of the evidence or manifest error so that to allow it to stand would sanction an unconscionable injustice, which is the standard

required for this Court to disturb the jury’s verdict on appeal.

¶ 13. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND $300 RESTITUTION TO BE PAID TO THE CRIME LAB, AND A FINE OF $50,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

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