author: CHANDLER, J.,

text:
    Jody OTTS and Amanda Otts, Appellants v. Donna LYNN, Individually and d/b/a Southern Foundations, Appellee.
    No. 2005-CA-01876-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      John C. Jopling, David C. Owen, Columbus, William Charles Cunningham, for appellants.
    John R. White, for appellee.

      Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Jody and Amanda Otts sued Donna Lynn personally and d/b/a Southern Foundations for the paralysis Jody sustained when he was shot on Lynn’s premises in Columbus, Mississippi. During an altercation with his sister, Lisa Otts, Jody was shot, paralyzing him from the waist down. Jody sued Donna Lynn, Lisa’s girlfriend and alleged employer, claiming theories of premises liability, vicarious liability and negligence. The trial court granted summary judgment in favor of Donna Lynn, finding no genuine issues of material facts. Aggrieved, the Otts appeal, arguing:

I. WHETHER SUMMARY JUDGMENT WAS PROPER IF FACTS WERE CONTESTED.

II. WHETHER THE LOWER COURT FAILED TO APPLY THE APPROPRIATE STANDARD OF REVIEW FOR SUMMARY JUDGMENT.

III. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE THE APPELLEE’S MOTION FAILED TO COMPLY WITH THE UNIFORM CIRCUIT AND COUNTY COURT RULES.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Jody Otts, an independent contractor, and his wife, Amanda, filed suit against Jody’s sister, Lisa Otts, her girlfriend, Donna Lynn, and Lynn’s company, Southern Foundations. Jody was paralyzed as a result of an altercation with Lisa on February 7, 1997, in which he was shot with a gun owned by Lynn.

¶ 4. Jody worked occasionally as a carpenter and independent contractor for Lynn. He had a history of drug and alcohol abuse. Approximately two days before the altercation in question, Lynn severed their working relationship when another worker reported that Jody had driven the company truck while under the influence of pills, marijuana and alcohol. Although Lynn fired Jody from his position as an independent contractor with her company, she allowed him to take over a former Southern Foundations’ job building a carport, which was to be completed the next day on February 6,1997.

¶ 5. On the night in question, Lynn and Lisa drove to Jody’s house around 8:00 p.m. to retrieve the company truck that Jody had been using. At the time, Jody was not at home and had left the truck in his driveway. Jody had also left his tools in the truck. Lynn took the company truck back to her own home. After drinking at a bar for several hours, Jody went to Lynn’s house sometime after midnight to retrieve his tools and ask for payment for the carport job. Amanda drove him because he had been drinking. Their young children also went along for the ride, because the couple did not want to leave them at home alone.

¶ 6. When Jody arrived at Lynn’s home, Lisa was asleep and Lynn answered the door. Jody was upset and Lynn invited Amanda and him in to talk. Lynn testified at trial that Jody announced “it would take the law to get him out” and that she might as well call them. As Lynn and Jody were talking, Lisa awoke and entered the room. Lisa and Jody began arguing, and Amanda went back outside to the truck to check on the children. Lisa and Lynn both stated that they repeatedly told Jody to leave. When Lisa and Jody began exchanging physical blows, Lynn went into her office located in one of the home’s bedrooms and called 911.

¶ 7. At some point in the argument, Lisa retreated to Lynn’s bedroom and took Lynn’s pistol from a bedside table. Lisa stated that she retrieved the gun, because she was in fear for her life after Jody had physically thrown her over furniture and ripped her clothing. Lisa went back into the room with Jody, holding the gun at her side. The two resumed their argument and Jody discovered the gun. Jody and Lisa began to wrestle for the gun. After a struggle, the gun went off, striking Jody and paralyzing him. Jody claims Lisa shot him accidentally. Lisa maintains that Jody shot himself.

¶ 8. The Otts sued Lisa, Lynn and Lynn’s company, Southern Foundations, claiming issues of vicarious liability, premises liability and negligent maintenance of a firearm. Lynn, individually and d/b/a Southern Foundations, requested and was granted a summary judgment in her favor. The Otts requested a certification of final judgment against Lynn pursuant to Rule 54(c) of the Mississippi Rules of Civil Procedure, which was also granted.

¶ 9. The Otts appeal, arguing that summary judgment was improper because issues of material fact existed regarding Jody’s claims for premises liability, vicarious liability, and negligence. They claim that a jury should have been able to decide whether: (1) Jody was a licensee or invitee at the time of the shooting on Lynn’s property (which would support his premises liability claim), (2) Lisa was an employee of Southern Foundations (which would support his vicarious liability claim), and whether (3) Lynn negligently kept a loaded gun on her property which was used in the shooting.

¶ 10. The Otts further maintain that the circuit court applied an incorrect standard for summary judgment, because the court’s order only found that no genuine issues of material fact existed, and did not address the second requirement that Lynn was entitled to a judgment as a matter of law. They argue that the circuit court did not view the facts in favor of the non-movant (the Otts), and that Lynn did not comply with the mandatory requirements of the Uniform Rules of Circuit and County Court because she did not itemize the facts alleged to be undisputed in her motion for summary judgment.

STANDARD OF REVIEW

¶ 11. This Court reviews the record de novo to determine whether a motion for summary judgment was properly granted. Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 81 (Miss.1991). A motion for summary judgment should be granted if it can be shown by the evidence that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). On a motion for summary judgment, a court does not try issues of fact; it can only determine whether there are issues to be tried. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10(¶ 6) (Miss.2001). All evidence must be viewed in the light most favorable to the non-movant, and the court should presume that all evidence in the non-movant’s favor is true. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).

LAW AND ANALYSIS

I. WHETHER SUMMARY JUDGMENT WAS PROPER IF FACTS WERE CONTESTED.

¶ 12. Mississippi Rule of Civil Procedure 56(c) states in pertinent part, “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law,” summary-judgment shall be entered.

¶ 13. The essential facts of this case are not disputed. The parties agree that Jody went to Lynn’s home sometime after midnight after drinking for several hours at a bar. After he entered Lynn’s home, Lisa awoke. Lisa and Jody argued and began physically fighting. Lisa retrieved a gun from the bedroom, there was a struggle, and Jody was shot. Lynn was not present in the room where the shooting occurred because she was in another room calling 911.

¶ 14. The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. “The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)).

A. Premises Liability

¶ 15. The Otts argue that a genuine issue of material fact surrounds the question of Jody’s status when he was entangled in the altercation with his sister. According to Leffler v. Sharp, 891 So.2d 152, 156(¶ 10) (Miss.2005), the “determination of which status [licensee, invitee, trespasser] a particular plaintiff holds can be a jury question, but where facts are not in dispute, the classification becomes a question of law for the trial judge.”

¶ 16. Mississippi uses a three-step approach to determine premises liability. Massey v. Tingle, 867 So.2d 235, 239(¶ 12) (Miss.2004). First, we must classify the status of the injured person as an invitee, licensee, or a trespasser. Id. Second, we determine the duty, if any, owed to the injured party, and then whether the duty was breached by the landowner or business operator. Id.

¶ 17. Jody argues that he was a business invitee because he went to Lynn’s house that night to receive payment for work he had completed for Lynn. Lynn argues that Jody was a licensee because he entered her property merely for his own benefit or, in the alternative, she claims that Jody became a trespasser because he was told repeatedly to leave the house once he and Lisa began to argue.

¶ 18. An invitee is “a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Corley v. Evans, 835 So.2d 30, 37(¶ 21) (Miss.2003). A business invitee is “invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 763 (Miss.1989). A licensee is one who “enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner,” and a trespasser is one who “enters upon another’s premises without license, invitation, or other right.” Corley, 835 So.2d at 37(¶21). Our supreme court has further held that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459, 467(¶ 31) (Miss.2003).

¶ 19. In order to create the status of an invitee, there must be a mutual advantage between the landowner and the invitee. Corley, 835 So.2d at 37(1122). Jody testified that he went to Lynn’s home in the middle of the night to retrieve his tools and receive payment for his work on the carport. Lynn asserts that she allowed Jody to enter the home merely to ascertain what was wrong because she could tell that Jody was upset. We find nothing in the record to indicate that Lynn received a mutual benefit from Jody. Jody’s work on the carport was not associated with Southern Foundations; it was a separate contracting job from that of his prior work with Southern Foundations. It appears that Lynn was merely doing Jody a favor by allowing him to take over the carport job so that he would have some income until he could find additional work. As such, we cannot say that Jody was an invitee or a business invitee. Therefore, we must next evaluate whether Jody was a licensee or a trespasser. When Jody was initially invited into Lynn’s home, he was a licensee. Yet once Lisa and Lynn told Jody to leave the premises, he could have been considered a trespasser. Lisa and Lynn both testified that they told Jody to leave; Jody disputes this.

¶ 20. Regardless of Jody’s status, Lynn did not breach any duty owed to him. In Mississippi, the highest standard of care owed to anyone who enters another’s land is to keep the premises reasonably safe and when not reasonably safe, to warn only when there is hidden danger or peril that is not plain and in open view. Titus, 844 So.2d at 467(¶ 33). Once the injured person observes and fully appreciates that peril, the duty to warn disappears. Id. Although licensees and trespassers are different classifications, “landowners owe licensees and trespassers the same duty, specifically, to refrain from willfully or wantonly injuring them.” Massey v. Tingle, 867 So.2d at 239(¶ 14) (Miss.2004).

¶21. As noted above, we find that Jody’s status is irrelevant because Lynn owed no duty to warn him of a situation which he created himself. Jody went to Lynn’s home in the middle of the night after he had been drinking. When he entered the home, Lynn testified that Jody exclaimed “it would take the law to get him out,” and she should go ahead and call the police. When Lisa awoke and entered the room, Jody began arguing with his sister and they subsequently exchanged physical blows. The testimony is uncon-troverted that both Jody and Lisa struck one another. At some point during the altercation, Jody witnessed Lisa retreat into Lynn’s bedroom and when she returned, Lisa was holding a pistol at her side. A struggle ensued, whereby the gun was discharged.

¶ 22. We find no evidence in the record to support an allegation that Lynn either failed to keep the premises reasonably safe, failed to warn Jody of a hidden danger or failed to refrain from willfully and wantonly injuring Jody. Thus, this argument is without merit.

B. Vicarious Liability

¶ 23. The Otts next maintain that because Lisa was an employee of Southern Foundations, Lynn should be held vicariously liable for Lisa’s actions. Lynn counters that at the time of Jody’s injuries, Lisa was not acting as an employee of Southern Foundations. Thus, even if Lisa could be characterized as an employee of Southern Foundations, her actions would have been outside the scope of her employment.

¶ 24. Under the doctrine of respondeat superior, an employer may be liable for the acts of his employee if said acts are done in the course of employment and in furtherance of the employer’s business. Children’s Med. Group, P.A. v. Phillips, 940 So.2d 931, 935(¶ 13) (Miss.2006) (citing Sandifer Oil Co. v. Dew, 220 Miss. 609, 630, 71 So.2d 752, 758 (1954)). However, if an employee deviates from that work or goes on a “frolic” of his own, then the employer-employee relationship is temporarily suspended. Id.

¶ 25. Southern Foundations was in the business of remodeling homes. Lisa occasionally helped with bookkeeping and visiting work sites to ensure the work was being performed. The altercation between Lisa and Jody occurred after midnight, well after any arguable normal working hours could be maintained. The argument escalated, in part, because Lisa was upset that her brother had been drinking and smoking marijuana on a job site. There is no evidence in the record to prove that Lisa was acting in the course of her arguable “employment” during the altercation with Jody. Thus, we decline to assign liability to Lynn for a dispute between a brother and sister which occurred well outside the scope of employment. Therefore, this argument is without merit.

C. Negligent Maintenance of a Loaded Gun on Business Premises

¶ 26. The Otts assert that Lynn should be held liable for the negligent maintenance of a loaded firearm, which was used to injure Jody. They claim that Lynn knew that Lisa had a “short fuse,” and that Lynn failed to take steps to protect Jody. To prevail on a negligence claim in Mississippi, the plaintiff must allege and prove the four basic tort elements for negligence: (1) duty, (2) breach, (3) causation, and (4) injury. Green v. Dalewood Prop. Owners Assoc., Inc., 919 So.2d 1000, 1005(¶ 10) (Miss.2005).

¶ 27. The Otts claim that Lynn breached her duty to warn Jody about the loaded firearm. However, any duty to warn disappears once the peril is in plain view and the plaintiff fully appreciates that peril. Titus, 844 So.2d at 467(¶ 33). Lisa testified that she retrieved the gun from Lynn’s bedroom because she feared for her life. She and Jody had been physically fighting for several minutes and he had ripped her clothing, struck her and threw her over furniture. Jody witnessed Lisa retreat-into the room and return holding the pistol by her side. A struggle ensued and Jody was shot.

¶ 28. The evidence from the record does not support a negligence claim against Lynn. Lynn was not present in the room when Jody was shot. She was in another room calling the police, and did not see Lisa enter the bedroom.to get the gun. If Lisa was known to have a “short fuse,” then Jody, as her brother, surely knew of her temper as well. As such, he could appreciate the peril he created for himself when he began arguing and physically fighting with her. Again, we decline to assign liability to another when the plaintiff himself created the perilous situation. Id. Further, we decline to hold a homeowner liable for maintaining a loaded firearm in order to protect him or herself from harm. Accordingly, we find this argument to be without merit.

II. WHETHER THE LOWER COURT FAILED TO APPLY THE CORRECT STANDARD OF REVIEW FOR SUMMARY JUDGMENT.

¶ 29. The circuit court granted Lynn’s motion for summary judgment stating that material issues of fact do not exist in this case. The Otts argue that some minimal analysis of the issues raised is necessary to support the order for summary judgment.

¶ 30. A motion for summary judgment can only be granted if the moving party meets its burden of proof by demonstrating that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The circuit court’s order reads in pertinent part, “In this cause, the Court finds that material issues of fact do not exist in this cause and that the Defendant’s, Donna Lynn, individually and doing business as Southern Foundations, Motions for summary judgment should be granted.” The Otts claim that the court did not consider or find that Lynn was entitled to a judgment as a matter of law and that the ease required more than a one-sentence conelu-sory finding. However, the Otts do not cite any authority to support their contention that the words “entitled to a judgment as a matter of law” must be contained in the court’s order.

¶ 31. In its order denying summary judgment, the circuit court illustrated the appropriate standard for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure, that “where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law.” Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991). The court further articulated that the evidence would be viewed in the light most favorable to the non-moving party and the court would err on the side of denying the motion if a doubt exists as to whether there is a genuine issue of material fact. American Legion Ladnier Post Number 4.2 v. Ocean Springs, 562 So.2d 103, 106 (Miss.1990).

¶ 32. The last sentence in the order states only that the court found there were no genuine issues of material fact and did not include the additional language “and the party is entitled to a judgment as a matter of law.” However, when reading the order as a whole, it is apparent that the court did fully consider the evidence in the light most favorable to the Otts, and that it appropriately considered whether genuine issues of material fact existed, as well as whether Lynn was entitled to a judgment as a matter of law. Therefore, we find the Otts’ argument to be without merit.

III. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE THE APPELLEE’S MOTION FAILED TO COMPLY WITH THE MANDATORY REQUIREMENTS OF THE UNIFORM CIRCUIT AND COUNTY COURT RULES.

¶ 33. In their final argument, the Otts claim that Lynn failed to comply with the mandatory requirement of the Uniform Rules of Circuit and County Court Rule 4.03 which requires the movant for a summary judgment to itemize the facts alleged to be undisputed.

¶ 34. Rule 4.03 states in pertinent part that “Movants for summary judgment shall file with the clerk as a part of the motion an itemization of the facts relied upon and not genuinely disputed.... ” The Otts provide no additional authority with which to prove that Lynn’s omission of the itemization of undisputed facts should be fatal to her request for summary judgment.

¶ 35. While the summary judgment motion itself did not specifically itemize undisputed facts, we find from the record that the movant did attach relevant excerpts from the pleadings, discovery and depositions, which described undisputed facts. In addition, Lynn filed a memorandum brief to support her motion for summary judgment on the same day as the motion for summary judgment was filed. In the brief, Lynn describes several facts which she claims are not in dispute, namely that Jody entered her home sometime after midnight, he became engaged in an altercation with Lisa, a fight ensured, Lisa took a pistol out of Lynn’s bedroom, whereby Jody and Lisa fought over the gun, and Jody was subsequently shot. Thus, we find this argument to be without merit and affirm the lower court’s grant of summary judgment.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Russell HOOD, Deceased, Appellant. Cheryl D. Horne, Petitioner, v. Bernie O. Parker and Wife, Marilyn S. Parker, Appellees.
    No. 2005-CA-00964-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      Al Shiyou, Hattiesburg, attorney for appellant.
    R. Andrew Foxworth, Columbia, attorney for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Cheryl D. Horne, as administratrix of the estate of Russell Hood, brought this action to set aside a conveyance made from Hood to Bernie 0. and Marilyn S. Parker. The chancellor denied the petition. Horne appeals and argues that: (1) the presumption of undue influence was not rebutted, (2) the chancellor should have considered Kelly v. Shoemake, and (3) a constructive trust must be placed on the subject property. We find no error and affirm.

FACTS

¶ 2. Hood owned a homestead, which consisted of two acres at 1771 Old Highway 35 North, Columbia, Mississippi. In a 1993 will, Hood devised his homestead and bequeathed all his personal property to Horne. She is his only child and a resident of Ohio.

¶ 3. Over time, Hood wanted to be sure that Horne would come to live in his home after his death. On February 1, 1997, he wrote Horne a letter asking her to decide whether she would move to Mississippi to live in the house after he died. He wrote, “I will hold up on changing my will u[n]til March 1[,] 1997. That will give you a month to let me know.” Horne responded that she was not sure whether she would or not.

¶ 4. On March 4, 1997, Hood executed a new will which left all his property to the Parkers. The Parkers resided directly across the street from Hood. Finally, on September 9,1998, Hood deeded his homestead to the Parkers, without a reservation of a life estate. Bernie Parker testified that this was based on his agreement with Hood that Bernie would carry out Hood’s wishes with regard to the property. Namely, Bernie would let Hood remain in the house until he died, would pay the property taxes and insurance, would help maintain the property, would have Hood cremated after death, and would give Irene Few anything of his personal property that she wanted.

¶ 5. Irene Few was Hood’s neighbor and girlfriend, as well as Bernie’s mother. The Parkers were Hood’s friends. Bernie was the minister of music at First Baptist Church in Columbia. He became concerned about Hood’s salvation and would ask him to church. Hood never accepted the offer. The Parkers and Hood would help each other with their respective gardens. Hood was hard of hearing, so Bernie would accompany him to his many doctor visits and hospital stays. On occasion, the Parkers and Few would drive Hood where he wanted to go, because they were concerned about his old car. Hood was capable of driving himself and very often did. Few had a joint savings account with Hood and helped him pay his bills.

¶ 6. Hood passed away on October 19, 1999. Bernie informed Horne of the deed and of the 1997 will. With Bernie’s permission, Horne took her father’s china and family pictures out of the house. Horne then began this action to set aside the deed. The chancellor found that although Horne raised a presumption of undue influence, the Parkers had successfully rebutted it. Aggrieved, Horne appeals.

STANDARD OF REVIEW

¶ 7. Undue influence is a question of fact. Watkins v. Watkins, 142 Miss. 210, 229, 106 So. 753, 755 (1926). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). “The determination of the existence of a constructive trust is a matter of law and thus, subject to de novo review.” Allred v. Fairchild, 785 So.2d 1064, 1068(¶ 7) (Miss.2001).

ANALYSIS

I. Did the Parkers successfully rebut the presumption of undue influence?

II. Should the chancellor have considered Kelly v. Shoemake for the proposition that Hood was unduly influenced because he was not truly independent?

¶ 8. Because these issues both address whether the presumption of undue influence was rebutted, we consider them together. Horne argues that the Parkers failed to rebut the presumption of undue influence raised in this case. The Parkers assert that there is substantial credible evidence to support the chancellor’s finding and that Few’s actions are not imputed to them.

¶ 9. A party claiming an inter vivos transfer is void because of undue influence must show by clear and convincing evidence that a confidential relationship existed between the grantor and grantee/beneficiary. Estate of Hawkins, 737 So.2d 432, 434(¶ 9) (Miss.Ct.App.1999). When such a relationship exists, the presumption of undue influence arises automatically. Lancaster v. Boyd, 803 So.2d 1285, 1289(¶ 9) (Miss.Ct.App.2002); Hawkins, 737 So.2d at 434(¶ 9).

1110. Once the presumption is established, the burden shifts to the fiduciary to rebut the presumption by clear and convincing evidence. Id. In order to overcome the presumption, the Parkers must show (1) that they exhibited good faith in the fiduciary relationship with Hood; (2) Hood acted with knowledge and deliberation when he executed the deed, and (3) Hood exhibited independent consent and action. Lancaster, 803 So.2d at 1289(¶ 10).

¶ 11. First, we consider whether there was substantial credible evidence that the Parkers acted in good faith. To determine this element, we must examine five factors: (1) who sought the preparation of the deed, (2) where and in whose presence was the deed executed, (3) what was the fee that was paid to execute the deed, (4) who paid the fee, and (5) was the deed executed openly or secretly. Rogers v. Pleasant, 729 So.2d 192, 194 (¶¶ 8-11) (Miss.1998).

¶ 12. The evidence was that Hood sought preparation of the deed. First, in the February 1997 letter Hood stated he would give the property to someone other than Horne if she would not promise to live there. Secondly, Bernie testified that one year prior to the execution of the deed, Hood offered to give the Parkers the property, but Bernie insisted Hood give it to a family member. The Parkers both testified that the first they knew of the deed was when Hood delivered it to them. Drafting attorney Fred Cooper testified that Hood was the one who contacted him about the deed. It was executed in Cooper’s office, with only Hood and Cooper present. There was no testimony as to the fee that was paid, but Cooper testified that Hood paid it. Hood did not tell anyone, including the Parkers, when he executed the deed. All parties knew, however, that Hood had already changed his will to devise the property to the Parkers. We find there was substantial credible evidence that the Parkers exhibited good faith in this transaction.

¶ 13. Next, we look at whether Hood acted with knowledge and deliberation when the deed was executed. We must consider four factors: (1) Hood’s awareness of his asset and its general value, (2) an understanding by Hood of the persons who would be the natural inheritors of his bounty under the laws of intestacy or under a prior will and how the proposed change would legally affect the prior will or natural distribution, (3) whether non-relative beneficiaries would be excluded or included, and (4) knowledge of who controls Hood’s finances and business and by what method, and if controlled by another, how dependent was Hood on her and how susceptible to her influence. Id. at 194(¶ 13).

If 14. The evidence was undisputed that Hood was aware that his homestead was an asset. He appeared aware of its general value. Particularly, he took great pride in the place as his own home and land that, according to the February 1997 letter, he “work[ed] all [his] life to get.” The evidence is undisputed that Hood was aware that Horne was his only heir and beneficiary under his prior will. He was also fully cognizant that the deed would disinherit her. In fact, that was the ultimatum he gave her in the February 1997 letter. She had until March 1 to agree to live in the house after he was gone or else he would change his will to give the property to someone else. When she could not agree, true to his word, on March 4, 1997, Horne changed his will. Over a year later, he drafted the deed, which in effect accelerated the transfer to the Parkers. No one disputes that Hood knew that the Parkers were non-relative grantees and that he was favoring them over his family. Finally, there was testimony that Hood shared a joint account with Few and that she helped him pay his bills. There was no evidence that she controlled his finances or he was susceptible to her influence. He was a headstrong, independent man, purchasing and selling cars and trading other items on his own. We find there is substantial credible evidence to support the finding that Hood acted with knowledge and deliberation when the deed was executed.

¶ 15. The final element we must examine is whether Hood exhibited independent consent and action. The evidence was only that Hood was fiercely independent. Horne admitted he was stubborn, had a mind of his own, and was very private. Hood apparently saw himself this way as well. In the February 1997 letter to his daughter, he wrote:

Pumpkin, I didn’t buy this place sold [sic] I bought it so that when my time[’]s come, I would die in my home not an old peoples^] Home. Or up North. And I won[’]t live with any one. Special my kin. I am not the kind to ask for Help from anyone[.] I have alwayfs] taken care of myself[,] for the past 45 years[,] and never asked anyone for help. Me, I help myself.

Hood made up his mind to give the property to the Parkers, and neither Bernie nor Horne could persuade him otherwise. Hood was concerned that rising medical costs would force him out of his home into a nursing home. Not receiving the assurances he sought from his daughter, he sought these assurances from the Parkers. Hood set out the conditions of the transfer: the life estate, the taxes and insurance, the maintenance, the cremation, and the disposition to Few. Hood took himself to the attorney to have the deed executed. Cooper counseled Hood to reserve a life estate in himself, but he declined. Instead, Hood secured a recognized life estate from the Parkers. We find there was substantial credible evidence for the chancellor to find that Hood acted with independent consent and action.

¶ 16. Nevertheless, Horne insists that Kelly v. Shoemake, 460 So.2d 811 (Miss. 1984), mandates that we reverse this case for the mere fact that Few had a joint savings account with Hood and helped him pay his bills. We cannot say the chancellor erred in determining that this factor was outweighed by Horne’s own admission that her father was fiercely independent and had a mind of his own. Even were we to agree with Horne that this evidence ipso facto indicates that “Hood did not receive independent advice regarding his financial matters,” as set out previously, other evidence indicated that Hood handled his own business affairs.

. ¶ 17. Moreover, Kelly is distinguishable from the case at bar. The chancellor in Kelly “found as fact, that ... Mrs. Wind-ham relied upon Kelly exclusively to make all her business and financial decisions and to conduct her business affairs.” Id. at 819. Kelly did not challenge this finding on appeal, and this finding was “fully supported by the evidence.” Id. Moreover, Mrs. Windham’s attorney was unable to render her meaningful advice on the transaction. Id. at 821. There were no such findings here. There was no evidence that Hood exclusively relied on Few’s advice, nor was there evidence that she ever gave any. The only evidence was that he was strong minded and handled his own business affairs, even if Few helped him pay his bills. Since there is substantial credible evidence to support the chancellor, we must affirm this issue.

III. Should a constructive trust he placed upon the homestead?

¶ 18. Horne also argues that a constructive trust be placed on the property. Essentially, she maintains that the Parkers were given the property because Hood trusted Bernie to carry out his wishes. She asserts that there is no evidence of what those conditions are so we should find those conditions were not carried out and thus place a constructive trust on the homestead. The Parkers argue the constructive trust argument is waived for failure to plead it below.

A. Waiver

¶ 19. The constructive trust argument is not waived. Although Horne did not plead constructive trust, it was the Par-kers that introduced the evidence of a constructive trust. Bernie’s testimony indicated clearly that the deed was not an unqualified gift, but rather was given because Hood trusted Bernie to carry out Hood’s wishes with regard to the property. At the close of the evidence, the chancellor noted this fact and asked the parties to brief the issue of constructive trust. Horne then moved to amend the pleadings to conform to the evidence.

¶ 20. When evidence outside the pleadings is offered at trial, and the other side consents, the complaint is amended by operation of law. M.R.C.P. 15(b). In this instance, the Parkers are not “the other side,” rather they are the side that introduced the evidence. When the Parkers introduced the evidence, and Horne did not object, the pleadings were amended by operation of the rules of civil procedure. Even were we to consider the Parkers “the other side,” because the evidence favored Horne’s pleadings, we must find the Par-kers consented, since they were the ones who introduced it. Therefore, the question of constructive trust is properly before this Court.

B. Constructive trust

¶21. Constructive trust is a means by which one who unfairly holds a property interest may be compelled to convey that interest to another to whom it justly belongs. In re Estate of Horrigan, 757 So.2d 165, 170(¶ 25) (Miss.1999). “Such a trust arises by implication from the relationship and conduct of the parties and may be established by parol testimony notwithstanding the statute of frauds.” Id. “It is the relationship plus the abuse of confidence that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.” Thornhill v. Thornhill, 905 So.2d 747, 753(¶ 18) (Miss.Ct.App.2004) (quoting Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995)). A constructive trust:

arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, to hold and enjoy.

Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (Miss.1963) (quoting 54 Am.Jur. Trusts, § 218). “An abuse of confidence within the rule may be an abuse of either a technical fiduciary relationship or of an informal relationship where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.” Id. at 354, 153 So.2d at 807-08. “A confidential relationship within the rule need involve neither a promise for the benefit of another nor an express fiduciary relationship.” Id., 153 So.2d at 808.

¶22. On appeal, the Parkers do not dispute the existence of a confidential relationship. However, we find no abuse of confidence. Horne argues that Bernie was vague and would not testify what he was supposed to do with regard to the property. In fact, Bernie did testify about what he was obligated to do. Moreover, the evidence is that Bernie kept up his end of the bargain. He let Hood remain in the house until he died. The Parkers paid the insurance and taxes, and gave some of Hood’s personal property to Few. There was no evidence that Bernie did not help maintain the property during Hood’s lifetime. In fact both Hood and the Parkers would help take care of each others’ gardens. Finally, Hood was cremated per his request.

¶ 23. We find that this issue has no merit.

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

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


author: IRVING, J.,

text:
    Houlan KENDRIX, Appellant v. James L. HUCKABY, Appellee.
    No. 2006-CA-00098-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      Terry T. James, Calhoun City, attorney for appellant.
    Cliff R. Easley, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a contract between Houlan Kendrix and James Huc-kaby. The Calhoun County Chancery Court found for Huckaby and ordered Kendrix to pay Huckaby a total of $7,600. Kendrix appeals and asserts that the chancellor erred because his decision was against the weight of the evidence, because the evidence is insufficient to sustain the chancellor’s judgment, and because the chancellor failed “to recognize that [Ken-drix] did everything he could to attempt to complete his part of the contract....”

¶ 2. We affirm, although we find that the chancellor erred in finding that the four corners of the contract were sufficient to dispose of this matter. We also find that the sum the chancellor ordered Kendrix to pay was in error, and we therefore modify the amount of the judgment. We address this as a separate issue below, as it was not raised by Kendrix on appeal.

FACTS

¶ 3. On December 29, 1988, Kendrix and Huckaby entered into a written contract that is titled “Rental Agreement.” The contract concerns a piece of property in Calhoun County, owned by Huckaby, that contains a house, a shop, and an old service station. When the contract was signed, the home was fully furnished, and the shop contained molds and machinery. According to the written terms of the contract, rental payments of $400 per month were to be made for fifteen years, with an additional $8,000 due at the end of the fifteen-year period, for a total contract payment of $80,000. The contract also contains provisions for who would be responsible for the contract in the event of the death of either party.

¶4. The contract contains no language indicating that it was actually a rent-to-own contract, nor does the contract specify which party would be responsible for maintaining insurance on the property. Despite this, the parties agree that they intended to have a rent-to-own contract, with Ken-drix receiving the property after payment of the $8,000 “balloon” payment. Furthermore, the parties agree that they originally intended that Kendrix would be responsible for insurance on the property.

¶ 5. Kendrix maintained insurance on the property until some time in the mid-1990s, when he allowed the insurance to lapse. Kendrix contends that this was because, after he successfully filed a claim, he was told by the insurance company that he could not continue to pay for the insurance because title to the land was not in his name. Huckaby took over the payment of insurance, although the parties dispute the exact circumstances surrounding Huckaby’s assumption of insurance payments. At that time, Huckaby changed the language on the monthly receipts he gave Kendrix from “land and house purchase” to “rent.”

¶ 6. In January, 2004, Kendrix alleged that he approached Huckaby to offer the $8,000 balloon payment, but Huckaby insisted that their contractual fifteen-year period had not yet run. Kendrix maintains that, as a result, he left without giving the $8,000 to Huckaby. By contrast, Huckaby contends that Kendrix never approached him with an offer of the $8,000. Both parties agree that Kendrix continued to make monthly payments of $400 to Huckaby, and Huckaby accepted those payments. On January 25, 2005, Kendrix’s attorney informed Huckaby by letter that Kendrix wanted to purchase the property and was ready to pay $3,200, which he maintained was the remainder of the balloon payment. Huckaby refused to deed the property to Kendrix, and Kendrix sued Huckaby.

¶ 7. Huckaby filed an answer and a cross-complaint against Kendrix, seeking payment for rent for the period of time Kendrix lived on the property after Huc-kaby had declared the contract null and void because of Kendrix’s alleged breach by failing to keep the property insured and by failing to pay the $8,000 balloon payment. Huckaby also sought possession of the property and attorney’s fees.

¶ 8. The chancellor found that the contract between the parties was an unambiguous rental contract. The chancellor then went on to find that, even if the contract were ambiguous, looking at the intent of the parties, it was clear that Kendrix’s payment of the insurance was a necessary component of the contract, and that Ken-drix did not tender the $8,000 balloon payment as he was required to do at the end of the fifteen-year period. The chancellor noted that this finding would be the same if he took parol evidence into account. The chancellor further found that the specific performance requested by Kendrix, the transfer of the property from Huckaby to Kendrix, was impossible because Huc-kaby no longer owned the property. Consequently, the court ordered Kendrix to pay the $3,200 outstanding on the contract, as well as $4,400 in rent for eleven months when Kendrix lived on the property but tendered no payment to Huckaby. The chancellor also gave Kendrix thirty days to remove himself from the property. Aggrieved by this ruling, Kendrix instituted the current appeal.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. There is a three-tiered approach that courts use in interpreting a contract: the “four corners” of the document, the “ ‘canons’ of contract construction,” and extrinsic or parol evidence. Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 284(¶ 13) (Miss.2005) (citations omitted). The four corners approach looks only at the language used in the contract. Id. The canons are to be used only if the four corners of the document are insufficient to interpret the contract, and extrinsic or parol evidence is to be used only if the contract remains ambiguous after application of the four corners and the canons. Id.

¶ 11. In this case, the chancellor found that the meaning of the contract could be ascertained from simply applying the four corners test. Having done so, the chancellor found in favor of Huckaby on the basis that the contract was a simple rental agreement. We find that this determination was incorrect, as Huckaby freely admitted in his sworn answer to Kendrix’s complaint that the contract was a rent-to-own contract, rather than a rental agreement. Essentially, the chancellor’s finding that the document was an unambiguous rental agreement contradicts the sworn filings of both parties. Regardless, as we explain below, we find that the chancellor correctly ruled in favor of Huckaby.

1. Weight of the Evidence

¶ 12. Kendrix contends that the chancellor’s decision was against the overwhelming weight of the evidence. Although he frames this argument in terms of the denial of his motions for a new trial and judgment notwithstanding the verdict, we note that only his motion for a new trial challenges the weight of the evidence, as both a motion for a directed verdict and a motion for a judgment notwithstanding the verdict (JNOV) challenge the sufficiency of the evidence at trial. See Coho Res., Inc. v. Chapman, 913 So.2d 899, 904-08 (¶¶ 12-28) (Miss.2005).

¶ 13. Rule 59 authorizes new trials in actions tried without a jury. “On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” M.R.C.P. 59(a)(2). Additionally, a chancellor’s factual findings are given great deference, and we “will not disturb a chancellor’s findings unless [the findings were] manifestly erroneous.” Stockstill v. Gammill, 943 So.2d 35, 40(¶ 8) (Miss.2006) (citing Rice v. Pritchard, 611 So.2d 869, 872 (Miss.1992)).

¶ 14. After reviewing all the evidence, we cannot say that the chancellor erred in refusing to grant a new trial. The undisputed facts reveal that Kendrix and Huc-kaby entered into a contract whose terms included monthly payments and a final balloon payment, at which time Huckaby would transfer the property to Kendrix’s possession. However, Kendrix and Huc-kaby disagree as to whether the balloon payment was tendered in a timely fashion. Although Kendrix contends that he offered the payment and Huckaby refused to accept it, Huckaby testified that Kendrix never offered to pay the $8,000, and that the conversation referenced by Kendrix actually concerned a check that had been rejected for insufficient funds. Given this conflicting evidence, the chancellor was entitled to accept whichever version of events he found more credible. We cannot say that the chancellor’s findings were manifestly erroneous.

¶ 15. Furthermore, Kendrix admitted during his testimony that the maintenance of insurance was part of the original contract:

Q. At the time y’all entered into that [the contract], you also had an oral agreement, did you not, that you would pay the insurance on the house?
A. Yes, sir, we did.

Kendrix then went on to testify that he was told by the insurance company that he would not be able to pay for the insurance directly because he did not own the property. Kendrix maintained, however, that he offered to reimburse Huckaby for the cost of the insurance premiums. Posed against this is Huckaby’s testimony that Kendrix failed to pay the insurance for a year before Huckaby discovered the lack of insurance. Huckaby also testified that the insurance did not lapse as a result of the insurance company refusing to allow Kendrix to pay for the insurance, but because Kendrix ceased paying voluntarily. Huckaby maintains that their rent-to-own contract changed to a rental only contract after Kendrix stopped paying for insurance. Supporting this contention is Ken-drix’s admission that the wording on the receipts he received from Huckaby changed in December of 1995 to indicate that the payments received were for “rent” rather than for “house and land.” Under these circumstances, the chancellor is not manifestly in error for finding that Ken-drix’s payment of insurance was an essential term of the contract that Kendrix failed to meet.

¶ 16. The chancellor’s ruling is not against the overwhelming weight of the evidence, and he did not err in refusing to grant Kendrix a new trial.

2. Sufficiency of the Evidence

¶ 17. While a motion for a new trial challenges the weight of the evidence, “[a] motion for a JNOV tests the legal sufficiency of the evidence supporting the verdict....” McFarland v. Entergy Miss., Inc., 919 So.2d 894, 899-900(¶ 15) (Miss.2005) (quoting White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510(¶6) (Miss.2004)). When reviewing the sufficiency of the evidence supporting a chancellor’s decision, we “will not disturb the factual findings of a chancellor when supported by substantial evidence unless ... the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Gulf Coast Research Lab. v. Amaraneni, 877 So.2d 1250, 1252(¶ 8) (Miss.2004) (quoting Gannett River States Publ’g Corp. v. City of Jackson, 866 So.2d 462, 465(¶ 11) (Miss.2004)). We will reverse only “if the chancellor’s findings are unsupported by substantial credible evidence....” Id. (quoting Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 223(¶ 6) (Miss.2001)).

¶ 18. After reviewing the record, we find that substantial evidence supports the chancellor’s decision. There was a bevy of conflicting evidence that we have already reviewed in our discussion of the weight of the evidence supporting the chancellor’s decision. We also find that there is sufficient evidence to support the chancellor’s verdict, and the chancellor did not err in refusing to grant a directed verdict or motion for a judgment notwithstanding the verdict.

3. Kendrix’s Attempts to Satisfy the Contract

¶ 19. In this contention, Kendrix claims that Huckaby admitted on the stand that Kendrix “had done everything he should have done except pay for insurance upon the property.” Although Huckaby did admit during questioning by Kendrix’s attorney that he would have transferred the property to Kendrix if Kendrix had paid the insurance, this admission was immediately corrected upon questioning by Huc-kaby’s own attorney:

Q. No. I said — listen to me. I said he asked you a question that if he had paid the insurance on the house, like he was supposed to, if you would have conveyed it to him?
A. Sure would.
Q. Well, all right.
A. If he’d done everything he promised.
Q. If he’d abided by the contract, if he had paid you the $8,000 on the end and all this?
A. (Witness nods head up and down.)
Q. But what I’m saying, it was more than just insurance that he had to do?
A. Right.

This exchange and other testimony by Huckaby made it clear that he believed not only that Kendrix had failed to maintain insurance, as required by the contract, but also that he had never received the $8,000 from Kendrix. Specifically, Huckaby testified that Kendrix had never offered to tender payment of the $8,000.

¶ 20. Kendrix claims that he has not defaulted on the contract and that the lower court, as a court of equity, should have required Huckaby to transfer ownership of the property to him. As we have already found, the chancellor’s decision was not against the weight of the evidence and sufficient evidence undergirds the decision. Furthermore, as noted throughout this opinion, whether Kendrix defaulted under the terms of the contract was strongly contested at trial. In the face of such conflicting testimony, the chancellor did not err in finding that Kendrix defaulted on the contract.

k- Amount of Judgment

¶21. The court ordered Kendrix to pay the outstanding balance of the balloon payment, $8,200, as well as eleven months of rental payments, totaling $4,400. The $3,200 was derived by subtracting the extra year of rental payments made by Kendrix, $4,800, from the $8,000 balloon payment, which the court indicated was part of the rental agreement between Ken-drix and Huckaby. Since we find that the chancellor erred in treating the agreement as a rental contract, with a $8,000 balloon payment, we find it necessary to adjust the amount which the court should have ordered Kendrick to pay. Consistent with our finding that this was a rent-to own contract, which was breached by Kendrick, the chancellor should have simply ordered Kendrick to pay the additional eleven months of rental payments, which amount, when added to the $4,800 already paid by Kendrick, would constitute full rental payments for the period of time in which Kendrick lived on the property after breaching the contract. Therefore, the court should have ordered Kendrix to pay Huckaby $4,400, not $7,600. We therefore affirm, but modify the court’s order to reduce the total amount of the judgment entered against Kendrix from $7,600 to $4,400.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF CALHOUN COUNTY IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Sometime in 2004, Huckaby conveyed all the property he owned to his children, subject to a life estate which he retained for himself.

      . Although Kendrick framed his posttrial motion as a motion for judgment notwithstanding the verdict, this was procedurally incorrect, as a verdict is rendered by a jury. Here, the chancellor decided the case without the aid of a jury. The proper request would have been a motion to alter or amend the judgment, or for a new trial pursuant to Rule 59 of Mississippi Rules of Civil Procedure.

      . It is not clear what the parties intended for the $8,000 balloon payment to represent. However, as stated by the chancellor, the $400 monthly rent appeared to be more than reasonable. Huckaby testified that the monthly payment was so low because he was supposed to live on the property with Ken-drix, although he did not.


text:
    Margaret MOELLER, Appellant v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 2006-CC-00073-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Jonathan B. Fairbank, attorney for appellant.
    Katherine Jane Caldwell, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Margaret Moeller was terminated from her employment with the Mississippi Department of Human Services (MDHS) for a Group III, Number 11 offense. Aggrieved, she appealed the decision to the Mississippi Employee Appeals Board, which assigned an administrative law judge to hear Moeller’s case. The judge upheld Moeller’s termination. Moeller then appealed to the full board, who again affirmed Moeller’s termination. Thereafter, Moeller appealed that decision to the Circuit Court of Hinds County, which affirmed the decision of the board. Moeller now appeals to this Court, asserting that her termination was in error. We agree.

FACTS

¶ 2. Moeller began working for MDHS in November 1992. Her specific position within the department changed several times during her tenure. In 1999, Moeller was assigned to work in the office of a county director. Moeller indicated that she was lifting a typewriter in December 1999 when she injured her left rotator cuff, her right rotator cuff, and possibly her spine. Moeller was scheduled to have surgery for these injuries on April 19, 2000. Moeller took off from work on that date for her surgery, and she never returned to work. She was compensated by worker’s compensation for total temporary disability from April 19, 2000, until her termination by MDHS on March 6, 2002.

¶ 3. Additional facts, if necessary, will be related during our analysis and discussion.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. We do not review the decision of the lower courts de novo; “rather, this Court (and any reviewing court) determines whether ‘the Board’s decision was (1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the powers of the Board to make, or (4) viola-tive of a statutory or constitutional right of [the complaining party].’ ” Hams v. Miss. Dep’t of Corrs., 831 So.2d 1105, 1107(116) (Miss.2002) (quoting Rowzee v. Pub. Employees’ Ret. Sys., Ill So.2d 664, 666-67(¶ 12) (Miss.2000)).

¶ 5. Moeller was terminated for a Group III, Number 11 offense. According to the Mississippi State Employee Handbook, Group III is for offenses “of the most serious nature.” Number 11 prohibits: “an act or acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.” MDHS maintained that termination under this section was appropriate because it could not replace Moeller, and her work therefore was not being done during the years that she was gone.

¶ 6. As support, MDHS cites Mississippi Code Annotated section 25-3-93(2) (Rev. 2006), which reads in part: “Leaves of absence granted by the appointing authority for one (1) year or less shall be permitted without forfeiting previously accumulated continuous service.” MDHS argues: “It has been established that MDHS policy is to terminate an employee that has been absent from employment for a period which exceeds twelve (12) months. This is not only the policy of MDHS, but is expressly mandated by § 25-3-93(2) of the Mississippi Code of 1972, Annotated.” Likewise, the decisions affirming Moeller’s termination cite this statute as support for her termination.

¶ 7. However, the Mississippi State Employee Handbook makes clear that section 25-3-93(2) does not apply to Moeller’s situation. The handbook expressly references the section and then explains that a leave of absence, which is addressed by section 25-3-93(2), “should not be confused with leave without pay. A leave of absence is for the purpose of accepting another position in non-state service.” There is no evidence whatsoever in the record before us to indicate that Moeller was absent from work for the purpose of obtaining non-state employment. Therefore, section 25-3-93(2) cannot work as support for her termination. Regardless, testimony by MDHS employees maintained that it is the policy of MDHS to terminate employees who are absent from work for more than one year. This Court has been unable to find any written policy to such end, other than those addressing leaves of absence under section 25-3-93(2), and none was included in the record.

¶ 8. It is clear to this Court that Moeller should not have been terminated for a Group III offense. In fact, there is nothing about Moeller’s conduct that would make it an “offense.” By way of example, some of the offenses prohibited by Group III are: going to work intoxicated, breaching agency security, violating established safety rules “where there exists a threat to life or human safety,” unauthorized possession of “dangerous weapons,” falsification of records, and “acts of physical violence.” Notably, Group III, Number 1 prohibits: “unauthorized absence or leave in excess of three (3) consecutive working days without proper notification and satisfactory explanation to the supervisor or the appointing authority in a timely manner.” However, MDHS could not use this section to terminate Moeller because she clearly provided notification and a satisfactory explanation to her employer.

¶ 9. Moeller suffered serious injuries while working that left her totally temporarily disabled, as shown by the full payments she received from worker’s compensation during the entire time of her absence from MDHS. This circumstance is clearly not the sort of “offense” that is contemplated by Group III of the State Employee Handbook. Therefore, we find that the decision to terminate Moeller was not based on substantial evidence. Therefore, we reverse and remand to MDHS for proceedings consistent with this opinion.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND THIS CASE IS REMANDED TO THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Moeller contends that although her job ti-tied her a "secretary,” she was assigned to work in a supply room, which she was reorganizing at the time of her injury.

      . Much of Moeller’s appeal before this Court concerns the computation of her time off from work and whether her time under the Family Medical Leave Act and her personal leave should have been applied during her absence. Because we find that Moeller’s termination was improper, we do not address the computation of her leave.

      . We note, however, that Section 10 of the handbook does allow for involuntary dismissal of a state employee who fails “to continue to meet the eligibility criteria for the position held or [who is unable] to perform the essential functions of the job.”


author: ROBERTS, J.,

text:
    Andrew RUCKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01295-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      Andrew Rucker, Pro Se.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Having pled guilty to sale of cocaine, Andrew Rucker, a habitual offender, was sentenced to twenty years in the Mississippi Department of Corrections with ten years suspended and ten to serve. Rucker filed an unsuccessful petition for post-conviction relief in which he alleged, in essence, that his sentence was excessive and that he received ineffective assistance of counsel. Aggrieved, Rucker appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Indicted and charged with sale of cocaine as a habitual offender, on January 8, 2003, Andrew Rucker went before the Second Judicial District of the Yalobusha County Circuit Court and pled guilty to sale of cocaine. The circuit court also found that Rucker qualified for sentencing as a habitual offender. The circuit court sentenced Rucker to twenty years in the Mississippi Department of Corrections. However, the circuit court suspended ten years of Rucker’s sentence and left ten to serve. Rucker’s sentence was consistent with the plea bargain he had struck with the district attorney.

¶ 3. On December 29, 2005, Rucker filed a petition for post-conviction collateral relief. Rucker claimed (a) he was unlawfully sentenced as a habitual offender, (b) his sentence exceeded statutory limits, and (c) he received ineffective assistance of counsel. On April 25, 2006, the circuit court summarily dismissed Rucker’s petition without conducting a hearing. Rucker appeals.

STANDARD OF REVIEW

¶4. In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v. State, 926 So.2d 233(12) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

ANALYSIS

I. WHETHER THE CIRCUIT COURT IMPROPERLY SENTENCED RUCKER AS A HABITUAL OFFENDER.

¶ 5. The Yalobusha County Grand Jury returned an indictment against Rucker and charged him with sale of cocaine as a habitual offender pursuant to Section 99-19-81 of the Mississippi Code Annotated. (Rev.2000). Rucker pled guilty. Rucker claims the circuit court erred when it did not conduct a bifurcated trial as required by URCCC 11.03.

¶ 6. Rucker did not request a separate and bifurcated hearing. When a petitioner fails to request a separate hearing at the time of sentencing, he is precluded from raising that point on appeal, even if there is substantive merit to the petitioner’s argument. Crouch v. State, 826 So.2d 772(¶ 4) (Miss.Ct.App.2002).

¶ 7. Assuming, for the sake of discussion, that Rucker preserved this issue, his assertion would still be meritless. When a defendant pleads guilty to the principal charge, a separate hearing as to whether he is a habitual offender is not mandatory. Id. Rather, “[a]ll that is required is that the accused be properly indicted as [a] habitual offender[,] ... that the prosecution prove the prior offenses by competent evidence ... and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof.” Id.

¶ 8. Rucker does not claim that he was either improperly indicted, that the prosecution failed to prove the prior offenses by competent evidence, or that he did not have a reasonable opportunity to challenge the prosecution’s proof. Because a separate hearing was not required, the circuit court did not err when it declined to conduct one. Further, the plea colloquy shows clearly that Rucker had previously been convicted of two separate felonies in 1994 and 2000, both before the Yalobusha County Circuit Court, and that he qualified for sentencing as a habitual offender under Section 99-19-81 of the Mississippi Code. This assignment of error is meritless.

II. WHETHER THE CIRCUIT COURT IMPROPERLY SENTENCED RUCKER TO AN EXCESSIVE AND ILLEGAL SENTENCE.

¶ 9. Rucker submits that the circuit court’s sentence exceeded the statutory maximum. According to Rucker, the minimum sentence for his crime was two years, while the maximum sentence was eight years. Rucker’s misunderstanding results from his misreading of the applicable statutory provision.

¶ 10. Rucker references the minimum and maximum sentences for a violation of Section 41 — 29—139(c)(1)(b) of the Mississippi Code Annotated. (Rev.2005). That provision governs sentencing for possession of cocaine. Rucker pled guilty to sale of cocaine, a violation of Section 41-29-139(a) of the Mississippi Code Annotated. One who violates that provision may be sentenced to a maximum of thirty years. Accordingly, Rucker’s sentence of twenty years with ten years suspended and ten years to serve as a habitual offender is well below the thirty-year maximum sentence as a habitual offender.

¶ 11. Section 99-19-81 states that, if one convicted of a felony has a previous record of conviction of two other felonies, arising from separate incidents, and where the convicted party had been sentenced to separate terms of at least one year each for those two prior felonies, upon conviction of a subsequent felony, the convicted party must be sentenced to the maximum allowable sentence for that felony. Miss. Code Ann. § 99-19-81; Frazier v. State, 907 So.2d 985(¶11) (Miss.Ct.App.2005). Further, Section 99-19-81 goes on to state that such a sentence “shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Pursuant to Section 99-19-81 and the undisputed record in this case, Rucker should have received a mandatory thirty year sentence. Rucker was sentenced to twenty years with ten years suspended and ten years to serve. The State has not challenged the legality of Rucker’s sentence on a cross-appeal. To be perfectly clear, we do not disturb Rucker’s sentence. We merely point out the arguable leniency Rucker received to illustrate the fact that Rucker’s sentence was not unduly harsh or excessive.

III. WHETHER RUCKER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 12. Rucker claims the circuit court erred when it did not conduct an evidentia-ry hearing to determine whether he had ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, Rucker must demonstrate (1) a deficiency in his counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v. State, 742 So.2d 1106(¶ 22) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (Miss.1997)). In deciding whether Rucker’s counsel rendered ineffective assistance, this Court examines the totality of the circumstances surrounding the case. Swington, 742 So.2d at (¶22). Rucker faces a “strong but rebuttable presumption that his counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. at (¶ 23). To overcome this presumption, Rucker must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶ 13. Rucker’s rationale for ineffective assistance of counsel stems from his first two issues on appeal. Rucker contends that his counsel was ineffective because he failed to object to the length of Rucker’s sentence. In Rucker’s petition to plead guilty, Rucker indicated that he and his attorney reached an agreement with the district attorney’s office and that, in exchange for his guilty plea, the district attorney would recommend a specific sentence. That specific sentence is filled-in and it is in Rucker’s own handwriting. That portion of Rucker’s petition shows that Rucker expected that the district attorney’s office would recommend a twenty year sentence with ten years to serve “as [a] habitual offender” and ten years on post-release supervision. Rucker was indicted for sale of cocaine as an enhanced drug offender under Section 41-29-147 of the Mississippi Code (Rev.2005) as well as a habitual offender under Section 99-19-81 and, if convicted by a jury, he faced a mandatory sentence of sixty years in custody without parole or early release.

¶ 14. During Rucker’s guilty plea hearing, the circuit court repeated that recommended sentence and asked Rucker whether he understood that recommendation. Rucker responded, “Yes, ma’am.” The circuit court accepted the district attorney’s recommendation and sentenced Rucker to the precise sentence that he contemplated in his petition to plead guilty. That is, Rucker received the exact sentence for which he bargained. Rucker swore that he was satisfied with his attorney’s assistance and that he had no complaints regarding his attorney.

¶ 15. We find that Rucker’s sentence is not excessive. It seems patently ludicrous that Rucker raises this claim of ineffective assistance of counsel when he received the exact lenient and negotiated sentence contemplated in his petition to plead guilty. In any event, Rucker fails to demonstrate that his counsel’s performance was deficient. As such, we find that this assignment of error is meritless.

¶ 16. THE JUDGMENT OF THE YA-LOBUSHA COUNTY CIRCUIT COURT DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

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


text:
    Johnny P. NICHOLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-00111-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      William C. Stennett, attorney for appellant.
    Office of The Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Nichols’s appeal stems from a summary dismissal of his motion for post-conviction relief by the Circuit Court of Ita-wamba County. Unsatisfied with the trial court’s disposition, Nichols now appeals and raises the following issues, listed verbatim:

I. WHETHER THE APPELLANT ENTERED HIS PLEA UNKNOWINGLY AND UNINTELLIGENTLY AND WHETHER THE COURT SHOULD ALLOW THE APPELLANT TO WITHDRAW HIS PLEA.
II. WHETHER THE APPELLANT WAS COMPETENT TO STAND TRIAL.
III. WHETHER THE APPELLANT WAS AFFORDED EFFECTIVE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE CONSTITUTION.
TV. WHETHER THE TRIAL COURT ERRED BY PERMITTING THE STATE TO AMEND THE INDICTMENT.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Nichols was indicted for kidnaping and attempted sexual battery by the Lee County grand jury. On January 28, 2003, Nichols was tried upon a separate indictment issued by the grand jury in Itawam-ba County alleging aggravated assault and a jury subsequently found him guilty. Pri- or to proceeding to trial on the Lee County indictment, Nichols plead guilty to both Lee County counts in the Circuit Court of Itawamba County. In line with the State’s recommendation, Nichols was sentenced to thirty years in the custody of the Mississippi Department of Corrections, ten years suspended, leaving twenty to serve for each count of the Lee County indictment, each sentence to run concurrently. At this time Nichols was also sentenced on his conviction of aggravated assault to twenty years in the custody of the Mississippi Department of Corrections, said sentence to run concurrently with the sentences imposed on count one and count two of the Lee County cause.

¶ 3. On December 5, 2005, Nichols filed a motion for post-conviction relief alleging the same issues brought before this Court, save for issue IV. The trial court found Nichols’s motion without merit, and denied relief in an order filed December 13, 2005. From this order, Nichols appealed.

ANALYSIS

¶ 4. In reviewing a trial court’s denial of post-conviction relief, our standard of review is well settled. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052(¶ 4) (Miss.Ct.App.2000).

I. WHETHER THE APPELLANT ENTERED HIS PLEA UNKNOWINGLY AND UNINTELLIGENTLY AND WHETHER THE COURT SHOULD ALLOW THE APPELLANT TO WITHDRAW HIS PLEA.

¶ 5. Nichols argues that as a result of his alleged diminished mental capacity his guilty plea was not knowingly and voluntarily given. Nichols cites United States v. Carr, 740 F.2d 339 (5th Cir.1984) for the proposition that his guilty plea should be withdrawn. However, as this Court recently stated in Vandergriff v. State, 920 So.2d 486(¶9) (Miss Ct.App.2006), Carr is not applicable to a review of the sufficiency of a guilty plea in this state. The State counters that Nichols’s guilty pleas were voluntarily and intelligently entered. Following a review of Nichols’s plea hearing, we agree with the State.

¶ 6. In order for a plea of guilty to be binding upon a defendant it must have been voluntarily and intelligently entered. Herrod v. State, 901 So.2d 635(¶ 5) (Miss.Ct.App.2004). A defendant must be advised of the charge against him and the consequences of pleading guilty if his plea is to be considered voluntary and intelligent. Id. “Specifically, the defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Id. (quoting Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). Additionally, the defendant must be informed of the minimum and maximum penalties associated with the crime for which he is pleading guilty. URCCC 8.04 A(4)(b). However, the defendant carries the burden of proving that his plea was not voluntary and intelligently given. Id. Lastly, a defendant’s “solemn declarations in open court carry a strong presumption of veracity.” Id. (quoting Fields v. State, 840 So.2d 796(¶ 4) (Miss.Ct.App.2003)).

¶ 7. During his plea colloquy, Nichols was informed of the nature of the charges against him and the consequences of his plea of guilty. Additionally, he was advised of the minimum and maximum penalties for kidnaping and attempted sexual assault. When asked about any history of psychiatric illness or mental disease, Nichols stated that he spent two and a half months at the East Mississippi Hospital in 1994; however, he further stated that despite that history he felt that he could fully understand what he was doing. Specifically, when asked, “Is there any question in your mind about your ability to understand and appreciate what we’re doing here,” Nichols responded, “I understand, sir.” Additionally, the trial court questioned Nichols’s trial attorney as to his opinion of Nichols’s ability to understand and he stated, “After spending the past 30 to 60 days with the defendant, I am convinced that he is aware of what he is faced with and is able to give his consent freely and voluntarily.”

¶ 8. It is clear from the record that Nichols knowingly, voluntarily and intelligently plead guilty. As such, this issue is without merit.

II. WHETHER THE APPELLANT WAS COMPETENT TO STAND TRIAL.

¶ 9. Nichols next argues that he was not competent to stand trial in the Itawamba County cause. He argues that he has a history of mental illness and this should have prompted the lower court to suspend sentencing and conduct a competency hearing.

¶ 10. Mississippi Code Annotated Section 99-89-9(2) requires a separate motion for post-conviction relief for each judgment the petitioner wishes to challenge. Miss.Code Ann. § 99-39-9(2) (Rev. 2000). Therefore, Nichols is statutorily barred from raising the issue of his competency to stand trial for aggravated assault in Itawamba County in the same motion in which he argues that his plea of guilty was not voluntarily and intelligently given in the Lee County cause. However, the factual circumstances of the case sub judice are quite unusual. Nichols’s Lee and Ita-wamba County causes are interrelated by the fact that his sentencing hearing in the Itawamba cause was also his plea hearing in the Lee County cause in which he pled guilty.' The State made a sentencing recommendation that encompassed disposition in both cases simultaneously, and the trial court accepted that recommendation and sentenced Nichols in accordance with its terms. Additionally, those issues raised by Nichols in his PCR, namely, the first three issues he argues to this Court, are issues surrounding both judgments. Nichols’s first issue concerns his guilty plea in the Lee County cause, his second assignment of error is that he was not competent to stand trial in the Itawamba cause and his third issue concerns ineffective assistance of counsel during both the Lee and Itawamba County causes. Despite an apparent violation of the procedural requirements of Section 99-39-9(2), the trial court entertained Nichols’s motion and reached the merits of the issues he raised. Lastly, in its brief to this Court, the State makes no issue of the fact that Nichols combined arguments surrounding two judgments in one motion for post-conviction relief. With this background, we decline to address Nichols’s apparent violation of Section 99-39-9(2) on plain error analysis. Therefore, notwithstanding Nichols’s procedural misstep, we speak to the merits of those issues brought before this Court.

¶ 11. While discussing Nichols’s competency to enter his guilty pleas, the lower court noted in its denial of Nichols’s motion for post-conviction relief, as we did above, that Nichols was questioned regarding his level of understanding of the proceedings and consequences of his guilty plea. This was buttressed with Nichols’s attorney’s statement regarding Nichols’s ability to understand the proceedings. Also, the sentencing court noted, in finding that Nichols had entered his guilty pleas knowingly and voluntarily, that it had the opportunity to observe Nichols during the two-day trial on the aggravated assault cause. While Rule 9.06 of the Uniform Rules of Circuit and County Court Practice require the court to hold a competency hearing if it determines that reasonable grounds exist for such, we find from a thorough reading of the record that reasonable grounds did not exist. We cannot say that the lower court was clearly erroneous in his findings, and, therefore, this issue is without merit.

III. WHETHER THE APPELLANT WAS AFFORDED EFFECTIVE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE CONSTITUTION.

¶ 12. Nichols’s third argument is that he was denied effective assistance of counsel during his aggravated assault trial, plea hearing and joint sentencing in that his trial counsel failed to demand a competency hearing. Noting, again, Nichols’s improper grouping in one motion for post-conviction relief issues surrounding more than one judgment, in violation of Section 99-39-9(2), we find his claim of ineffective assistance of counsel unpersuasive.

¶ 13. The defendant bears the burden of establishing ineffective assistance of counsel, and he must show that (1) defense counsel’s performance was deficient when measured by the objective standard of reasonable professional competence, and (2) that the defendant was prejudiced by counsel’s failure to meet that standard. Pleas v. State, 766 So.2d 41(¶ 3) (Miss.Ct.App.2000) (citing Wiley v. State, 750 So.2d 1193(¶ 11) (Miss.1999)). “He must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Roby v. State, 861 So.2d 368(¶ 8) (Miss.Ct.App.2003) (quoting Smith v. State, 434 So.2d 212, 219 (Miss.1983)). “On review, we look with deference upon counsel’s performance, considering the totality of the circumstances to determine whether it was both deficient and prejudicial.” Id. (quoting Conner v. State, 684 So.2d 608, 610 (Miss.1996)).

¶ 14. The only indication in the record that Nichols had any history of mental illness was his response to the trial court’s inquiries, detailed above. From the trial court’s observations explained during Nichols’s sentencing, Nichols’s trial counsel’s statements and Nichols’s own statements, there is no indication that his competency was ever in question or hindered his defense. This issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED BY PERMITTING THE STATE TO AMEND THE INDICTMENT.

¶ 15. Nichols’s final argument, which was not raised in his motion below, improperly or not, is that the trial court erred in allowing the State to amend the indictment on the Itawamba County cause for aggravated assault as, he argues, the amended indictment was fatally defective. While “substantive challenges to the sufficiency of the indictment are not waivable and may be raised for the first time on appeal,” Havard v. State, 928 So.2d 771 (¶ 59) (Miss.2006), Nichols again raises an issue regarding his conviction in his appeal of the denial of his motion for post-conviction relief in which he also raises issues regarding the sufficiency of his guilty plea in violation of Section 99-39-9(2), as noted above. However, despite this procedural flaw, we find Nichols’s final issue without merit.

¶ 16. Nichols’s Itawamba County indictment stated, in pertinent part,

JOHNNY P. NICHOLS in said County and State on the 28th day of December, A.D., 2001, did wilfully, unlawfully and feloniously commit an aggravated assault upon Michael Bridges by attempting to cause and by causing, knowingly and purposely, serious bodily injury to Michael Bridges, a human being, with a deadly weapon, to-wit: a rifle, by shooting Michael Bridges in the right ankle with a rifle, thereby manifesting extreme indifference to the value of human life; contrary to the form of the statute in such cases as provided, and against the peace and dignity of the state of Mississippi.

The amended indictment was identical except the phrase “thereby manifesting extreme indifference to the value of human life” was deleted. The supreme court recently reiterated the appropriate standard of review when the sufficiency of an indictment is in question. “The indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him.” Havard, 928 So.2d at (¶ 60) (citing Peterson v. State, 671 So.2d 647, 653-54 (Miss.1996)); URCCC 7.06. Additionally, the indictment must contain those factors listed in URCCC 7.06. Id. The seven factors enumerated in URCCC 7.06 include:

1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

URCCC 7.06. Nichols’s indictment, as amended, satisfies the above requirements. Additionally, although decided before the adoption of 7.06, the supreme court has also held that the phrase “under circumstances manifesting extreme indifference to the value of human life” is not a necessary element to a charge of aggravated assault. Harbin v. State, 478 So.2d 796, 798-99 (Miss.1985).

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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