author: BARNES, J., CARLTON, J.,

text:
    Jane DOE and Jill Doe, Both Minors, by and Through Their Natural Mother, Legal Guardian and Next Friend, Mary BROWN; Mary Brown, Individually, and Jim Brown, Appellants. v. PONTOTOC COUNTY SCHOOL DISTRICT, Appellee.
    No. 2005-CA-01749-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      Matthew Yarbrough Harris, Attorney for Appellants.
    Rachel Marie Pierce, J. Max Edwards, Tupelo, Attorneys for Appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Jane Doe and her sister, Jill Doe, both minors at the time this suit was originally filed, by and through their natural mother, Mary Brown, and step-father, Jim Brown, appeal the judgment of the Circuit Court of Pontotoc County which found in favor of the defendant Pontotoc County School District. Finding no error, we affirm the ruling of the circuit court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Jane Doe and her twin sister Jill enrolled as students in North Pontotoc High School (“North Pontotoc”) in the spring of the 2001-2002 school year. Both girls were fourteen years old and in the ninth grade. One of the girls’ teachers was Jeremy Wise, who taught them math and was also the high school baseball coach. Sometime in the spring of 2002, Wise began an association with Jane that ultimately went far beyond the bounds of appropriate student-teacher relations. At the time of this case, Wise had a two-year-old daughter, and his wife, also a teacher, was pregnant with their second child.

¶ 3. Wise’s relationship with Jane and her family began innocently enough a few years earlier. Wise, just out of college, was licensed as a teacher in 1998 and obtained his initial teaching position as a sixth grade math teacher at North Ponto-toc Elementary School where he first taught Jane and Jill. Wise developed a mentoring relationship with the girls during this time period, which was approved of and encouraged by their mother, as she was divorced from the girls’ father and appreciated the support. Additionally, the twins had a strained relationship with their step-father, so Wise also assumed a fatherly role towards the girls. This relationship was endorsed by the twins’ natural father, who lived in Memphis at the time.

¶ 4. It is important to note that prior to this case, Wise had no prior criminal record, no history of sexually harassing students, and was in fact highly regarded by the Pontotoc County school superintendent, Jerry Horton, and the North Ponto-toc school principal, Steven Carr, who had both known Wise as a student in the Pon-totoc public school system. Both individuals thought Wise would make a fine teacher. Further, in his short educational career, Wise had a reputation as a capable and caring teacher until this incident. Additionally, Wise received the standard sexual harassment training through the school district’s teacher orientation at the beginning of the school year in 2001.

¶ 5. Jane’s mother testified it was not until the girls reached the eighth grade that she noticed in retrospect Wise began paying more attention to Jane. Because of the mentoring role he had developed with the girls, it was not unusual for Wise to call Jane at her home, take her to church, or attend dance recitals and other extracurricular activities on occasion. When Jane transferred to North Pontotoc early in 2002, Wise became Jane’s math teacher. Wise also selected Jane to be a member of the “Diamond Girls,” who were bat girls for the varsity baseball team. Indeed, Jane’s mother testified repeatedly that she had complete trust in Wise, and Wise gave her no indication that she should feel otherwise, or that his relationship with Jane was anything more than “fatherly” attention.

¶ 6. In the spring of 2002, Jane and Wise’s relationship became inappropriate. Except for five undisputed instances of physical contact, them relations consisted of private exchanges through e-mails, phone calls and handwritten notes. Because of the illicit nature of their relationship, Wise and Jane hid it. Jane testified Wise stressed the importance of keeping their relationship a secret; otherwise, he would lose his job, wife and daughter. Jane testified she therefore told no one, including her twin sister, with whom she was very close, about the increasing extent of her relationship with Wise.

¶ 7. Evidence and testimony showed any outward manifestations of their illicit relationship at the school were not publicly obvious or out of the ordinary. Jane would often attend Wise’s math class twice in one day, grading papers and helping other students during the second class which was a common activity by the students. Occasionally, Wise would walk Jane to her mother’s car at the end of the school day in the front of the school, in full view of the student body and faculty. Wise gave the twins a ride home from baseball games. As far as on the home front, Jane’s mother was aware of Wise’s incoming phone calls, but she testified there was always a legitimate school-related reason for them. Additionally, Wise went to Jane’s home on one occasion to tutor both girls in math, with their mother’s permission.

¶ 8. Evidence and testimony also showed Wise and Jane’s verbal communications were very discrete. E-mails were not written on school computers. Wise’s handwritten notes were slipped into Jane’s jacket at school when nobody was looking. There was a confrontation between Jane and Wise’s wife after a baseball game that apparently went unnoticed as well. Jane’s steady boyfriend at the time was also unaware of her relationship with Wise.

¶ 9. As the inappropriate relationship continued throughout the spring and summer of 2002, there were five instances of undisputed physical contact between Wise and Jane. The first instance was in the school field house. Jane testified that while she was hanging up baseball uniforms, Wise came into the field house, and alone behind closed doors, he grabbed Jane from behind and hugged her. The second instance was at a school basketball game that Wise and Jane attended together. Jane, who was babysitting Wise’s daughter, testified Wise sat behind her in the stands during the game and rubbed her shoulders periodically. The third instance was in May, when Jane accompanied Wise to a coaches’ meeting in Ripley. During the meeting, Jane waited in Wise’s truck. After the meeting on the way home, Wise stopped in the parking lot of his father’s business in Tupelo, and, in this secluded location, fondled Jane in the back of his truck. The fourth instance was in Wise’s home. Initially, Wise and Jane had planned on playing golf, but instead, Wise took her to his home where, alone, they lay on his bed together. The last instance of physical contact was when Wise kissed Jane in his truck outside of her home after giving her a ride home from a baseball game. Wise and Jane deny sexual intercourse ever occurred between them, and both maintain they were clothed during all of their physical encounters. Additionally, with the exception of the supposed golf excursion, Jane was never alone with Wise without the permission of her mother.

¶ 10. The school principal, Carr, testified that he first heard about the possibility of Wise’s inappropriate relationship with Jane through an unsubstantiated rumor in the spring of 2002 from the school secretary. It is not known where the secretary received the information. The trial court found “that there was a rumor about indicating that one of the students and a coach were involved. There [was] no more specific information available.... ” Based on the rumor, Carr proceeded to carefully monitor the situation at the school, looking for any evidence to corroborate the rumor. Over a period of time, Carr did not observe any inappropriate behavior between Wise, and Jane on school grounds to give credence to the rumor. The second instance the possibility of an inappropriate student-teacher affair was brought to the principal’s attention was when a school board member, who had heard the same rumor from the school secretary, notified Superintendent Horton, who called Principal Carr. Carr then immediately confronted Wise and asked about the truthfulness of the rumor. Wise vehemently denied any wrongdoing. Carr proceeded to lecture Wise about how even a mere rumor can “ruin” a teacher’s career. Again, Wise maintained his innocence. At the time, Carr believed Wise, and in any. event, there was no substantiated evidence beyond this one rumor to prove otherwise. Carr maintained he did not receive any other complaints or rumors from anyone else regarding the situation, including other students, teachers, or any of Jane’s family members. Moreover, later in the semester Wise’s wife came to Carr and requested that the twins not be placed in any of her husband’s classes the following year because of the rumor, but she emphasized to Carr that she felt the rumor was unfounded.

¶ 11. The relationship was finally exposed in the middle of July when Jane’s half-sister found some discarded love letters from Wise to Jane in the trash. The half-sister told Jill, who brought the matter to the attention of Jane’s mother. Obtaining Jane’s e-mail password, Jane’s mother read the impassioned e-mails between her daughter and the teacher on the computer and was infuriated by Wise’s breach of trust. The mother claimed it was at this time she first realized Wise’s relationship with her daughter was not innocent. With copies of the e-mails in hand, Jane’s mother went to Wise’s house, confronted him in front of his wife and demanded his resignation from the high school. Wise complied and gave principal Carr his resignation on July 17, 2002, claiming it was over some “stupid e-mails.” Wise did not elaborate further. Carr and the school board accepted Wise’s resignation, still ignorant as to the extent of Wise’s relationship with Jane. Around this time, Jane’s mother also delivered copies of the e-mails to the school’s guidance counselor to give to Carr, who was out of town at the time. Jane’s mother, upon the advice of a counselor, also moved her household and the twins to another school district so the sisters- could start the 2002-2003 school year at another location.

¶ 12. Jane’s family attempted to have criminal charges issued against Wise; however, the grand jury did not return an indictment. On February 11, 2003, Jane’s family filed this civil action against the Pontotoc County School District (“District”) and Jeremy Wise. Claims against Wise were ultimately dismissed with prejudice, as a settlement agreement was reached with the plaintiffs. The claims remaining against the District included gross negligence in training and supervision of Wise, negligence, and negligence per se. Further, damages claimed included mental anguish, emotional distress, loss of enjoyment of life, and actual damages for counseling sessions and moving to another school district.

¶ 13. After a bench trial, the Circuit Court of Pontotoc County issued a judgment in favor of the Pontotoc County School District in August 2005, finding that the District “did not know nor did it have reason to know or should it have known that Jeremy Wise was engaged in an inappropriate relationship with [Jane Doe],” and was “not negligent in hiring, training and retaining Jeremy Wise as a teacher and in failing to report the incident to law enforcement when it finally became known.” Jane, Jill, their natural mother and step-father timely appealed to this Court, raising the following issues-whether the trial court erred in finding: (1) the District did not have notice of the inappropriate relationship between Wise and Jane, (2) the District was not liable for breach of its statutory duty to report suspected sexual involvement of a teacher with a student, (3) the District’s actions were not in violation of its duty to Jane, and (4) the District properly trained and supervised Wise, and took proper action once the relationship was discovered. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 14. Because this case was tried without a jury, factual determinations made by the trial judge are reviewed using the substantial evidence standard. Classic Coach, Inc. v. Johnson, 823 So.2d 517, 520(¶ 8) (Miss.2002). “A circuit judge sitting without a jury is accorded the same deference as a chancellor,” and the judge’s decision will not be overturned when supported by substantial evidence. Singley v. Smith, 844 So.2d 448, 451(¶ 9) (Miss.2003) (citing Maldonado v. Kelly, 768 So.2d 906, 908(¶ 4) (Miss.2000)). This Court may not reverse those findings unless the trial judge was manifestly wrong or clearly erroneous. Id. (citing Amerson v. State, 648 So.2d 58, 60 (Miss.1994)).

LEGAL ANALYSIS

1. Whether the trial court erred in finding the District did not have notice of an inappropriate relationship between Wise and Jane.

¶ 15. The Appellants argue that the District had adequate notice of the inappropriate relationship between Wise and Jane and thus are liable. Basing this contention on what they perceive to be a pattern of inappropriate sexual behavior by Wise, the Appellants claim this pattern should have alerted school officials to Wise’s subsequent abuse of Jane. Thus, the Appellants contend the trial court was in error in finding that the District, its officials and its employees did not know or should not have known that Wise was engaging in an inappropriate relationship with Jane.

¶ 16. It has long been established that an employer will be liable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness. Eagle Motor Lines v. Mitchell, 223 Miss. 398, 411-12, 78 So.2d 482, 486-87 (1955) (citing 57 C.J.S. Master and Servant § 559, 270-71). Relatedly, if an employer exercises due care in the hiring of its employees, that employer will not be liable for the injuries of a third party unless that party can prove the employer knew or should have known of the incompetence and unfitness of the employee. Jones v. Toy, 476 So.2d 30, 31 (Miss.1985). A plaintiff must prove the defendant had either actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent hiring or retention of an employee who injures a third party. Eagle Motor, 78 So.2d at 487 (citation omitted). , “Actual notice” is defined as “notice expressly and actually given ....” while “constructive notice” is defined as “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.” Black’s Law Dictionary 1062 (6th ed. 1990).

¶ 17. The Appellants base their notice argument on numerous Title IX cases for gender discrimination in other state’s federal district courts, while failing to cite any Mississippi case law on the issue. Further, the Appellants state that a “complaint of harassment need not be undisputed or uncorroborated before it can he considered” as notice of harassment. (Emphasis added.) However, just because a complaint could be considered as notice of harassment does not mean that the fact finder abused his discretion in finding there was no notice of harassment. For instance, in Johnson .v. Galen Health Institutes, Inc., 267 F.Supp.2d 679, 688 (W.D.Ky.2003), that court found that “actual notice” of discrimination would be found when the official had actual knowledge of a substantial risk to students. Id. In Gordon v. Ottumwa Cmty. School Dist., 115 F.Supp.2d 1077, 1082 (S.D.Iowa 2000), that court stated that what constitutes sufficient notice is hard to define, but it should be obvious to school officials “that a school employee is a substantial risk to sexually abuse children.” Id. In both of these cases the courts found there was insufficient notice to support a Title IX claim. While these cases, cited for what constitutes notice from a Title IX perspective, may be appropriate for their general propositions, they do not compel us to overturn the finding of fact that there was no actual or constructive notice of the-relationship between Wise and Jane presented to these school officials.

¶ 18. The Appellants further cite Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir.1994) as analogous to the ease at bar. Taylor involved a section 1983 civil rights suit against the school district for a sexual affair between a teacher and student, holding school officials can be liable for supervisory failures that result in molestation of students if the officials show deliberate indifference towards the constitutional rights of the child. Id. at 445, 449. That court found notice can be given through a “pattern” of reports suggesting “misconduct of a sexual nature.” Id. at 456. The Appellants conclude that such a pattern of reports existed in the case at bar, and Principal Carr had sufficient notice, through the evidence he had at the time, or should have known that an inappropriate sexual relationship was occurring between Wise and Jane. We disagree. After a thorough review of the record, we find insufficient evidence to reverse the trial court’s determination as to whether the District knew or should have known of Wise’s relationship with Jane or that the District could have foreseen this situation from Wise’s prior behavior or background.

¶ 19. From the evidence and testimony in the record, the trial court was correct in finding there was no “actual” notice to prove the District knew of the affair. The District had one uncorroborated rumor about a possible inappropriate relationship between Wise and Jane which was initiated by the school secretary and told to Carr and the school board member. There was no tangible evidence of the affair until the discarded notes and e-mails were found later that summer. School computers were not used for this correspondence nor were school telephones used for phone calls. All of the physical contact occurred when Wise and Jane were alone, except for the shoulder rubbing incident, which apparently went unnoticed by attendees of the basketball game. Evidently, nobody noticed the confrontation between Wise’s wife and Jane after a baseball game. Understandably, because of its illicit nature, Wise and Jane did not inform anyone of their relationship. Also understandably, Jane’s parents did not inform anyone in the District about the relationship because they were under the impression it was innocent. Appellants present no evidence that any employee or official at the school knew of the relationship either, except the isolated rumor, stated as such, by the school secretary. There were no complaints, formal or informal, lodged at the school or alleged by any individual. In retrospect, it is easier to see the signs of inappropriateness in Wise’s actions, but at the time they were occurring, there was insufficient proof to claim the District was negligent in not taking action.

¶ 20. Furthermore, there was insufficient constructive notice of the inappropriate relationship to claim the District “should have known” of the affair. Wise had no prior history of wrongdoing with the District and had a good reputation with the principal and the school superintendent, who both knew Wise personally from when he was a student. There was no indication that Wise would be an unfit or incompetent teacher either when they hired him or after he began teaching. Wise had a good reputation with the Pon-totoc community-at-large as well. There is nothing indicative about Wise’s past actions or actions at the time of his employment at the high school which would rise to the level of giving constructive notice to the District of Wise’s transgressions. Further, many of Wise and Jane’s relations were under the guise of innocence, such as his tutoring of the twins and her babysitting of Wise’s child. Importantly, Jane’s parents approved of and gave permission for most of the instances when the couple was together.

¶ 21. As for a “pattern” of inappropriate sexual behavior which would plainly point towards abuse as articulated in Taylor, we find none. See Taylor, 15 F.3d at 454. Again, it is easier to interpret Wise’s discreet favoritism of Jane in class and their relations on school property in retrospect as indicative of an inappropriate relationship, but we agree with the trial court that at the time Wise’s behavior would not have indicated the true illicit nature of their relationship. We find the record devoid of any pattern of sexual misconduct by Wise that would be observed by any individual besides Jane. The principal and school officials were dealing with limited information that did not include knowledge of the extra tutoring, rides home from sporting events, church and softball excursions, phone calls, emails, notes, and the mentoring relationship Wise had with Jane.

¶22. Lastly, we find the District acted appropriately in retaining Wise until the e-mails were discovered and he resigned. Once the District learned of the extent of Wise’s misconduct, they did not exhibit indifference. The principal testified that if Wise had not resigned he would have been fired. Wise tendered his resignation letter to Principal Carr on July 17, 2002, the day after Jane’s mother confronted him at home regarding the e-mails. His resignation was accepted by the school board shortly thereafter. Jane’s mother filed criminal charges shortly after this date. The District acted appropriately with the information it had regarding the situation. Accordingly, the trial court did not err in finding no notice of the inappropriate relationship during the course of Wise’s employment. This issue is without merit.

2. Whether the trial court erred in finding the District liable for breach of its statutory duty to report suspected student-teacher sexual involvement.

¶23. Next, the Appellants argue that the trial court erred in finding the District not negligent in failing to report the situation to law enforcement officials under Mississippi Code Annotated section 97-5-24 (Rev.2006) once school officials became aware of the relationship. Claiming the trial court misinterpreted school personnel’s statutory duty, the Appellants further argue if Carr or Horton had contacted appropriate authorities, much of the abuse would not have occurred.

¶ 24. It should be noted that section 97-5-24 was never mentioned in the Appellant’s complaint, nor was a “duty to report” claim pled below. The first time section 97-5-24 was mentioned in the record was at trial, where Carr was examined about the potential duty to report fondling or sexual involvement of a student and a teacher to state officials. Similarly, the school superintendent, Horton, was examined about an alternative statute, section 43-21-353 (Supp.2006); this statute states, in summary, that any person, such as a “public or private school employee, or any other person having reasonable cause to suspect that a child is a neglected child or an abused child,” shall notify the Department of Human Services (“DHS”) as soon as possible. The trial judge, in his order, did not reference either statute by number, but found that “the District ... [was] not negligent ... in failing to report the incident to law enforcement when it finally became known.” The Appellants, in their brief to this Court, base their duty to report argument on 97-5-24, with no mention of 43-21-353. While we will address each statute in turn, especially in light of the concerns of the separate opinion, we are not at all convinced that the argument under section 43-21-353 was preserved for appeal, as it was not raised below, except during the examination of Horton at trial and was not raised at all by the Appellants in this Court. Furthermore, when trying to decide whether a specific or a more general statute should apply to a case, the longstanding and well-established rule of statutory construction dictates that the more specific statute will always control over the general one. Lenoir v. Madison County, 641 So.2d 1124, 1128-29 (Miss.1994) (citing Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993)). Here, we find section 97-5-24 specifically deals with the situation at bar, while section 43-21-353 could only apply in a much more general manner, if at all, and is thus not controlling.

¶ 25. Mississippi Code Annotated section 97-5-24 states in its entirety:

If any person eighteen (18) years or older who is employed by any public or private school district in this state is accused of fondling or having any type of sexual involvement with any child under the age of eighteen (18) years who is enrolled in such school, the principal of such school and the superintendent of such school district shall timely notify the district attorney with jurisdiction where the school is located of such accusation, provided that such accusation is reported to the principal and to the school superintendent and that there is a reasonable basis to believe that such accusation is true.

(Emphasis added.) Thus, the accusation of specific inappropriate behavior by an employee of a school district will only be reported to the district attorney if an accusation is first reported to the principal and superintendent and there is a “reasonable basis to believe” the accusation is true. Miss.Code Ann. § 97-5-24 (Rev.2006). We need not decide whether a private cause of action may be implied from this statute for failure to report a teacher’s sexual involvement with a student as the statute limits the duty to report to “accusations” which are reported to school authorities and which are reasonably believable.

¶ 26. Alternatively, section 43-21-353, which the separate opinion would have us apply to the case at bar, states:

Any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child caregiver, minister, law enforcement officer, public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services....

(Emphasis added). An “abused child” is defined by section 43-21-105(m) (Rev. 2004) as “a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment.” (Emphasis added.) We find section 43-21-353 does not apply to the facts of our case, even if we were to ignore the rules of statutory construction and apply the more general statute.

¶ 27. First, while Wise is surely an employee of the school district for purposes of section 97-5-24, we fail to see how he could ever be considered a “person responsible” for Jane’s care or support, as specified by section 43-21-353. There is nothing present in the facts of this case to suggest that type of relationship between Wise and Jane. Regarding the type of conduct to be reported, there must be a reasonable cause to suspect “sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment.” Miss.Code Ann. § 43-21-105(m) (Rev.2004). Here, while we do not dispute that Wise’s actions were improper, there is no evidence presented of the type of conduct applicable to this statute. Both Jane and Wise deny sexual intercourse, and there is no evidence to refute them. Improper fondling could certainly cause emotional abuse to Jane, but we find it more appropriate to consider the improper conduct of fondling under the more specific statute, which specifies fondling by a teacher as reportable conduct, rather then the resultant emotional distress necessary for the general statute. Next, while the standard in section 43-21-353 is “reasonable grounds to suspect,” which admittedly is a lower standard than section 97-5-24, for this statute to apply, Carr would have had to have suspected, at the time the improper acts were occurring, that (1) Wise was responsible for Jane’s care; and (2) Wise was engaging in one of the improper conducts specified in section 43-21-353. We fail to see how this could be the case according to the evidence in the record.

¶ 28. In their brief, the Appellants cite to case law in Illinois regarding the standard of “reasonable belief’ set forth in an Illinois state statute regarding the reporting of child abuse, stating the standard to require reporting is objective, not subjective, in nature. See Jane Doe v. Dimovski, 336 Ill.App.3d 292, 270 Ill.Dec. 618, 783 N.E.2d 193, 198 (2003) (stating standard of “reasonable cause to believe” abuse is occurring is objective standard decided by reasonable person, not subjective belief decided by school officials). Thus, the Appellants argue, once an objective standard of reasonable belief is reached, the school officials are required to report the situation to the appropriate legal authorities. The Appellants also cite to T.M. v. Noblitt, 650 So.2d 1340 (Miss.1995) to further their argument of an objective standard of reasonable belief regarding section 97-5-24 and the duty to report sexual involvement of a student and teacher. We find the Appellants’ reliance on Noblitt to be misplaced. First, the Noblitt court interprets the statutory duty to report as subjective and objective in nature: “the statute first requires that person to make a determination of whether ‘reasonable cause’ exists as a foundation for an incident report. To that end, some investigation or other action on the official’s part must be undertaken. The actual determination of whether reasonable causes exists, however, is clearly a decision involving the exercise of personal judgment and discretion.” Id. at 1345. Second, Noblitt deals with the broader, more general statute described above — section 43-21-353 (Supp.1991). Even though Noblitt is interpreting a different duty to report than our case — reasonable cause to “suspect” versus “believe” — we conclude that the situations are sufficiently analogous for us to follow the Noblitt approach in the instant case, as section 97-5-24’s “believe” requirement is even more subjective and personal than the “suspect” requirement interpreted in Noblitt. We decline to follow the purely objective standard of Illinois’ Dimovski, which is contrary to Noblitt. Applying the “personal judgment and discretion” standard of Noblitt to section 97-5-24, we cannot find that the trial court erred in concluding that the school officials did not know of the relationship between Wise and Jane, and should not have known of the relationship.

¶ 29. First, there is no evidence in the record which proves the school’s officials were aware of the inappropriate relationship until after Wise resigned in July of 2002. An unsubstantiated rumor carries significantly less credibility than a formal accusation, and there were no formal accusations in the record. Second, there was no notice of fondling or sexual involvement between Wise and Jane in the rumor-only the possibility of an inappropriate relationship. Third, even if the District could have been found shirking its duty to report sexual involvement of a teacher with a student, by the time the District had sufficient knowledge to report the behavior, the negligence claim would fail for lack of proximate cause. In July 2002, once the emails were discovered and the District had sufficient reasonable belief to suspect fondling or sexual involvement between Wise and Jane, the teacher had already resigned, the relationship had ended, and Jane’s mother would soon file criminal charges against Wise. Reporting to law enforcement officials at the end of July would not have alleviated any of Wise’s prior wrongdoings, or any alleged current or potential future damages claimed by Jane.

¶ 30. We maintain the trial court did not err in finding an unsubstantiated rumor insufficient to trigger reporting under either statute, whether it be a “reasonable ground to suspect” under section 43-21-353, or a “reasonable ground to believe” under section 97-5-24. Accordingly, under the circumstances of the case, the trial court found no such duty to report, and we cannot find that it erred. This issue is without merit.

3. Whether the District breached its duty to the student.

¶ 31. The Appellants contend the trial court did not adequately consider Jane’s constitutional rights to be free from sexual harassment and discrimination while attending school. The Appellants argue for a Title IX analysis based on sexual harassment regarding this issue and urge this Court to adopt that model. As stated supra, while Title IX standards may be generally analogous to this case’s analysis, the authority cited by the Appellants is insufficient to overturn the findings of fact by the trial court. Analyzed properly as a negligence claim, the standard would be that of ordinary care. Henderson v. Simpson Co. Pub. Sch. Dist., 847 So.2d 856, 857(¶ 3) (Miss.2003) (citation omitted). According to Mississippi law, in general, “[p]ublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment.” Id. (quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141(¶ 24) (Miss.1999)). Ordinary care is a factual issue decided by the trial court. Id. at 858(¶ 6). In the first issue, we found the trial court was without error in holding that the District did not breach its duty of care in its retention and supervision of Wise. We do the same for this issue. The trial court found that the District was unaware of Wise’s inappropriate relationship with Jane until the end of July. Until that time, the District took appropriate action with the information it had-which was to question the teacher and monitor the situation. While it is unfortunate that the relationship was not discovered earlier, the District is not liable for failing to discover it. The District exhibited ordinary, reasonable care towards Jane based on the evidence it had. Accordingly, this issue is without merit.

4. Whether the District did not properly train, supervise, or take proper action after learning of the student-teacher relationship.

¶ 32. The Appellants argue that the District did not properly train or supervise Wise and took no action once it learned of the illicit relationship. We decline to address Wise’s supervision and failure of the District to take proper action, as these matters have already been discussed within the preceding issues.

¶ 33. Regarding Wise’s training, we find the trial court was correct in holding it was sufficient. The record refers to Wise’s training on sexual harassment throughout college, while teaching, and especially in the fall of 2001, all of which was prior to his affair with Jane. Evidence shows Wise understood the school’s policy-on sexual harassment. The trial court’s finding that Wise was adequately trained on this matter and individually chose to violate the school’s expressed policy is supported by the record. Accordingly, this issue is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE, P.J., GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR.

MYERS, P.J., IRVING AND CHANDLER, JJ., CONCUR IN RESULT ONLY.

CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J. AND CHANDLER, J.

CARLTON, J.,

CONCURRING IN RESULT ONLY:

¶ 35. The majority concludes that Principal Carr fulfilled his inquiry and reporting obligations concerning whether a student enrolled in his school was being abused by a teacher. I disagree and write separately to comment on the duty to investigate, and express my opinion that, under T.M. v. Noblitt, 650 So.2d 1340, 1344-45 (Miss.1995), Principal Carr should have done more in the way of investigation to fulfill his statutory duty.

¶ 36. As noted by the majority, this case was tried by a judge sitting as the finder of fact, and factual determinations made by the trial judge are reviewed using the substantial evidence standard. Classic Coach, Inc. v. Johnson, 823 So.2d 517, 520(8) (Miss.2002). This Court is limited in its review and may not reverse those findings unless the trial judge was manifestly wrong or clearly erroneous. Singley v. Smith, 844 So.2d 448, 451(9) (Miss.2003) (citation omitted).

¶ 37. In Noblitt, our supreme court discussed the ministerial duty to investigate placed upon a principal under Mississippi Code Annotated section 43-21-353 (Rev. 2006), stating as follows:

[T]he statute first requires that person to make a determination of whether “reasonable cause” exists as a foundation for an incident report. To that end, some investigation or other action on the official’s part must be undertaken. The actual determination of whether reasonable causes exists, however, is clearly a decision involving the exercise of personal judgment and discretion. Obviously, if Noblitt investigated and concluded she lacked reasonable cause to support an abuse report, the statute would require her to take no further action. To the contrary, if Noblitt did investigate and determine reasonable cause existed to support the complaint, § 43-21-353 mandated that [the principal] issue an immediate oral report to the Department of Human Services stating the basis of any known information surrounding the complaint.

Noblitt, 650 So.2d at 1344-45.

¶ 38. The majority opinion focuses on section 97-5-24, which requires school officials to report any type of accusation of sexual involvement of a school official with a student when there is a “reasonable basis to believe that such accusation is true.” The majority also admits that the “reasonable grounds to suspect” standard of section 43-21-353 is lower, and thus, more easily satisfied than the “reasonable basis to believe” standard of section 97-5-24. Adhering to my position that section 43-21-353 is applicable in the case at bar, I respectfully submit that the implicit, ministerial duty to investigate under section 43-21-353, as recognized in Noblitt, should be equally, if not more stringently, applied to the higher standard of section 97-5-24 once an allegation or rumor of inappropriate sexual conduct with a student reaches the ears of a school official.

¶ 39. In the instant case, Principal Carr failed to meet his duty to investigate under either section 97-5-24 or section 43-21-353. Upon hearing the first rumor from the school secretary, Principal Carr merely “observed” to see if he saw any inappropriate behavior, checked to make sure Wise was where he was supposed to be, and “kept his eyes and ears open” when moving through the hallways. After the same rumor had again been brought to his attention by the superintendent, who received the information from a board member, Principal Carr merely inquired of the alleged suspect as to whether there was any truth to the allegation. Naturally, Principal Carr received a denial of any amiss relationship from Wise. Principal Carr had also previously been asked by Wise’s wife that the girls not be placed in any of Wise’s classes. The record does not reflect that any inquiry was had of the alleged victim, Jane, by any of the appropriate authorities, or that any measure was put in place to prevent further contact between the suspected abuser and the victim. Moreover, Principal Carr failed to seek advice from Phil Tutor, the school board attorney, as to what actions would be sufficient to take upon the receipt of such an allegation.

¶ 40. Principal Carr’s observation and inquiry of the suspected abuser were patently insufficient to make a determination of whether there was “reasonable cause to suspect” or a “reasonable basis to believe” that the accusation was true. Obviously, offenses of this type will not normally occur “in the light of day,” and a rumor which alleges that an inappropriate relationship may be afoot between a specifically identified teacher and student should be meaningfully investigated by school officials to determine the veracity of the allegation. Allegations of this type must not fall on deaf ears, and those in such a position of care over children must not turn a blind eye to such allegations in then-investigation into these matters.

¶ 41. While I cannot say that the trial judge’s findings were clearly erroneous given the amount deference accorded to them, I write separately to comment on the duty to investigate, as pronounced in the Noblitt decision. I suggest that the duty to investigate necessitates that some meaningful investigation be undertaken.

MYERS, P.J. AND CHANDLER, J., JOIN THIS OPINION.

      . Because of the sensitive nature of this case and because minors were involved, we have changed the names of the Appellants to protect the minors' anonymity.

      . Wise was initially a papy to this action but settled out of court.

      . Carr first read Wise's incriminating e-mails on July 31, 2002.

      . Because the municipal school district is considered a "political subdivision" under Mississippi Code Annotated section 11-46-1 (i) (Supp.2006), the judge heard the case without a jury pursuant to the Mississippi Torts Claim Act. See Miss.Code Ann. § 11-46-13(1) (Rev. 2002).

      . The trial court’s order found the District was "not negligence in hiring, training and retaining of Jeremy Wise as a teacher”; however, Appellants in this case do not make a claim for negligent hiring against the District. Therefore, we will limit our discussion to whether the District was negligent in its training and retention of Wise.

      . 20U.S.C. § 1-681.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Brian RUNNELS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01097-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      Brian Runnels, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. In April 1995, Brian Runnels pled guilty in the Claiborne County Circuit Court to one count of manslaughter and one count of armed robbery. Runnels was sentenced to serve twenty years on the manslaughter charge and sixteen years on the armed robbery charge, with both sentences to run consecutively in the custody of the Mississippi Department of Corrections. Over the next ten years Runnels filed numerous petitions and motions, some of which he appealed to the United States Supreme Court, the Mississippi Supreme Court and this Court. See Runnels v. Mississippi, 546 U.S. 1182, 126 S.Ct. 1359, 164 L.Ed.2d 70 (2006); Runnels v. State, 96-CA-00450-SCT, 703 So.2d 861, 1997 WL 722832 (Miss. Oct. 23, 1997); Runnels v. State, 919 So.2d 1072 (Miss.Ct. App.2005).

¶2. Runnels’s appeal sub judice concerns the denial of his first motion for post-conviction relief which he filed on November 1, 1995. In that particular motion Runnels alleged that his indictment was defective. After a hearing on the matter, the trial court denied Runnels’s motion on December 21, 1995, finding that he waived this particular objection to the indictment by pleading guilty. The judgment was affirmed by the supreme court in Runnels v. State, 96-CA-00450-SCT, 703 So.2d 861. In April 2006, Runnels filed a motion for relief from judgment in the December 21, 1995 order arguing that he did not authorize his attorney to file that particular motion for post-conviction relief. The trial court denied Runnels’s motion on May 17, 2006. Runnels now appeals to this Court alleging that the November 1, 1995 motion for relief was not authorized by him and he should be able to submit his own motion for post-conviction relief.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

¶ 4. In his only issue on appeal, Runnels argues that he did not authorize his attorney to file the November 1, 1995 motion for post-conviction relief. Ultimately, Runnels wants this Court to find the November 1, 1995 motion invalid so that his second motion for post-conviction relief would not have been dismissed as a successive writ. Runnels’s April 2006 motion requested relief pursuant to Mississippi Rule of Civil Procedure 60(b). Rule 60(b) provides an opportunity for relief from a judgment or order but only in “exceptional circumstances.” Cook v. State, 921 So.2d 1282, 1283(¶6) (Miss.Ct. App.2006). Runnels has expounded no exceptional circumstances; thus, we can find no error by the trial court in denying his motion for relief from the December 21, 1995 judgment.

¶ 5. This Court is also unpersuaded by Runnels’s assertion that he “only” wants to be allowed the opportunity to “advance his claims via post-conviction motion” as he has been advancing numerous claims over the past ten years. Runnels filed a third motion for post-conviction relief on June 6, 2000, which was denied, and a motion for reconsideration shortly thereafter, which was also denied.

¶ 6. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

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


author: BARNES, J.,

text:
    Antonio Powell WASHINGTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01953-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      Rosalind Hayden Jordan, attorney for Appellant.
    Office of the Attorney General by Billy L. Gore, attorney for Appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. Antonio Washington was indicted by the grand jury of Attala County for the crime of murder and convicted of manslaughter in the death of Antonio Riley. Washington was sentenced to twenty years in the custody of the Mississippi Department of Corrections. On appeal Washington raises the issue of whether the trial court erred by commenting on his testimony regarding instances of harassment and threats of violence and death made by the victim.

¶2. The Court finds no merit to the appellant’s argument and affirms the judgment of the circuit court.

FACTS

¶ 3. On February 28, 2003, Washington was at Amigo’s gas station and convenience store in Kosciusko. Riley was across the street at the Spaceway gas station and convenience store. Riley came across the street to confront Washington who was married to Riley’s ex-girlfriend. The two men had a history of confrontation.

¶ 4. Washington testified that as he was entering his car to leave, Riley pushed him into the car and that he shot Riley in self-defense. Washington claimed that Riley had a gun in the waistband of his pants, but no weapon was seen or found at the scene.

¶ 5. The State offered numerous eyewitnesses to the shooting. Dr. Steven Hayne testified that Riley died as a result of six gunshot wounds, two of which were lethal.

¶ 6. Washington’s post-trial motions were denied.

DISCUSSION

¶ 7. Washington contends that the trial court erred in commenting, in open court and before the jury, on the testimony of Washington regarding instances of harassment and threats of violence and death made against Washington by the victim, Riley, saying that they were too remote for the jury to consider.

¶ 8. Mississippi Code Annotated § 99-17-35 (Rev.2000) provides, in part, that “The judge in any criminal cause shall not sum up or comment on the testimony, or charge the jury as to the weight of the evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case.”

¶ 9. During his direct examination, Washington attempted to describe a pattern of harassing and threatening behavior by Riley that took place over a four year period from 1999 until the day of the shooting in February 2003.

¶ 10. The comments to which Washington now objects are found in two places in the trial transcript. In the first, the following was said:

[DEFENSE COUNSEL]: What did you go up to the police department to make papers on Mr. Riley for?
[WASHINGTON]: Because he kept picking and bothering me, pulling pistols on me. I just got tired of Mr. Riley, because I was in fear of Mr. Riley.
Q: Okay. Did Mr. Riley ever come to your house?
A: Yes. Mr. Riley surrounded my house, him and about six or seven guys beating on my door.
Q: Okay. I want you to — I would like for you to describe that to the jury in detail how it happened.
A: Okay. Mr. Riley came to my house, beating on my door—
[BY THE PROSECUTOR]: Judge—
A: — demanding me to come out of my house.
[BY THE PROSECUTOR]: I think we need a time period for this. We’re not — could have happened any time.
[BY THE COURT]: I agree. I agree with that.
[BY THE PROSECUTOR]: Unless they can be more specific, Your Honor.
[BY THE COURT]: Either that. I mean, it may be so remote in time that it’s not germa[ne] to the case, so I think we need to have some time frame.
[DEFENSE COUNSEL]: Okay. Well, let me ask — before you start that, let me ask you a question. What year was it you met Mr. Riley?
A: I don’t remember. I don’t know exactly what year, but it really was just when I started talking to Ms. Landing-ham when I met Mr. Riley.

¶ 11. The second passage is found below:

[DEFENSE COUNSEL]: Okay. I want you to go back, then, to the night— you had just testified — or were beginning to testify that Mr. Riley had surrounded your house with a bunch of guys. When do you believe that happened?
A: I believe it happened back in, maybe, 2001.
Q: Okay.
A: And the night it happened, he surrounded my house, like I said, demanding me — he beating on my door, demanding me to come outside.
Q: What did he say?
[BY THE PROSECUTOR]: Judge, that’s two years before there’s been any problem. There’s been plenty of testimony that they’d been together on numerous occasions and they didn’t have any problems.
[DEFENSE COUNSEL]: Your Hon- or, I think—
[BY THE PROSECUTOR]: That is just completely out of the air.
[DEFENSE COUNSEL]: Your Hon- or, the State will have you know, have an opportunity to cross examine Mr. Riley (sic) on these issues. I mean, we have to have a chance to put on our case. Now, two here, or three months there or a year and a half before is just going to show the consistency of the torment.
[BY THE COURT]: Well. I’ll—
[DEFENSE COUNSEL]: And I think what happened that night is entirely irrelevant [sic].
[BY THE COURT]: Something that happened two years earlier is bordering on being remote to the Court. I mean— he — of course, it could have happened— well he hasn’t testified in what-I mean, 2001⅛ a long year. And I don’t — I mean, I’m wanting some specific time frames in which some of this stuff happened, if it happened.

¶ 12. In neither exchange where the circuit judge made remarks incident to his ruling on the State’s objection was there a contemporaneous objection by defense counsel. Washington first raised this issue in his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which was filed post-verdict. In neither case did the trial judge have an opportunity to take any remedial action, if he had been inclined to do so.

¶ 13. “It is axiomatic that a litigant is required to make a timely objection.” Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001) (citing Barnett v. State, 725 So.2d 797, 801(¶ 23) (Miss.1998)). The failure to make a contemporaneous objection, serves as a waiver of any error. Id. Thus, the failure to make a timely objection serves as a procedural bar in this case.

¶ 14. Despite the procedural bar, in neither exchange did the circuit judge “sum up or comment on the testimony” of Washington. The judge’s comments were incident to his ruling on the State’s objections to the testimony. Washington and others were allowed to testify freely as to threats and harassment which took place from 2001 to the time of the shooting in 2003. The jury was fully aware of Riley’s behavior towards Washington prior to the confrontation at Amigo’s on February 28, 2003.

¶ 15. It is apparent from the jury’s verdict that the judge’s observations on the question of remoteness did not improperly influence the jury. “Although it is true that a judge should not comment on the evidence in such a manner as to influence the verdict of a jury ... nevertheless, a remark of a trial judge necessarily made while ruling on an objection does not constitute grounds for reversal. Judges are not prohibited from telling counsel the reason for the ruling.” Haralson v. State, 314 So.2d 722, 724 (Miss.1975). The issue of remoteness was ultimately resolved in Washington’s favor, and he was allowed to continue to testify with respect to the threats and harassment from Riley.

¶ 16. As noted by the State, jury instruction number 1 told the jury not to be concerned with the reasons for the court rulings on the admissibility of evidence and not to “infer from the rulings by the court on these motions or objections that the court has any opinion on the merits favoring one side or the other.” “Appellate courts assume that juries follow the instructions.” Edwards v. State, 737 So.2d 275, 319 (¶ 159) (Miss.1999) (citing Payne v. State, 462 So.2d 902, 904 (Miss.1984)).

¶ 17. We find that Washington’s assignment of error is not only procedurally barred for failure to make a contemporaneous objection but also without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO ATTALA COUNTY.

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


author: CHANDLER, J.,

text:
    Wilbur Lee EVANS a/k/a Wilbur Willie Lee Evans a/k/a Wilbur Jones a/k/a Wilbert Jones, Jr. a/k/a Grace, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01802-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Craig Andrew Conway, Attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.
    Before KING, C.J., CHANDLER AND ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. A Lauderdale County jury convicted Wilbur Lee Evans of armed robbery. The Circuit Court of Lauderdale County sentenced Evans as a habitual offender to life in the custody of the Mississippi Department of Corrections. Evans appeals, arguing that the trial court erroneously granted the State’s motion to amend the indictment to charge Evans as a habitual offender and that the trial court erred in refusing a cautionary jury instruction proffered by Evans. Evans also challenges the weight and sufficiency of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Just before midnight on May 25, 2004, three masked men entered the Dixie Pak-A-Sak convenience store on Highway 19 in Meridian, Mississippi. The men’s faces were covered with bandannas. One man wielded a silver pistol but the others were unarmed.

¶ 4. The cashier on duty was Billy Fain, who was counting cigarettes when the men arrived. Fain testified that the man with the gun pointed it at him and stated “All right, you smart-mouth m.f— ~, what you got smart to say now?” Fain told the men they were stupid. Then the man approached Fain, stuck the gun in his stomach, and threatened to kill him. The man ordered Fain to get on the floor, which he did, but then ordered him to get back up and to open the cash register. Fain complied. The man with the gun took between $175 and $185 out of the register. The man asked Fain for the store’s money bag and Fain said that all the store’s extra money was in a metal safe. The man demanded that Fain open the safe, but Fain said the safe was on a timer and he could not open it. The man pointed the gun at Fain and fired a shot that missed him and went through the window. Then, the man hit Fain in the head with the pistol. After Fain convinced the three robbers that he lacked access to any more money, they took some cigarettes and departed, heading around the left side of the store. Fain called 911. At the trial, Fain was unable to identify the man with the gun but described him as African-American, muscular, about six feet three inches tall, and about 175 to 185 pounds. This general description matched Evans.

¶ 5. Officer Kevin Boyd with the Meridian Police Department testified that he responded to the robbery call at 11:48 p.m. Upon arriving, he secured the scene and observed a bullet hole through the window and the cashier in an “obvious upset state.” He recovered one projectile shell casing from behind a cigarette display. He also recovered a projectile outside that was lodged in the fuel pump’s access panel. Police also recovered a videotape depicting the robbery but the participants’ masks prevented their identification from the videotape.

¶ 6. Antonio Houston and Samon Powell testified on behalf of the State that they had participated in the robbery and both identified Evans in court as the gunman. Houston testified that Evans and Powell picked him up from an apartment complex in Neshoba County on the afternoon of May 25, 2004. Evans was driving a black Saturn vehicle. The three drove to Meridian, Mississippi. On the way, Evans brought up the idea of robbing a store. Powell agreed they should do it. Houston testified that they stopped at the Dixie Pak-A-Sak and donned bandannas. Houston testified that Evans took the gun and led them into the store. Houston said Evans demanded that the clerk open the cash register and the clerk complied. Houston denied that Evans had a verbal exchange with the clerk. Houston testified that he personally removed the money from the cash register. Houston stated that the clerk was unable to open the safe because it was on a timer. Houston related that Evans fired one shot and struck the clerk with the gun. Houston said the three returned to Neshoba County after the robbery. Houston admitted that he had agreed to testify at Evans’s trial on behalf of the State in exchange for a plea recommendation. He further admitted that, in an initial statement to the police, he had denied any responsibility for the robbery.

¶ 7. Samon Powell testified he and Evans met Houston at a Wal-Mart in Nesho-ba County where the three stole bandannas. Powell stated that Houston left. Later, Evans and Powell picked up Houston at the apartment complex. They drove around Neshoba County evaluating stores to potentially rob but did not find one. Evans drove them to Meridian. They stopped at the Dixie Pak-A-Sak because no one was in the parking lot. They parked on one side of the store and went inside. Evans pointed the gun at the clerk and demanded he open the cash register. The clerk opened the register. Powell stated that Houston removed the register’s drawer and Evans took the cash from the drawer. Evans fired a shot and told the cashier to get down or he would shoot him. Then, they departed. Powell said he took a pack of cigarettes before leaving. Powell admitted that he had promised to testify at Evans’s trial in exchange for a plea recommendation from the State. Powell also acknowledged his initial statement to the police, in which he admitted participation in the robbery but claimed Evans had forced him to participate by threatening him and his son. Powell maintained that his initial statement to the police was truthful.

¶ 8. Paul MeShepard testified that he talked to Evans and Houston at the apartment complex in Philadelphia around June 30, 2004. MeShepard was sitting on some steps and Evans and Houston were standing. Houston told MeShepard that he and Evans had robbed a store off Highway 19 in Meridian. Houston said a window was shot out and they took money. During the conversation, Evans never contradicted what Houston told MeShepard about the robbery. MeShepard admitted that he had pending charges in Kemper County and was testifying pursuant to a plea deal.

¶ 9. After the trial on August 10-11, 2005, the jury found Evans guilty of armed robbery. At a separate hearing on August 22, 2005, the court sentenced Evans as a habitual offender to life without the possibility of parole.

LAW AND ANALYSIS

I. DID THE COURT ERR IN GRANTING THE STATE’S MOTION TO AMEND THE INDICTMENT TO ALLOW THE DEPENDANT TO BE CHARGED AS A HABITUAL OFFENDER?

¶ 10. The record reflects that Evans, Houston, and Powell were indicted for armed robbery and the lesser offense of robbery on November 19, 2004. On February 2, 2005, Evans’s trial was continued due to plea negotiations. The trial was continued again on April 11, 2005 and on June 1, 2005. On April 19, 2005, the State moved to amend the indictment to charge Evans as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2000). The State attached a list of several of Evans’s prior felony convictions that it intended to use to establish his habitual offender status. The motion stated in bold lettering that the State was seeking a life sentence without the possibility of parole or probation.

¶ 11. On May 24, 2005, the court entered an order granting the motion to amend the indictment to charge Evans as a habitual offender under section 99-19-83. Rule 7.09 of the Uniform Rules of Circuit and County Court provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Through new appellate counsel, Evans argues that the trial court erred by amending the indictment because no motion hearing was held and he lacked notice during plea negotiations of the State’s intent to seek amendment.

¶ 12. Evans cites Forkner v. State, 902 So.2d 615 (Miss.Ct.App.2004) in support of his argument. However, Forkner dealt with a motion by the State on the day of trial to amend the indictment to charge the defendant as a habitual offender. Id. at 623(¶ 27). This Court held that the amendment was permissible because both defense counsel and Forkner had been aware during plea negotiations of the State’s intention to amend the indictment. Id. at 624(1128).

¶ 13. In this case, the record shows that the State served Evans’s defense counsel on April 19, 2005, with notice of the motion to amend and with notice that the motion hearing was set for May 24, 2005. Thus, the record shows that well before Evans’s August 2005 trial he was served with notice of the State’s motion to amend the indictment to charge him as a habitual offender. And, contrary to Evans’s assertion through new appellate counsel, the record shows a hearing date was set. The trial court entered the order amending the indictment on the day set for the hearing. There is no indication in the record that Evans was unfairly surprised or prejudiced by the amendment. Therefore, Evans has shown no error in amending the indictment.

II. THE TRIAL COURT ERRED IN REFUSING TO GIVE DEFENSE CAUTIONARY INSTRUCTION D-1.

¶ 14. Evans complains of the trial court’s denial of his proffered jury instruction D-l cautioning the jury about accomplice testimony. The instruction stated:

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged accomplice, and requires the jury to weigh same with great care, caution and suspicion. You should weigh the testimony from alleged accomplices, and passing on what weight, if any, you should give the testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

The granting of a cautionary instruction concerning accomplice testimony is within the discretion of the trial court. Brown v. State, 890 So.2d 901, 910(¶ 22) (Miss.2004). This Court determines whether the trial court abused its discretion using a two-part test. Id. We inquire first whether the witness was, in fact, an accomplice. Id. Next, we determine if the witness testimony was without corroboration. Id.

¶ 15. At the charge conference, the trial court recognized that both Houston and Powell were accomplices. The State argued that no instruction was required because the testimony of Houston and Powell was corroborated by each other’s testimony, by Fain’s testimony, by the videotape, and by the condition of the crime scene. Evans contended that the cautionary instruction was warranted because the only evidence identifying him as the gunman was provided by accomplices Houston and Powell. The trial court found that McShe-pard’s testimony about Evans’s silence when Houston accused him of actively participating in the robbery corroborated the accomplice’s identification of Evans as the gunman. The court reminded defense counsel that he could argue to the jury that the accomplices’ testimony was not credible due to their plea deals or other factors.

¶ 16. The trial court’s ruling evinces that no abuse of discretion occurred in the denial of the cautionary instruction. The testimony of Houston and Powell was substantially corroborated by the videotape and condition of the crime scene, Fain’s testimony, and each other’s testimony. Evans argues that the testimony of Houston and Powell was “filled with inconsistencies” and was also inconsistent with their prior statements to the police. While there were some conflicts between the testimony of Houston and Powell, their testimony did not differ in material particulars, and the testimony of Powell did not differ from his prior statement to police in any significant manner. See Bell v. State, 725 So.2d 836, 848(¶ 27) (Miss.1998). All of the inconsistencies were fully presented to the jury in the trial testimony. The trial court recognized that Houston and Powell’s identification of Evans as the gunman did have corroboration in Evans’s silence during Houston’s conversation with McShe-pard. The testimony of the accomplices was not without corroboration and we find that the trial court did not abuse its discretion in denying the accomplice cautionary instruction.

III. DID THE COURT ERR IN NOT GRANTING DEFENDANT’S MOTION FOR A DIRECTED VERDICT AND MOTION FOR A NEW TRIAL AND/OR JUDGMENT NOTWITHSTANDING THE VERDICT AS THE GUILTY VERDICT WAS NOT SUPPORTED BY THE EVIDENCE?

¶ 17. Evans argues that the trial court erred by denying his motion for a JNOV or a new trial. A motion, for a JNOV attacks the sufficiency of the evidence. On review of the denial of a motion for a JNOV, this Court asks whether, considering the evidence in the light most favorable to the State, any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence will be found sufficient if a reasonable jury, applying the beyond a reasonable doubt standard, might reach different conclusions on each element of the offense. Id. We are mindful that “[mjatters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

¶ 18. Mississippi Code Annotated section 97-3-79 (Rev.2006) provides the elements of armed robbery. That section states: “Every person who shall felo-niously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....” Accordingly, the jury was instructed to find Evans guilty of armed robbery if it found beyond a reasonable doubt that Evans “did wilfully and unlawfully take the personal property of Dixie gas station, from the person or presence and against the will of Billy Fain, by putting him in fear of bodily injury,” among other elements. Evans argues that the State provided insufficient proof of all of the essential elements of the crime. Specifically, Evans argues that there was insufficient evidence that Evans placed Fain in fear of immediate injury to his person. Evans points out that, while Fain testified that he was nervous during the robbery, he expressly denied having been in fear.

¶ 19. The crime of robbery has three essential elements: “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Crocker v. State, 272 So.2d 664, 665 (Miss.1973). When putting in fear is relied upon as the proof of the charge, “it must be the fear under duress of which the owner parts with possession.” Id. The fear element does not require the victim to be frightened or terrified, but is fulfilled if the victim expects or anticipates that personal injury may result if he does not follow the assailant’s instructions made while threatening the use of a deadly weapon. Harper v. State, 434 So.2d 1367, 1368 (Miss.1983).

¶ 20. While Fain never testified that he was afraid or “in fear,” there was sufficient evidence to enable a rational jury to find beyond a reasonable doubt that Fain anticipated that personal injury would result if he did not follow Evans’s instructions. As the State points out, Fain acknowledged that during the robbery he was nervous and worried about how his friends and relatives would fare without him. Powell testified that, after the shot was fired, Fain prayed for forgiveness for his sins. And, Fain behaved compliantly when threatened with the gun. From this evidence, the jury reasonably could infer that Fain anticipated being injured and was acting under duress. There was sufficient evidence supporting Evans’s conviction of armed robbery.

¶ 21. The weight of the evidence is challenged by a motion for a new trial. On review of the denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict, and determine whether the evidence so heavily preponderated against the verdict that an unconscionable injustice would result from the denial of a new trial. Bush, 895 So.2d at 844(¶ 18). The power to grant a new trial should be exercised only in exceptional cases. Id. In this case, there was detailed evidence from several sources establishing that three masked men effectuated a robbery of the Dixie Pak-A-Sak by threatening the cashier with a gun. Evans was identified as the gunman by his two accomplices. His general description was consistent with the description of the gunman given by the cashier. The evidence did not preponderate so heavily against the verdict that an unconscionable injustice would result without a new trial. This assignment of error is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ROBERTS, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Dowdy ALMOND, Appellant v. FLYING J GAS COMPANY, Appellee.
    No. 2006-CA-00117-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      David L. Walker, attorney for appellant.
    Tommy D. Goodwin, Robert A. Biggs, Jackson, attorneys for appellee.
   ISHEE, J.,

for the Court.

¶ 1. Dowdy Almond filed suit in the De-soto County Circuit Court against Flying J Gas Company, for personal injuries sustained when she allegedly slipped and fell on a slippery substance on Flying J’s premises in Olive Branch, Mississippi. Almond alleged Flying J was negligent in maintaining and/or warning of grease, gas, or oil on its premises that Flying J caused to be there or had actual or constructive notice of the substance’s presence. The court granted summary judgment for Flying J. Aggrieved by the court’s decision, Almond appeals asserting the following issue for the court: whether the trial court erred in granting Flying J’s summary judgment on a finding there existed no genuine issue of material fact. Finding no error, we affirm.

FACTS

¶2. Around 8 p.m. on January 7, 2002, Almond allegedly slipped and fell on the premises of the Flying J located in Olive Branch, Mississippi, on an alleged slippery substance while fueling up her vehicle. According to the summary judgment hearing transcript, Almond alleged she stepped into a liquid substance that was bigger than the size of her vehicle which caused her to slip and fall that resulted in a back injury. Almond stated that after she fell, she walked into the Flying J and reported her fall to the cashier, paid for her gas, pumped her gas, and then went home. Almond asserted Flying J was the proximate cause of her injury via its agents and employees. However, in deposition testimony Almond stated that she did not know what the alleged substance was that caused her fall nor did she know how long it had been there. Furthermore, she admitted that she did not know who or what caused the alleged substance.

¶ 3. Flying J presented an affidavit submitted by Brenda Porterfield, the manager on duty the evening of the alleged incident. According to Porterfield’s affidavit, she inspected the area around the pumps, where the alleged slip and fall occurred, approximately once every thirty minutes during her shift from 5 p.m. until 10 p.m. Porter-field stated, “at no time did I witness a spill or see any kind of gas, grease, or oil or any kind of slippery substance on the ground around the fuel pumps.” Additionally, no one reported a spill or the presence of gas, grease, or oil or any kind of slippery substance during her shift on the evening in question.

¶4. On October 21, 2003, Almond filed suit for personal injuries sustained as a result of her alleged slip and fall on the premises of Flying J. On November 17, 2005, the trial court held a hearing on Flying J’s motion for summary judgment and found that Almond had presented no genuine issue of material fact in the case. On December 16, 2005, the court ordered summary judgment for Flying J. Aggrieved, Almond appeals.

STANDARD OF REVIEW

¶ 5. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss. 1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Jacox, 908 So.2d at 183(¶ 4) (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c), summary judgment is appropriate when “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.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 184(¶ 4) (citing Dailey, 790 So.2d at 907(3)).

ISSUE AND ANALYSIS

I. Whether the trial court erred in granting summary judgment for Flying J on a finding there existed no genuine issue of material fact.

¶ 6. Almond argues that the trial court should not have granted summary judgment for Flying J because a genuine issue of material fact existed as to whether the policy of inspecting the premises every thirty minutes was sufficient to negate that Flying J had constructive knowledge of the alleged slippery substance, and the trial court put itself in the position of the jury by making such factual determination. We disagree.

¶ 7. Under Mississippi law proof of an injury is not the basis for premises liability, rather negligence of the business owner must be shown. Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966). The operator of a business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition. Jacox, 908 So.2d at 184(¶ 7) (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). However, the business operator is not the insurer against all injuries. Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992).

¶ 8. To prove that the business operator was negligent, the plaintiff must show either (1) the operator caused the dangerous condition, or (2) where a third person unconnected with the store’s operation caused the condition, that the operator had actual or constructive knowledge of the condition. Id. Constructive knowledge is established where the condition is shown to have existed for such a length of time that the operator, through the exercise of reasonable care, should have known of the its existence. Id. The court will not indulge presumptions for the deficiencies in plaintiffs evidence as to the length of time the hazard existed, therefore, the plaintiff must produce admissible evidence as to the time period in order to establish the operator’s constructive knowledge. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 286 (Miss.1986). The plaintiff must present specific proof as to the relevant actual length of time. Dickens v. Wal-Mart Stores, 841 F.Supp. 768, 771 (S.D.Miss.1994).

¶ 9. Almond argues the trial court put itself in the position of the jury in determining a material factual issue regarding whether the premises were in fact inspected pursuant to on-duty manager Porter-field’s affidavit. Almond presented no contradicting evidence to Porterfield’s affidavit. Rather, Almond would have the Court draw inference upon inference regarding the possibility of inspections being conducted or not conducted. Almond also argues that there was video of her entering the Flying J and reporting the fall to the cashier. She states that had that video not been overridden then the alleged slippery substance, that was allegedly on her clothes and in her hair, would have been admissible evidence of Almond’s fall. Again, the speculation that there might have been adequate visibility of the [alleged] substance on Almond would only lend itself to further speculation that she did fall and that Flying J was the cause of her fall. However, as stated in Tisdale, proof of a fall is not sufficient to find an operator liable for an injury. Tisdale, 185 So.2d at 917. Almond also argues that because Flying J had a policy of inspecting the premises every thirty minutes they must clearly have a need for such frequent inspections. We are not persuaded by any of Almond’s arguments.

¶ 10. The trial court reviewed the file and the pleadings, heard arguments from both parties at the hearing for summary judgment, and concluded there was no genuine issue of material fact. In viewing the evidence in light most favorable to Almond, we agree with the trial court’s grant of summary judgment. .Almond would have the court to stack inference upon inference in order to conclude that Flying J is liable for her personal injuries. Almond did not establish that Flying J was negligent in any way to her. Munford, 597 So.2d at 1284. She did not offer any admissible evidence that Flying J had a dangerous condition on its premises on the evening of January 7, 2002 that would have caused her to slip and fall. Additionally, Almond’s argument that Flying J had constructive knowledge of a slippery substance on its premises is not well taken. Almond did not offer any admissible evidence as to the length of time the alleged slippery substance was present, and the Court will not indulge Almond with presumptions of this length of time. Consequently, we find that Almond failed to establish that a genuine issue of material fact existed regarding Flying J’s liability for her alleged personal injuries. This issue is without merit.

Kll. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, P.J.,

text:
    Daniel Athion WATKINS, Appellant v. Carlene Kim (Nee: Benson) WATKINS, Appellee.
    No. 2005-CA-02247-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Tina M. Scott, Houston, attorney for Appellant.
    Rex F. Sanderson, Houston, attorney for Appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This case involves the order of the Chancery Court of Chickasaw County, First Judicial District, denying Daniel Ath-ion Watkins’ motion for termination of separate maintenance and assessing court costs against him. Finding no error with the decision of the chancery court, we affirm.

STATEMENT OF FACTS

¶2. This Court has reviewed this ease once before. Watkins v. Watkins, 942 So.2d 224 (Miss.Ct.App.2006), reh’g denied, 2005-CA-00257-COA (Miss.Ct.App. Aug. 22, 2006), cert. denied, 942 So.2d 164 (Miss.2006). There, we affirmed the chancellor’s December 10, 2004, denial of Mr. Watkins’ motion for termination of separate maintenance payments, denial of modification of separate maintenance order, and order of contempt for failure to pay child support, attorneys’ fees and court costs. While the former case was pending in this Court, Carlene Kim Benson Watkins filed another complaint seeking to have Mr. Watkins held in contempt for failure to comply with the earlier separate maintenance order and child support order. While at the September 8, 2005 hearing on the matter, Mr. Watkins again moved for the termination of his separate maintenance obligations, arguing a different ground. Mr. Watkins’ second motion for termination of his separate maintenance obligation was denied on November 10, 2005 and he was assessed court costs. He now appeals the judgment denying his motion to terminate separate maintenance and assessment of court costs.

STANDARD OF REVIEW

¶ 3. “Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule.” Ivison v. Ivison, 762 So.2d 329, 333(¶ 10) (Miss.2000). “This Court will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). With this standard in mind, we look to the issues raised in this appeal.

DISCUSSION

I. WHETHER THE LOWER COURT ERRED IN DENYING MR. WATKINS’ MOTION TO TERMINATE SEPARATE MAINTENANCE?

¶ 4. Mr. Watkins moved ore tenus for termination of his separate maintenance obligations before Chancellor Co-lom, arguing that certain conduct of Mrs. Watkins made it impossible for him to resume cohabitation. More specifically, Mr. Watkins informed the court of an incident in which Mrs. Watkins pointed a gun at him while standing in the doorway of her home. The court took testimony that corroborated Mr. Watkins’ factual assertions and requested briefing of the parties on the issue of whether to terminate separate maintenance. Ultimately, the chancellor denied Mr. Watkins’ motion for termination, admonishing Mrs. Watkins’ behavior, but finding that Mr. Watkins did not make a good faith effort to reconcile with Mrs. Watkins. Mr. Watkins now appeals the chancellor’s denial of his motion for termination of separate maintenance, arguing that Mrs. Watkins’ conduct during the aforementioned incident prevents Mr. Watkins from ever reconciling, thus barring her entitlement to separate maintenance payments.

¶ 5. As our supreme court recapitulated, the initial purpose of separate maintenance decrees were “to compel the husband to support the wife until he shall restore her to his bed and board.” Chapel v. Chapel, 876 So.2d 290, 293(¶ 11) (Miss.2004) (quoting Garland v. Garland, 50 Miss. 694, 715 (1874)). As the doctrine developed, our supreme court redefined separate maintenance and provided guidelines for the award. In Daigle v. Daigle, 626 So.2d 140, 145 (Miss.1993), the court stated:

“Separate maintenance is a ‘court-created equitable relief based upon the marriage relationship.” Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993) (quoting Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989)). “It is well-established that ‘[a] decree for separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.’ ” Lynch, 616 So.2d at 296 (quoting Bunkley & Morse, Amis on Divorce and Separation in Mississippi, § 7.00 (2d ed.1957)).

Termination of such a separate maintenance obligation would be proper “if the husband should, in good faith, offer to cohabit and treat the wife with conjugal kindness.” Day v. Day, 501 So.2d 353, 357 (Miss.1987).

¶ 6. In this case, the chancellor found that Mr. Watkins made no attempt to reconcile with Mrs. Watkins. Although it is noteworthy to mention that the incident at issue in this appeal between Mr. and Mrs. Watkins occurred at Mrs. Watkins’ home, no testimony was provided indicating that Mr. Watkins was attempting to return to the home for the purpose of resuming cohabitation or reconciliation. In fact, in his brief to this Court, Mr. Watkins admits that during the incident where Mrs. Watkins pointed a gun at him, he was not attempting to move in with the family. Without a showing that Mr. Watkins offered in good faith to return to cohabit, the chancery court’s hands were tied in terminating the separate maintenance order. Therefore, we affirm the decision of the chancellor, as this issue is without merit.

II. DID THE LOWER COURT ERR IN ASSESSING MR. WATKINS ALL COURT COSTS ASSOCIATED WITH THE CONTEMPT ACTION ALTHOUGH HE WAS NOT FOUND IN CONTEMPT DUE TO HIS INABILITY TO PAY?

¶ 7. Ruling from the bench at the September 8, 2005 hearing, the chancellor found that Mr. Watkins had proven an inability to pay, so that his non-payment of the judgment against him was not contemptuous. In her ruling, though, the judge made clear that the arrearage owed to Mrs. Watkins still existed, but that Mr. Watkins, having established his inability to pay, would not be held in contempt. With the finding that the arrearage was still owed, court costs were also assessed to Mr. Watkins in a written opinion dated October 3, 2005.

¶ 8. An assessment of court costs is entrusted to the sound discretion of the chancellor. Harris v. Harris, 879 So.2d 457, 465(¶ 35) (Miss.Ct.App.2004). Without a showing of an abuse of discretion, we cannot overrule such a decision. We do not find that the chancellor abused her discretion in assessing court costs against Mr. Watkins, although he was not found in contempt due to his inability to pay the judgment against him.

¶ 9. THE JUDGMENT OF THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF CHICKASAW COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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