author:
GRIFFIS, J.,
      IRVING, J., ISHEE, J.,

text:
    MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY and Tina L. Darby, Appellants v. TRENT L. HOWELL, PLLC, Appellee.
    No. 2009-CC-01203-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.

      Leanne Franklin Brady, attorney for appellants.
    Trent L. Howell, attorney for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. Mississippi Department of Employment Security (MDES) and Tina L. Darby appeal the order of the Circuit Court of Yalobusha County, which reversed a decision of the MDES Board of Review. The Board of Review ruled that Darby had voluntarily quit her job for good cause and was, therefore, entitled to unemployment benefits. On appeal, the circuit court reversed the decision of the Board of Review holding that the Board of Review failed to consider all of the evidence and that its decision was not based on substantial evidence.

FACTS

¶ 2. Trent L. Howell, PLLC (the firm) is a law office located in Water Valley, Mississippi. Trent Howell (Trent) and his wife, Shelley, work at the firm. The only other employee during the time giving rise to this appeal was Darby. Darby first began working as a legal assistant for the firm when she was eighteen years old, and she stayed with the firm until she was twenty-nine years old. Over time, an “office flirtation” developed between Trent and Darby. In fact, Trent wrote Darby a letter expressing his feelings toward her. Offended by Trent’s letter, Darby was ready and willing to quit her job, but after meeting with Trent and his wife (collectively, the Howells) and receiving an apology from Trent, Darby decided to stay.

¶ 3. Following the meeting between the Howells and Darby, three occurrences took place that Darby claimed to be harassment: a phone call to her dentist, an uninvited visit to Darby’s house, and a phone call to her beautician. She claims these occurrences ultimately forced her to quit her job. Each of these occurrences took place within two months of the reconciliation meeting between the parties.

¶ 4. The first phone call that Darby complains of was made by Trent to Darby’s dentist. Trent claimed that he was searching for Darby because she had failed to pick up some files from work. The uninvited visit by Trent to Darby’s house was made in order to retrieve files that Darby had failed to turn in to the chancery clerk’s office-a duty that Darby normally undertook. The second phone call placed by Trent was made to Darby’s beautician. Trent placed this call after seeing a car similar to Darby’s outside of the parlor and after Darby had called into work because she was sick. It was after learning about this second phone call that Darby decided to leave her employment with the firm.

¶ 5. In October 2007, after voluntarily leaving her position at the firm, Darby filed for unemployment benefits. An investigation was conducted by MDES to determine Darby’s eligibility. After speaking with both interested parties, the claims examiner recommended disqualification of unemployment benefits because Darby had failed to show good cause for voluntarily leaving her employment.

¶ 6. Darby appealed the decision of the claims examiner, and after a telephonic hearing before the administrative judge, Darby was denied benefits once again. After listening to Darby, Trent, and witnesses for both parties, the administrative judge found that Darby had failed to prove that she had left her employment for good cause, and the administrative judge affirmed the decision of the claims examiner. Following this decision, Darby filed an appeal to the Board of Review.

¶ 7. The Board of Review agreed with and adopted the administrative judge’s findings of fact; however, the Board of Review also made additional findings that allowed Darby to qualify for benefits. The Board of Review found that Trent’s conduct following the reconciliation meeting between the parties constituted a form of harassment which created an offensive work environment. Thus, the Board of Review was of the opinion that Darby had good cause for quitting her employment.

¶8. The firm appealed the Board of Review’s decision to the circuit court. After reviewing the record and briefs submitted by both parties, the circuit court reversed the decision of the Board of Review. The circuit court found that, after the reconciliation meeting between Darby and the Howells, the record failed to show how Trent’s behavior toward Darby had created an offensive work environment. The circuit court found that the decision of the Board of Review was not supported by substantial evidence; thus, the circuit court reinstated the decision of the administrative judge.

STANDARD OF REVIEW

¶ 9. “An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Maxwell v. Miss. Employment Sec. Comm’n, 792 So.2d 1081, 1082 (¶7) (Miss.Ct.App.2001). Upon judicial review, “the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Supp.2009).

¶ 10. “Substantial evidence” is that which is relevant and capable of supporting a reasonable conclusion, or more than a mere scintilla of evidence. Gilbreath v. Miss. Employment Sec. Comm’n, 910 So.2d 682, 686 (¶ 13) (Miss.Ct.App.2005). In addition, “[a] rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994).

¶ 11. A circuit court serves as a reviewing court in appeals from administrative agencies. Walters v. Miss. Dep’t of Econ. and Cmty. Dev., 768 So.2d 893, 895 (¶8) (Miss.2000). Therefore, its scope of review is restricted to the findings of the agency. Id. In review of an agency’s decision the circuit court is not serving as an initial fact-finder, but rather as an intermediate appellate court. Bd. of Law Enforcement Officers Standards and Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). As a result, decisions of the lower court are not due the same deference as if it were sitting as a trial court. Id. When an administrative agency’s decision is based on substantial evidence, then its ruling is binding upon any appellate court, such as, the circuit court and this Court. Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010 (¶ 9) (Miss.2000).

ANALYSIS

¶ 12. MDES and Darby first argue that the circuit court erred when it found the Board of Review’s decision was not supported by substantial evidence. The Board of Review considered the evidence presented. The Board of Review was solely responsible for evaluating the credibility of the testimony and the supporting documentation. Because the Board of Review based its findings on the evidentiary record, we find that the circuit court was outside its scope of authority when it reweighed the evidence of the case.

¶ 13. The issue here was whether Darby left her employment with Trent’s law firm because he had created an offensive work environment by sexually harassing her. The Board of Review made several factual findings. First, Trent wanted a personal relationship with Darby. Second, Trent wanted a sexual relationship with Darby. Third, Trent interfered with Darby’s personal life and affairs by (a) telling her not to marry her flaneé, (b) questioning her whereabouts during her personal time, and (c) meddling in Darby’s personal affairs or appointments.

¶ 14. The circuit judge reviewed the facts and determined that the firm was not liable for creating an offensive work environment for Darby. The circuit judge concluded that a mere “office flirtation” existed between Trent and Darby. Specifically, the circuit judge utilized Trent’s testimony as his primary basis to conclude that an office flirtation existed between Trent and Darby. Darby testified she did not flirt with Trent at any time during her employment. In fact, Darby testified that she communicated to Trent that she was not interested in a romantic or sexual relationship with him. Furthermore, Darby told Trent she would find another job if he did not stop his romantic advances toward her.

¶ 15. The Board of Review found Trent’s love letter to Darby was substantial evidence for her claim. Trent’s self-authored letter supported the following conduct: (1) he propositioned Darby for sex; (2) he propositioned Darby for a romantic relationship; (3) he questioned Darby’s whereabouts and activities that were not work related; and (4) he admitted that he knew his feelings for Darby were his personal problem. The Board of Review indicated that Trent’s love letter led to the reasonable conclusion that Trent was sexually harassing Darby.

¶ 16. Since the Board of Review held this evidence to be substantial, the standard of review for appellate review of an agency’s decision dictates that the circuit court cannot reevaluate the testimony and documentation deemed as the basis of the Board of Review’s findings in this case. Watters, 768 So.2d at 895 (¶ 8).

¶ 17. The circuit judge disagreed with the Board of Review’s finding that Trent had consistently meddled and interfered in Darby’s personal life and affairs. Again, the record points to specific instances in which Trent’s conduct would have been reasonably offensive to Darby’s ability to continue work.

¶ 18. Trent stepped outside his scope as Darby’s employer and began to interfere in her personal life. He testified that when he came to Darby’s home he questioned and criticized her relationship with Mike Hill, her fiancé. Trent testified he still believes Hill was not the right man for Darby. Further, Trent admitted he had called Darby’s hairdresser and dentist to verify her whereabouts when she took personal time off of work. In addition, Hill provided evidence that Trent meddled and interfered in Darby’s personal life. Hill testified that he witnessed Trent’s altercation with Darby at her home. The record contains substantial evidence to support the Board of Review’s finding.

¶ 19. Because the Board of Review is the ultimate fact-finder in unemployment-compensation cases, the circuit court was acting outside his scope of authority by reweighing the facts. Butler, 672 So.2d at 1199.

¶ 20. The dissent cites the appropriate standard of review. However, the dissent does not follow the authority cited. Indeed, the dissent fails to consider the Board of Review as the ultimate finder of fact and does not give the appropriate deference to the Board of Review’s findings. It matters not what the circuit court judge found; instead, wq must review the Board of Review’s findings.

¶ 21. We conclude that the circuit court improperly applied the three-prong test from Loftin-Boggs v. City of Meridian, 633 F.Supp. 1323 (S.D.Miss.1986), a federal court decision, to determine whether there was substantial evidence to support why Darby had voluntarily left her employment. The circuit court should have used the test defined by the Mississippi Supreme Court in Hoemer Boxes, Inc. v. Mississippi Employment Security Commission, 693 So.2d 1343, 1348 (Miss.1997). There, the supreme court defined the type of offensive behavior or work environment that a claimant would need to experience for his or her claim to be valid for unemployment compensation benefits. Id. at 1347. An employee who is sexually harassed within the workplace is entitled to unemployment-compensation if “an ordinary prudent employee would leave the ranks of the employed for the unemployed” because of a specific degree of harassment. Id. at 1348. The Mississippi Supreme Court has held sexual harassment in the workplace as a valid reason for an employee to voluntarily terminate his or her employment under the statutory guidelines of Mississippi Code Annotated section 71-5-513(A)(3)(a) (Supp.2009).

¶ 22. In Hoemer Boxes, the claimant left her job because she was constantly sexually harassed by a co-worker. Hoer-ner Boxes, Inc., 698 So.2d at 1348. The claimant did not initiate, participate, or encourage any sexual advances from her co-worker. Id. at 1847. Also, she did not have a questionable or personal relationship with any co-worker or supervisor from the company. Id.

¶ 23. The supreme court applied the following test to evaluate whether substantial evidence supported that Board of Review’s decision: (1) was there a hostile work environment that a reasonable person in the same situation would be unable to perform his or her job, and eventually leave his or her and job and (2) was there any conduct by the plaintiff in which she participated or contributed to the sexual overtones and harassment encountered that would make the treatment received unhostile. Id.

¶ 24. In contrast, Loftm-Boggs involved a claimant who had contributed to the sexual harassment among co-workers in her office. Loftin-Boggs, 633 F.Supp. at 1324. The plaintiff admitted that she had used profanity, initiated sexually related discussions with co-workers during work hours, and participated in a questionable relationship with a supervisor. Id. Since she clearly contributed to the sexual nature of the workplace, the federal court held that she had failed to prove she was sexually harassed to such a nature that she was forced to leave her position. Id. at 1328. The following three-prong test was established: (1) submission to sexual favors or advances was explicitly or implicitly a condition of employment, (2) submission to or rejection of advances was used as a basis for employment decisions, or (3) such conduct had the purpose or effect of interfering with employment. Id. at 1326.

¶25. Here, the circuit court erred by using the Loftin-Boggs test to evaluate whether substantial evidence was present to support the Board of Review’s finding. The supreme court’s decision in Hoemer Boxes is more factually related to this case because the record contains substantial evidence to support the Board of Review’s finding of an environment of harassment.

¶ 26. For these reasons, we reverse the judgment of the circuit court and reinstate the Board of Review’s decision. Darby proved by substantial evidence that she had good cause to leave her employment with the firm due to harassment, under Mississippi Code Annotated section 71-5-513(A)(1)(c) (Supp.2009). The circuit court’s reversal of the Board of Review’s decision overlooked the substantial evidence in the record that Trent’s sexual harassment of Darby constituted an offensive work environment and fails to apply the correct standard to determine whether the harassment encountered was to such a degree that it qualified as valid cause to voluntarily terminate her employment.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY IS REVERSED, AND A JUDGMENT IS RENDERED TO REINSTATE THE DECISION OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY.

LEE AND MYERS, P.JJ., ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY ISHEE, J. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J.

IRVING, J.,

dissenting:

¶28. With respect, I must disagree with the majority. I would affirm the judgment of the circuit court, which reversed the decision of the Mississippi Department of Employment Security. I agree with the dissent authored by Judge Ishee. However, I write separately because it appears to me that neither the majority nor Judge Ishee’s dissent gives proper weight to the singular fact that provides ample footing for the decision of the circuit court: the absence of any evidence that Trent sexually harassed Darby after August 6, 2007, the date that the Howells reconciled with Darby with respect to Trent’s previous conduct toward Darby.

¶29. I want to be clear: the record contains ample evidence to justify a finding that Trent’s initial actions toward Darby would have justified Darby leaving her employment with the Howells had she done so prior to their reconciling with her. I would also agree that had Trent continued his old ways after the reconciliation, it would have been proper to consider his pre-reconciliation conduct in deciding whether Darby was justified in terminating her employment when she did.

¶ 30. The circuit court found that the Board of Review did not consider all of the evidence. I agree. Based on the decision of the Board of Review, it could not have considered Trent’s post-reconciliation conduct toward Darby, as his post-reconciliation conduct toward Darby does not provide a justifiable basis for Darby terminating her employment, notwithstanding the fact that his pre-reconciliation conduct did. Three incidents between Trent and Darby occurred after the reconciliation between Darby and the Howells, and it is these incidents upon which Darby bases her case that she was justified in terminating her employment with the Howells. Regarding these incidents, the record reveals the following facts adduced during the hearing before the administrative judge, who found that Darby had terminated her employment without justification.

¶ 31. On August 9, 2007, Trent called Darby’s dentist, who was also a personal friend of Trent’s, and asked if Darby had kept her dental appointment that day. According to Trent’s testimony, Darby was to return to the office to pick up a file. The file pertained to title work Darby was to complete in Batesville, Mississippi, first thing the next day. Darby never returned to the office to pick up the file following her appointment, nor did she call the office to tell Trent where she was.

¶ 32. On September 14, 2007, Trent came to Darby’s home to retrieve commitment papers related to a lunacy case. According to Trent’s testimony, Darby handled commitment proceedings for the office. Darby was scheduled to appear in court that day but did not appear. Shelley attempted to contact Darby, but when she could not reach her, Shelley contacted Trent. Trent agreed to stop by Darby’s home on his way back to the office to see if she was home. Darby was at home with her boyfriend. According to Trent’s testimony, he admonished Darby for her recent performance at work, which resulted in an argument between the two. Both Trent and Darby testified that Darby later called to apologize for arguing with Trent.

¶ 33. On September 28, 2007, Trent called Darby’s hairdresser. Trent testified that Darby had asked for a half-day off work on a Friday to visit her boyfriend out of town. Trent also overheard Darby say that she was going to a bar on Thursday night. On Friday morning, Darby called in sick. Trent saw a car that looked like Darby’s in town that day and had heard Darby mention that she wanted to see her hairdresser before leaving town. Suspicious about the timing of her illness, Trent called Darby’s hairdresser to see if she was there.

¶ 34. As stated, all of the events that Darby complains of occurred after the August 6, 2007, reconciliation meeting between her and the Howells. As these events, by any reasonable interpretation, do not constitute substantial evidence that Darby was justified in leaving her employment, I would affirm the judgment of the circuit court.

ISHEE, J., JOINS THIS OPINION IN PART.

ISHEE, J.,

dissenting:

¶ 35. With respect to the majority, I must dissent. Mississippi Department of Employment Security (MDES) and Darby first argue that the Yalobusha County Circuit Court erred when it found the Board of Review’s decision was not supported by substantial evidence. Respectfully, I disagree. The circuit court, along with the claims examiner and the administrative judge (AJ), found that Trent Howell’s conduct never created an offensive work environment after the reconciliation meeting between Darby and Trent and his wife (collectively, the Howells).

¶ 36. The circuit court was of the opinion that the MDES Board of Review had totally failed to consider the totality of the evidence contained in the record. The circuit court noted a fair and unbiased reading of the record revealed that the Board of Review had considered only the part of the record favorable to Darby.

¶ 37. The majority alleges that, because the Board of Review is the ultimate fact-finder, the circuit court was acting outside the scope of its authority. I disagree. Although it is true that the Board of Review’s decision is binding on the circuit court when supported by substantial evidence, the circuit court is allowed to find the ruling as being arbitrary or capricious. If the circuit court believes the ruling of the Board is unsupported by substantial evidence, the court most certainly has the authority to overturn the decision. Similarly, if this Court finds the circuit court’s ruling was unsupported by substantial evidence, we have the authority to overturn its decision.

¶ 38. The majority takes objection with the fact that the circuit judge applied a federal southern district of Mississippi case in reviewing the decision of the Board of Review. The circuit judge applied the three-prong test from Loftin-Boggs v. City of Meridian, 633 F.Supp. 1323, 1326 (S.D.Miss.1986). In Loftin-Boggs, the federal district court stated sexual harassment includes unwelcome sexual advances, request for sexual favors, and other verbal and physical conduct of a sexual nature when (1) submission to such conduct is made a condition of continued employment; (2) submission to or rejection of such conduct is used as the basis for employment decision affecting the employee; or (3) such conduct has as its purpose or effect the creation of an offensive work environment. Id.

¶ 39. The majority is of the opinion that, had the circuit judge used the test applied in Hoerner Boxes, Inc. v. Mississippi Employment Security Commission, 693 So.2d 1343, 1348 (Miss.1997), a different result would have been reached. I disagree. The Mississippi Supreme Court’s test in Hoemer-Boxes for evaluating whether or not there was substantial evidence in support of the Board of Review’s decision includes: (1) was there a hostile work environment which a reasonable person in the same situation would be unable to perform his or her job, and eventually leave his or her job and (2) was there any conduct by the plaintiff in which she participated or contributed to the sexual overtones and harassment encountered which would make the treatment received unhostile.

¶ 40. The circuit judge found that there was nothing in the record which reflected an affair beyond mutual flirtation between the parties; there was no request for sexual favors, no inappropriate touching, no expression of verbal terms, and no inappropriate words; therefore, no offensive work environment was created.

¶41. Furthermore, the record clearly shows, and the circuit judge duly noted, that Darby had already planned to quit her job; and she had made these plans prior to her alleged harassment. The circuit judge found that Darby had encouraged a friend to apply for her job and that Trent was a good employer. Also, the circuit judge correctly found the incidents which Darby complained of that occurred after the 2006 reconciliation meeting were precipitated by Darby and her actions as an employee.

¶42. The first phone call that Darby complains of was made by Trent to Darby’s dentist. Trent claimed that he was searching for Darby because she had failed to pick up some files from work. These files were supposed to be picked up by Darby and brought to the courthouse. The uninvited visit by Trent to Darby’s house was made in order to retrieve files that Darby had failed to turn in to the chancery clerk’s office-a duty that Darby normally undertook. The second phone call placed by Trent was made to Darby’s beautician. Trent placed this call after seeing a car similar to Darby’s outside of the parlor and after Darby had called into work because she was sick. It was after learning about this second phone call that Darby decided to leave her employment with the firm.

¶ 43. Darby further claims that because this is a sexual-harassment case, it is only necessary to show that a reasonable person, under the same circumstances, would have left their employment. As noted above, the circuit judge found that there was nothing in the record which reflected an affair beyond flirtation. I agree with the circuit court which found a fair and unbiased reading of the record clearly shows the Board of Review failed to consider all of the evidence in the record; therefore, the Board of Reviews’s reversal of the AJ’s decision was erroneous.

¶ 44. Respectfully, I dissent.

KING, C.J., JOINS THIS OPINION.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Charles ANDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00517-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.

      John T. Kitchens, Leslie S. Lee, Katharine McKee Surkin, Jackson, Joseph Leonard Turney, Thomas Eugene Whitfield Jr., attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, CJ., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Charles Anderson was convicted of manslaughter. The Circuit Court of Lamar County sentenced him to twenty years in the custody of the Mississippi Department of Corrections (MDOC). He now appeals and asserts: (1) the trial court erred in granting the State’s jury instruction S-7, and (2) the “castle doctrine” should be applied retroactively to his case. Finding no error, we affirm Anderson’s conviction and sentence.

FACTS

¶ 2. On the night of April 19, 2003, Anderson was asleep at his home when he was woken up and discovered Shelton Smith standing in his hallway. According to Anderson, Smith yelled expletives at him and told him to die. Smith then lit a match and set Anderson’s house on fire. Anderson then ran back into his bedroom, grabbed a shotgun, and climbed out of his window. Anderson shot Smith and ran across the street to the home of his brother-in-law, Owen Stockstill, where he collapsed on the front porch. According to Stockstill, Anderson was out of breath and told him: “Shelton was trying to burn his house down and I shot him.”

¶ 3. Stockstill, along with his daughter, Megan Stockstill, and her boyfriend, Trey , returned to Anderson’s home to find Shelton without a pulse. Stockstill’s wife, Debra Stockstill, remained at their home with Anderson and called 911. The 911 operator advised Debra to return Anderson to his home so he could be questioned by the police. Debra drove Anderson back to his home, and Anderson remained in her car until he was taken to the hospital for medical treatment.

¶ 4. Anderson was treated and released from the hospital that same night. He then went to the Lamar County Sheriffs Department to give a statement. After Anderson was read his Miranda rights, he gave a statement regarding the events leading up to Smith’s shooting. In his statement, Anderson said he woke up to quiet his barking dogs when he saw Smith standing in the hallway. Smith then yelled, “die you son of a b-, die,” then lit either a match or lighter, and the whole hallway burst into flames. Anderson then ran back into his bedroom, pushed out the window screen, climbed out, and retrieved a 12-gauge shotgun that was propped up against his window. Anderson then saw Smith on the carport headed toward his truck, and Anderson shot him. When Smith tried to run, Anderson shot him a second time. According to Anderson, the shotgun either jammed or ran out of bullets, so he reached in the back door of his house, grabbed another shotgun, and shot Smith again.

¶5. According to Anderson, Smith had come to his house the day before “crying like a baby” because his wife, Kathy Smith, left him. Smith also asked Anderson if Kathy had ever propositioned him, to which Anderson responded that she had not. Smith then allegedly stated that he would kill Kathy and “the S.O.B. she was running around with.” Anderson told law enforcement that he and Kathy had been high-school sweethearts, but he claimed they had had no contact since then.

¶ 6. Kathy admitted at trial that she had been involved in an extramarital affair with Anderson since February 2003. Telephone records, which were presented at trial, showed that the two had spoken on the phone 109 times in April 2003, including eight times on the day Smith was killed.

¶ 7. Anderson was ultimately indicted for murder and arson. The jury found him guilty of the lesser-included offense of manslaughter. The jury was unable to reach a verdict as to the count of arson; therefore, the trial court declared a mistrial as to the arson count.

DISCUSSION

¶ 8. Anderson contends that the trial court erred in granting the State’s jury instruction S-7 because it was contradictory, confusing, and did not correctly state the applicable law. Anderson asserts that when read together as a whole, the jury instructions presented to the jury at trial on this matter did not adequately inform the jurors that they were bound to acquit Anderson if they found that the shooting was justified. Anderson also asserts that he was not allowed to present his theory of self-defense to the jury. Jury instruction S-7 states:

The court instructs the jury that, under the laws of Mississippi, the killing of Shelton Smith by the act, procurement, or omission of Charles Anderson would be justifiable if committed by Charles Anderson in resisting any attempt of Shelton Smith unlawfully to kill such Charles Anderson or to commit any felony upon Charles Anderson, or upon or in any dwelling house in which Charles Anderson shall actually be and if you believe the killing was thus justifiable, then you shall find the defendant, Charles Anderson, not guilty of murder. However, if based upon the evidence in this case you find, beyond a reasonable doubt, that the deceased, Shelton Smith, was not attempting unlawfully to kill Charles Anderson at the time Charles Anderson shot Shelton Smith, and that Shelton Smith was not trying to commit any felony upon Charles Anderson at the time Charles Anderson shot Shelton Smith, and that Shelton Smith was not trying to commit a felony upon or in the dwelling house in which Charles Anderson was at the time of the killing, then the killing of Shelton Smith by Charles Anderson is not justified under the law.

¶ 9. According to the record, Anderson made no objection to jury instruction S-7. “[T]he failure to object to an instruction at trial bars that issue on appeal.” Johnson v. State, 19 So.3d 145, 146 (¶ 8) (Miss.Ct.App.2009). “If no contemporaneous objection is made at trial, a party must rely on the plain[-]error rule to raise the assignment of error on appeal.” Baskin v. State, 991 So.2d 179,181 (¶ 9) (Miss.Ct.App.2008). “The plain[-]error doctrine has a two-part test which requires: (i) an error at the trial level and (ii) such an error resulted in a manifest miscarriage of justice.” Stephens v. State, 911 So.2d 424, 432 (¶ 19) (Miss.2005).

¶ 10. Anderson makes an argument under the plain-error doctrine. He asserts that jury instruction S-7 did not notify the jury that it must acquit him of both murder and manslaughter if it found he had acted in a justifiable manner. In making this argument, Anderson focuses primarily on the fact that paragraph one instructed the jury that if it found he had acted justifiably, the jury must find that he was not guilty of murder, but the instruction did not address manslaughter. However, the second paragraph stated a killing of any kind is not justified unless Smith was attempting to kill Anderson or commit a felony upon him or his property at the time Anderson shot Smith.

¶ 11. “When considering a challenge to a jury instruction on appeal, appellate courts do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed.” Kendrick v. State, 21 So.3d 1186, 1192 (¶ 18) (Miss.Ct.App.2009). According to the record, jury instruction C-2 provided that if the jury found that the State did not prove the elements of murder, the jury should consider whether Anderson was guilty of heat-of-passion manslaughter; and the instruction gave the jury a definition of heat-of-passion manslaughter. Accordingly, the jury was properly instructed, and this issue is without merit.

¶ 12. Anderson argues that the “castle doctrine” should be applied retroactively to his case. The castle doctrine, which curtailed the duty to retreat and created a presumption that the defendant reasonably feared imminent death, great bodily harm, or the commission of a felony upon him from a person who had unlawfully and forcibly entered the immediate premises of a dwelling, was enacted effective July 1, 2006, approximately one year after Anderson’s July 2005 conviction. See Miss.Code Ann. § 97-3-15 (Rev.2006). The castle doctrine made substantive changes to the law of self-defense; however, its provisions do not apply retroactively to Anderson’s case because the statute does not provide for retroactive application. Thus, this issue is also without merit.

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

KING, C.J., LEE AND MYERS, PJJ, IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . Trey’s full name is not in the record.


author: ROBERTS, J., CARLTON, J.,

text:
    Michael PERKINS, Appellant v. WAL-MART STORES, INC. and Elijah Wilson, Appellee.
    No. 2008-CA-01406-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.

      Richard Shane McLaughlin, Jim Waide, Tupelo, attorneys for appellant.
    Scott Burnham Hollis, Robert Tubb Jolly, Olive Branch, Wilton V. Byars III, Amanda McMillan Urbanek, Oxford, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J.,

for the Court:

111. The motion for rehearing is granted in part, and the previous opinion of this Court is withdrawn with this opinion substituted in lieu thereof. Michael Perkins appeals the Marshall County Circuit Court’s grant of summary judgment in favor of Wal-Mart Stores, Inc. (Wal-Mart) and Elijah Detective Wilson. Perkins asserts four assignments of error: (1) the trial court erred in granting summary judgment as to Perkins’s claim for malicious prosecution, (2) the trial court erred in granting summary judgment as to Perkins civil conspiracy claim, (3) the trial court erred in granting summary judgment as to Perkins claim against Detective Wilson for malicious interference with employment, and (4) the trial court erred in granting summary judgment as to Perkins’s claim for intentional infliction of emotional distress. We affirm the circuit court’s grant of summary judgment in favor of Detective Wilson as related to the first three issues. We further affirm the circuit court’s grant of summary judgment in favor of Wal-Mart on Perkins’s claim for intentional infliction of emotional distress. However, we find that there was a genuine issue of material fact as to whether Detective Wilson acted with malice and could thereby be found liable under the theory of intentional infliction of emotional distress; therefore, we reverse the circuit court’s grant of summary judgment in favor for Detective Wilson and remand for further proceedings consistent with this opinion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Perkins, a police officer with the Holly Springs Police Department, and his son went to the local Wal-Mart store on December 18, 2005, while Perkins was off duty. After selecting a few items, they proceeded to a checkout line to pay for the purchases. The items included a can of tuna fish, two soft drinks, and an inkjet printer cartridge. The cartridge was valued at approximately $20. The Wal-Mart cashier was Alicia Jackson, an acquaintance of Perkins. Jackson, along with a few other Wal-Mart employees, had been engaging in an illegal, “under-ringing” scheme. In this process, the cashier would either fail to “ring up” merchandise or would scan the item(s) and then void the transaction. This allowed the Wal-Mart employee’s friends and other employees to obtain merchandise for free. On this particular day, Jackson scanned all of Perkins’s items, but she subsequently voided the printer cartridge from the total. Therefore, the total was approximately $5, rather than $25. Perkins gave Jackson a $100 bill to pay for his purchases, received his change, and left the store. He alleged that he did not count his change and was unaware that the printer cartridge was not included in the total.

¶3. On or about the same day, Wal-Mart’s loss-prevention officer, Gary Ferguson, was alerted by an assistant manager of this “under-ringing” scheme and proceeded to conduct an internal investigation. Ferguson contacted his supervisor, Andy Duncan, and they interviewed Jackson on December 20, 2005. She admitted her role in the scheme, identifying several individuals involved, one of whom was a police officer. Ferguson reviewed surveillance video and identified Perkins, with whom he was acquainted as Perkins had helped catch shoplifters in the store while on duty. Ferguson then contacted the Holly Springs Police Department and spoke with Elijah Wilson, a detective and co-worker of Perkins, regarding Perkins’s alleged involvement. Detective Wilson interviewed Jackson soon thereafter at the police station. In her recorded statement taken by Detective Wilson, Jackson claimed that Perkins knew he did not pay for the cartridge. Detective Wilson relayed this information to Ferguson who then signed an affidavit stating that Perkins did “take, steal and carry away a black ink jet cartridge the personal property of Wal-Mart having a value of $19.83.” Perkins was charged with petit larceny.

¶4. On December 27, 2005, the Holly Springs Chief of Police, Patricia Selman, sent Perkins a memo relieving him of his supervisory duties on the evening shift. Detective Wilson and another officer were copied on this memo. Prior to the Wal-Mart incident, Perkins and Detective Wilson had a dispute in October 2005, involving a police department internal matter. Both men had the only access to an evidence locker within the police department. Some evidence, including approximately $200, was discovered missing from the locker. Although Perkins contends that he requested an inventory, none was ever conducted. Perkins subsequently resigned as the evidence-locker officer. However, Perkins made this information well-known throughout the department, implying that Detective Wilson was somehow involved in the theft. Perkins alleges that this caused a “running feud” between the two men. Detective Wilson counters this allegation, stating that although Perkins’s actions were irritating, he was not really affected by them, nor did he harbor any ill will toward Perkins.

¶ 5. Also during this time period, Detective Wilson reassigned Perkins to a regular patrol vehicle and gave Perkins’s supervisor car to an uncertified officer. Perkins maintains that there was no justification for the reassignment. Perkins further alleged that the car to which he was reassigned had engine problems, although he later admitted that the vehicle did not have such problems at the time of reassignment.

¶ 6. On January 28, 2006, Perkins’s criminal trial was held before the Justice Court of Marshall County. Jackson recanted the statement given to Detective Wilson and claimed that she was not aware if Perkins knew he was getting the cartridge without paying for it. She testified that her response to Detective Wilson during the interview was merely telling him what she thought he wanted to hear. She alleged that she told Detective Wilson twice that she did not know if Perkins knew about the under-ringing scheme, but after each response, Detective Wilson turned off the tape recorder and told her that she needed to tell the truth or she would be in serious trouble. Finally, Jackson assumed that Detective Wilson wanted her to say Perkins was aware that she did not ring up the cartridge; so she answered accordingly. Perkins was acquitted as the judge ruled that there was no evidence to establish that he had committed a crime.

¶ 7. Following Perkins’s acquittal, another internal police-department incident occurred in May 2006, which resulted in Perkins’s being temporarily suspended. Perkins had confiscated an altered driver’s license during a routine road block, and when requested by the police chief to return the license to the driver, Perkins was unable to locate it. A board meeting was held on May 16, 2006, and Perkins was suspended for two days for misplacing/losing property. Perkins subsequently requested another hearing before the board. At that hearing, Perkins brought several drivers’ licenses allegedly found in two patrol cars; however, none was the missing license, and there was a discrepancy about where Perkins actually obtained the licenses. It was concluded that two of the licenses had recently been on the clerk’s desk in a basket; therefore, Perkins did not get them from the patrol cars. Detective Wilson and other officers told Chief Selman that they had recognized one or two of the licenses from the basket on the desk. Consequently, Perkins was suspended for two weeks for untruthfulness and mishandling of property and placed on a six-month probation.

¶ 8. On December 14, 2006, Perkins filed this civil action against Wal-Mart for malicious prosecution. He also file suit against Wal-Mart and Detective Wilson for tor-tious interference with his employment, civil conspiracy, and intentional infliction of emotional distress. On January 80, 2008, Detective Wilson filed a motion for summary judgment, stating that under the Mississippi Tort Claims Act, he could not be held personally liable as he was acting within his scope of employment with the Holly Springs Police Department. Therefore, in order for Detective Wilson to be liable, Perkins must prove that Detective Wilson acted with malice. See Zumwalt v. Jones County Bd. of Supervisors, 19 So.3d 672, 688 (¶83) (Miss.2009) (a intentional tort constituting malice is not considered to be “within the course and scope of employment” for purposes of Mississippi Code Annotated section 11^46-5 and is, therefore, excluded from the statute’s waiver of immunity). Wal-Mart filed a motion for summary judgment on March 26, 2008. The circuit court granted both Detective Wilson’s and Wal-Mart’s motions on July 18, 2008, finding that Perkins could not establish that Wal-Mart instituted the proceedings with malice and without probable cause, and that Perkins failed to prove that Detective Wilson had acted with malice. Perkins timely filed an appeal of the circuit court’s denials of the motions.

WHETHER THE CIRCUIT COURT ERRED IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT.

¶ 9. Perkins argues that there was sufficient evidence to have his claims submitted to a jury; therefore, he contends that the circuit court erred in granting summary judgment to the defendants. We conduct a de novo review of a circuit court’s disposition of a motion for summary judgment. Jamison v. Barnes, 8 So.3d 238, 242 (¶ 7) (Miss.Ct.App.2008) (citing Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (¶ 10) (Miss.2007)). “For a summary judgment motion to be granted[,] there must exist no genuine issues of material fact and the moving party must be entitled to judgment as a matter of law.” Bryant v. Bd. of Supervisors of Rankin County, 10 So.3d 919, 921 (¶ 4) (Miss.Ct.App.2008) (citing M.R.C.P. 56(c)). “A fact is material if it ‘tends to resolve any of the issues properly raised by the parties.’ ” Gorman-Rupp Co. v. Hall, 908 So.2d 749, 753 (¶ 13) (Miss.2005) (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995)). All evidence must be viewed in a light most favorable to the non-mov-ant. Williams v. Jackson, 989 So.2d 991, 993 (¶ 4) (Miss.Ct.App.2008) (citation omitted).

I. Malicious-Prosecution Claim

¶ 10. Perkins contends that the record contained sufficient evidence to find that Wal-Mart acted with malice in his prosecution. The elements of malicious prosecution are: “(1) the institution of a proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceeding in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of the injury or damage as a result of the prosecution.” Robinson v. Hill City Oil Co., Inc., 2 So.3d 661, 665 (¶ 9) (Miss.Ct.App.2008) (quoting McClin- ton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973 (¶ 8) (Miss.2001)). The failure to prove any one of these elements by a preponderance of the evidence is fatal to the claim. Id. (citing Croft v. Grand Casino Tunica, Inc., 910 So.2d 66, 72 (¶ 14) (Miss.Ct.App.2005)). The circuit court found that the first three elements were indeed present in this case. However, it concluded that Perkins failed to provide any evidence that Wal-Mart had acted with malice or that Wal-Mart had lacked probable cause to proceed with the charge against Perkins.

¶ 11. In our analysis of a claim of malice, we must focus “on the objective of the defendant who instituted the criminal proceedings.” McClinton, 792 So.2d at 974 (¶ 16). “The malice required for malicious prosecution occurs when the primary purpose of prosecuting is one other than ‘bringing an offender to justice.’ ” Coleman v. Smith, 914 So.2d 807, 811-12 (¶ 12) (Miss.Ct.App.2005) (quoting Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss.1991)). A citizen may file a criminal complaint as long as he “ ‘acts either in good faith, i.e., for a legitimate purpose or with reasonable grounds to believe’ that the person against whom proceedings are initiated may be guilty of the offense of which he is charged.” Robinson, 2 So.3d at 666 (¶ 12) (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1187 (Miss.1990)). For liability to be imposed, “there must be an affirmative action that would advise, encourage, or pressure the institution of criminal proceedings.” Id. at (¶ 16).

¶ 12. Based on our review of the record, we can find no evidence that Wal-Mart instituted the prosecution of Perkins based upon any malicious intent. After Wal-Mart became aware of the “under-ringing” scheme, its agents interviewed Jackson and two other employees regarding their participation in the scheme. Wal-Mart admitted that, while it did not prosecute any other customers involved in the scheme, this was because those persons were not identifiable. Only Perkins was specifically named by Jackson and identified in the surveillance video. Further, in her recorded statement given to Detective Wilson, when asked if Perkins knew that he did not pay for the ink cartridge, Jackson answered, “Yeah.” Detective Wilson relayed this information to Ferguson, who then filed the affidavit against Perkins. Ferguson also alleged later, in his deposition, that the surveillance video showed Perkins looking at his change.

¶ 13. The evidence shows that Wal-Mart believed that it had probable cause to institute the proceedings. In Richard v. Supervalu, Inc., 974 So.2d 944, 949 (¶ 15) (Miss.Ct.App.2008), this Court stated that:

A claim of malicious prosecution will not lie if there was probable cause to make the arrest. Probable cause is determined from the facts apparent to the observer when prosecution is initiated. So long as the instigator of the action reasonably believed he had a good chance of establishing his case to the satisfaction of the court or the jury, he is said to have had probable cause.

(Internal citations and quotations omitted). “Unfounded suspicion and conjecture are not proper bases for finding probable cause.” Benjamin, 568 So.2d at 1190 (citing Miller v. E. Baton Rouge Parish Sheriffs Dept., 511 So.2d 446, 453 (La.1987)). Based on the reasons already stated above, Wal-Mart demonstrated that it had sufficient probable cause to prosecute Perkins. At the time Wal-Mart instituted the proceeding, Jackson had given Detective Wilson a recorded statement that Perkins was aware that he had received the cartridge without paying for it. When Ferguson asked Detective Wilson whether there was “enough” evidence to file charges against Perkins, Detective Wilson relayed what Jackson had stated in her recorded interview. Ferguson then filed an affidavit charging Perkins. We also note that Duncan stated in later testimony that, when he interviewed Jackson, she told him that she felt like Perkins must have known he was not paying for the cartridge based upon the amount of change she gave him. Accordingly, we must agree with the circuit court’s finding that there was no evidence that Wal-Mart acted with malice or that it lacked probable cause.

II. Civil-Conspiracy Claim

¶ 14. Perkins also alleges that Detective Wilson maliciously conspired with Wal-Mart in charging him with petit larceny and that the actions of Detective Wilson and Wal-Mart imply that an agreement existed. A conspiracy exists when two or more persons agree to accomplish “an unlawful purpose or a lawful purpose unlawfully.” Braddock Law Firm, PLLC v. Becnel, 949 So.2d 38, 44 (¶ 20) (Miss.Ct. App.2006) (citing Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 786 (¶ 87) (Miss.2004)). “Where damages arise as a result, there may be a right of recovery for civil conspiracy.” Id.

¶ 15. As we have already found no genuine issue that Wal-Mart proceeded with its charges against Perkins with anything other than good faith, believing that it had probable cause to charge him, we cannot say that the act was done unlawfully. Detective Wilson told Ferguson that there was “enough” evidence to prosecute Perkins. Ferguson relied upon Jackson’s statements, both to Duncan and Detective Wilson, and the surveillance videotape to file his affidavit. Further, the facts do not imply an agreement between Wal-Mart and Detective Wilson existed; Perkins confessed as much in his deposition. When asked whether he had any evidence that Detective Wilson and Wal-Mart had an agreement to press charges against him, Perkins said, “no.” Detective Wilson also testified that there was no agreement between Wal-Mart and himself to prosecute Perkins, and Ferguson corroborated this testimony. Accordingly, we find no error in the granting of summary judgment as to both Wal-Mart and Detective Wilson on this issue.

III. Malicious-Interference with Employment Claim

¶ 16. Perkins claims that Detective Wilson intentionally set out to interfere with Perkins’s employment after Perkins implied Detective Wilson had stolen items from the evidence locker. Perkins contends that, following these allegations, his employment and his relationship with his superiors began to suffer. A person who “maliciously interferes with a valid and enforceable contract” may be liable for tortious interference. Morrison v. Miss. Enter. For Tech., Inc., 798 So.2d 567, 575 (¶ 27) (Miss.Ct.App.2001) (citation omitted). This type of claim requires that the plaintiff prove “that the acts (1) were intentional and willful; (2) were calculated to cause damage to the plaintiff engaged in a lawful business; (3) were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant; and (4) resulted in actual damage and loss.” Hammons v. Fleetwood Homes Of Miss., Inc., 907 So.2d 357, 361 (¶ 14) (Miss.Ct.App.2004) (citing Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 48 (¶ 8) (Miss.1998)). Therefore, in order for Perkins to succeed on his claim, he “must prove that the contract would have been performed but for the alleged interference.” Grice v. FedEx Ground Package Sys., Inc., 925 So.2d 907, 910 (¶ 6) (Miss.Ct.App.2006). As malice is an “essential element” of this claim, the Mississippi Tort Claims Act would not be applicable, and “any legal action against a governmental employee ... must necessarily proceed against him or her as an individual.” Zumwalt, 19 So.3d at 688 (¶ 84).

¶ 17. Perkins was notified by Chief Sel-man on December 27, 2005, just days after the incident at Wal-Mart, that his supervisory duties on the night shift would no longer be needed. Therefore, Perkins contends that the petit-larceny charge resulted in his losing his supervisory position. He testified: “[L]ike I say, I was taken off a supervisory position with experience because of the Wal-Mart incident.” However, Chief Selman sent a memo to the Mayor of Holly Springs on January 6, 2006, which stated that an investigation was being conducted by the sheriff’s department and no action had been taken against Perkins at that time. Further, after Perkins’s acquittal, Chief Selman alerted the Mayor in another memo on January 24, 2006, that the police department had taken no action against Perkins in the event that the charges were unfounded. Although Perkins was later passed over for a promotion, it was not due to the petit-larceny charge; rather, it was because he had been suspended within the past year for the incident in 2006 involving the drivers’ licenses. More importantly, we note that Perkins was never demoted in rank and has maintained his employment with the police department.

¶ 18. Moreover, we can find no evidence that Detective Wilson was responsible for Perkins losing his supervisory position. Although Detective Wilson was copied on the memo relieving Perkins of his supervisory duties, testimony reflected that this was due to the fact that he was assisting Chief Selman in an unofficial capacity as the Assistant Police Chief.

¶ 19. As to his reassignment to a different car, Perkins admitted in his deposition that Detective Wilson may not have had anything to with the reassignment. Perkins stated:

So I went to my supervisor and said, man, you know, how is a — Pm a supervisor. You’re going to put me out the supervisor car and put an uncertified officer in a supervisor’s unit.
So it was like, I don’t know Wilson — if Wilson did it. So I talked to Wilson and he said he called Chief [Selman] and [she] told him to put me in a car with someone else.

In fact, Detective Wilson testified that he was not the person who suggested that Perkins be taken from the supervisor car. Consequently, Perkins has failed to create a genuine issue of material fact that Detective Wilson tortiously interfered with his employment. Accordingly, we find that the court’s granting of summary judgment for Detective Wilson, on this issue, was warranted and affirm as to this issue.

IV. Intentional-Infliction-of-Emotional-Distress Claim

¶ 20. Finally, Perkins contends that he suffered mental anguish and emotional distress as a result of the actions of Wal-Mart and Detective Wilson. However, in Mississippi, the focus on a claim for intentional infliction of emotional distress is not on “the plaintiffs emotional condition”; rather, it is centered on the defendant’s conduct. Funderburk v. Johnson, 935 So.2d 1084, 1099-100 (V 40) (Miss. Ct.App.2006) (citing Jenkins v. City of Grenada, 813 F.Supp. 443, 446 (N.D.Miss.1993)). In order to prevail on this type of claim, the plaintiff must establish that the defendant’s conduct “was wanton and willful and evoked outrage or revulsion.” Riley v. F.A. Richard & Assocs., Inc., 16 So.3d 708, 719 (V 33) (Miss.Ct.App.2009) (citations omitted). The action of the defendant “must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community/ ” Id. (quoting Speed v. Scott, 787 So.2d 626, 630 (¶ 18) (Miss.2001)).

1121. Perkins argues that Wal-Mart’s prosecution against him for petit larceny was outrageous. However, there is no evidence that Wal-Mart’s actions were intentionally done to harm Perkins. Perkins even admitted in his deposition that Wal-Mart’s actions were merely negligent. He testified as follows:

[Counsel]: Aren’t you suing Wal-Mart because they pressed charges against you because of what Alicia Jackson said?
[Perkins]: Wal-Mart’s done something that was negligent....
[Counsel]: Okay. Your beef with Wal-Mart is you think they were negligent?
[Perkins]: Very negligent.

Further, as we have already found there was no genuine issue that probable cause existed, we cannot find that Wal-Mart’s actions, in its prosecution of Perkins, were extremely outrageous or “utterly intolerable.”

¶22. We look now to whether Detective Wilson’s conduct surrounding the petit larceny charge constituted willful and outrageous conduct. The record in this case would support a finding of longstanding personal and professional animosity between Detective Wilson and Perkins. Further, Jackson asserted that Detective Wilson threatened her in order to evoke a statement against Perkins that Detective Wilson knew was false. Perkins claims that Detective Wilson, motivated by bias against Perkins, encouraged Wal-Mart to prosecute Perkins based upon this knowingly false statement. We find that this type of behavior, if proven, might be considered wanton, willful and revolting, or outrageous. Consequently, we find that there is a genuine issue of material fact as to whether Detective Wilson’s actions give rise to a claim on intentional infliction of emotional distress, and we reverse and remand on this issue.

CONCLUSION

¶ 23. Based upon our review, we find no error in the circuit court’s grant of summary judgment in favor of (1) Wal-Mart on the issue of malicious prosecution; (2) Wal-Mart and Detective Wilson on the claims of civil conspiracy and malicious interference with employment, (3) and Wal-Mart on the claim of intentional infliction of emotional distress. However, viewing the evidence in a light most favorable to Perkins, we find that a genuine issue of material fact existed as to whether Detective Wilson helped to institute the criminal proceedings based upon a malicious intent giving rise to a claim of intentional infliction of emotional distress. The testimony by Jackson was that Detective Wilson purposely stopped the tape recorder during her interview, presumably to elicit a specific response from Jackson — that Perkins had committed the crime. Detective Wilson counters this testimony, claiming that he never stopped the tape recorder and that his method of questioning was merely an interrogation technique used by law enforcement to elicit a truthful statement. Additionally, Detective Wilson claims that he harbored no ill will toward Perkins stemming from the prior evidence-locker incident. “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Gorman-Rupp Co., 908 So.2d at 753-54 (¶ 14). We find that the circuit court’s grant of summary judgment in favor of Detective Wilson was inappropriate as to Perkins’s claim of intentional infliction of emotional distress by Detective Wilson. Accordingly, we affirm in part and reverse and remand in part.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO AP-PELLEE WILSON.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

Concurring in Part, Dissenting in Part:

¶ 25. I respectfully concur in part and dissent in part. I would affirm the trial court’s grant of summary judgment in favor of Wal-Mart Stores, Inc., and Elijah Wilson.

      . "Walmart” is the brand name for the retail chain of stores owned by Wal-Mart Stores, Inc.

      . Since Perkins was employed by the police department, the investigation was transferred to the Marshall County Sheriff's Department.

      . An uncertified officer is one who has not completed police-academy training.

      . See Miss.Code Ann. § 11-46-5 (Rev.2002).

      . The circuit court also certified both judgments as final under Mississippi Rule of Civil Procedure 54(b); however, the orders denying summary judgment, taken together, disposed of all claims against all defendants.

      .In our prior opinion, we addressed a claim by Perkins against Detective Wilson for malicious prosecution. As revealed in the motion for rehearing, Perkins never made such a claim in his pleadings.


author: MAXWELL, J.,

text:
    CONSERVATORSHIP OF the ESTATE OF Robert Baird MOOR, by Betty Pearson MOOR, Robert Baird Moor, Jr., Co-Conservators, and Janie Logan Moor, Appellants v. STATE of Mississippi, Mississippi Wildlife, Fisheries and Parks; Leflore County, Mississippi; and Leflore County School District, Appellees.
    No. 2009-CA-01077-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      Donald W. Boykin, Jackson, attorney for appellants.
    Peter W. Cleveland, Gulfport, Willie James Perkins Sr., Joyce Ivy Chiles, Lem E. Montgomery III, DeShandra LaLayne Ross, Greenwood, Leann W. Nealey, Kyle Vernon Miller, Ridgeland, attorney for ap-pellees.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.

      . The Moors concede the following expenditures were for "construction” of the park: Cotton Museum ($766,756.95), Plantation Buildings — Phase I ($314,216), Maintenance Building ($29,574), Water System ($111,978.40), Water Distribution ($102,132.06), Day-Use/Picnic Area ($126,015), Tram ($46,-682.24), Tram Station ($28,160.00), Tram Road ($10,331.92), and Phase II Buildings and Exhibits — Saw Mill, Gristmill Bolter, Shingle Mill, Planer, Cotton Gin, Steam Engine, etc. ($53,925). Although the Moors did not expressly concede "Plantation Buildings — Phase II” ($231,153.14) was a "construction” cost, because this expense was for buildings, it falls under the Moors’ "construction” category.

   MAXWELL, J.,

for the Court:

¶1. In 1973, R.B. Moor, Charles H. Moor, and Marion M. Moor conveyed real property to the state, which promised to fulfill three conditions: to (1) utilize the property to construct a state park, (2) expend $2 million or more in constructing the park, and (3) begin construction before July 1,1976. The state began construction of the Florewood River Plantation Park (Florewood Plantation) in 1974, spending more than $2 million on the project over the next decade. The state operated Florewood Plantation as a state park until 2005, when it leased the park to Leflore County based on the Legislature’s 2004 authorization to close, transfer, lease, or sell. Aggrieved because the state is no longer operating Florewood Plantation, the successors of R.B., Charles, and Marion filed a declaratory action, seeking reversion based on the state’s failures to (1) use the property as a state park and (2) spend $2 million in “construction.”

¶ 2. In granting summary judgment and dismissing the Moors’ claim, the chancellor declared the state owner of the property in fee simple, holding the 1973 deed contained no reversionary language and no requirement the state continue to use the property as a historical state park. The chancellor also found the state undisputedly had met all three deed conditions. On de novo review, we find the deed unambiguous. The deed did not require perpetual operation of a state park, and it did not limit the $2 million “construction” expenditures to buildings and fixtures. Therefore, we affirm the grant of summary judgment.

FACTS

¶ 3. In May 1973, R.B. Moor, Charles H. Moor, and Marion M. Moor entered an options contract with Leflore County to purchase more than 100 acres of real property for the purpose of building a state park or “Living Historical Plantation.” In August 1973, trustees for the Leflore County School District purchased the property from R.B., Charles, and Marion. As part of the consideration, the school district agreed to the following three conditions in the warranty deed:

The above described property is conveyed to the grantees herein [1] subject to the condition that the said grantees or their successors in title utilize said property for the construction of a Historical Park, and [2] subject to the condition that $2,000,000.00 or a greater sum, will be expended in constructing said Historical Park on the property herein conveyed, and [3] subject to the condition that said construction shall begin on or before July 1,1976.

¶4. To further encourage timely construction of the historical park, the deed contained the following clause:

In the event construction is not begun on the Historical Park within the time specified, the grantors, their heirs or assigns, shall have the exclusive option to purchase said property for the sum of $750.00 per acre for a period of 120 days from the first breach of the foregoing conditions, which privilege shall be binding on the grantees, their successors or assigns, it being hereby agreed that the cash consideration to be paid hereunder in the event of breach of these conditions is substantially less than the present market value of said property and that the moving consideration is to aid in the construction of a Historical Park.

¶ 5. The school district later transferred the property to Leflore County, which in December 1973 transferred the property to the state (through Mississippi Parks Commission, now Mississippi Wildlife, Fisheries, and Parks). These later deeds transferring the property to the county and the state contained essentially the same three conditions about the park’s construction.

¶ 6. The state began constructing Flore-wood Plantation before July 1, 1976. From 1974 to 1985, the state spent more than $2 million on the park’s site planning, museum buildings, museum exhibits, furniture, equipment, picnic area, and tram system.

¶ 7. The state operated the park for twenty years. But in 2004 the Legislature authorized Mississippi Wildlife, Fisheries and Parks to “close, transfer, lease or sell” Florewood Plantation. 2004 Miss. Laws H.B. 1741 § 21. So in 2005 the state leased the park to Leflore County.

PROCEDURAL HISTORY

¶ 8. Upset by the state’s leasing the property, the Moors filed for declaratory judgment against the State of Mississippi, Leflore County, and Leflore County School District (collectively, the state), claiming the deed’s conditions “were not satisfied, or have otherwise ceased to exist.” The Moors asked the chancery court to declare the property had reverted back to the Moors or, alternatively, grant the Moors the right to repurchase the property for $750 per acre.

¶ 9. On cross summary-judgment motions, the chancellor denied the Moors’ motion and granted the state’s, dismissing the Moors’ declaratory-judgment action with prejudice and declaring the state fee-simple owner of the property. The Moors now appeal.

STANDARD OF REVIEW

¶ 10. We review summary-judgment motions de novo. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999). “[A] motion for summary judgment is granted only when the trial court finds that the plaintiff would be unable to prove any facts to support his claim.” Id. “On appeal, the lower court’s decision is reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party.” Id. An ambiguous contract raises questions of fact, making summary judgment inappropriate. Shelton v. Am. Ins. Co., 507 So.2d 894, 896 (Miss.1987) (citing Dennis v. Searle, 457 So.2d 941, 945 (Miss.1984) (overruled on other grounds)).

DISCUSSION

I. Deed Interpretation

¶ 11. The Moors argue the state violated the intended purpose of the property’s transfer by failing to (1) continue to use the property as a historical state park and (2) expend $2 million on the park’s buildings and fixtures. Our concern is not “what the parties may have meant or intended but what they said, for the language employed in a contract is the surest guide to what was intended.” Williams v. Williams, 37 So.3d 1196, 1200 (¶ 10) (Miss. Ct.App.2009) (quoting Ivison v. Ivison, 762 So.2d 329, 335 (¶ 17) (Miss.2000)); see Gordon v. McGee, 966 So.2d 906, 908 (¶ 8) (Miss.Ct.App.2007) .(quoting Rogers v. Morgan, 250 Miss. 9, 21, 164 So.2d 480, 484 (1964)) (“[T]he intent of the parties [is] gathered from the plain and unambiguous language contained therein.”).

¶ 12. We construe deeds like contracts, first looking to the “four corners” of the deed and the language the parties used to express their agreement. Williams, 37 So.3d at 1200 (¶ 10); Martin v. Fly Timber Co., Inc., 825 So.2d 691, 696 (¶ 11) (Miss.Ct.App.2002). “When the language of the contract is clear or unambiguous, we must effectuate the parties’ intent.” Williams, 37 So.3d at 1200 (¶ 10) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990)). If the parties’ intent is still uncertain, we next employ, with discretion, the canons of contract construction. Id. Then, if necessary, we consider parol or extrinsic evidence. Id.

¶ 13. We begin by looking to the “four corners” of the August 1973 warranty deed to the school district, the only deed signed by the R.B., Charles, and Marion. This deed extinguished, or merged, the provisions in the prior options contract. See Knight v. McCain, 531 So.2d 590, 595 (Miss.1988) (discussing the “firmly ingrained” doctrine of merger). We would only consider as parol evidence the provisions of the options contract or the two subsequent deeds from school district to county and county to state if we found the August 1973 deed ambiguous.

II. Reversion and the Option to Repurchase

¶ 14. The Moors argued the intended purpose for transferring their property was for its use as a historical state park. Because the state no longer uses the property as a historical state park, but instead leases the property to the county, the Moors reasoned it should revert to them. Alternatively, they request the option to repurchase the property for $750 an acre. But the Moors asked the chancellor to enforce a restriction on the state’s use of the property that cannot be found or inferred from the language of the deed.

¶ 15. “[T]here [can] be no reversion unless the grantor intended the deed should have that effect, and the deed so provided in plain terms[.]” Nicholson v. Myres, 170 Miss. 441, 449, 154 So. 282, 283 (1934). Similarly, “[restrictions intended to limit the use of property to a particular purpose should not be left to implication, but should be clearly defined and understood by the parties.” Frederic v. Merchants & Marine Bank, 200 Miss. 755, 766, 28 So.2d 843, 847 (1947). “In the absence of a reverter clause, a mere statement in a deed that the land is to be used for a specified purpose is merely a declaration of the purpose of the conveyance, and does not in any way limit the grant.” Id. (citation omitted).

¶ 16. The Moors’ deed had no reverter clause. There is no provision that the property shall revert in the event the property is not used as a historical state park, and there is no provision the state should have the property “so long as” it is used as a historical state park. Cf. Pearson v. City of Louisville, 539 So.2d 1046, 1046—47 (Miss.1989); Burnham v. City of Jackson, 379 So.2d 931, 932 (Miss.1980); City of Laurel v. Powers, 366 So.2d 1079, 1081 (Miss.1979); Gill v. Riley, 244 Miss. 768, 773, 145 So.2d 921, 922 (1962) (all containing clear expressions of grantor’s intent to impose condition and create re-versionary interest).

¶ 17. Nor does the deed clearly restrict the state’s use of the property to operating a historical state park. In fact, the deed does not require the state operate a park at all, let alone for perpetuity. The only condition on use of the property was the requirement the grantee “utilize said property for the construction of a Historical Park.” (Emphasis added) Once construction began in 1974, this condition was satisfied. Meeting this condition also ended the Moors’ option to repurchase, available only “[i]n the event construction is not begun on the Historical Park within the time specified.”

¶ 18. We cannot restrict the state’s use of its property to operating a historical park when the deed conveying the property did not. The Moors’ reliance on statements in the options contracts or the two subsequent deeds about the “purpose” of the conveyance is misplaced. This case is similar to Frederic v. Merchants & Marine Bank, where the conveying bank indicated in its deed that it was transferring the property for the purpose of building a residence. 200 Miss, at 765-66, 28 So.2d at 846-47. The bank tried to keep the deed when W.E. Frederic decided to use the property commercially. Id. at 847. But the supreme court declared that Frederic was not restricted to residential use. Id. Without a reverter or clear language restricting the use of the property to residential purposes only, the deed’s purpose language was “merely a declaration” and not a limitation on the use of the property. Id.

¶ 19. Had the Moors intended to restrict the state’s use of the property for a historical park, they, like the bank in Frederic, should not have left it to implication. See id. Instead, they should have clearly defined the limitation in the August 1973 deed.

¶ 20. Therefore, we affirm the chancellor’s dismissal of the Moors’ claim they had a right to reversion or repurchase based on the state’s leasing the property.

III. The Construction of “Construction”

¶ 21. The Moors also argue the state failed to meet all three conditions for constructing the historical park. There is no question the state utilized the property to construct a historical park (condition 1) and began construction before July 1,1976 (condition 3). The only condition we must address is whether the state expended $2 million or more “in constructing [the] Historical Park” (condition 2).

¶ 22. In support of its motion for summary judgment, the state presented an itemized list of its expenditures on Flore-wood Plantation, showing the state spent more than $2 million from 1974 to 1985. The Moors did not dispute the list’s accuracy. Instead, the Moors claimed not all of the listed expenditures were “construction” costs because they did not pay for buildings or fixtures. Specifically, the Moors argued only $1,820,924.71 of the $2,051,362.91 spent was for “construction.” The remaining $230,438.20 spent on “site planning,” “furniture and equipment,” and “exhibits,” they argued, was not on “construction” costs.

¶23. The mere fact the parties dispute what falls under the definition of “construction” does not make the term ambiguous as a matter of law. Williams, 37 So.3d at 1200 (¶ 10) (quoting Ivison, 762 So.2d at 335 (¶ 16)). When words are not defined in the deed, we give them their commonly accepted meaning. Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 836 (¶ 19) (Miss.2003) (citation omitted) (applying Webster’s New Collegiate Dictionary definitions to disputed contract words); see also Perkins, 558 So.2d at 852 (“This so-called ‘four corners’ doctrine calls for construction through application of correct English definition and language usage.”) (internal quotations omitted).

¶ 24. Because the 1973 deed does not define “construction” or “constructing,” we look to the commonly accepted meaning of “construct.” To “construct” means “to form by assembling or combining parts.” The American Heritage Dictionary 405 (3d. ed.1992); see also Black’s Law Dictionary 355 (9th ed.2009) (defining “construction” as “[t]he act of building by combining or arranging parts or elements”).

¶25. The Moors essentially argue the furniture and exhibits were not part of the “construction” of the park because they were not buildings or fixtures. But neither the common definition of “construction” nor its use in the deed is so limited. The deed did not require the state to spend $2 million in constructing “the buildings and fixtures” but instead in constructing the “Historical Park.”

¶ 26. The state allocated $2 million for the Florewood Plantation project and used all of its budget on physical items it assembled to create the historical park, including furniture, equipment, and exhibits. Moreover, the facility had been completed and available for the Moors’ inspection for twenty years before they first complained the state had not spent enough on construction. See Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 26 So.2d 356 (1946) (holding waiting more than six years to complain barred plaintiffs’ ability to raise issue of failure of condition subsequent).

¶ 27. Therefore, the chancellor did not err in finding the $2 million construction-expenditure condition, along with the other two construction conditions, had been met.

CONCLUSION

¶ 28. The language in the 1973 warranty deed controls. And the Moors’ claims are not supported by the deed’s language. The deed did not create a reversionary interest, did not condition the state’s use of the property to a historical park, and did not require the state to spend at least $2 million just on brick-and-mortar buildings and fixtures.

¶ 29. The undisputed facts show the state met all three conditions under the deed. Therefore, we affirm the chancellor’s denial of summary judgment to the Moors and grant of summary judgment in favor of the state, declaring it the fee-simple owner of the property.

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

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

      . In 2001, Betty Pearson Moor and Robert Baird Moor became co-conservators of R.B.’s estate. Also, in 2001, Janie Logan Moor inherited Charles’s estate.

      . Throughout this opinion, "the Moors” refers to the appellants Betty Pearson Moor and Robert Baird Moor, conservators of the estate of Robert Baird Moor. Janie Logan Moor did not participate in this appeal.

      . The Moors contend the following items were not "construction” costs: Site Planning ($15,000), Furniture and Equipment ($110,-850.20), Cotton Museum Exhibits ($67,000), and Exhibits ($37,588).


text:
    Roosevelt BARNES, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01405-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      Roosevelt Barnes, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. Roosevelt Barnes appeals the denial of his motion for post-conviction relief by the Circuit Court of Pike County. Finding Barnes did not timely appeal, we dismiss his appeal for lack of jurisdiction.

FACTS

¶ 2. In 2007, the State charged Barnes for uttering a forgery. His indictment was based on allegations he took a check from his employer, made the check out for $250, forged his name as the payee, and cashed the check at the Winn-Dixie in McComb, Mississippi. Barnes, assisted by appointed counsel, withdrew his initial not-guilty plea and entered a guilty plea to the forgery charge. The circuit court questioned Barnes during the plea hearing and found Barnes’s guilty plea was intelligently, knowingly, and voluntarily made. The circuit court followed the State’s recommendation and sentenced Barnes to ten years in the custody of the Mississippi Department of Corrections. The circuit court ordered that Barnes, who had a prior grand larceny conviction, serve one year in the Intensive Supervision Program (house arrest) and suspended the remaining nine years of his sentence. Because of Barnes’s alleged failure to successfully comply with the terms of his house arrest, he was required to serve the remainder of his sentence in MDOC custody.

¶ 3. On October 16, 2008, he made his first of three filings with the Pike County Circuit Court. In his October filing, he alleged the trial court failed to consider his prior felony, gave him an illegal suspended sentence, and improperly revoked his suspended sentence. On November 7, 2008, Barnes made another filing in the circuit court, alleging his indictment was defective and requesting a copy of his sentencing order and indictment.

¶ 4. In its February 2, 2009, order, the circuit court treated Barnes’s October 16, 2008, handwritten filing as a motion for post-conviction relief and denied relief. The court reasoned Barnes was not seeking a harsher sentence and found Barnes made an intelligent, knowing, and voluntary guilty plea and was given a reasonable sentence for his forgery conviction.

¶ 5. On March 16, 2009, Barnes made a third filing entitled “Petition to Dismiss Indictment.” He alleged his sentence exceeded the statutory maximum, his right to a speedy trial had been violated, and his indictment was defective.

¶ 6. On May 11, 2009, the circuit court addressed Barnes’s November 7, 2008, filing. The circuit judge treated the filing as a second motion for post-conviction relief and found: (1) this second petition was successive and procedurally barred; (2) Barnes was not entitled to the requested documents free of charge without showing a specific need or the necessity of the documents for a specific issue; and (3) Barnes’s knowing, intelligent, and voluntary guilty plea waived any right to a jury trial.

¶ 7. Barnes alleges he turned to the federal court system in June 2009 and filed a petition for habeas corpus review. According to his notice of appeal, he claims on August 14, 2009, he was ordered by the federal court to exhaust all state remedies.

¶ 8. On August 21, 2009, Barnes filed a notice of appeal of the circuit court’s February 2, 2009, denial of his motion for post-conviction relief.

ANALYSIS

¶ 9. Mississippi Rule of Appellate Procedure 4(a) provides appellants thirty days from the entry of judgment to file notices of appeal. “An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.” M.R.A.P. 2(a)(1) (emphasis added). This deadline applies to post-conviction appellants just as it does for all other appellants. Craft v. State, 966 So.2d 856, 857-58 (¶¶8, 12) (Miss.Ct.App.2007); Johnson v. State, 962 So.2d 87, 89 (¶9) (Miss.Ct. App.2007); and Penn v. State, 909 So.2d 135, 136 (¶ 6) (Miss.Ct.App.2005).

¶ 10. Barnes had thirty days from the entry of the circuit court’s order denying his motion for post-conviction relief to file his appeal. He did not file his August 21, 2009, notice of appeal until more than six months after the February 2, 2009, entry of the order denying post-conviction relief and more than three months after the May 11, 2009, entry of the order dismissing Barnes’s subsequent petitions as successive writs and procedurally barred.

¶ 11. We may suspend Rule 4 for good cause shown and allow an out-of-time appeal in criminal (but not civil) cases. Andrews v. State, 932 So.2d 61, 62 (¶5) (Miss.Ct.App.2006) (citing M.R.A.P. 2). Instead of timely appealing, Barnes decided to pursue federal habeas corpus review. Only after an August 2009 federal order did he seek appellate review in the Mississippi courts of the circuit court’s February 2, 2009, order denying him post-conviction relief.

¶ 12. Because Barnes does not show good cause under Rule 2(a) for filing his notice of appeal 201 days after the entry of order denying his motion for post-conviction relief, we must dismiss his appeal for lack of jurisdiction.

¶ 13. THE APPEAL IS DISMISSED. ALT. COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

      . The circuit judge also ordered Barnes to serve five years of post-release supervision, make restitution to Regions Bank in the amount of $250, pay a $2,500 fine, and complete an alcohol and drug treatment program.

      . Rule 5 of the Mississippi Rules of Appellate Procedure applies to interlocutory appeals and is not applicable to this appeal. M.R.A.P. 5.


author: LEE, P.J.,

text:
    Rickey Len CONERLY and Linda R. Conerly, Appellants v. Nan B. DAVIS, Appellee.
    No. 2009-CA-00534-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      Wayne Smith, Liberty, attorney for appellants.
    Ronald L. Whittington, McComb, attorney for appellee.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Nan B. Davis is the paternal grandmother to Mason Conerly. Mason is the son of Charles Davis and Sherry Lynn Conerly. Sherry’s parents, Rickey Len Conerly and Linda R. Conerly, adopted Mason in April 1999. Charles’s and Sherry’s parental rights were terminated at that time. Although Sherry’s parental rights were terminated, Mason spends approximately four to five nights a week at her house.

¶ 2. In 2006, Davis filed suit in the Amite County Chancery Court seeking grandparent’s visitation rights. An agreed temporary order was entered on August 14, 2007, wherein the parties agreed to participate in family counseling conducted by Dr. Pat Brawley. On March 5, 2009, a trial was held on the matter, after which the chancellor granted Davis’s request for grandparent’s visitation. The chancellor granted Davis at least three visitation periods of five hours minimum per visit during the first sixty days. After the initial sixty days, the parties could petition the court for further review.

¶ 3. The Conerlys appeal the chancellor’s ruling, raising two issues: (1) the chancellor erred in failing to determine whether a viable relationship existed between Davis and Mason, and (2) the chancellor erred in failing to specifically address the factors enumerated in Martin v. Coop, 693 So.2d 912 (Miss.1997). Finding that the chancellor failed to address the Martin factors, we vacate the chancellor’s judgment and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 4. Absent an abuse of discretion, this Court will not reverse the decision of the chancellor. Martin, 693 So.2d at 914. “This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous.” Id. (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992)).

DISCUSSION

I. VIABLE RELATIONSHIP

¶ 5. In their first issue on appeal, the Conerlys argue that the chancellor erred in not determining whether a viable relationship existed between Davis and Mason as required by Mississippi Code Annotated section 93-16-3(2) and (3) (Supp.2009). According to section 93-16-3(1), if a parent of a minor child has his or her parental rights terminated, either parent of the minor child’s parents may petition the court for visitation. Miss.Code Ann. § 93-16-3(1) (Supp.2009). However, a chancellor need only address section 93-16-3(2) and (3) if 93-16-3(1) does not apply. In this case, Davis’s situation is addressed by 93-16-3(1) because her son’s parental rights were terminated. The chancellor was not required to determine whether Davis and Mason had a viable relationship. This issue is without merit.

II. MARTIN FACTORS

¶ 6. In their second issue on appeal, the Conerlys argue that the chancellor failed to specifically address the factors enumerated in Martin. In Martin, the Mississippi Supreme Court listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Martin, 693 So.2d at 916. The Martin court acknowledged that this list was not all-inclusive, stating that the chancellor should weigh “all circumstances and factors he [or she] feels to be appropriate.” Id. As always, the best interest of the child is the paramount consideration when determining visitation. Morgan v. West, 812 So.2d 987, 992 (¶ 13) (Miss.2002).

¶ 7. The supreme court has held that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest[s] of a child.” T.T.W. v. C.C., 839 So.2d 501, 505 (¶ 12) (Miss.2003). In Townes v. Many-field, 883 So.2d 93, 97 (¶29) (Miss.2004), the supreme court further stated that “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue.” In Townes, the supreme court remanded the case back to the chancellor for an on-the-record consideration of the Martin factors. Id. at 97-98 (¶ 30); see also Morgan, 812 So.2d at 992 (¶ 14) (chancellor was reversed when she failed to articulate her findings regarding the Martin factors). In this case, the chancellor did not mention the Martin factors or make any on-the-record finding supporting the visitation award. From language appearing in the record, it seems the chancellor believed Davis was statutorily entitled to be awarded visitation with Mason. However, the grandparent-visitation statutes simply give a grandparent such as Davis standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.

¶ 8. THE JUDGMENT OF THE AM-ITE COUNTY CHANCERY COURT IS VACATED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.