author: KING, C.J., for the Court.

text:
    Demarious Latwan BANYARD a/k/a Lil Murray a/k/a Mur-Mur, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-01843-COA.
    Court of Appeals of Mississippi.
    March 10, 2009.
    Rehearing Denied Nov. 3, 2009.

      William R. Labarre, James Adam Powers, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   KING, C.J., for the Court.

¶ 1. Demarious Latwan Banyard was convicted of capital murder for killing Robin Eric Ballad during the commission of an armed robbery. The Circuit Court of Hinds County sentenced Banyard to serve a term of life imprisonment, without eligibility for parole, in the custody of the Mississippi Department of Corrections (MDOC). Banyard appeals his conviction and raises the following three issues:

I. Whether the trial court erred by refusing to give Banyard’s jury instructions regarding manslaughter as a lesser-included offense of capital murder,
II. Whether the trial court erred by refusing to give Banyard’s jury instruction regarding duress as a defense to capital murder, and
III. Whether the trial court erred by denying Banyard’s motion to appoint an expert to testify regarding influence and intimidation.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 24, 2003, a group of teenagers was playing basketball at the Westwick Apartments in Jackson, Mississippi. After the basketball game, an unidentified male ran to the basketball court; informed the other teenagers that Ballard, the pizza deliveryman, was at the apartment complex; and suggested that they rob him.

¶ 3. Upon hearing the news, nineteen-year-old Dennis Ragsdale, Jr., retrieved a gun from his jeep. Traven Kyser, one of the teenagers at the basketball court, testified that Ragsdale cocked the gun and took out the clip. Then, Ragsdale approached thirteen-year-old Banyard and said, “Let’s go rob the pizza man.” Kyser stated that Banyard looked hesitant to oblige Ragsdale’s request, but Ragsdale “push[ed]” Banyard to participate.

¶ 4. Banyard testified that he did not want to rob the pizza deliveryman. However, he was afraid of Ragsdale because Ragsdale had a gun, and he and Ragsdale were involved in a physical altercation earlier that year. Banyard testified that Ragsdale handed the gun to him and told him that it was unloaded. Then, Ragsdale walked really close to Banyard as they approached Ballard’s car, which was resting at a stop sign at the apartment complex’s entryway.

¶ 5. When they got to the car, Banyard went to the driver’s side, and Ragsdale went to the passenger side. Ragsdale demanded that Ballard give him the money. Ragsdale was unsuccessful in his attempt, so he went around to the driver’s side of the car. Banyard testified that while handing the gun to Ragsdale, his finger tapped the trigger, and the gun fired. Banyard testified that Ragsdale began laughing and then fled the scene, and Ban-yard also ran away.

¶ 6. Several of the apartment complex’s residents saw the boys running from the entryway. Shameka Williams testified that she saw Banyard walk to the driver’s side of the car and stick a gun into the car. However, Williams did not hear the gunshot because she was sitting in her car with the radio on. Monica Dear testified that while waiting in the car for her boyfriend, Ray Green, she saw Ballard leaving the complex and saw a group of boys running toward the entryway. Dear told Green that she saw a boy running with a gun. However, Green testified that he did not see a boy with a gun.

¶ 7. Green and Dear drove to the entryway to exit the apartment complex and pulled up behind a black Chevy Malibu, which was resting at the stop sign. The black Chevy Malibu did not move, and a line of cars began to form at the entryway. Impatient, several drivers began blowing their car horns. Green testified that he got out of his car to see what was going on. When he approached the black Chevy Malibu, he saw Ballard had a bullet wound in his neck and was slumped over and bleeding. Witnesses called the police and stayed at the apartment complex until an ambulance arrived.

¶ 8. Ballard was pronounced dead at the scene. The police questioned witnesses, and they identified Banyard as a suspect. Banyard turned himself in to the police later that night and gave a statement, which implicated himself and Ragsdale in the crime.

¶ 9. A Hinds County grand jury indicted Banyard and Ragsdale for capital murder and armed robbery. Banyard filed a motion to sever, which the trial court granted. Banyard also filed a motion to transfer jurisdiction to youth court, which the trial court denied. Banyard filed another motion to appoint an expert to testify regarding his propensity to be vulnerable to suggestion and influence. The trial court denied the motion, stating that the issues of influence and intimidation were not relevant to Banyard’s capital murder charge. The trial court also denied several of Ban-yard’s proposed jury instructions — five jury instructions regarding manslaughter as a lesser-included offense of capital murder and one jury instruction regarding duress as a defense to capital murder.

¶ 10. On August 7, 2006, a Hinds County jury found Banyard guilty of capital murder, and he was sentenced to serve a term of life imprisonment, without eligibility for parole, in the custody of the MDOC. Banyard filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied. Aggrieved, Banyard timely filed this appeal.

ANALYSIS

I. Whether the trial court erred by refusing to give Banyard’s jury instructions regarding manslaughter as a lesser-included offense of capital murder.

¶ 11. This Court reviews the trial court’s refusal of jury instructions to determine whether the jury instructions given were fair instructions, which accurately stated the law. See Foley v. State, 914 So.2d 677, 686 (¶ 14) (Miss.2005). This Court reads the jury instructions actually given as a whole. Wells v. State, 913 So.2d 1053, 1059 (¶ 21) (Miss.Ct.App.2005) (quoting Conners v. State, 822 So.2d 290, 292 (¶ 5) (Miss.Ct.App.2001)). If the jury instructions given fairly announce the law of the case and create no injustice, no reversible error will be found. Id.

¶ 12. Banyard argues that the trial court erred by refusing his proposed jury instructions regarding manslaughter as a lesser-included offense of capital murder. A defendant is entitled to have jury instructions that present his theory of the case. Mayes v. State, 925 So.2d 130, 133 (¶ 6) (Miss.Ct.App.2005). “A lesser[-]included[-]offense instruction should be given, on request, ‘if a rational’ or a ‘reasonable’ jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser[-]included offense.” Arthur v. State, 735 So.2d 213, 218 (¶ 25) (Miss.1999) (quoting Ballenger v. State, 667 So.2d 1242, 1254 (Miss.1995)). However, the trial court may refuse a jury instruction because the instruction incorrectly states the law, is duplicative, or there is no evidentiary basis for giving the instruction. Mayes, 925 So.2d at 133 (¶ 6).

¶ 13. Banyard claims that he accidentally shot and killed Ballard. In line with his theory, Banyard requested that the trial court give five jury instructions regarding manslaughter as a lesser-included offense of capital murder — D-9, D-10, D-ll, D-12, and D-14. The trial court refused to give the instructions, stating that they were improper statements of the law, and we agree.

¶ 14. Banyard killed Ballard during the commission of a robbery. Whether Ban-yard intended to kill Ballard is not relevant in this case. See Miss.Code Ann. § 97 — 3—19(2)(e) (Rev.2006); see also Ramsey v. State, 959 So.2d 15, 23 (¶ 17) (Miss.Ct.App.2006) (finding that the statute does not require the State to prove that the defendant intended to kill the victim during the course of a robbery).

¶ 15. Further, Mississippi Code Annotated section 97-3-27 (Rev.2006) provides the following:

The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except those felonies enumerated in Section 97-3-19(2)(e) and (f), or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter.

(Emphasis added). Section 97-3-27 precludes a manslaughter instruction for those felonies specifically enumerated in Mississippi Code Annotated section 97-3-19(2)(e), one of which is robbery.

¶ 16. Since Banyard killed Ballard during the commission of a robbery, he was not entitled to a manslaughter instruction. See Simmons v. State, 805 So.2d 452, 474 (¶ 32) (Miss.2001) (citing Burns v. State, 729 So.2d 203, 225 (¶ 103) (Miss.1998)). Therefore, we find that the trial court did not err by refusing Banyard’s lesser-included-offense instructions regarding manslaughter. This argument is without merit.

II. Whether the trial court erred by refusing to give Banyard’s duress instruction.

¶ 17. Banyard argues that the trial court erred by refusing his duress instruction because he was entitled to present his defense to the jury. Conversely, the State argues that the trial court properly refused the duress instruction because duress is not a defense to murder. The State also contends that there is no evidence of duress in this case.

¶ 18. As discussed in the previous assignment of error, a defendant is entitled to have a jury instruction that presents his theory of the case. Mayes, 925 So.2d at 133 (¶ 6). However, the trial court may refuse the instruction if it incorrectly states the law or there is no evidentiary basis for giving the instruction. Id.

¶ 19. Banyard’s proffered jury instruction D-13 reads as follows:

The Court instructs the jury that in order for duress to be a defense to a criminal charge, the impelling danger must be present, imminent, and impending, and such a nature as to induce in a person well-grounded apprehension of death or serious bodily harm if the act is not done and that the danger to the defendant must be continuous.
If you find from the evidence that Demarious Banyard acted under coercion and duress and the coercion and duress was created by Dennis Ragsdale and that the coercion and duress was present, imminent, and impending and induced Demarious Banyard[’s] apprehension of death or serious bodily injury if he did not comply with Dennis Rags-dale’s wishes and that such apprehension was continuous throughout the commission by him of the criminal act, then you should find Demarious Banyard not guilty of capital murder.
If you find Demarious Banyard not guilty of capital murder, then you may proceed with your deliberations whether he is guilty of manslaughter.
If you find from the evidence that Robin Ballard was killed by the act, procurement, or culpable negligence of Demarious Banyard and without authority of law, then you should find him guilty of manslaughter.

The trial court denied the instruction, finding that it was an improper statement of the law. The trial court also stated that defense counsel could argue duress to the jury. However, the trial court refused to give the duress instruction because the trial court was giving an instruction on murder as a lesser-included offense and determined that this was sufficient.

¶ 20. We find that instruction D-13 was an improper statement of the law. Ban-yard’s duress instruction also included a manslaughter instruction. As discussed in the previous assignment of error, Banyard was not entitled to a manslaughter instruction in this case because he killed Ballard during the commission of a robbery. See Simmons, 805 So.2d at 474 (¶ 32). Therefore, the trial court did not err by refusing to give instruction D-13 because it was an improper statement of the law.

¶ 21. We also find that there was not an evidentiary basis to support Banyard’s duress instruction. Banyard claims that he participated in the robbery under duress created by Ragsdale. Banyard testified that he was afraid of Ragsdale because Ragsdale had beaten him up earlier that year, and he was afraid that Ragsdale would shoot him with the gun. However, Banyard also testified that Ragsdale did not threaten to kill him or anyone in his family. Banyard simply stated that Rags-dale was looking serious and mean when he asked him to rob Ballard. Banyard also testified that Ragsdale placed the gun, which he believed was unloaded, in his hands. Banyard stated that he was afraid that Ragsdale would put a bullet in the gun and shoot him. However, Banyard had the weapon in his hands. The testimony does not indicate that Ragsdale had another gun or bullets on his person. Based on the foregoing, we find that Ban-yard did not present any evidence that the alleged threat was, as stated in his proposed jury instruction, an “impelling danger [that was] present, imminent, and impending, and such a nature as to induce in a person well-grounded apprehension of death or serious bodily harm if the act is not done,” and he failed to present evidence that he did not have a reasonable opportunity to avoid participating in the crime.

¶ 22. This Court recognizes that a trial court should give a defendant’s jury instruction that presents his theory of the case when the defendant has presented sufficient evidence to support his theory. Walker v. State, 913 So.2d 198, 235-36 (¶ 138) (Miss.2005). However, “[wjhether [the defendant] has met this standard is a matter of law and not a matter of fact for the jury to decide, unless [the defendant] presented sufficient evidence in the record to support [the] same.” Id. at 236 (¶ 138). Ultimately, jury instruction D-13 was an improper statement of the law, and Ban-yard failed to present sufficient evidence to warrant giving a duress instruction. After reviewing the jury instructions actually given as a whole, we find that the instructions given fairly announced the law and did not create an injustice to Banyard. Therefore, we find that the trial court did not err by refusing proposed jury instruction D-13.

III. Whether the trial court erred by denying Banyard’s motion to appoint an expert to testify regarding influence and intimidation.

¶ 23. This Court reviews the trial court’s denial of expert assistance under an abuse of discretion standard. See Flora v. State, 925 So.2d 797, 805 (¶ 11) (Miss.2006). The trial court must consider a motion for expert assistance on a case-by-case basis. See Gray v. State, 926 So.2d 961, 976-77 (¶ 50) (Miss.Ct.App.2006). The trial court, in its sound discretion, should grant a motion for expert assistance upon a showing of substantial need. Flora, 925 So.2d at 805 (¶ 11) (citing King v. State, 784 So.2d 884, 888 (¶ 17) (Miss.2001)). This Court will not disturb the trial court’s denial of a motion for expert assistance unless “the defendant was denied due process whereby the trial was fundamentally unfair.” Id. (citing Richardson v. State, 767 So.2d 195, 197 (¶ 7) (Miss.2000)).

¶ 24. In its motion, defense counsel asked the trial court to appoint Dr. Criss Lott to evaluate Banyard regarding his susceptibility to intimidation, suggestion, and influence, claiming that the results would go to negate Banyard’s criminal intent to participate in the robbery. The trial court denied the motion, stating that the issue was not relevant. In addition, the trial court stated that Banyard’s results from his mental examination showed that he knew right from wrong, and he was not mentally ill.

¶ 25. Banyard argues that the trial court erred by refusing to appoint the expert because Banyard’s age and defense of duress presented a unique case, and the expert testimony was necessary to aid the jury. Conversely, the State argues that the trial court did not err by refusing to appoint the expert, stating that expert assistance was not necessary since there was no evidence of duress in Banyard’s case.

¶ 26. Based on our review of the record, we fail to see how the trial court’s denial of Banyard’s motion to appoint an expert to testify regarding Banyard’s susceptibility to intimidation, suggestion, and influence was fundamentally unfair. Banyard was allowed to present this evidence to the jury. Banyard testified that he was only thirteen years old at the time of the incident and that Ragsdale was nineteen years old. Banyard also testified that he was afraid of Ragsdale because Ragsdale had beaten him up earlier that year. This evidence was sufficient to present Ban-yard’s theory of intimidation to the jury. Expert testimony was not necessary to explain this point.

¶27. We find that expert assistance was not necessary to explain Banyard’s theory of susceptibility to intimidation, suggestion, and influence. We cannot find that Banyard’s trial was fundamentally unfair. Therefore, we find that the trial court did not err by denying Banyard’s motion to appoint the expert.

CONCLUSION

¶ 28. We find that Banyard was not entitled to a manslaughter instruction in this case because he killed Ballard during the commission of a robbery. We also find that Banyard was not entitled to an instruction on duress because the instruction was an improper statement of the law, and he failed to present sufficient evidence to warrant giving the instruction. Last, we find that expert assistance was not necessary to explain Banyard’s potential susceptibility to intimidation, suggestion, and influence. Therefore, we find that the trial court did not err in its rulings below and affirm.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    In the Interest of: S. and S.C., Minors: Adeline Cole, Appellant v. State of Mississippi and Lauderdale County Department of Human Services, Appellees.
    No. 2008-CA-00026-COA.
    Court of Appeals of Mississippi.
    March 16, 2010.
    Rehearing Denied Aug. 24, 2010.
    Certiorari Denied Nov. 18, 2010.

      James A. Williams, attorney for appellant.
    Office of the Attorney General by Katherine Jane Caldwell, attorney for appel-lees.
   MAXWELL, J.,

for the Court:

¶ 1. Adeline Cole appeals the Lauderdale County Youth Court’s adjudication that she neglected her two minor children, S. and S.C. Cole claims the youth court’s findings were based on insufficient evidence of neglect, and the youth court erred in placing the children in the legal custody of the Lauderdale County Department of Human Services (DHS). Finding sufficient evidence to support the youth court’s determination, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 4, 2007, the Lauderdale County DHS was notified that Cole was possibly neglecting her eight-year-old son, S., and six-year-old son, S.C. Specifically, DHS had been informed that Cole and her children were living in a home without electricity. There were also reports that Cole was abusing alcohol and that her children were attending school in the wrong school district. The children’s father, Shelton Cole, lived in Enterprise, Mississippi, where the children were enrolled in school, but his residence was located in the district served by the Clark-dale Attendance Center. Cole’s apartment was in the Meridian School District.

¶ 3. That same day, Lori Bielefeld, a social worker employed by DHS, and Carla Snowden, a Department of Education attendance officer, responded to the neglect allegations and attempted to visit the children at school. S. was not in attendance that day, but they were able to locate and speak with S.C. Bielefeld asked S.C. about his mother, and he told Bielefeld he was afraid to be at home with Cole.

¶ 4. Bielefeld and Snowden then traveled to Shelton’s home and spoke with him. Shelton told Bielefeld that Cole would occasionally binge drink and spend the night on his sofa. Though Shelton claimed the two children, S. and S.C., stayed with him off and on, Bielefeld noticed the children’s bed was unmade, and there were no children’s clothing or age-appropriate toys in Shelton’s home.

¶ 5. During this visit, Cole and S. arrived at Shelton’s residence. Snowden met briefly with Cole and offered help to assist her in obtaining electricity for her apartment. Snowden also provided Cole with information to assist her alcohol problem.

¶ 6. According to Bielefeld, S. told her that his mother drank, and he was afraid to be at home with her. Bielefeld also learned from Cole that she planned to leave Mississippi and not return. Because of Bielefeld’s concerns about the lack of electricity at Cole’s apartment and Cole’s statement that she was leaving Mississippi, Bielefeld asked Cole to leave the children with Shelton that night.

¶ 7. The next day, October 5, 2007, the children’s school notified Bielefeld that both S. and S.C. were absent. Bielefeld feared Cole had taken the children out of state. She first visited Shelton’s home but found no one there. She and Snowden then proceeded to Cole’s apartment. When they arrived at approximately 10:00 a.m., Cole refused to open the door. Cole explained, from behind the closed door, she was preparing to leave for a funeral in Tennessee.

¶ 8. Bielefeld then asked Cole to confirm the electricity was on in the apartment. At this point, Cole responded that she was nude, and the children were in the bathtub. Shortly thereafter, Bielefeld heard the children say, “no mama no,” followed by a “thump.” After that the apartment got quiet, so Bielefeld called the police.

¶ 9. When the police arrived around 10:20 a.m., Cole refused to open her door. Still speaking from behind the closed door, she told the officers she intended to give the children to DHS. She claimed she was nude, was about to take a shower, and that her children were in the bathtub. Cole told the officers she was preparing to leave for a funeral and would bring the children to the DHS office later.

¶ 10. Roughly forty minutes after Biele-feld and Snowden first arrived, Cole opened the door. She was naked from the waist up, and the police officers ordered her to get dressed. Around this same time, the children appeared at the door in their underwear. They had dirty feet, ungroomed hair, food remnants on their chests, and did not appear to have just bathed. Cole then screamed into S.’s ear that he was not going with her anymore, but he was going with the officers and DHS workers. Because of Cole’s erratic behavior and her concern for the well-being of S. and S.C., Bielefeld contacted the youth court and requested that DHS receive temporary custody of the children. The children were temporarily placed in the custody of the Lauderdale County Office of Social Services.

¶ 11. On October 9, 2007, the youth court judge conducted a shelter hearing. After hearing testimony, the youth court found there was no reasonable alternative but to hold the children in custody due to the emergency circumstances. The youth court judge instructed the Office of Social Services to make all reasonable efforts to re-unify the children with their family, but granted both physical and legal custody of the children to the Lauderdale County DHS. In addition, the youth court judge required that Cole and S. undergo psychological and mental evaluations.

¶ 12. On October 17, 2007, the youth court authorized the filing of a formal petition for adjudication of neglect. The petition was filed the same day, and ah adjudicatory hearing was held on November 29, 2007.

¶ 13. At the hearing, Bielefeld, Snow-den, and Meridian Police Officer Robert Rivers testified about the October 5, 2007, events that transpired at Cole’s apartment. Denice Knight, an elementary administrator at Clarkdale Attendance Center, also testified at the hearing. Knight had previously spoken with Cole about her children’s residency. Cole had told Knight that the children could not live with her. According to Knight, Cole admitted she was an alcoholic, had no electricity at her apartment, and had alcohol bottles strewn all over her home. Cole also told Knight she was concerned with herself first, and would either take the children to DHS, or DHS could come get them. The children had no attendance problems on file, but Knight noted a disciplinary problem with S., about which Cole did not appear concerned.

¶ 14. Both Cole’s mother, Addie Jim-merson, and Shelton testified on Cole’s behalf. Shelton claimed Cole did not binge drink or sleep on his sofa. He further testified that the children were never afraid of their mother, and the children actually lived in his home. He added that Cole had several medical problems but had never been diagnosed with any psychological disorders.

¶ 15. Jimmerson testified that she was on the phone with Cole some of the time that Bielefeld, Snowden, and the police officers were outside of Cole’s apartment. She also testified about Cole’s medical problems. Jimmerson maintained that Cole was a good mother and had never been diagnosed with any psychological disorders. Though Shelton and Jimmerson were not present at Cole’s apartment on October 5, 2007, neither considered Cole’s actions that day unusual.

¶ 16. Cole also testified at the hearing and attempted to explain why she refused to open the door for the social workers. According to Cole, her clothes were covered in blood because of a medical condition that causes hemorrhaging. She claimed she was nude because she had just removed her bloody clothes. However, Cole could not explain why it took her forty minutes to open the door, or why she appeared topless in the doorway. She also denied having any alcohol-related or mental-health problems.

¶ 17. Cole received a psychological evaluation from Pine Grove Outreach Center, and a second evaluation in Ohio, where she presently lives. She pointed out that neither of these assessments indicated substance-abuse problems or other mental-health issues. However, the youth court recognized Cole may have withheld facts surrounding the October 5, 2007, events. The youth court also acknowledged that Cole had not attended any follow-up counseling sessions.

¶ 18. After hearing testimony and personally questioning Cole, the youth court judge adjudicated S. and S.C. neglected. Specifically, the youth court judge determined the investigation of the children’s residency was appropriate, and found Cole’s actions on October 5, 2007, sufficient grounds for adjudicating the children neglected. The court granted physical custody of the children to their paternal grandmother and granted legal custody to the Lauderdale County DHS. Cole was granted supervised visitation, and Shelton was granted unsupervised visitation. DHS provided Cole a service plan or service agreement. Under this plan, if Cole satisfies certain criteria, she can once again regain custody of her children. The court also reviewed Cole’s service agreement with DHS and informed Cole that as she progresses with the agreement, she will be eligible for unsupervised visitation.

STANDARD OF REVIEW

¶ 19. In reviewing a youth court’s adjudication of neglect, we consider “the evidence before the [yjouth [cjourt in the light most favorable to the State.” In re C.R., 604 So.2d 1079, 1083 (Miss.1992). “If the evidence so considered is opposed to the finding of the [yjouth [cjourt with such force that ‘reasonable men’ could not have found as the [yjouth [cjourt did by a preponderance of the evidence, this Court must reverse.” Id.

DISCUSSION

¶ 20. Cole argues there was insufficient evidence before the youth court to remove her children from her custody. Before addressing her argument, we pause to point out that this case does not concern the drastic measure of termination of parental rights. Rather, it involves an adjudication of neglect under Mississippi Code Annotated section 43-21-561 (Rev.2009), and the subsequent removal of children from a parent’s home pursuant to Mississippi Code Annotated section 43-21-609 (Rev.2009). Because of the nature of this action, we are directed to apply a reasonableness review, not the elevated review required when a parent’s rights are terminated. See In re C.R., 604 So.2d at 1083.

I. The Youth Court’s Duties

¶ 21. Though a child’s welfare “is presumed to be best promoted by parental custody .... the State has the duty to assume the responsibilities which the parent has discarded.” Reynolds v. Davidow, 200 Miss. 480, 483-85, 27 So.2d 691, 692 (1946).

¶ 22. Mississippi Code Annotated section 43-21-103 (Rev.2009) provides the following pertinent statement about our youth court’s duties to children:

It is the public policy of this state that the parents of each child shall be primarily responsible for the care, support, education and welfare of such children; however, when it is necessary that a child be removed from the control of such child’s parents, the youth court shall secure proper care for such child.

¶ 23. As in all child-custody cases, “the cardinal principle to be applied to custody decisions is that which is in the best interest[] and welfare of the minor child.” In re R.D. and B.D. v. Linda D., 658 So.2d 1378, 1386 (Miss.1995) (citing Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983)); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959). This principle applies equally to actions such as the present case where DHS seeks to retain custody of neglected children. In re R.D. and B.D., 658 So.2d at 1387.

II. Adjudication of Neglect

¶ 24. Mississippi Code Annotated section 43-21-105(( )(i)-(iv) (Rev.2009) provides the following pertinent definitions of a “neglected child”:

(il) “Neglected child” means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support ... or other care necessary for his well-being; ... or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.

¶ 25. Once a youth court conducts an adjudicatory hearing and finds by a preponderance of the evidence a child has been neglected, several statutory alternatives apply. The dispositional alternatives available to the youth court are set forth in section 43-21-609 and include: (1) release the child with no further action; (2) place the child in the custody of a parent, relative, or other person with limitations as the court prescribes; (3) order treatment of the child or parent; (4) order youth court personnel, DHS personnel, or child-care agencies to assist the child and parent in obtaining social or medical services; or (5) place the child in the custody of DHS or other organization found suitable by the court.

¶ 26. Here, the youth court found Cole neglected both S. and S.C., and ordered the children to be placed in the legal custody of DHS and the physical custody of their paternal grandmother. These specific dispositional alternatives are expressly authorized by Mississippi Code Annotated section 43-21-609(b).

¶ 27. The youth court determined Cole’s October 5, 2007, actions were sufficient to adjudicate the children neglected. Cole’s standoff with social workers and the police weighed heavily in the youth court’s decision.

¶ 28. During this episode, Cole declared her intention to bring the children to DHS. She had made similar comments to Knight, about bringing her children to DHS, when they spoke regarding the school-district problems.

¶ 29. Cole informed the social workers and police officers that her children were bathing, but once the door was opened, the children appeared in their underwear, with dirty feet, and food on their chests. Cole also claimed, many times, that she was preparing to leave for a funeral. But, in front of the social workers and police officers, she appeared topless in the doorway of her apartment. Bielefeld contacted the youth court because of Cole’s apparent instability and erratic behavior.

¶ 30. Both children had previously informed Bielefeld they were afraid to be home with their mother. Because of the events she witnessed on October 5 and the children’s fear of their mother, Bielefeld contacted the youth court. The youth court was forced to act quickly.

¶ 31. The facts here support the youth court’s finding that, at minimum, these children were not being provided the “proper and necessary care or support ... or other care necessary for [their] well-being[.]” Miss.Code Ann. § 43-21-105(i)(i)- This Court will not ordinarily reverse a trier of fact unless it can be said with confidence that the finding was manifestly wrong. In re I.G., 467 So.2d 920, 924 (Miss.1985). The youth court was presented with conflicting testimony about Cole’s care and support for her children. Based on Cole’s alarming actions and statements that she would turn the children over to DHS, we cannot conclude with confidence that the youth court judge’s decision was manifestly wrong. Id.

¶ 32. We find that considering the evidence in a light most favorable to the State, a reasonable person could have found, by a preponderance of the evidence, both children were neglected. Furthermore, we defer to the youth court judge’s observation of the temperament, maturity, and demeanor of the children and parents. See In re M.R.L., 488 So.2d 788, 792 (Miss.1986). We also note that Cole was provided a service plan by DHS. As she progresses with the plan, she will be eligible for unsupervised visitation; and ultimately, upon compliance with the plan, the children could be returned to Cole’s custody. Finding no error, we affirm the judgment of the Lauderdale County Youth Court.

¶ 33. THE JUDGMENT OF THE LAUDERDALE COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.

      . To protect the confidentiality of the minors, we substitute initials for their names.

      . The exact date Cole moved to Ohio is not clear. However, the record reflects she lived in Ohio on November 29, 2007, the date of the adjudicatory hearing.

      . The service plan is referenced in the youth court transcript, but it was not included in the record.


text:
    Corine HOLMES, as Administratrix of the Estate of Derral Holmes, Appellant v. CAMPBELL PROPERTIES, INC. and T & S Tunnel Express, Appellees.
    No. 2008-CA-01528-COA.
    Court of Appeals of Mississippi.
    May 18, 2010.
    Rehearing Denied Sept. 14, 2010.
    Certiorari Denied Nov. 18, 2010.

      Precious Tyrone Martin, attorney for appellant.

      Clifford C. Whitney III, R.E. Parker, Jr., Vicksburg, attorneys for appellees.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. An employee of a Vicksburg, Mississippi, car wash business struck Derral Holmes in the head with a baseball bat. Holmes died as a result of the assault. The administratrix of Holmes’s estate filed a wrongful death suit in the Circuit Court of Warren County against Campbell Properties, Inc. and T & S Tunnel Express (hereinafter referred to collectively as “Campbell Properties”). The complaint alleged these entities owned and operated the car wash business, respectively. The lawsuit involved various underlying tort claims, including a premises liability claim.

¶ 2. Campbell Properties moved for summary judgment. Following a hearing, the circuit court granted Campbell Properties’ motion. On appeal, Holmes’s only assignment of error concerns the circuit court’s grant of summary judgment. Finding no error, we affirm.

FACTS

¶ 3. Holmes was a regular customer of T & S Tunnel Express, a car wash in Vicksburg, Mississippi. Benjamin Brooks was employed there. On October 19, 2005, Holmes stopped by the car wash. After washing and vacuuming his vehicle, he walked up to Brooks and called him a “weak bitch.” Brooks responded by beating Holmes with a baseball bat. Holmes died from his injuries four days later.

¶ 4. Corine Holmes, the administratrix of the estate, sued Campbell Properties and Brooks on various tort causes of action. These claims included: (1) failure to provide reasonably safe premises; (2) failure to warn of foreseeable dangers known by the defendants; (3) assault, battery, and negligence under the theory of respon-deat superior; and (4) negligent hiring and retention.

¶ 5. Campbell Properties filed a motion for summary judgment, and Holmes responded. After conducting a hearing, the circuit judge determined no genuine issues of material fact existed and granted Campbell Properties’s summary judgment motion.

STANDARD OF REVIEW

¶ 6. We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In determining whether the trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999) (citation omitted).

¶ 7. The nonmoving party must diligently oppose summary judgment. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 415 (Miss.1988). Once a motion for summary judgment is made and supported, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or [otherwise], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

¶ 8. Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Grisham, 519 So.2d at 416). To withstand summary judgment, the nonmoving party must produce significant probative evidence of genuine issues for trial. Id. (citing Price v. Purdue Pharma Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

DISCUSSION

¶ 9. On appeal, Holmes claims genuine issues of material fact exist on the premises liability claim. Holmes also contends genuine fact issues exist on the claims that Campbell Properties improperly trained its employees, negligently failed to control them, and failed to adequately regulate and govern their behavior.

I. Premises Liability

¶ 10. In a premises liability action, the plaintiff must prove the familiar elements of duty, breach of duty, proximate cause, and damages in order to establish a prima facie case. Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994). There are two components to the element of proximate cause: (1) cause in fact and (2) legal cause. Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1277 (¶31) (Miss.2007); Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 404 (¶ 32) (Miss.Ct.App.2007). A defendant’s negligence is the cause in fact of an injury if, “but for the defendant’s negligence, the injury would not have occurred.” Glover, 968 So.2d at 1277 (¶ 32) (footnote omitted). The negligence is the legal cause if the injury “is the type, or within the classification, of [injury] the negligent actor should reasonably expect (or foresee) to result from the negligent act.” Id. at (¶ 33). In other words, the negligence must be a “reasonably foreseeable consequence of the defendant’s negligence.” Id. at (¶ 34).

¶ 11. The first step in a premises liability action is to determine the status of the injured party. The injured party should be classified as an invitee, licensee, or trespasser. This determination can be a fact question for the jury. Leffler v. Sharp, 891 So.2d 152, 156 (¶ 10) (Miss.2004). But if the facts are not in dispute, it is a question of law for the trial judge. Id. An invitee is a person who enters the premises of another in response to an “express or implied invitation of the owner or occupant for their mutual advantage.” Id. at (¶ 11). A licensee enters the premises “for his own convenience, pleasure, or benefit pursuant to ... license or implied permission[.]” A trespasser enters the premises “without license, invitation, or other right.” Id.

¶ 12. Under Mississippi law, a property owner is not the insurer of an invitee’s safety. Rather, he owes a duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view. Corley v. Evans, 835 So.2d 30, 37 (¶ 22) (Miss.2003). In contrast, the duty owed to a licensee or trespasser is the same — not to "willfully or wantonly injure such person. Leffler, 891 So.2d at 157 (¶ 12).

¶ 13. The parties disagree over whether Derral Holmes had lost his status as an invitee at the time of the attack. The parties agree that when the assault occurred, Holmes had already finished vacuuming and washing his car. He had also moved his car somewhere to the side of the car wash but remained on the premises to smoke a cigarette. Though it is not entirely clear that Holmes had concluded his business and remained around solely for his own benefit, we find it unnecessary to decide his status. This issue is not determinative here because Holmes (the administratrix) failed to offer proof, by affidavit or otherwise, setting forth specific facts showing a genuine issue on the required causation element. See M.R.C.P. 56(e). In short, even if the decedent remained an invitee of the car wash, we find Holmes failed to show the injuries were a reasonably foreseeable consequence of the alleged negligence committed by Campbell Properties. Glover, 968 So.2d at 1277 (¶¶ 33-34).

¶ 14. Our supreme court has held a premises owner must employ reasonable care to protect an invitee from “reasonably foreseeable injuries at the hands of another.” Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (¶ 6) (Miss.2002). An assault on the premises is reasonably foreseeable if the defendant had either: (1) “actual or constructive knowledge of the assailant’s violent nature,” or (2) “actual or constructive knowledge an atmosphere of violence existed on the premises.” Id. at (¶ 7). In assessing the “atmosphere of violence” prong, relevant factors include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and “the frequency of criminal activity on the premises.” Corley, 835 So.2d at 38-39 (¶ 26) (quoting Gatewood v. Sampson, 812 So.2d 212, 220 (¶ 14) (Miss.2002)).

¶ 15. Campbell Properties claimed it neither knew nor had reason to believe Brooks was dangerous. To support this position, Campbell Properties attached excerpts from the testimony given by the owner of the car wash during Brooks’s criminal trial. The owner testified that Brooks was his “best employee” and that he had “[n]ever had a problem” with him. Holmes failed to contradict Campbell Properties’ assertions about Brooks and offered no contrary evidence on the issue of proximate causation.

¶ 16. The only arguable evidence of causation is found in the affidavit of Holmes’s proposed expert, Fred Del Marva. However, the circuit court rejected Del Marva’s affidavit as conclusory and did not consider it in ruling on the summary judgment motion. Since Holmes does not take issue with the court’s exclusion of Del Marva’s affidavit on appeal, we find this issue is not properly before us, nor does it merit further discussion.

¶ 17. In addition, Campbell Properties’ discovery responses indicate it had no knowledge of any crimes on the premises within the past five years. We point out that Holmes failed to respond with any history of crimes on the property, and likewise did not contradict Campbell Properties’ assertion that it had no prior notice of any crime.

¶ 18. Instead, Holmes devotes almost all attention on the premises liability issue to arguing the decedent was an invitee of the car wash. While this may be true, again, it is not determinative here because the party with the burden of proof must show a genuine issue of material fact exists as to every element of its claim. See, e.g., Davis, 957 So.2d at 398-99 (¶ 16). Otherwise, summary judgment is proper. Id. Here, Holmes failed to offer any genuine issue of fact that Brooks’s assault was foreseeable. Because the circuit court properly found there had been no notice of any dangerous condition at the car wash, causation is lacking. Thus, the trial court properly granted summary judgment on the premises liability claim.

II. Failure to Train

¶ 19. Holmes next claims Campbell Properties failed to adequately train Brooks. We first note that Holmes’s allegation that neither the circuit court nor Campbell Properties addressed the failure to train issue is simply incorrect. First, Campbell Properties responded to the failure to train allegation in its rebuttal to Holmes’s response to the summary judgment motion. Specifically, Campbell Properties contended it was absurd to suggest it should have trained its employees regarding the use of a baseball bat. Campbell Properties also pointed out there was no evidence a baseball bat was used as part of Campbell Properties’ business. Rather, it was simply a piece of sports equipment left behind by a customer of the car wash that was being held in the “lost and found” at the time of the incident. Second, the circuit court granted summary judgment as to each cause of action in Holmes’s amended complaint, thereby granting summary judgment on the allegations therein, including the failure to train allegation.

A. Foradori

¶ 20. Holmes relies heavily on the Fifth Circuit’s decision in Foradori v. Harris, 523 F.3d 477 (5th Cir.2008) (diversity case applying Mississippi law), to support her argument that summary judgment was improperly granted on its failure to train claim. In Foradori, an off-duty Captain D’s restaurant employee challenged a customer, Michael Foradori, to a fight. Id. at 481-82. The two had a fifteen to twenty minute loud and heated verbal argument inside the restaurant. Id. at 482. The manager heard and observed the confrontation. Rather than defusing the situation, the manager instead ordered the two outside and permitted a crowd, including employees and customers, to follow them outside. Id. The manager did not call the police or take other precautions. The cook believed a fight was about to occur and followed the crowd outside. Id. As soon as Foradori reached the edge of the parking lot, another restaurant employee (one not engaged in the earlier verbal argument) unexpectedly punched Foradori from behind. Id. at 491. Foradori’s fall from an elevated embankment rendered him unconscious and resulted in him breaking his neck. Id. at 482.

¶ 21. The Foradori court applied the restatements of agency and torts, concluding that the Mississippi Supreme Court would have applied similar principles if confronted with the same facts. Id. at 486-88. Applying these principles, the Fifth Circuit found:

Captain D’s had a duty to control its off-duty employees ... so as to protect patrons like Foradori from any foreseeable unreasonable risk of harm created by those employees, because those employees’ conduct occurred on Captain D’s premises, and the jury reasonably could have found that Captain D’s manager knew or had reason to know that she had the ability to control them, and knew or should have known of the necessity and opportunity for exercising such control.

Id. at 492. In its analysis, the court further stated:

[A]n employer who engages in an enterprise is under a duty to anticipate and to guard against the reasonably expected human traits and episodes of its employees within its industry to prevent undue risk of harm to third persons or to other employees; and is likewise required to make such reasonable regulations as the see or complexity of its business may require.

Id. at 494. Under this authority, the Fifth Circuit held the district court properly submitted to the jury the issues of Captain D’s alleged failure to adequately train, supervise, and regulate its employees, as well as its alleged failure to control the actions of its employee. Id. at 491, 494-97. For present purposes, it is particularly significant that the Foradori court held that reasonable minds could differ over the question of whether Captain D’s acts or omissions resulted in a foreseeable harm. Id. at 496-97.

¶22. While not binding, Fifth Circuit decisions are generally regarded by our state appellate courts as highly persuasive authority. Lutz Homes, Inc. v. Weston, 19 So.Sd 60, 64 n. 6 (Miss.2009). Even if Foradori was viewed as binding authority as to liability based on an employer’s failure to train, its facts are clearly distinguishable from those before us.

¶ 23. In Foradori, conflicting evidence existed as to whether, due to the loud commotion in the dining area of the restaurant, Captain D’s management knew or should have known that the escalating altercation created a risk of bodily harm to Foradori. Foradori, 523 F.3d at 482. The on-duty manager claimed she thought the verbal argument in the restaurant was just “teenage horse-play.” Id. She testified that based on this belief, she ordered the two engaged in the argument outside and did not attempt to protect the restaurant patron or control her employee. Id. at 482-83. However, the cook, who had been further from the disturbance than the manager, contradicted the manager. Id. at 482. He testified it was apparent a fight was about to take place. Additionally, several witnesses, including an expert witness, provided support that Captain D’s failed to adequately regulate or train its employees. Id. at 493-95. Although Captain D’s had a work manual, which included instructions on training employees, several witnesses testified that restaurant managers had failed to comply with the applicable company rules. Id. at 493-94.

¶ 24. At issue in all of Foradori’s tort claims was whether the Captain D’s employee’s assault was the superceding and sole proximate cause of the patron’s injuries. Id. at 495-97. This inquiry hinged on the foreseeability of the employee’s actions. See id. at 495. The Fifth Circuit held that a jury question existed as to whether Captain D’s failure to train/supervise/regulate and its failure to control the actions of its employees resulted in a foreseeable harm. Id. at 496-97.

¶ 25. Here we are faced with a much different situation. In Foradori, it was undisputed that the employee “challenged Foradori to a fight in full view and hearing of [the restaurant manager] inside the restaurant for 15 to 20 minutest.]” Id. at 491. It was also undisputed that the manager ordered the two to go outside “without investigating, intervening or taking any precaution to protect Foradori.” Id. To the contrary, here the attack took place suddenly, and there were no allegations of management turning a blind eye or facilitating Holmes’s attack. Furthermore, there is no contradictory evidence of the car wash’s prior actual or constructive notice that an assault might take place. And Holmes has presented no arguable reason why the car wash should have done more to regulate employee behavior in light of the size and complexity of the business.

¶ 26. Holmes requests that this Court find a jury question exists, at least on the failure to train allegation, simply by virtue of the fact that a Campbell Properties’ employee attacked a patron with a baseball bat. Holmes argues that under Foradori, violent behavior by an employee is itself sufficient evidence of failure to train. We disagree. This is not what the Fifth Circuit held in Foradori, and we are aware of no authority applying such a broad standard. In making this argument, Holmes mainly relies on the following passage in Foradori, which the Fifth Circuit quoted from the district court’s opinion:

The evidence in this case appears to establish a widespread failure among multiple Captain D’s employees to behave in an appropriate manner in this case. Obviously, it is not proper behavior for a Captain D’s employee ..., off-duty or not, to approach a customer on restaurant premises in a hostile manner and to encourage him to fight. The fact that [the Captain D’s employee] apparently felt comfortable in behaving in such an improper manner on restaurant premises raises troubling questions regarding the level of training, supervision and discipline which existed at the Captain D’s franchise in question.

Id. at 493. Though the Fifth Circuit included this passage from the district court, it made clear that its holding that a jury question existed on the issue of failure to train depended on the testimony of multiple managers and employees. Id. at 493-95. Such proof is undoubtedly lacking in the present case. We find the violent act of an employee standing alone is simply insufficient to defeat summary judgment on an allegation of failure to train.

¶27. Although there is no Mississippi case law directly on point, courts in other jurisdictions have generally recognized that specific evidence of an employer’s actual or constructive knowledge of its employee’s dangerous or violent tendencies is necessary in order to create a genuine issue of material fact on an improper training or supervision theory of liability. See State Farm Ins. Co. v. Cent. Parking Sys., Inc., 18 A.D.3d 859, 860, 796 N.Y.S.2d 665 (N.Y.App.Div.2005); Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C.1985); see also Flores v. Autozone W., Inc., 161 Cal.App.4th 373, 74 Cal.Rptr.3d 178, 187 (2008) (finding summary judgment proper because physical attack by employee not causally connected to employer’s failure to train); Alexander v. A. Atlanta Autosave, Inc., 272 Ga.App. 73, 611 S.E.2d 754, 758-59 (2005) (finding summary judgment proper because no actual or constructive knowledge of employee’s tendency to engage in behavior relevant to injuries sustained); Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 683 (Ala.2001) (finding summary judgment proper because incompetent act by employee is itself insufficient to create genuine fact issue). This flows from the same logic behind our precedent holding that the mere occurrence of an accident is insufficient evidence to hold a premises owner liable. Cf. Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465 (¶ 6) (Miss.Ct.App.2003) (citing Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966)). As our supreme court once stated: “[Ijnjury of itself confers no legal right; ... danger of itself is not negligence; and ... negligence of itself is not liability.” Campbell v. Willard, 205 Miss. 783, 793, 39 So.2d 483, 484 (Miss.1949).

¶ 28. In the case before us, unlike Fo-radori, every indication is that the beating incident occurred in a matter of seconds. Campbell Properties contends the episode happened without warning, and the management of the car wash had no reason to know or anticipate its employee would behave in such a violent manner. There was no contradicting evidence of prior actual or constructive knowledge of Brooks’s violent nature. Nor is there any indication of any actual or constructive knowledge that an atmosphere of violence existed at the car wash. We are simply unable to locate any evidence from Holmes tending to show a fact issue for the jury to resolve.

B. Summary Judgment

¶29. Holmes next argues that because Campbell Properties failed to show the lack of genuine issues of material fact, particularly on its failure to train allegation, the burden never shifted back to Holmes to show the presence of genuine issues of material fact. However, “[w]here a party opposes summary judgment on a claim or defense [on] which that party will bear the burden of proof at trial, and when the moving party can show a complete failure of proof on an essential element of the claim or defense, then all other issues become immaterial, and the moving party is entitled to judgment as a matter of law.” Grisham, 519 So.2d at 416; see also Gallo way v. Travelers Ins. Co., 515 So.2d 678, 683-84 (Miss.1987) (holding summary-judgment properly granted for complete failure of proof on an essential element of nonmovant’s case). Campbell Properties highlighted Holmes’s lack of proof on any of its claims. Thus, the burden shifted to Holmes to provide evidence supporting her allegations. Holmes failed to respond with any probative evidence to support the various claims concerning this issue. Therefore, we find the trial court properly granted summary judgment with respect to Holmes’s claims that Campbell Properties failed to train/regulate/supervise its employees or failed to control their actions.

CONCLUSION

¶ 30. Since Holmes failed to offer any credible evidence to show that Brooks’s assault was reasonably foreseeable, the circuit court properly granted summary judgment on the premises liability issue. Regarding the other tort claims, Holmes’s reliance on Foradori is misplaced, and the present case is clearly distinguishable. Also, Holmes failed to sufficiently support these allegations with specific facts showing genuine issues for trial. Therefore, the circuit court properly granted summary judgment in favor of Campbell Properties.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.

      . According to an excerpt from the trial transcript in the criminal case against Brooks, which was attached to Campbell Properties’ summary judgment motion, the bat had been left at the car wash by a customer and was being held in the car wash's office.

      . Hereinafter, any reference to "Holmes” is to the administratrix of the estate, Corine Holmes, unless otherwise indicated.

      . Holmes later filed an amended complaint, which did not include a failure to warn claim.

      . We note that Holmes has not pursued many of these claims on appeal. By not raising several of the claims listed above, Holmes has waived these claims on appeal. See A.B. ex rel. C.D. v. Stone County Sch. Dist., 14 So.3d 794, 797 n. 1 (Miss.Ct.App.2009) (claim procedurally barred for failure to make argument on appeal).

      .The circuit judge entered a written judgment reflecting his decision, which included an express determination that there was no just reason for delay in entering a final judgment as to fewer than all parties to the action, as required by Mississippi Rule of Civil Procedure 54(b).

      . Likewise, the trial court correctly found Holmes could not establish the elements of its premises liability claim regardless of whether the decedent was deemed an invitee or licensee.

      . Although Holmes primarily argues Campbell Properties failed to adequately train Brooks, this section also includes a discussion of other claims, including the business's failure to have in place adequate regulations, failure to supervise, and failure to control the actions of its employees. All of these theories are negligence-based. See Foradori v. Harris, 523 F.3d 477, 484 (5th Cir.2008).

      . We note also that "failure to train” was not one of the individual counts specifically listed in the amended complaint. Rather, the allegation was included in one sentence under the heading "Negligent Hiring & Negligent Retention,” alleging that Campbell Properties had a duty to "properly train” Brooks.

      . The Mississippi Supreme Court had approved the use of one of these restatement sections in the context of negligent supervision of an activity. See Tillman ex rel. Migues v. Singletary, 865 So.2d 350, 353 (¶¶ 12-14) (Miss.2003).

      . Holmes's entire argument rests on the assertion that an employee's act of violence is sufficient evidence of failure to train. Holmes cites no other specific reason why a jury question exists on this issue.

      . We note the Foradori court held that a showing of a dangerous propensity is not required where the employer "knows or should know [its employee] to be engaging in conduct creating an unreasonable risk of harm to customers or others on its premises.” Foradori, 523 F.3d at 492. However, just as there has been no showing of Brooks's dangerous propensity, there is no indication that Campbell Properties knew or should have known Brooks was engaging in conduct creating an unreasonable risk to its patrons. In fact, there is no evidence of any such conduct by Brooks prior to the attack itself. Campbell Properties did not watch a conflict escalate before their eyes and, thereafter, fail to take precautions, as did the restaurant management in Foradori.


author: LEE, P.J.,

text:
    Mervin SANDERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01052-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Certiorari Denied Nov. 18, 2010.

      Mervin Sanders, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. The motion for rehearing is denied, and this opinion is issued in lieu of our previous per curiam affirmance.

¶ 2. On October 31, 1991, Mervin Sanders was convicted in the Circuit Court of Pike County of possession of cocaine with intent to deliver. He was sentenced as a habitual offender to thirty years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. He was ordered to pay a $30,000 fine. The supreme court affirmed Sanders’s conviction and sentence. Sanders v. State, 678 So.2d 663, 671 (Miss.1996).

¶ 3. Sanders filed a motion for post-conviction relief and a motion for summary judgment asserting the issues raised in his motion for post-conviction relief. The State filed a cross-motion for summary judgment, which was granted by the trial court. Sanders then appealed, and this Court affirmed the trial court’s decision to grant the State’s summary-judgment motion. Sanders v. State, 846 So.2d 230, 240 (¶ 41) (Miss.Ct.App.2002).

¶ 4. In 2005, Sanders filed a motion to vacate and set aside his conviction and sentence. The motion was denied. This Court affirmed the denial of Sanders’s motion on the basis that the motion was time-barred and that Sanders did not have the right to counsel at his parole-revocation hearing. Sanders v. State, 942 So.2d 298, 300 (¶ 9) (Miss.Ct.App.2006).

¶ 5. On February 22, 2008, Sanders filed a motion in the trial court to set aside his conviction and sentence under Mississippi Rule of Civil Procedure 60(b)(4), arguing that the trial judge was biased because he had heard four prior actions involving Sanders. The trial court denied the motion.

¶ 6. Sanders now appeals, asserting the following issues: (1) the trial judge showed prejudice against him; (2) his sentence was erroneous; and (3) he was denied the right to a speedy trial. Finding that Sanders’s appeal is without merit, we affirm the trial court’s denial of Sanders’s motion.

DISCUSSION

¶ 7. Sanders filed his motion to set aside and vacate his conviction and sentence under Mississippi Rule of Civil Procedure 60(b)(4), alleging that the judgment against him was void. We find that this latest motion was essentially a motion for post-conviction relief. Mississippi Code Annotated section 99-39-3 (Rev. 2007) was enacted “to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences.” The statute of limitations for Sanders’s motion for post-conviction relief was three years from the supreme court’s ruling on direct appeal. Miss.Code Ann. § 99-39-5(2) (Supp.2009). The supreme court ruled on Sanders’s direct appeal in 2002, and the motion seeking post-conviction relief was filed with the trial court on February 22, 2008. Therefore, Sanders’s motion is time-barred. It is also barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2009). In addition, there is no proof in the record that Sanders received permission from the supreme court to file his motion for post-conviction relief in the trial court as required by Mississippi Code Annotated section 99-39-7 (Supp.2009).

¶ 8. Notwithstanding the procedural bars, we would still find this appeal without merit. A motion made pursuant to Rule 60(b) must be made within a “reasonable time.” Sanders’s conviction occurred in 1991. His Rule 60(b) motion was filed in 2008. We find that seventeen years is not a reasonable time. Sanders does not cite any exceptions in the post-conviction-relief statute that would allow his petition to be excepted from the three-year statute of limitations. Miss.Code Ann. § 99-39-5(2)(a)-(b).

¶ 9. Therefore, we find that Sanders’s appeal is without merit.

¶10. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


text:
    Charles Lee PARKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01350-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      Charles Lee Parker, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. On January 25, 2006, the United States District Court for the Southern District of Mississippi sentenced Charles Lee Parker to life for conspiring to distribute 226.72 grams of crack cocaine. The district court based Parker’s enhanced sentence on two of his prior Mississippi felony marijuana convictions — one from 1980, the other from 1986. On direct appeal, the United States Fifth Circuit Court of Appeals affirmed Parker’s conviction and life sentence. See United States v. Parker, 505 F.3d 323 (5th Cir.2007).

¶ 2. In 2008, Parker filed for post-conviction relief (PCR) in the Neshoba County Circuit Court. He sought to vacate his 1986 marijuana-possession conviction in order to pursue re-sentencing in federal court to avoid the enhanced life sentence. The circuit court summarily dismissed Parker’s PCR motion finding lack of jurisdiction. Because Parker was not in custody under the sentencing of a Mississippi court when seeking post-conviction relief, we are without jurisdiction to consider his collateral attack. Thus, we affirm the circuit court’s dismissal of Parker’s motion for post-conviction relief on the ground of lack of jurisdiction.

FACTS

¶ 3. Parker had two drug convictions in 1980 resulting from his guilty plea in the Neshoba County Circuit Court to two counts of marijuana distribution. The circuit judge sentenced Parker to two years on each count, to run consecutively. Parker appealed neither these convictions nor sentences, and he does not contest their validity.

¶ 4. In 1986, a jury in the Neshoba County Circuit Court found Parker guilty of possession of more than one ounce of marijuana. The circuit judge sentenced Parker to three years’ imprisonment. He ordered the sentence to run consecutively to a fifteen-year sentence Parker was serving for the armed robbery of a Kentucky Fried Chicken. Parker neither directly appealed his 1986 marijuana conviction, nor did he seek post-conviction relief until May 15, 2008.

¶ 5. In his 2008 PCR motion, Parker sought to vacate his 1986 marijuana possession conviction. He alleged his actual innocence, claiming less than one ounce of the charged marijuana belonged to him. He also contended he had received ineffective assistance of counsel.

¶ 6. On July 14, 2008, the circuit judge summarily dismissed Parker’s motion finding lack of jurisdiction because Parker was not incarcerated in a Mississippi prison or under a sentencing order related to his 1986 conviction when seeking post-conviction relief. Despite dismissing the PCR motion for lack of jurisdiction, the circuit judge alternatively found the motion time-barred since it was filed more than twenty years after his 1986 conviction.

¶ 7. Parker now appeals pro se claiming: (1) the circuit judge abused his discretion by finding the motion untimely filed, and (2) he should have been deemed “in custody” for purposes of the Mississippi Post-Conviction Collateral Relief Act because the district court relied on the Mississippi convictions to enhance his federal sentence.

DISCUSSION

¶ 8. Prior to March 16, 2009, to be eligible to seek post-conviction relief under section 99-39-5, a prisoner had to be “in custody under sentence of a court of record of the State of Mississippi” Miss. Code Ann. § 99-39-5 (Rev.2007) (emphasis added). On March 16, 2009, the Legislature amended section 99-39-5, expanding the availability of post-conviction relief to a broader range of previously convicted individuals. The introductory clause in section 99-39-5(1) now provides that:

Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence....

Miss.Code Ann. § 99-39-5(1) (Supp.2009).

¶ 9. We generally apply statutes prospectively, unless the statute clearly and positively expresses that it applies retroactively. Hudson v. Moon, 732 So.2d 927, 930-31 (¶ 10) (Miss.1999); Mladinich v. Kohn, 186 So.2d 481, 483 (Miss.1966). Here the bill amending section 99-39-5(1), adopted on March 16, 2009, states it “shall take effect and be in force from and after its passage.” 2009 MS Laws Ch. 339, § 8 (emphasis added). We point out that.Parker filed his petition almost a year earlier on May 15, 2008, and the circuit court denied it on July 14, 2008, before current version section 99-39-5(1) took effect.

¶ 10. In addressing the pre-March 16, 2009, version of section 99-39-5(1), which we find applies here, this court has held: “The preeminent requirement of the Post-Conviction Collateral Relief Act is that the petitioner be ‘a prisoner in custody under sentence of a court of record of the State of Mississippi.’ ” Willis v. State, 856 So.2d 555, 556 (¶ 3) (Miss.Ct.App.2003) (quoting Miss.Code Ann. § 99-39-5 (Rev. 2000)); see also Dallas v. State, 994 So.2d 862, 864 (¶ 3) (Miss.Ct.App.2008) (citing Miss.Code Ann. § 99-39-5(1) (Rev.2007)); Zambrella v. State, 906 So.2d 844, 845-46 (¶ 6) (Miss.Ct.App.2004).

¶ 11. It is undisputed that Parker was incarcerated in a federal correctional facility — and not under custody of a sentence of a court of record of the State of Mississippi — when he filed his 2008 PCR motion. Therefore, this court, like the circuit court, lacks jurisdiction to consider his request for post-conviction relief.

¶ 12. Further, we decline Parker’s invitation to expand the reach of the pre-March 16, 2009, version of section 99-39-5(1) to all petitioners whose sentences are based on prior Mississippi convictions. Restraint dictates that we follow our established precedent and the Legislature’s explicit mandate that to seek post-conviction relief petitioners must be “in custody under sentence of a court of record of the State of Mississippi,” which Parker was not.

¶ 13. Because the circuit court properly determined it lacked jurisdiction to consider Parker’s motion for post-conviction relief, we must affirm the dismissal of his PCR motion.

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

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


author: MYERS, P.J.,

text:
    Ceasar OLIVE, Appellant v. Willie B. McNEAL and Bernice O. Bouldin, Appellees.
    No. 2009-CA-01095-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.

      Robert B. Ogletree, attorney for appellant.
    Bill Waller Sr., attorney for appellees.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. In October 2003, Ceasar Olive executed a warranty deed conveying his home and approximately thirty-six acres of surrounding land in Madison, Mississippi, to his stepchildren, Willie McNeal and Bernice Bouldin. Olive reserved a life estate. Approximately seven months later, Olive sought to extend a one-third ownership interest in the property to one of his natural children, Betty Rugley. McNeal and Bouldin refused. Olive brought suit to set aside the deed, arguing undue influence and mutual mistake in its execution. Olive testified that he had believed the instrument he executed had been a will he could revoke or modify at any time. After a brief trial, the chancellor denied relief, and Olive appeals.

FACTS

¶ 2. In 2003, Olive was approximately seventy-seven years of age. Some time that year, his wife of fifty-seven years— McNeal and Bouldin’s mother — died. Olive had raised McNeal and Bouldin since they were small children. No children were born to Olive’s marriage, but over the years he had fathered between seven and nine children out of wedlock. Rugley was one of these children. She had lived in California for about twenty years before returning to Mississippi after Olive’s wife’s death. Olive gave Rugley a piece of land near his home, and she began constructing a home on it. At this time, McNeal apparently lived on the same street as Olive. McNeal’s sister, Bouldin, lived in Michigan.

¶ 3. At the trial, only McNeal and Olive testified. They offered slightly different characterizations of their relationship around the time the deed was executed, but most of the material facts were not disputed. Olive was seventy-seven years old and had known McNeal, his stepson, for about fifty-six years, since McNeal was three or four years old. The two had apparently been close for much of that time. McNeal claimed to have assisted Olive in many business ventures over the years, including farming the property at issue. Olive was generally dismissive of his relationship with his stepson in his testimony, but he said little of their history before 2003. Both agreed that Olive had trusted McNeal.

¶ 4. In 2003, the year the deed was executed, McNeal'and Olive lived on the same street. When his mother entered her prolonged final illness, McNeal began cleaning her and Olive’s home weekly. He continued to clean the home after his mother’s death in 2003. After his wife’s death, Olive was injured and hospitalized in two separate incidents. During his first stay in the hospital, Olive instructed McNeal to retrieve and hold a substantial amount of money he had kept in his home. McNeal testified that it was about twenty-five thousand dollars, but Olive maintained that it had been significantly less. After Olive’s car accident, he was unable to drive “for a few weeks,” and McNeal began taking him to doctor’s appointments and to rehabilitative therapy. McNeal claimed that he would drive Olive twice a week; Olive denied this and suggested that it was less frequent. Both agreed that Rugley had also assisted Olive during this time.

¶ 5. Some time after his injuries and his wife’s death, Olive told McNeal to visit Olive’s attorney and arrange for the gift of the home and surrounding land to McNeal and his sister. Both agreed that Olive had not done it himself because of his injuries and because he was preoccupied with his business, an auto salvage yard. At this time, many of his vehicles were being crushed and sold for scrap, and Olive insisted that he be there to ensure that he was paid for everything that was taken. The business was apparently located on or near the property at issue.

¶ 6. Patrick Rand was Olive’s attorney and had handled transactions for him in the past, most recently in effecting the gift of some land near Olive’s home to Rugley. McNeal met Rand at Rand’s office. Olive testified that he had instructed McNeal to arrange to have a will drafted. According to McNeal, Olive did not specify the method of conveyance. When he arrived at Rand’s office, Rand already had the “paperwork” for Olive’s various properties assembled. McNeal explained Olive’s wishes, and Rand drafted the deed transferring the homestead and surrounding land to McNeal and his sister, reserving a life estate for Olive. In his testimony, McNeal was unclear as to how or when the decision was made to draft a deed (it is implied that Rand made the decision or that he had been previously instructed to do so by Olive), but McNeal did state that he and Rand discussed the possibility that Olive’s natural children might attempt to get the property after Olive’s death, against his wishes. McNeal stated that he believed the deed would prevent this from happening. Both Olive and McNeal claimed to have paid Rand for the work.

¶ 7. Several days after the meeting with McNeal, Rand mailed the deed and affidavit. It was addressed to McNeal, but it might have been sent to Olive’s home address. McNeal testified that he explained the form of the conveyance to Olive, as Rand had to him, and that Olive understood. But McNeal also conceded that he himself did not fully understand the legal effect of the deed and had thought Olive could revoke or modify the gift at any time. He did not state whether he had communicated this understanding to Olive. Olive denied ever reading the deed or affidavit.

¶ 8. On October 27, 2003, with McNeal present, Olive executed the deed and affidavit in the Madison County Chancery Clerk’s office. The affidavit stated that:

I am conveying property to my children, Willie McNeal and Bernice 0. Bouldin, reserving unto myself a life estate of the homestead property, for the reason that [they] helped farm the property during the time that I owned it. It is my wish that they, and they alone, receive my interest in the property.

The instruments were recorded that day.

¶ 9. On September 27, 2004, Olive filed suit to set aside the deed for undue influence and mutual mistake in its execution. The case was finally brought to trial on May 11, 2009, and only Olive and McNeal testified. The chancellor denied relief, finding no undue influence. She also found that Olive’s testimony that he was ignorant of the nature of the instrument he had executed was not credible. Olive appeals from that judgment, arguing that the chancellor’s finding of no confidential relationship between Olive and McNeal was clearly erroneous. He also contends that the chancellor abused her discretion in not setting aside the deed on the ground of mutual mistake.

STANDARD OF REVIEW

¶ 10. We “will not disturb the chancellor’s opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Samples v. Davis, 904 So.2d 1061, 1064 (¶ 9) (Miss.2004) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). Questions of law, however, are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000).

DISCUSSION

1. Mutual Mistake

1111. In his first issue, Olive argues that the deed should be set aside on the grounds of mutual mistake. Olive testified that he believed the document he executed was a will he could revoke at any time. He notes also that McNeal — who stated he knew the instrument was a deed — nonetheless testified that he was largely ignorant of its legal effects. McNeal admitted that he believed that because Olive had reserved a life estate, Olive could revoke the deed or modify it at any time prior to his death. As both men believed the conveyance was revokable, Olive argues, the chancellor erred in not granting the relief he requested.

¶ 12. A deed may be reformed where it is shown to result from the mutual mistake of the parties in contracting for it. Brown v. Chapman, 809 So.2d 772, 774 (¶ 9) (Miss.Ct.App.2002). Although Olive advances this issue under a mutual mistake theory, we are compelled to point out that he was not required to show that McNeal had shared in his mistake. Ordinarily, a contract may not be set aside for a unilateral mistake absent proof of fraud or other inequitable conduct on the part of the benefitting party. McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992). But it is undisputed that this was a voluntary conveyance — a gift that was not bargained for. The giving of a gift is a unilateral act, so mutuality of mistake is not required to set it aside. See Spencer v. Spencer, 115 Miss. 71, 81, 75 So. 770, 771 (Miss.1917); Miles v. Miles, 84 Miss. 624, 640, 37 So. 112, 115 (1904). Instead, the rule of law is that a deed effecting a voluntary conveyance may be reformed, at the insistence of the grant- or, if it did not carry out his intent in making the gift. “Generally, a reformation may be granted on the application of the grantor in a voluntary conveyance against the grantee, where the instrument does not express the donor’s intent.” 76 C.J.S. Reformation of Instruments § 10 (2007). See also Lawson v. Bauman, 805 S.W.2d 769, 771 (Tenn.Ct.App.1990) (“[A] voluntary conveyance made without any consideration may be reformed at the suit of the grantor against the grantee.”); Kemna v. Graver, 630 S.W.2d 160, 161 (Mo.Ct.App.1982) (“It is a well-settled general rule that equity will reform a voluntary instrument of conveyance at the suit of the donor when the instrument does not reflect the donor’s intent in making the gift.”). Olive only needed to show that he had mistakenly conveyed the property to McNeal and Bouldin. The chancellor, however, denied relief because she did not credit Olive’s testimony that he had executed the deed and affidavit without reading them.

¶ 13. The party seeking reformation of a deed on a mistake theory bears the burden of proof beyond a reasonable doubt. McCoy, 611 So.2d at 961. Whether Olive mistakenly conveyed the property presents a question of fact; therefore, the issue on appeal is whether the chancellor abused her discretion in finding that Olive had failed to prove his mistake beyond a reasonable doubt. Id.

¶ 14. Olive does not dispute that he had intended to give the property to McNeal and Bouldin; he only takes issue with the form of the conveyance. Olive testified that he had instructed McNeal to visit Olive’s attorney and draft a will for him that would convey the property. McNeal returned with a deed and affidavit, which Olive alleges he executed without reviewing. Olive claimed to have discovered the mistake about six months later, when he attempted to modify the “will” to give a one-third interest in the property to his natural daughter, Rugley.

¶ 15. McNeal was somewhat unclear in his testimony as to what Olive instructed him to do at the attorney’s office. He testified that the attorney appeared to be prepared for his visit. After they discussed Olive’s wishes, the attorney prepared a deed and affidavit that were subsequently mailed to Olive’s home, addressed to McNeal. McNeal then discussed the deed with Olive and explained it to Olive as the attorney had to him.

¶ 16. The deed Olive executed is by all appearances ordinary. It is headed “Warranty Deed,” in all capital letters, bolded and underlined for emphasis, although the third and final page where Olive signed is not clearly labeled as a deed. An invoice for legal services (including “work on deed” and “draft deed and affidavit”) is found in the record, sent to McNeal at his own address — although Olive testified that he had paid for the drafting.

¶ 17. We cannot find an abuse of the chancellor’s discretion in this case, as the evidence casts a reasonable doubt on Olive’s claims. The instrument Olive executed was clearly labeled a deed, and McNeal testified that he had explained the nature of the document to Olive. The execution of the deed took place in the chancery clerk’s office and without the formalities of the execution of a will. Olive was literate, and he had several opportunities to review the document. It was also noted that Olive had some experience with real estate transactions in the past, and it was never suggested that he did not know the difference between a deed and a will. Moreover, his conduct of his business suggested that Olive would not have signed a document without reviewing it; around the time he executed the deed, Olive insisted on personally observing the removal of scrap cars from his salvage yard. McNeal did admit that he was largely ignorant of the deed’s legal effect and that he had personally believed the conveyance was revokable, but he never testified that he had told this to Olive. Certainly, Olive had an opportunity to discuss the deed with his attorney himself if he was uncertain as to its effect. On the whole, Olive’s account is uncorroborated and appears improbable.

¶ 18. We conclude that the chancellor did not abuse her discretion in finding Olive’s testimony not credible and, consequently, that she did not abuse her discretion in finding that Olive did not meet his burden to prove mistake beyond a reasonable doubt. This issue is without merit.

2. Undue Influence; Confidential Relationship

¶ 19. Olive next argues that the chancellor erred in not finding that a confidential relationship existed between Olive and McNeal. If a confidential relationship existed, Olive contends, the chancellor erred in not enforcing a presumption of undue influence in the inter vivos gift. See Murray v. Laird, 446 So.2d 575, 578 (Miss.1984).

¶ 20. Mississippi law recognizes that “an inter vivos gift is a perfectly lawful means of transferring real property in this state.” In re Estate of Lane v. Henderson, 930 So.2d 421, 425 (¶ 11) (Miss.Ct.App.2005) (quoting Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987)). Gifts between family members are a normal occurrence, and “a deed from a parent to a child alone and of itself raises no presumption of undue influence since, in the absence of evidence to the contrary, the parent is presumably the dominant party. This is true even though the parent is aged, or aged and infirm.” Id. (quoting Thomas v. Jolly, 251 Miss. 448, 454-55, 170 So.2d 16, 19 (1964)). “On the other hand, where a deed has been procured by one in contravention of duties owed the grantor by reason of a confidential or fiduciary relationship existing in law or in fact, our courts will not hesitate to intervene.” Anderson, 507 So.2d at 36.

¶ 21. A confidential relationship arises where “on the one side there is an overmastering influence, or, on the other, weakness, dependance, or trust, justifiably reposed.” Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982). A confidential relationship “[does] not have to be a legal one ... the relation may be moral, domestic, or personal.” Murray, 446 So.2d at 578. To determine whether a confidential relationship exists, the following factors must be considered:

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

In re Estate of Holmes v. Holmes-Price, 961 So.2d 674, 680 (¶ 17) (Miss.2007).

¶ 22. “The party asserting that a confidential relationship exists has the burden of establishing such a relationship by clear and convincing evidence.” In re Estate of Lane, 930 So.2d at 425 (¶ 12) (quoting Foster v. Ross, 804 So.2d 1018, 1021 (¶ 11) (Miss.2002)). Whether a confidential relationship exists is a question of fact, and this Court cannot disturb a chancellor’s findings of fact if they are supported by substantial credible evidence. Samples, 904 So.2d at 1064 (¶ 9); Lowery v. Guar. Bank and Trust Co., 592 So.2d 79, 85 (Miss.1991). We will only reverse if the chancellor “abused [her] discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Samples, 904 So.2d at 1064 (¶ 9) (quoting Holloman, 691 So.2d at 898).

¶ 23. The chancellor found no confidential relationship between Olive and McNeal. The question presented on appeal, therefore, is whether the chancellor abused her discretion in finding that Olive failed to prove the existence of a confidential relationship by clear and convincing evidence.

¶ 24. Considering the evidence as we have detailed it above, we cannot find an abuse of discretion. It is true that Olive was seventy-seven years of age, had recently lost his wife of many years, and was recovering from a car accident at the time of the conveyance. These circumstances may have created a potential for weakness or dependence, but the record does not bear this out. Olive continued to live alone, with some assistance from his children, and continued to operate his own business. Despite his age and injuries, nothing in the record suggests that Olive suffered from any permanent or severe physical infirmity or any loss of mentation whatsoever. Olive’s own testimony at trial downplayed his reliance on his stepson, and Olive suggested that he had received similar help from others.

¶25. Both parties agreed that Olive had trusted McNeal, but from all appearances in the record it was trust in his stepson’s integrity and competence rather than reliance on his judgment or counsel. The only exception would be the execution of the deed in question, but the chancellor did not find Olive’s testimony in that respect to be credible. Moreover, in all of their dealings described in the record, McNeal appeared to be very deferential to his stepfather.

¶ 26. Our law presumes that a parent is the dominant party in the parent/child relationship, absent of proof to the contrary. In re Estate of Lane, 930 So.2d at 425 (¶ 11). This presumption has not been rebutted; instead, the record suggests the opposite, that Olive remained dominant. Certainly, Olive did not show by clear and convincing evidence that McNeal exerted an “overmastering influence” over him. See Hendricks, 421 So.2d at 1041. We find no abuse of discretion in the chancellor’s decision on this issue.

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

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

      .Ceasar is sometimes called "Caesar” in the record, but the former spelling is used more frequently.

      . Olive also alleged fraud, but he did not attempt to prove it at trial.

      . She is not named in the record.

      . The record is silent as to the form of this conveyance.

      . Apparently, Olive had a falling out with some of his natural children during his wife’s final illness.

      .McNeal testified that he sometimes received mail at Olive’s home and that the deed and affidavit had been sent there and kept there for about three weeks before being executed. However, the record contains a cover letter from the attorney that was apparently sent with the deed; it is addressed to McNeal's address.

      . Both men claimed to have paid for the drafting, but it is worth noting that both recalled the total cost of Rand's services as being significantly less than indicated on the invoice in the record; from the parties testimony it appears at least possible that both Olive and McNeal had paid some portion of the bill.

      . It was stated that Olive had poor hearing since before the events at issue and that he required the use of a hearing aid at trial (six years later), but there was no testimony that this had materially impacted his daily life during the relevant period.