author: FAIR, J.,

text:
    Samson BYRD, Appellant v. Lottie WOODS, Cornelius Byrd, Jr., Jeremy Howell, as Attorney-in-Fact for Cornelius Byrd, Jr., Jeremy Howell, Individually, Wendy McEwen Howell, Individually, Michael W. Byrd and G & G Outdoors, LLC, Appellees.
    No. 2011-CA-00347-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      Steven Price Nixon, Sean A. Milner, Clinton, attorneys for appellant.
    K. Maxwell Graves Jr., Meadville, Gene D. Berry, Wayne Smith, Liberty, Walter Fred Beesley, attorneys for appellees.
    Lottie Woods, appellee, pro se.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Samson Byrd claims an interest in certain real property. He appeals from the Franklin County Chancery Court’s grant of summary judgment in favor of the defendants asserting three errors. We affirm in part and reverse and remand in part.

FACTS

¶ 2. Cherry Byrd left eighty acres of land to his sons, James Leslie Byrd and Cornelius Byrd. In a partition action each son received forty acres. James had at least five children, among them Samson and Lottie Woods. Cornelius had at least one, Cornelius Fred Byrd, Jr.

¶ 3. In February of 2007 Lottie filed a complaint for adverse possession of Cornelius’s forty acres, claiming to be his sole and only heir. She published process for Cornelius, his unknown heirs, and any other person claiming an interest in his property. Cornelius Fred, a resident of Chicago, entered his appearance and claimed to be the only child of Cornelius. Cornelius Fred produced an Illinois birth certificate that reflected Cornelius as his father. Lottie and Cornelius Fred appeared in open court on September 24, 2008, and announced a settlement.

¶ 4. On October 2, 2008, Samson filed a letter to “officials of the chancery court” and asserted that he and three other siblings objected to the actions taken by his sister Lottie and Cornelius Fred. He requested that any disposition of the family land be halted.

¶ 5. A final agreed judgment was entered on November 17, 2008. The judgment held Cornelius Fred to be the only child of Cornelius and sole owner of all of his father’s property. Lottie was vested with title to ten acres by agreement.

¶ 6. In August 2009, Samson filed a complaint against Lottie and Cornelius Fred for relief from judgment under Rule 60(b), or injunction, or adverse possession, or to quiet title. Samson asserted that Lottie was only on the property with his permission; that he and his predecessors had been in possession of the property for well over ten years; that service of process was insufficient; and that Cornelius Fred was an illegitimate child.

¶ 7. Cornelius Fred and the Howells filed a motion for summary judgment contending Samson’s filing was not timely. They also filed a separate motion for partial summary judgment as to Cornelius Fred’s legitimacy. At the hearing, Samson testified, and three exhibits were admitted. Samson stated he felt that all the land really belonged to his father, and because it was family land, he should have been personally notified by his sister about the prior proceeding. He admitted that he filed an objection letter over nine months prior to filing his complaint.

¶ 8. The chancellor dismissed all of Samson’s claims with prejudice on February 23, 2011. In her final judgment, she explained: Samson failed to present any proof that contradicted the birth certificate presented by Cornelius Fred; Samson had no color of title; Samson did not show publication notice was insufficient; and Samson failed to show why the six-month time limit under Rule 60(b) should not apply to his claim.

¶ 9. Samson filed a motion for reconsideration in March 2011. He attached a copy of a divorce decree, which stated that Cornelius had entered into a bigamous marriage with Cornelius Fred’s mother. On the same day, Samson filed his notice of appeal. The motion was never brought for hearing before the chancery court.

¶ 10. On appeal, Samson argues: (1) the court erred in finding his motion for reconsideration time-barred under Rule 60(b)(4) and (6); (2) the court erred in finding Cornelius Fred to be a legitimate son of Cornelius; and (3) the court erred in granting summary judgment as to all claims.

STANDARD OF REVIEW

¶ 11. We review the grant of a summary judgment de novo. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment shall be granted “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). Evidence shall be viewed in the light most favorable to the opposing party. Davis, 869 So.2d at 401 (¶ 10).

¶ 12. The opposing party may not rest upon the allegations of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e). If the opposing party “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

DISCUSSION

¶ 13. As a threshold issue, we must address service of process in the first suit to determine whether Samson should have been made a party to that action. Had he been joined, complete relief could have been afforded in 2008, and the current claims would be barred by res judicata.

1. Service of Process

¶ 14. Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.

¶ 15. “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878 (¶ 16) (Miss.Ct. App.2002). In Caldwell v. Caldwell, 533 So.2d 413 (Miss.1988), the supreme court stated “if at any stage of the proceedings it appears that ... the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court....” Id. at 416.

¶ 16. Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.

2. Legitimacy

¶ 17. In the 2009 action, the defendants’ motion for partial summary judgment contained a copy of Cornelius Fred’s birth certificate. It reflects Cornelius as his father, and it specifically notes that Cornelius Fred is “legitimate.” At the hearing, the chancellor instructed Samson to offer any evidence he had that would refute the information on the birth certificate. Samson had none.

¶ 18. By presenting Cornelius Fred’s birth certificate to the court, the defendants made out a prima facie case of legitimacy. A party opposing summary judgment may not rest upon the allegations of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e). Samson bore this burden at the summary judgment hearing, but he did not present any evidence. Because he could not show there was a genuine issue for trial, the chancellor had no choice but to grant partial summary judgment and vest title in Cornelius Fred to all of his father’s property.

3.Motion to Reconsider

¶ 19. On the same day he filed his notice of appeal, Samson also filed a motion to reconsider in the chancery court. A motion to reconsider is generally filed under Mississippi Rule of Civil Procedure 59 and can stay an appeal, but any post-trial motion must be filed -within ten days to render a notice of appeal ineffective. See Luse v. Luse, 992 So.2d 659, 661 (¶ 3) (Miss.Ct.App.2008). As this motion for reconsideration was filed thirty days after judgment was rendered, it has no effect on this appeal. Samson is procedurally barred from raising this issue on appeal because of his failure to preserve the chancellor’s ruling on his motion. See Howard v. Gunnell, 63 So.3d 589, 598 (¶ 18) (Miss.Ct.App.2011). However, even if the motion had been timely filed, it is without merit.

¶ 20. Samson requested that the court reconsider its judgment in light of newly discovered evidence. He attached a copy of a divorce decree finding the marriage of Cornelius Fred’s parents to be bigamous. Samson argues that this invalid marriage renders Cornelius Fred illegitimate and not entitled to be the sole heir at law of Cornelius.

¶ 21. A child born during wedlock is presumed to be legitimate. Stone v. Stone, 210 So.2d 672, 674 (Miss.1968). The Mississippi Supreme Court has held that where a ceremonial marriage took place and children were born of that union, those children could inherit as lawful heirs-at-law even though the father’s first marriage had not been previously dissolved. Miss. Code Ann. § 91-1-15(3)(a) (Supp.2011); see also Webster v. Kennebrew, 443 So.2d 850, 860 (Miss.1983) (citing Miss.Code Ann. § 91-1-5 (Supp.1983)). Despite the fact that Cornelius’s marriage was bigamous, Cornelius Fred was born of that union after a ceremonial marriage took place and is, therefore, entitled to inherit as the legitimate sole heir-at-law of Cornelius. Further, Cornelius Fred’s legitimacy is irrelevant under Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (holding that the Equal Protection Clause limits the authority of the state to differentiate between legitimate and illegitimate children).

4. Grant of Summary Judgment as to All Claims

¶ 22. Samson argues that the chancery court erred in granting full summary judgment because only the Rule 60(b) claims and the legitimacy issue were noticed for hearing. Further, he argues that the facts related to his adverse possession claim were disputed, making summary judgment inappropriate.

¶23. Under Peavey Electronics Corp. v. Baan U.S.A., Inc., 10 So.3d 945, 956-57 (¶ 27) (Miss.Ct.App.2009), a court errs in granting summary judgment sua sponte on an issue not raised in the moving party’s motion for summary judgment. The opposing party is entitled to notice and an opportunity to respond. Id. at 956 (¶ 26). As neither summary judgment motion encompassed Samson’s adverse possession claim, he was not on notice to respond, and it was error to grant summary judgment on that issue. We remand Samson’s adverse possession claim for further proceedings.

5. RULE 60(b)

¶ 24. Finally, Samson argues that the chancellor erred in granting summary judgment based on the six-month time bar normally applied under Rule 60(b)(l)-(3). Samson’s complaint was filed under Rule 60(b) as an independent action. Hester v. State, 749 So.2d 1221, 1223 (¶ 12) (Miss.Ct.App.1999), approves this method and notes that under federal precedent, “there is no time limit save laches on when the action may be brought.” (quoting In re Casco Chem. Co., 335 F.2d 645, 652 (5th Cir.1964)).

¶ 25. As we have explained, the 2007 judgment does not bind Samson because he was not properly served with process. He did not have to obtain relief from that judgment under Rule 60(b), so there is no merit to this assignment of error.

¶ 26. However, under the circumstances of this case, the doctrine of laches has clearly attached. Samson was given a hearing on his complaint where the chancellor allowed him to present whatever proof he had of his claims. He was also allowed to explain what evidence existed that would support his allegations of ownership under any theory. Further, the chancellor’s finding on the timeliness of his Rule 60(b) motion was only one basis for her grant of summary judgment. In her final judgment, the chancellor also relied on the fact that Samson had not produced any proof of record title or Cornelius Fred’s illegitimacy. Samson could not meet his burden at the hearing, and summary judgment was properly granted. Although it may have been error to rely on the six-month deadline normally applied under Rule 60(b)(l)-(3), “[i]t is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal.” Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 572 (¶ 2) (Miss 2009).

CONCLUSION

¶ 27. The 2007 judgment does not bar Samson’s claim on the property because he was not properly served. However, Samson’s claims for relief from judgment due to illegitimacy were heard by the chancery court, and summary judgment was properly granted as to those issues because he could not provide evidence to support his claims. The only evidence of record shows that Cornelius Fred is the sole heir-at-law to Cornelius and properly inherited the disputed property. However, it was error to grant summary judgment as to Samson’s adverse possession claim when the issue was not raised in the moving party’s motion for summary judgment. We remand Samson’s adverse possession claim for further proceedings.

¶ 28. THE JUDGMENT OF THE FRANKLIN COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND AP-PELLEE.

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

      . In November, Cornelius Fred transferred his property to Jeremy and Wendy Howell by warranty deed. The Howells then transferred the property to G & G Outdoors by warranty deed in June 2009.

      . Lottie transferred her property to Michael Byrd in May 2009.

      . Samson introduced a warranty deed for nearby property, an old survey showing some of the disputed property, and the letter he filed objecting to the 2007 judgment.

      .Woods responded to Samson’s appeal pro se. Because she did not address the issues presented or cite any legal authority, statute, or parts of the record as required under Mississippi Rule of Civil Procedure 28(a)(6), we will not discuss her contentions. At her request, her son Michael, also a party, appeared on her behalf at oral argument.

      . The 2007 judgment is a judicially recognized settlement agreement that was reached between Woods and Cornelius Fred and announced in court. It remains binding as to those two parties.

      . Though Samson styled his filing as a motion to reconsider, it is actually a motion for relief from judgment under Rule 60(b)(3) since not filed within 10 days of entry of the judgment.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Sharon Thompson FLOWERS, Appellant v. Allen FLOWERS, Appellee.
    No. 2010-CA-01957-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      Oliver E. Diaz Jr., David Neil McCarty, attorneys for appellant.
    Kate S. Eidt, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In September 2010, the Forrest County Chancery Court granted Sharon Thompson Flowers and Allen Flowers a divorce based on irreconcilable differences. The chancery court awarded the parties joint legal custody of the two minor children and awarded primary physical custody of the children to Allen, with Sharon receiving liberal visitation. Sharon now appeals, arguing the chancery court erred by awarding Allen primary physical custody of the children. Sharon asserts the chancery court: (1) improperly sanctioned Sharon for a post-separation liaison; (2) failed to properly analyze the age-and-health-of-the-child factor in its Albright analysis; (3) failed to determine which parent had the best parenting skills and capacity to provide primary child care; (4) failed to properly consider the school record of the children; and (5) placed undue emphasis on a factor of its own creation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

112. Sharon and Allen were married in 2004. They have two minor children together, Charlie and Joseph. At the time of the action, Charlie was ten years old and Joseph was six years old. On November 20, 2008, Allen filed a complaint for divorce on the grounds of adultery, desertion, and habitual cruel and inhuman treatment. He also sought a temporary restraining order (TRO) to prevent Sharon from taking the children to Texas, where her then-boyfriend was living. The petition for a TRO asserted that Sharon planned to take the children out of the state “for a sufficient amount of time to deprive [the chancery court] of jurisdiction over the children and extract a divorce from [Allen].” On November 21, 2008, the chancellor granted the petition for a TRO. The TRO was later dissolved, but the chancellor enjoined removal of the children from the jurisdiction without leave of court.

¶ 8. In a November 26, 2008 temporary order, the chancellor awarded the parties joint legal and physical custody of the minor children. The parties were to rotate custody on a weekly basis. Allen was ordered to pay child support to Sharon each month, the medical expenses for the minor children, and all reasonable expenses associated with the marital home. Because Allen was a practicing attorney in the Hattiesburg, Mississippi area, all of the local chancellors recused, and the Mississippi Supreme Court appointed the Honorable Larry Buffington to serve as chancellor in the case.

¶ 4. On May 6, 2009, the newly appointed chancellor issued a modified temporary order. The order lifted the prohibition on out-of-state travel but prevented the parties from “having the children in the presence of a boyfriend or girlfriend not related by blood or marriage[.]” It also required Allen to pay temporary alimony to Sharon. Finally, the order appointed a guardian ad litem (GAL) to represent the interests of the children.

¶ 5. On December 10, 2009, the parties filed a joint motion seeking a divorce based on irreconcilable differences. They requested that the chancery court determine all matters concerning the minor children. Accordingly, a trial was held to determine the proper custody arrangement.

¶ 6. On January 19, 2010, the trial began. A major issue in determining child custody involved which parent was the primary caregiver to the two minor children. During Sharon’s testimony, she alleged that she was the primary caregiver. According to Sharon, there were many mornings where Allen would leave for work between five and six o’clock in the morning and not return until five or six o’clock in the evening; he worked at least one day on the weekend every week; and he worked at night while she prepared the children for bed. However, she acknowledged that they would alternate reading to the children every night.

¶ 7. Sharon further testified that she did all of the chores around the house including: washing dishes, grocery shopping, cooking, washing and ironing clothes, organizing the house, planning birthday parties, decorating for holidays, and cleaning the house. Sharon noted that she took the children to the doctor and maintained their health and medications. She also stated that she did all of the Christmas shopping and acted as “Santa Clause” and the “Tooth Fairy.” In addition, Sharon asserted that Allen did not care for the children when they were infants. She alleged that he did not feed the children, change their diapers, or wash their clothes. She also claimed he refused to allow the children to sleep in the same room as him when they were infants.

118. Allen’s testimony at trial did not conform with Sharon’s account of the child rearing. While Allen admitted that Sharon handled most of the child-rearing responsibilities when the children were infants, he maintained that he has become more involved as the children have grown older. He testified that he handles ninety percent or more of the children’s education and ninety-nine percent or more of the children’s religious training. Allen also alleged that he is the primary disciplinarian. He testified that Sharon said: “You’re going to have to discipline these boys. I can’t do anything with them.” While Allen acknowledged that Sharon is more “fun” than he is, he maintained that he performs many of the day-to-day parenting requirements. According to Allen, before the separation, Sharon prepared most of the meals and bought most of the clothing; however, the cleaning was fairly evenly split between the two of them, and he did all of the yard work.

¶ 9. Furthermore, Allen claimed that when Charlie began having trouble reading, he addressed the issue. He alleged that Sharon “wasn’t particularly interested in dealing with it.” According to Allen, testing revealed that Charlie has a phonemic awareness deficit, which he described as a problem where “letters don’t mean anything to [Charlie].”

¶ 10. Testimony at trial established that in September 2008, Allen altered his work schedule to accommodate Charlie’s needs. Allen began working from eight until four o’clock so that he could aid in Charlie’s studies each day. Upon discovering Charlie’s problems, Allen had Charlie tested by Deborah Thrash, a psychometrist, and arranged for Charlie to be tutored in the afternoons by his teacher, Elizabeth Lad-nier. Allen also had Joseph tested by a school psychometrist, who determined that Joseph had attention-deficit issues. Allen testified that when he had custody, Charlie was being tutored every day, barring the occasional off-day. He claimed that Sharon took Charlie to tutoring consistently during the school year, but that she did not follow through in the summer.

¶ 11. A second issue at trial was Allen’s use of multiple caregivers after the separation. Allen admitted receiving help with the children from multiple caregivers, including: Jerry Duckworth, Imogene Huffman, Sharon Hurley, Ladnier, and Allen’s uncle, Don Hegwood. Because of his use of multiple caregivers, Sharon alleged the children do not have any structure when they are with Allen. The GAL agreed with this sentiment by testifying: “[I]t is a concern of mine because it does go to the boys — there’s a stability issue as far as who is going to be picking them up, who is going to be dropping them off.” She further stated “it would be better if he had one [caregiver].” Although the GAL recognized that only one caregiver should be used, she did not take this factor into consideration when assessing who should have primary physical custody.

¶ 12. Duckworth was the first caregiver introduced at trial. She testified that even before the separation, Allen asked her to be a “Christian role model” for the children. Subsequently, in 2007, Duckworth began to mentor the children by engaging in activities with them such as attending baseball games, going to the zoo, and visiting nursing homes. She asserted that Sharon was accepting of the relationship and that she and Sharon had become friends. Duckworth testified that from July 2008 through October 2008, a period of time before the separation, she was at the Flowerses’ house three to four weekends a month. Since the separation, she has “been there to assist [Allen] with the children or watch them while he worked.” She also testified that in the past she has helped Allen purchase Christmas presents.

¶ 13. Huffman was the next caregiver to testify at trial. She stated she kept the children on various occasions both prior to and after the separation. According to her description of her role, there was no set routine for when she cared for the children, but she mostly watched the children when they were unable to attend school due to illness.

¶ 14. Ladnier also testified at trial. Sharon asserts Ladnier is one of the children’s caregivers. However, Ladnier insisted that she is a tutor, which is quite different from a caregiver. She stated that she tutors Charlie on a consistent basis during the week. Ladnier did admit to taking Charlie to a restaurant and the movies as a reward for his hard work during tutoring.

¶ 15. A third issue at trial was Sharon’s relationship with Chris Scharbano. Allen testified that during the marriage Sharon had an affair with Scharbano, which continued after their separation. He alleged Scharbano had problems with alcoholism, and Sharon referred to - Scharbano as “my little drunk friend.” Sharon claimed the relationship was brief and that the children were never alone around Scharbano. In fact, according to Sharon, they had only been around him at one birthday party and one Christmas party. While the GAL stated that to her knowledge the affair had not adversely affected the children, Sharon had lied up until trial regarding the relationship. Hence, the GAL testified: “[Sharon] denied to me that she even had a relationship with [Scharbano], up until today, so there — I have no knowledge that it’s affected the children.” Accordingly, there was no real review before the chancery court regarding the effect of her relationship on the children.

¶ 16. During the trial, several experts testified regarding the parties’ mental states. Dr. Stanley G. Smith was appointed as an expert to evaluate the children. He testified that before assessing the children he assessed the parents, but was unable to complete the process with Sharon. Nonetheless, -he evaluated the children. He testified that Joseph had “anxiety, depression, anger, aggression, [and] post-traumatic stress issues.” Dr. Smith also found Joseph has attention-deficit disorder. According to Dr. Smith, when Joseph had anger issues in the past, Allen would “immediately intercede,” whereas Sharon would try to “smooth it over.” When Dr. Smith tested Charlie, he determined Charlie is hyperactive, aggressive, has some depression, and is “obviously dyslexic.” Dr. Smith acknowledged that “both children absolutely adore both parents”; however, he found that the joint-custody arrangement was causing considerable problems for the children. Based on the structure Allen provides, Dr. Smith opined he was the parent best suited for primary physical custody.

¶ 17. Dr. William Criss Lott was appointed to conduct psychological evaluations of the adult parties. With regard to Sharon, Dr. Lott stated that she showed signs of histrionic personality traits. He found Allen had an elevation on the compulsive scales. According to Dr. Lott, these traits have both positive and negative aspects.

¶ 18. Dr. Beverly Stubblefield was the final expert to testify regarding the parties psychological evaluations. She found that Sharon had borderline personality disorder, passive-aggressive personality traits, histrionic traits, and antisocial traits. Dr. Stubblefield also found that Allen had passive-aggressive personality traits. She did not discuss how these traits affected the children.

¶ 19. At trial, the GAL provided her opinion regarding which parent should have custody. In her initial report, the GAL had recommended that Allen receive physical custody and Sharon have supervised visitation; however, the GAL later found supervised visitation unnecessary. In conducting an Albright analysis, the GAL determined five factors favored Allen, one factor favored Sharon, and all other factors were neutral. The GAL found the health and sex of the children favored Allen because both of the children are male. The continuity-of-care factor favored Sharon because of her status as the stay-at-home parent during the marriage. Based on the reports from the doctors, the GAL concluded the physical and mental health of the parties favored Allen. The moral-fitness-of-the-parents factor also favored Allen because of Sharon’s affair with Scharbano. According to the GAL, the home, school, and community record favored Allen because he was continuing to reside in the marital home; thus, the children would remain in their current school district. Allen is also the parent who deals with Charlie’s tutoring, and Allen is more involved in both children’s schooling. Because Allen is keeping the marital residence and maintains stable employment, the GAL stated the stability of the home environment and employment of each parent also favored Allen. Ultimately, based on these factors, the GAL recommended that the parties share joint legal custody and that Allen be granted primary physical custody, with Sharon receiving visitation rights.

¶20. On September 1, 2010, the chancery court granted the divorce based on irreconcilable differences. With regard to the Albright factors, the chancellor found: seven factors were neutral; the continuity-of-care factor favored Sharon because she stayed home with the children during the marriage; the health-and-sex-of-the-child factor favored Allen because both children are male; the moral-fitness factor favored Allen because of Sharon’s affair; the factor regarding the home, school, and community record favored Allen because the children are of school age and have been attending school in the marital home’s district; and the final factor for other relevant considerations favored Allen based on Charlie’s unique tutoring situation. Accordingly, the parties were to share joint legal custody, and Allen was awarded primary physical custody. Sharon received visitation every other weekend and during the summer months when the children were not in school. During the summer months when Sharon had the children, Allen was entitled to custody every other weekend and one week of vacation. The chancery court also ordered detailed custody arrangements for various holidays.

¶ 21. On appeal, Sharon argues the following regarding the chancellor’s decision: (1) the chancery court improperly sanctioned Sharon for a post-separation liaison; (2) the chancery court failed to properly analyze the age-and-health-of-the-child factor; (3) the chancery court failed to determine which parent had the best parenting skills and capacity to provide primary child care; (4) the chancery court failed to properly consider the school record of the children; and (5) the chancery court placed undue emphasis on a factor of its own creation.

DISCUSSION

If 22. “[I]n custody cases, [appellate courts] are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed.” Hensarling v. Hensarling, 824 So.2d 583, 587 (¶ 8) (Miss.2002) (citations omitted). “Like the chancellor, our polestar consideration must be the best interest of the child. However, it is not our role to substitute our judgment for his.” Id.

¶ 23. The Mississippi Supreme Court has announced the following factors for a chancellor to consider when making a determination regarding child custody:

(1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.

White v. White, 26 So.3d 342, 351 (¶ 28) (Miss.2010) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)). While the chancellor should consider the above factors in determining child custody, “the polestar consideration in child custody cases is the best interest and welfare of the child.” Id. The chancellor’s determination regarding five of the Albright factors is at issue in this case.

I. Moral Fitness of Parents

¶ 24. In determining that the moral-fitness-of-the-parents factor favored Allen, the chancery court stated: “[A]l-though both parties expressed questions as to the other having affairs, the evidence presented at trial by the admission of Sharon having had an affair after the separation of the parties, provides more than speculation. Based on this, this factor favors the father.” Sharon argues the trial court improperly sanctioned her for a post-separation liaison.

¶ 25. As support for her argument, Sharon cites Carr. v. Carr, 480 So.2d 1120 (Miss.1985). In Carr, the chancellor found both parents fit to have custody, but ultimately awarded physical custody to the father based on the mother’s adultery. The Mississippi Supreme Court held: “[T]he fact of adultery alone does not disqualify a parent from custodianship!;,] but ... the polestar consideration in original custody determinations is the best interest and welfare of the minor child.” Carr, 480 So.2d at 1121. However, the supreme court nonetheless upheld the chancellor’s decision stating: “It is apparent that the analysis considered adultery as but one factor in the overall consideration.” Id. at 1123.

¶ 26. Furthermore, the supreme court noted that the “moral fitness of a parent encompasses the charge of adultery.” Id. While acknowledging adultery as an action to consider under the moral-fitness prong, the supreme court reasoned the adultery “may be an unwholesome influence and an impairment to the child’s best interest, but on the other hand, may have no effect.” Accordingly, while adultery may be considered, the appropriate consideration is its effect on the children.

¶ 27. In the instant case, the chancellor found four Albright factors favored Allen and one Albright factor favored Sharon. Thus, the adultery was but one factor in the overall consideration. Even if the chancellor had not found the moral-fitness-of-the-parents factor favored Allen, he nonetheless would have had three factors in his favor. Therefore, Sharon’s adultery was not the decisive factor regarding custody.

¶ 28. Moreover, while the GAL did not find the affair had an adverse impact on the children, Sharon’s deception regarding the affair prevented the GAL from conducting an adequate inquiry into the matter. Although the GAL could not provide an opinion on the matter, other testimony established the affair could have had an adverse impact on the children. Allen testified that Sharon made several trips to Texas, where Scharbano lived, while leaving the children at home. One trip lasted nine days. Allen also testified that Sharon became increasingly distracted by texts and calls, even going outside for long periods of time and hiding in the home. Accordingly, we find the chancery court was not manifestly wrong or clearly erroneous, and this issue is without merit.

II. Age Factor/Sex-and-Health Factor

¶ 29. The chancery court found the age-of-the-child factor was neutral “in that both children are now in school.” With regard to the sex-and-health-of-the-child factor, the chancery court stated: “Both children are male children[,] and therefore this factor favors the father.” Sharon argues the chancery court erred by finding the sex-and-health factor favored Allen solely on the basis of the children’s gender. She further argues the two factors should have been grouped together as one factor, instead of treating them as two separate factors.

¶ 30. To begin, it is correct that many cases group “age, sex, and health” together into one Albright factor. See, e.g., Hutchison v. Hutchison, 58 So.3d 46, 48 (¶ 7) (Miss.Ct.App.2011); Brumfield v. Brumfield, 49 So.3d 138, 144 (¶ 20) (Miss.Ct.App.2010); Woodham v. Woodham, 17 So.3d 153, 156 (¶ 9) (Miss.Ct.App.2009). However, in Albright the supreme court actually separated the two factors and stated: “The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child.... ” Albright, 437 So.2d at 1005. Additionally, there are a variety of cases that continue to divide the factors into two separate categories. See, e.g., Forthner v. Forthner, 52 So.3d 1212, 1215 (¶ 10) (Miss.Ct.App.2010); Swiderski v. Swiderski, 18 So.3d 280, 285 (¶ 16) (Miss.Ct.App.2009); C.W.L. v. R.A., 919 So.2d 267, 272 (¶ 19) (Miss.Ct.App.2005). Thus, either approach is an acceptable analysis of the Albright factors.

¶ 31. Sharon also contends that because she was the primary caretaker for the children’s health, the health factor should have been found in her favor. However, there was ample evidence that Allen was the parent who maintained the children’s mental health by having them tested and maintaining a tutoring schedule. Thus, we agree with the chancery court that this factor favors neither party.

¶ 32. Sharon’s argument that the chancellor improperly analyzed the sex factor is also without merit. The factor considers the “sex, and health of the children.” Thus, when the health aspect is neutral, the child’s gender in relation to that of the parent is clearly relevant. Furthermore, this Court has upheld a chancellor’s determination on this factor based solely on gender. See Reed v. Fair, 56 So.3d 577, 582 (¶ 22), 584 (¶ 36) (Miss.Ct.App.2010). Accordingly, we find the chancellor was not manifestly wrong or clearly erroneous in his determination that this factor as a whole favored Allen.

III. Parenting Skills and Capacity to Provide Primary Child Care

¶ 33. The chancery court found this factor favored neither party because “both [parties] have expressed the desire and willingness to provide for the minor children.” Sharon argues the chancery court failed to determine which parent has the capacity to provide primary care, thus ignoring a major component of the analysis as required by Albright. She further claims the chancery court ignored evidence presented at trial when making this determination.

¶ 34. Sharon asserts the chancellor should have found this factor in her favor because, prior to the separation, she was a stay-at-home mother; she acted as “Santa” and the “Tooth Fairy”; and she provided the primary child care. She further claims her current job as a nanny would allow her to continue to parent the children while at work. In contrast, she claims Allen’s use of multiple caregivers and his work schedule establish that, while he may have the willingness, he does not have the actual capacity to provide primary childcare.

¶ 35. There is no evidence in the record to suggest that Allen does not have the capacity to provide primary care. While both parties acknowledge that Sharon was the primary caregiver when the children were infants, Allen’s role in the child rearing has increased as the children have grown older. He is actively involved in the children’s religious training and schooling and is the primary disciplinarian. Moreover, although Allen admitted to using various caregivers, the facts establish that many of those individuals were used prior to the separation by both parties. In fact, Sharon has also used various caregivers since the separation. Finally, the parties shared joint custody of the children for nearly two years with no issues regarding Allen’s capacity to care for the children. We find the chancery court’s decision was not manifestly wrong or clearly erroneous. Thus, this issue is without merit.

IV. Home, School, and Community Record of the Children

¶ 36. The chancery court found this factor favored Allen because the children are of school age and Allen’s home is in the children’s school district. Sharon argues the chancery court failed to determine whether the children would actually have to change school districts if she were awarded primary custody or whether moving school districts would negatively impact the children. She further argues the chancery court did not consider all three factors of home, school, and community record in making its determination, but only considered the school record.

¶ 37. Although Sharon argues the chancery court failed to make a proper determination regarding the school district her children would attend if she received primary custody, she made it almost impossible for the chancery court or GAL to do so. It was not until the fourth day of trial that Sharon informed the chancery court where she would be living. When she did inform the chancery court where her new residence was located, it was determined that the home was, in fact, outside of the children’s current school district. While Sharon’s living arrangement remained uncertain, Allen remained in possession of the only house in which the children had ever resided. Furthermore, the chancery court did not address the community record of the children because the GAL reported the children were not very active outside of school and church; therefore, there was no community record to consider. Accordingly, this issue is without merit.

V. Other Factors Relevant to the Parent-Child Relationship

¶ 38. The chancery court considered Charlie’s unique tutoring situation under the final factor — “other factors relevant to the parent-child relationship.” Because Charlie requires consistent tutoring and Sharon did not take him to tutoring during the summer months, the chancellor found this factor favored Allen. Sharon argues this should have been considered under a part of the factor for the child’s home, school, and community record; therefore, the chancery court improperly split that consideration into two factors, which favored Allen. She further argues there was not sufficient evidence to establish that Charlie required daily tutoring.

¶ 39. The chancellor’s analysis under this factor focused on Sharon’s refusal to adhere to the chancery court’s order requiring the parties to follow the recommendations of school personnel concerning tutoring. The chancery court noted that Sharon admitted her failure to take Charlie to tutoring during her weeks of custody in the summer. Thus, while Sharon claims that this consideration should fall under the child’s home, school, and community record, the issue is not his need for tutoring, but Sharon’s refusal to follow court orders and take Charlie to tutoring. Accordingly, we find Charlie’s unique tutoring situation was properly analyzed under “other factors relevant to the parent-child relationship.”

¶ 40. Furthermore, there was sufficient evidence to establish Charlie’s need for tutoring. Allen and Ladnier both testified regarding Charlie’s struggles. Allen also had Charlie tested by a psy-chometrist, who determined Charlie needed help. Additionally, Dr. Smith testified that Charlie was “obviously dyslexic.” Thus, the evidence clearly establishes the need for tutoring. We find this issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR, J„ NOT PARTICIPATING.

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).

      . Hurley and Hegwood did not testify at trial.

      . It should be noted that in some current case law, the age-of-the-child and the health-and-sex-of-the-child factors are grouped together into one factor. Hutchison v. Hutchison, 58 So.3d 46, 48 (¶ 7) (Miss.Ct.App.2011). Here, the chancellor separated the factors; thus, he considered twelve factors under the Albright analysis. This will be further discussed later in the opinion.


author: CARLTON, J.,

text:
    Gail M. ANTHONY, Appellant v. The TOWN OF MARION, Mississippi, and the Mississippi Municipal Workers’ Compensation Group, Appellees.
    No. 2011-WC-00172-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      Carrie Johnson, Clarksdale, attorney for appellant.
    Betty B. Arinder, Camille Henick Evans, Ridgeland, attorneys for appellees.
    Before IRVING, P.J, BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Gail Marie Anthony appeals the Lauderdale County Circuit Court’s judgment affirming the decision of the Mississippi Workers’ Compensation Commission (Commission), which denied workers’ compensation benefits to Anthony. We find substantial evidence to support the Commission’s decision and affirm.

FACTS

¶ 2. Anthony worked as a police officer for the Town of Marion from 1997 until she was discharged in early 2007. Anthony testified that on May 2, 2006, she was sent to the firing range by Ben Langston, the Chief of the Marion Police Department, to qualify with her handgun and shotgun. On the first day of the event, Anthony successfully qualified with the handgun, but she failed to meet the qualifications for the shotgun. Anthony was instructed to stay at the firing range and make another attempt. Anthony failed to qualify on the second attempt. When Anthony informed Chief Langston of her failure to qualify with the shotgun, Chief Langston issued her ammunition so that she could practice with the shotgun at home. Anthony testified that she told Chief Langston that using the shotgun had hurt her arm. Chief Langston, however, refuted this allegation by claiming that Anthony never mentioned getting hurt at work to him.

¶ 3. On the morning of May 3, 2006, Anthony reported to Chief Langston that the shotgun issued to her by the Town of Marion would not fire. Chief Langston verified that the shotgun issued to Anthony no longer functioned properly, and he gave her paperwork to purchase a new shotgun. Later in the afternoon on May 3, 2006, Anthony went back to the firing range and qualified with the new shotgun.

¶ 4. On May 16, 2006, Anthony reported to the Family Medical Clinic with complaints of numbness in the right shoulder, arm, and leg. Anthony also reported a history of occasional numbness in her lungs and swelling in her hands. Anthony was assessed with “uncontrolled hypertension [and] [v]ery worrisome history of numbness in the right arm and leg,” and was referred to the emergency room for further evaluation. Anthony failed to report her recent use of a shotgun at the qualifying events to her treating physician at the clinic.

¶ 5. Anthony returned to the Family Medical Clinic on May 31, 2006, with symptoms of headaches, face and hand swelling, and occasional numbness in the leg. Anthony was assessed with hypertension and medical non-compliance, and she was ordered to return to the clinic on the next Monday for a follow-up appointment. On June 5, 2006, Anthony returned to the clinic with symptoms of numbness on her right side. Dr. Marc Fisher, Anthony’s treating physician, instructed Anthony to continue taking her blood pressure medication and to return to the clinic in one month for a follow-up visit. Anthony failed to mention any type of work injury during these medical visits.

¶ 6. On June 13, 2006, Anthony returned to the clinic with symptoms of pain and weakness to the right side of her neck radiating down her right shoulder and arm. Dr. Fisher referred Anthony for a MRI. Again, Anthony failed to mention any type of work-related accident during this visit. Then, on June 15, 2006, Anthony underwent the MRI, which showed a posterior right lateral disc herniation and bony spurring at the C5-6 level, causing moderate distortion of the cervical cord, and a posterior right paracentral disc herniation and bony spurring at the C4-5 level. Anthony was referred to Dr. David Malloy, a neurosurgeon.

¶ 7. On August 4, 2006, Anthony saw Dr. Malloy for complaints of neck pain, right upper extremity pain, and right lower extremity pain with numbness. Anthony reported to Dr. Malloy that around the first of June 2006, she shot a shotgun that kicked, and she began having increased pain in the right side of her neck, in her right arm, and down the right lower extremity. Anthony also reported that she had a similar episode one year prior, but was never evaluated. Dr. Malloy diagnosed Anthony with degenerative disc changes in the cervical spine with a herniation of disc material at the C5-6 level.

¶ 8. On September 11, 2006, Dr. Malloy sent Anthony to physical therapy for her cervical problems. Then, on October 23, 2006, Anthony was seen again by Dr. Mal-loy for complaints of right upper extremity pain and right lower extremity pain. Dr. Malloy recommended Anthony undergo an anterior cervical discectomy and fusion at the C5-6 level. Anthony had the surgery on November 1, 2006. Dr. Malloy released Anthony to return to work on January 29, 2007.

¶ 9. On December 28, 2006, Elvis Hudson, the Mayor of the Town of Marion, wrote a letter to Anthony recognizing her tentative return to work on January 5, 2007, and requesting Anthony provide Chief Langston with a release to return to work from her treating physician. Mayor Hudson’s letter also informed Anthony that she would have to return to her full-duty position, as there were no light duty positions available in the police department. Then, on January 10, 2007, Mayor Hudson and Chris M. Falgout, an attorney for the Town of Marion, wrote a letter to Anthony informing her that the Marion Board of Alderman had voted to extend her medical leave for a period of thirty days from the date of the letter. The letter also noted that Anthony would have to provide the Town of Marion with a release from her treating physician stating that she could return to full-duty work.

¶ 10. On February 13, 2007, the Marion Board of Alderman voted to terminate Anthony’s employment. On February 15, 2007, Mayor Hudson wrote Anthony a letter informing her of the Board’s decision. According to Chief Langston, Anthony failed to keep him advised of her medical condition or when she could return to work, and Anthony was terminated for not communicating with him about her intentions of returning to work.

¶ 11. Anthony applied for disability-based retirement benefits from the Mississippi Public Employees Retirement Systems (PERS) and subsequently was awarded duty-related disability benefits. However, Anthony was denied workers’ compensation benefits, as set forth below, for failing to meet her burden of proof to show a compensable work-related injury.

PROCEDURAL HISTORY

¶ 12. Anthony claimed that she sustained a herniated cervical disc following the May 2006 weapons-qualifying event. After reporting her health issues, her employer, the Town of Marion, and its insurance carrier, Mississippi Municipal Workers’ Compensation Group, refused to provide benefits to Anthony under the Mississippi Workers’ Compensation Act. Subsequently, Anthony filed a petition to controvert with the Commission alleging that she had sustained injuries to her shoulder, neck, arm, wrist, and leg while qualifying at the firing range as required by her employer, the Town of Marion. A hearing was held before an administrative judge (AJ). Anthony and Langston were the sole witnesses at the hearing, and Dr. Malloy’s deposition testimony was offered as one of the sixteen exhibits admitted into evidence. Following the hearing, the AJ denied Anthony’s claim for workers’ compensation benefits, finding as follows:

Claimant has not met her burden of proof that she had a work accident in May 2006, and injured her arm, shoulder, neck, and leg. The preponderance of the credible evidence showed that Claimant did not report a work-related injury until August 2006, three months after the alleged incident occurred. This was also after Claimant was informed that she had a herniated cervical disc. The medical evidence was equivocal and insufficient to sustain Claimant’s allegation of work-related injuries. Therefore, Claimant’s claim for workers’ compensation benefits for injuries to her arm, shoulder, neck, and leg from an alleged work accident in May 2006 is hereby denied.

Anthony appealed the AJ’s decision to the Commission, which affirmed the AJ’s decision. Anthony appealed the Commission’s decision to the Lauderdale County Circuit Court. The circuit court affirmed the Commission’s denial of benefits. Anthony now appeals.

STANDARD OF REVIEW

¶ 13. This Court must defer to an administrative agency’s findings of fact if there is “even a quantum of credible evidence which supports the agency’s decision.” Bryan Foods, Inc. v. White, 913 So.2d 1003, 1007 (¶ 16) (Miss.Ct.App.2005) (citing Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997)). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless [the] decision was arbitrary and capricious.” Id.

¶ 14. The Mississippi Supreme Court has stated:

We do not sit as triers of fact; that is done by the Commission. When we review the facts on appeal, it is not with an eye toward determining how we would resolve the factual issues were we the triers of fact; rather, our function is to determine whether there is substantial credible evidence to support the factual determination by the Commission.

Id. at 1007-08 (¶ 17) (quoting S. Cent. Bell Tel. Co. v. Aden, 474 So.2d 584, 589 (Miss.1985)). Stated differently, we will reverse the Commission’s order only if we find that order clearly erroneous and contrary to the overwhelming weight of evidence. Id. (citing Myles v. Rockwell Int’l, 445 So.2d 528, 536 (Miss.1984)). “An appellate court may not simply reweigh the evidence and substitute its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported.” Id. (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)).

¶ 15. “When, as here, the Commission accepts the [AJ’s] findings and conclusions, we review those findings and conclusions as those of the Commission.” Mabry v. Tunica County Sheriff’s Dep’t, 911 So.2d 1038, 1042 (¶ 12) (Miss.Ct.App.2005).

DISCUSSION

I. Whether the circuit court erred in affirming the order of the Commission.

¶ 16. Anthony argues that the circuit court erred in affirming the Commission’s ruling. Specifically, Anthony asserts that the circuit court erred by: (1) failing to consider the remedial nature of the workers’ compensation statutes and the broad interpretation they are to be given; (2) rejecting that the Commission’s order was arbitrary and capricious, when the record reveals that the Town of Marion admitted to a third party that Anthony sustained a work-related injury that caused disability; (3) finding that the Commission did not err in basing its denial of benefits on Anthony’s failure to immediately report the injury; (4) concluding that the Commission properly weighed the evidence before it; and (5) finding that the Commission properly concluded that the medical evidence was not sufficient to show a work-related injury.

¶ 17. “It has long been established that whether the evidence is sufficient is the only factual determination appellate courts have the right to decide. It is the duty of the circuit court to affirm the Commission’s findings if they are supported by substantial evidence or are not manifestly wrong.” Bryan Foods, 913 So.2d at 1010 (¶ 31) (citing Fin. Inst. Ins. Serv. v. Hoy, 770 So.2d 994, 997 (¶ 6) (Miss.2000)). Keeping this standard in mind, we will review Anthony’s assignments of error pertaining to the findings of the Commission only.

II. Whether the order of the Commission is supported by substantial evidence.

¶ 18. To establish a prima facie case of disability, the claimant bears the burden of showing by a fair preponderance of the evidence: “(1) an accidental injury; (2) arising out of and in the course of employment; and (8) a causal connection between the injury and the claimed disability.” Mabry, 911 So.2d at 1042-48 (¶ 13) (citing Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994)). An injury arises out of employment when some causal connection exists between the employment and the injury. Id. at 1043 (¶ 13). Once a claimant establishes a prima facie case of disability, the burden of proof shifts to the employer. Id. Additionally, “[u]nless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment. As with any fact-finder, the Commission is entitled to rely upon the evidence and reasonable inferences.” Smith v. Tronox, LLC, 76 So.3d 774, 778 (¶ 14) (Miss.Ct.App.2011).

A. PERS

¶ 19. Anthony argues that the substantial evidence does not support the Commission’s denial of her claim of a com-pensable work-related injury. In support of this contention, Anthony points out that the Commission failed to consider that Anthony was approved by PERS for duty-related benefits for the injury. Anthony asserts that proof that she was approved for these benefits by PERS is persuasive evidence that her injury occurred during the course and scope of employment with the Town of Marion.

¶ 20. After reviewing the record, we find no merit to this argument. As acknowledged by the Town of Marion in its appellate brief, PERS does not supplant the authority of the Commission in determining whether a claimant has proven a compensable work-related injury. In fact, the Mississippi Supreme Court has stated that “PERS law is separate and distinct from workers’ compensation law.” Pub. Employees’ Ret. Sys. v. Stamps, 898 So.2d 664, 675 (¶ 40) (Miss.2005). Further, “[t]he statutory requirements for hurt-on-the-job disability benefits are separate and distinct from those for workers’ compensation benefits. One does not depend on the other.” Brinston v. Pub. Employees’ Ret. Sys., 706 So.2d 258, 260 (¶ 10) (Miss.Ct.App.1998). This issue is without merit.

B. Admission of Liability

¶21. Anthony also argues that the Commission’s decision was arbitrary and capricious because the record reveals that the Town of Marion admitted to a third party that Anthony sustained a work-related injury that caused disability. Specifically, Anthony refers to the October 2006 questionnaire completed by Charlotte Rasco, the town clerk of Marion. The questionnaire related to Anthony’s application for short-term disability benefits under an AFLAC policy that she had purchased. The application inquired whether the injury producing disability arose from a workplace accident. The response checked was ‘Tes.” The application also noted that Anthony became unable to work in June 2006.

¶ 22. In Reynolds v. McGehee, 220 Miss. 750, 753, 71 So.2d 780, 782 (1954), the Mississippi Supreme Court stated:

In the absence of opposing evidence or in the light of the surrounding circumstances or other evidence in the case, an admission against interest may be sufficient to establish the fact admitted, or the cause of action or liability or defense resting on proof of such fact, and it has been considered that cogent or full and unquestioned proof is required to overcome the effect of a deliberate admission.

(Emphasis added). This is not a case in which an “absence of opposing evidence” exists. In this case, obvious opposing evidence was presented at the hearing. The evidence presented indicated that Rasco denoted on an October 2006 AFLAC Accident Claim Form that Anthony was unable to work due to a work-related injury. Contradictory evidence was also presented of a “Continuing Disability Claim Form” submitted to AFLAC in January 2007, also signed by Rasco, which did not indicate that Anthony’s injury was work related. The follow-up form asked, “Was this disability caused by an accident that occurred at the workplace?” Rasco did not place a check mark in either the “yes” or “no” box. Furthermore, at the hearing before the AJ, the parties stipulated that if Rasco was called to testify, “her testimony would materially corroborate and be cumulative to Chief Langston’s testimony.” Chief Lang-ston testified that no conversation occurred where Anthony provided notice of her claimed injury to himself and Rasco; thus this evidence rebutted the alleged admission. This issue is without merit.

C. Failure to Report

¶ 23. Anthony argues that the Commission erred in basing its denial of benefits on Anthony’s failure to report the injury to the Town of Marion immediately after its occurrence, instead waiting three months before reporting. Anthony cites Bryan Foods, Inc. v. White, 913 So.2d 1003 (Miss.Ct.App.2005), in suggesting that a claimant’s failure to notify the employer of an injury is not a sufficient basis for denying benefits. We find White to be distinguishable from the case at hand.

¶ 24. In White, the claimant’s initial injury was reported to the employer’s nurse several days after the accident. Id. at 1006 (¶ 4). The nurse told the claimant that “his neck pain could not possibly be related to his work,” and his employer, Bryan Foods, would not compensate him. Id. After consulting with two physicians and one neurosurgeon, the claimant again reported the injury to the employer’s nurse. Id. at (¶ 7). The nurse once again told the claimant that “his injury could not have been work-related and that he would have had to have ‘fallen from a two-story building to mess his neck up.’ ” Id. The claimant in White relied upon the observations of his employer’s nurse in not relating his injury to a work-related accident. Id. at (¶ 5).

¶ 25. Unlike White, Anthony does not claim anyone from her employment or her medical providers stated that her injury could not be work-related thus causing a delay, like that in White, in reporting her injury. Rather, Anthony asserts that she told Chief Langston her arm hurt in May 2006 and that she then failed to report her injury as work related to her employer or her medical providers until she consulted with Dr. Malloy, a neurosurgeon, in August. Anthony testified that upon returning from the shooting range during the weapons-qualification training, she informed Chief Langston that she believed the shotgun injured her arm because it was hurting. The record shows, however, that Chief Langston disputed Anthony’s testimony, testifying that he did not recall having such a conversation with Anthony. The record also shows that Anthony visited her treating physician at the Family Medical Clinic several times before reporting or mentioning the shotgun incident to Dr. Malloy, her neurosurgeon, whom she saw after the MRI was performed and after she was diagnosed with the herniated disc.

¶ 26. Furthermore, the record reflects that the decision of the Commission was not based solely upon Anthony’s failure to report her injuries for three months. Rather, it was based on the totality of the circumstances. The Commission also considered that Anthony reported her injuries after she was diagnosed with a herniated disc, and that the medical evidence was equivocal and insufficient to sustain her claim of a work-related injury. Dr. Malloy testified that the pain related to shotgun recoil would have developed within a week, and it would be unusual for such pain to take twelve or thirteen days to develop. This issue is without merit.

III. Weight & Sufficiency of the Evidence

¶ 27. Anthony argues that the Commission did not properly weigh the evidence, and that the Commission erroneously concluded that the medical evidence was insufficient to prove a compensable work-related injury. Anthony asserts that Dr. Malloy’s opinion was that to a reasonable degree of medical certainty, the shotgun recoil produced Anthony’s injury, and that he had no evidence suggesting or indicating a cause for her injury other than shotgun recoil. Further, Anthony alleges that Dr. Malloy’s opinions were not contradicted by competing medical opinions, nor did the Town of Marion introduce evidence of another cause for Anthony’s injury.

¶ 28. This Court has recognized that

[t]he injured employee bears the general burden of proof of establishing every essential element of his or her claim by a preponderance of the evidence that: an accidental injury occurred arising out of and in the course of employment, a disability is suffered, and a causal connection between the work injury and the claimed disability exists.

Airtran v. Byrd, 953 So.2d 296, 299 (¶ 3) (Miss.Ct.App.2007). “The causal connection between the claimant’s injury and disability must be proven with competent medical proof and based upon a reasonable degree of medical probability.” Id. (emphasis added).

¶ 29. In this case, after reviewing Dr. Malloy’s testimony, we do not find that Dr. Malloy concluded to a reasonable degree of medical certainty that the shotgun recoil produced Anthony’s injury. In fact, Dr. Malloy testified that he would have expected Anthony to become symptomatic fairly quickly, “within the first week.” Dr. Malloy did testify that, in a hypothetical sense, the discharge of a firearm would be a logical explanation of the disc herniation, and based on the information provided to him by Anthony, he felt the two were related. However, Dr. Malloy also testified that if the incident occurred on May 2, 2006, and she first reported it on May 16, 2006,' then given the two-week delay, it was more probable than not that the symptoms were not related to the shotgun recoil.

¶ 30. Viewed in its entirety, Dr. Mal-loy’s testimony fails to support Anthony’s allegation that her injury resulted from a work-related incident. Therefore, we find no error in the Commission’s determination that the medical evidence was equivocal and insufficient to sustain Anthony’s claim of a compensable work-related injury. Furthermore, while Anthony argues the Commission’s decision was erroneous because the Town of Marion failed to provide testimony to contradict Dr. Malloy’s opinion, we recognize that Anthony, not the Town of Marion, holds the burden of proof to establish the elements of her claim for workers’ compensation benefits. See id. Anthony failed to meet this burden.

CONCLUSION

¶ 31. Based upon our review of the record, we cannot say that the Commission erred in finding that Anthony faded to prove, by a preponderance of the evidence, that she had sustained a compensable work-related injury. Our examination of the record leads us to the conclusion that the Commission’s findings were adequately supported by competent substantial evidence. Therefore, we affirm the judgment of the circuit court that affirmed the Commission’s denial of workers’ compensation benefits to Anthony.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.

      . Anthony claims that after her medical visit with Dr. Malloy, she advised Rasco that she had sustained a work-related injury, and Ras-co informed Anthony that if she made the workers' compensation claim, she would have to repay "all of the pay that she had received.” Anthony argues that Rasco apparently attempted to discourage her from pursuing the workers’ compensation claim and made an erroneous representation because sick and vacation pay does not constitute salary in lieu of compensation.

      . Anthony sought medical care on the following dates without a complaint or report of the shotgun incident: May 16, May 31, June 13, and June 15.

      . Because we find issues IV and V raised by Anthony to be interrelated, we will discuss them together in our analysis.


author: IRVING, P.J.,

text:
    Edna Blanchard DAVIDSON, Mary Alice Blanchard, Michael Blanchard, Elizabeth Blanchard, Ferdinand Blanchard, Earnest Blanchard, Jessie Blanchard, Mary A. Blanchard Evans, Sherry Blanchard, Billy Blanchard, Bryant Elbert Blanchard, Dorothy Jean Blanchard, Walter Blanchard, III, Catherine Heard, Narhan E. Bafford, Jessica Carouthers Clifton, Tina Blanchard, Gracie Harrell Polk, Richie Lee Cunningham, Jessica Cunningham, Ezell Brandon, Leon Brandon, Willie Charles Brandon, Yvonne Mitchell Blanchard, Shirley Moore Gadson and Mary Blanchard, Appellants v. TARPON WHITETAIL GAS STORAGE, LLC, Appellee.
    No. 2010-CA-01655-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.

      James Jeffrey Lee, Bradley J. Blalock, attorneys for appellants.
    J. Jeffrey Trotter, Michele McCain, Ridgeland, attorneys for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On July 29, 2009, Tarpon Whitetail Gas Storage, LLC (Tarpon) filed a complaint to acquire by eminent domain an easement to store natural gas in a depleted gas reservoir 3,400 feet below ground. The appellants, whom we will refer to collectively as the “Blanchards” for purposes of this opinion, each own a fractional interest in a twenty-five-acre tract of land above the reservoir. Following a trial in the Monroe County Special Court of Eminent Domain, a jury awarded the Blanch-ards $13,000 as just compensation for the partial taking of the easement.

¶ 2. Feeling aggrieved, the Blanchards appeal and raise several issues, which we have consolidated for clarity: (1) whether the trial court failed to abide by the procedural safeguards associated with a “quick take” proceeding, (2) whether the trial court erred in admitting Tarpon’s statement of values and testimony from its real-estate appraiser, (3) whether the trial court erred in refusing to permit the Blanchards’ statement of values or their testimony regarding property value, (4) whether the trial court erred in allowing Tarpon to amend its pleadings, (5) whether the trial court erred in denying the Blanchards’ motion for a continuance, (6) whether the trial court erred in denying the Blanchards’ motion for a jury view of the property, and (7) whether the trial court erred in “overturning the jury verdict.”

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Tarpon seeks to develop a natural-gas-storage facility at the Aberdeen Gas Storage Field located in Monroe County, Mississippi. The storage field encompasses 4,840 acres of land and contains a depleted gas reservoir 3,400 feet below the surface. Tarpon plans to use the depleted reservoir as a natural-gas-storage facility. The facility will consist of injection/withdrawal wells, salt-water-disposal wells, and pipelines interconnecting with an interstate pipeline. However, none of the facility’s pipelines or wells will be located on the Blanchards’ property.

¶ 5. Each of the Blanchards owns a fractional interest in a twenty-five-acre tract of land located -within the storage field. Tarpon attempted to lease the right to store gas in the portion of the depleted gas reservoir under the Blanchards’ property. However, Tarpon was unable to reach an agreement with the Blanchards and, as a result, filed an eminent-domain action. Soon after, Tarpon filed a motion seeking to confirm its right to condemn the portion of the reservoir located under the Blanch-ards’ property. Additionally, Tarpon sought an injunction allowing it immediate access to the subsurface of the Blanchards’ property for gas storage.

¶ 6. Following a hearing on the motion, the trial court found that Tarpon’s proposed gas-storage facility was for a public use and served a public purpose. In support of its finding, the trial court noted that the Federal Energy Regulatory Commission had issued Tarpon a Certificate of Public Convenience and Necessity (FERC Certificate), which authorizes Tarpon to exercise the power of eminent domain. Additionally, the Mississippi State Oil and Gas Board had authorized the project and concluded that public convenience and necessity required its approval. Consequently, the trial court confirmed Tarpon’s right to condemn an easement for gas storage under the Blanchards’ property and granted its request for an injunction allowing Tarpon immediate access to the depleted gas reservoir.

¶7. Tarpon served discovery on the Blanchards, seeking the identity of fact and expert witnesses, appraisals, and other evidence relevant to determining just compensation for Tarpon’s partial taking of an easement. Tarpon later served supplemental discovery, asking the Blanchards to provide their fractional ownership interests in the twenty-five-acre tract and identify whether their interest was acquired by purchase or inheritance. When the Blanchards failed to respond to Tarpon’s discovery requests, it filed a motion to compel, which the trial court granted. The court ordered the Blanchards to respond to Tarpon’s interrogatories and requests for production of documents; however, the Blanchards failed to comply with the court’s order.

¶ 8. On December 21, 2009, the Blanch-ards’ attorney filed a motion for a continuance, seeking to reschedule the trial set for January 5, 2010. In the motion, the Blanchards’ attorney claimed to be suffering from “serious health problems,” and asked for a 120-day extension to complete discovery and prepare for trial. The trial court granted the motion and rescheduled the trial for August 30, 2010.

¶ 9. On March 23, 2010, the trial court entered a scheduling order setting May 5, 2010, as the Blanchards’ deadline for designating experts and July 30, 2010, as the discovery deadline. Additionally, the trial court ordered the Blanchards to submit a statement of values no later than ten days before trial, or August 20⅝ 2010.

¶ 10. The Blanchards failed to provide Tarpon with responses to the outstanding discovery requests or comply with the deadlines in the scheduling order. On August 25, 2010, Tarpon filed a motion to preclude the Blanchards from offering any evidence at trial based on their failure to respond to discovery requests or comply with the court’s orders. Additionally, Tarpon sought an entry of default against the Blanchards.

¶ 11. The next day, the Blanchards’ attorney filed a second motion for a continuance based on his continuing health problems. The trial court denied the continuance and entered an order precluding the Blanchards from offering evidence at trial based on their failure to file a statement of values, designate experts, or comply with the court’s orders compelling discovery responses.

¶ 12. A jury trial to determine just compensation for Tarpon’s taking of an easement for gas storage under the Blanchards’ property was held on August 30-31, 2010. Tarpon’s real-estate appraiser, Stephen Holcombe,- valued the easement at $6,500. In accordance with the court’s previous order, the Blanchards were not permitted to present evidence regarding valuation. Ultimately, the jury awarded the Blanchards damages totaling $13,000.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Quiclfr-Take Statute

¶ 14. The Blanchards contend that the trial court failed to comply with the procedural safeguards set forth in Mississippi’s quick-take statute. However, as Tarpon points out in its brief, it did not proceed under the quick-take statute, nor is it an entity eligible to do so. Only particular government entities are eligible to proceed under the quick-take statute. See Miss.Code Ann. § 11-27-81 (Supp. 2011). Private entities, like Tarpon, are not eligible to proceed under the quick-take statute.

¶ 15. While Tarpon did not proceed under the quick-take statute, it nonetheless obtained immediate access to the Blanch-ards’ subsurface by invoking the trial court’s equitable powers and obtaining an injunction. However, the Blanchards have not challenged the court’s decision to grant Tarpon injunctive relief, nor have they shown how they were damaged by Tarpon’s immediate access to the subsurface of their property. This issue is without merit.

2. Talon’s Statement of Values and Expert Testimony

¶ 16. The Blanchards argue that the trial court erred in allowing Tarpon’s statement of values and the testimony of its real-estate appraiser, Holcombe. The Blanchards contend that Holcombe erroneously relied on Ohio case law in determining fair market value. Furthermore, they take issue with Holcombe’s departure from the “before-and-after” rule in determining just compensation.

¶ 17. The “application of the proper legal standard for valuing property [is] a question of law,” which an appellate court reviews de novo. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997). The Mississippi Supreme Court has recognized three standards for determining the fair market value of real property: “(1) the cost approach, (2) the income-capitalization approach, and (3) the market-data or comparative-sales approach.” Gulf S. Pipeline Co. v. Pitre, 35 So.3d 494, 498 (¶ 6) (Miss.2010) (citations omitted). However, as Tarpon points out, our supreme court has yet to address acceptable methods for determining the fair market value of underground gas-storage rights. For this reason, Holcombe considered the valuation methodologies announced in an Ohio Supreme Court case involving condemnation of gas-storage rights, Columbia Gas Transmission Corp. v. An Exclusive Natural Gas Storage Easement, 67 Ohio St.3d 463, 620 N.E.2d 48 (Ohio 1993).

¶ 18. The first method involves consideration of comparable sales of easements for the purpose of storing natural gas. Id. at 49. Holcombe testified that this method is similar to the market-data or comparative-sales approach recognized under Mississippi law. However, Holcombe explained that there was no evidence of sales of gas-storage easements in the area, and, therefore, the comparative-sales method was inapplicable.

¶ 19. The second method involves the valuation of natural gas remaining in the reservoir where the easement is sought, provided “sufficient natural gas remains under the landowner[’s] tract so as to allow the commercial recovery and sale of that natural gas.” Id. Tarpon’s petroleum engineer, Michael Dean, testified that there was “no commercially recoverable” natural gas in the reservoir below the Blanchards’ property. Accordingly, this valuation method was also inapplicable.

¶ 20. Under the third method, fair market value is determined based on “a capitalization of the rental income for the right to store gas.” Id. Holcombe used this method in preparing Tarpon’s statement of values and in determining just compensation owed to the Blanchards. Holcombe obtained lease agreements for gas-storage rights from the Aberdeen Gas Storage Field as well as other Mississippi gas-storage fields to estimate a stream of rental payments, which he discounted to arrive at the fair market value of the subsurface, being condemned. While the Blanchards take exception to Tarpon’s reliance on Ohio law in determining fair market value, the valuation method selected mirrors the income-capitalization approach previously recognized by our supreme court as an appropriate method for valuing real property. As such, this issue is without merit.

¶ 21. The Blanchards also contend that Holcombe erred in .departing from the before-and-after rule in determining just Compensation. In a partial taking, just compensation has two components: “the value of the property taken and the damage, if any, to the remainder.” Miss. State Highway Comm’n v. Franklin County Timber Co., 488 So.2d 782, 785 (Miss.1986). Damages for diminution in the value of the remainder are determined using the familiar before-and-after rule. See Fires, 693 So.2d at 920-21. Under the before-and-after rule, “[w]hen a portion of a larger tract of land is taken for public use, the owner is entitled to be awarded the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remaining tract immediately after the taking.” Fires, 693 So.2d at 920 (citations omitted). However, our supreme court has recognized that “there are exceptions to the before[-]and[-]after rule, which may apply in specific situations.” Id. at 921 (internal quotations omitted).

¶ 22. Holcombe’s calculation of just compensation included the fair market value of the gas-storage rights taken, which he calculated using the income-capitalization approach, plus an award of nominal damages to compensate the Blanchards, as owners of mineral rights, for any remaining natural gas in the reservoir. Holcom-be testified that the surface of the Blanch-ards’ tract would not be damaged as a result of Tarpon’s partial taking of the subsurface; therefore, he assigned a value of zero for damages to the remainder of the tract.

¶ 23. Our supreme court has previously held that it is not error for an appraiser to value only the land taken, and not the entire parcel, where he believes there is no injury to the remainder. See Green Acres Mem’l Park, Inc. v. Miss. State Highway Comm’n, 246 Miss. 855, 864, 153 So.2d 286, 290 (1963). In Green Acres, the Mississippi State Highway Commission sought to condemn a one-acre strip of land located at the back of a cemetery to build a highway. Id. at 859, 153 So.2d at 287. The Commission’s appraiser valued the land taken, but he testified that “he did not attribute any damages to the remainder of the [c]eme-tery.” Id. at 860, 153 So.2d at 288. The cemetery owners argued on appeal that the trial court erred in allowing the Commission’s appraiser to give his opinion of “the value of the land taken without requiring [him] to show the total value of the entire [cjemetery” before and after the taking. Id. at 861, 153 So.2d at 288.

¶ 24. The supreme court upheld the jury verdict, which was based on the Commission’s appraisal of only the part taken. Id. at 864, 153 So.2d at 290. The court concluded that there was no departure from the before-and-after rule, noting that the jury was properly instructed on the rule as a measure of damages. Id. Furthermore, because the appraiser opined that the partial taking would not damage the remainder of the cemetery, the before- and-after rule would have had no impact on his calculation of just compensation. See id. at 863, 153 So.2d at 289. Finally, the court stated that the before-and-after rule “does not mean that each witness must give a before[-]and[-]after valuation of the property....” Id. at 863, 153 So.2d at 289 (internal quotations omitted) (quoting Miss. State Highway Comm’n v. Strong, 240 Miss. 756, 765, 129 So.2d 349, 352 (1961)).

¶ 25. In this case, Holcombe testified that Tarpon’s taking of the subsurface would not damage the surface of the Blanchards’ tract. Therefore, application of the before-and-after rule would have had no impact on his calculation of just compensation. Admittedly, the trial court denied the Blanchards’ jury instruction on the before-and-after rule. However, because damages would have been the same either way, we fail to see how the Blanch-ards were damaged by Holcombe’s measure of just compensation. This issue is without merit.

3. Blanchards’ Statement of Values & Lay Testimony

¶ 26. The Blanchards contend that the trial court erred in refusing to admit their statement of values or allow them to testify regarding the value of their property. The Blanchards filed their statement of values on August 27, 2010-three days before trial. The Blanchards valued the subsurface rights being condemned at $500,000. The trial court excluded the statement because it was untimely under Mississippi Code Annotated section 11-27-7 (Rev.2004), which requires defendants to an eminent-domain proceeding to file a statement of values no less than ten days prior to trial. The Blanchards had notice and ample time to comply with the statutory deadlines, and they have provided no reason for their failure to comply other than their attorney’s health issues. As addressed more fully in our discussion of the Blanchards’ motion for a continuance, the trial court attempted to accommodate the Blanchards, given their attorney’s failing health, by rescheduling the trial. This necessarily gave the Blanchards additional time to prepare and file a statement of values since the ten-day deadline is tied to the trial date. However, despite the court’s accommodation, the Blanchards failed to file a statement of values by the statutory deadline. Therefore, the trial court did not err in excluding the Blanch-ards’ statement of values. This issue is without merit.

¶ 27. The Blanchards also argue that as the owners of the twenty-five-acre tract, they should have been able to offer lay testimony regarding the land’s value. “It is settled in eminent[-] domain practice that a landowner may give his opinion of the fair market value of his property.” Clark v. Miss. Transp. Comm’n, 767 So.2d 173, 178 (¶ 20) (Miss.2000) (quoting Potters II v. State Highway Comm’n of Miss., 608 So.2d 1227, 1235 (Miss.1992)). However, the landowner must be familiar with the land and “cognizant of land values of comparable property as to quality, use[,] and location.” Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 598, 172 So.2d 196, 204 (1965) (citing Miss. State Highway Comm’n v. Rogers, 240 Miss. 529, 542, 128 So.2d 353, 359 (1961)). Therefore, the Blanchards would have had to show knowledge of the value of gas-storage rights in a depleted reservoir. Even if the Blanchards had such knowledge, they failed to disclose the nature of their testimony during discovery; therefore, the trial court did not err in refusing to allow their testimony. This issue is without merit.

I. Amendment of the Pleadings

¶28. The Blanchards argue that the trial court erred in allowing Tarpon to proceed -with condemnation rights at trial that differed from the rights contained in the pleadings. Tarpon’s complaint described the rights it sought to condemn as follows:

[T]he right to inject, store, maintain, and withdraw natural gas from the Storage Interval in the Field, as approved by the [Mississippi State Oil and Gas] Board and the FERC, with the incidental right of surface and sub-surface ingress, use, and egress as reasonably necessary to construct, operate, and maintain the [pjroject.

(Emphasis added).

¶ 29. At trial, Alan Cook, Tarpon’s corporate representative, testified that Tarpon would not use the surface of the Blanchards’ property in connection with the gas-storage facility. In response, the Blanchards’ attorney requested that the pleadings be amended to remove the “incidental rights of surface ingress, use, and egress” from the description of the rights to be condemned. Tarpon agreed to stipulate that it would not use the surface of the Blanchards’ property, and Tarpon’s attorney moved to amend the pleadings. The trial court allowed the amendment.

¶ 30. An appellate court reviews a trial court’s decision to grant or deny a motion for leave to amend the pleadings for abuse of discretion. Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 424 (¶ 29) (Miss.2010). An amendment should not be granted where it would prejudice the other party. Id. We fail to see how the Blanchards were prejudiced by the trial court’s decision to allow Tarpon to amend its pleadings and condemn a lesser interest in the Blanchards’ property. Furthermore, it was their attorney who initially asked that the pleadings be amended to conform with Cook’s testimony. This issue is without merit.

5. Motion for a Continuance

¶ 31. The Blanchards argue that the trial court erred in denying their motion for a continuance. “The granting of a continuance is largely a matter within the sound discretion of the trial court[,] and unless manifest injustice appears to have resulted from a denial, [an appellate court] should not reverse.” Peden v. City of Gautier, 870 So.2d 1185, 1188 (¶ 10) (Miss.2004) (quoting Morgan v. Greenwaldt, 786 So.2d 1037, 1045 (¶ 26) (Miss.2001)). Furthermore, a “trial court may exercise ‘reasonable latitude’ in the setting and continuance of cases.” Id. (quoting Morgan, 786 So.2d at 1045 (¶ 26)).

¶ 32. On December 21, 2009, the Blanchards’ attorney filed a motion to continue the trial set for January 5, 2010. In his motion, he advised the court of his serious health problems, and he requested a 120-day extension to complete discovery and prepare for trial. The trial court granted the motion and rescheduled the trial for August 30, 2010. Later, the trial court entered a scheduling order setting May 5, 2010, as the Blanchards’ deadline for designating experts and July 30, 2010, as the discovery deadline. As Tarpon points out in its brief, these deadlines far exceeded the 120 days previously requested by the Blanchards’ attorney.

¶ 33. Despite obtaining a continuance, the Blanchards failed to provide Tarpon with responses to the outstanding discovery requests or comply with the deadlines in the scheduling order. In fact, the Blanchards’ only response following the first continuance was to file a second motion for a continuance on August 26, 2010-four days before the rescheduled trial date.

¶ 34. Based on these facts, the trial court did not abuse its discretion in denying the Blanchards’ second motion for a continuance. The trial court had previously accommodated the Blanchards’ attorney based on his medical condition; however, despite the court’s accommodation, the Blanchards failed to respond to discovery or comply with the court’s scheduling order. This issue is without merit.

6. Jury View

¶ 35. The Blanchards contend that the trial court erred in denying their request for an inspection of the premises. Mississippi Code Annotated section 11-27-19 (Rev.2004) permits jury views of property in an eminent-domain proceeding. However, whether to allow a jury view is a matter left to “the sound discretion of the judge.” Id.

¶ 36. The trial court refused the Blanchards’ request for a jury view given its previous ruling that, based on their failure to respond to discovery requests and comply with the court’s orders, the Blanchards would not be permitted to present evidence at trial. The Blanchards point out that our supreme court has previously stated that “it is a better practice to allow the jury to view the premises....” Redevelopment Auth. of Meridian v. Holsomback, 291 So.2d 712, 715 (Miss.1974). While allowing the jury to view the premises in an eminent-domain proceeding constitutes “best practice,” this is only true where “such view may be of assistance to the jury in resolving the conflicts in the evidence relative to the value.” Id.

¶ 37. We fail to see how viewing the premises would have aided the jury in this case. Tarpon sought to condemn an easement in a depleted gas reservoir located 3,400 feet below the Blanchards’ property. Furthermore, Tarpon stipulated that it would not take or use the surface of the Blanchards’ property. Therefore, the circuit court did not err in refusing a jury view of the property. This issue is without merit.

7. Jury Verdict

¶ 38. In their final assignment of error, the Blanchards allege that the “trial judge erred in overturning the jury verdict.” However, based on our review of the record, the trial court did not overturn the jury’s verdict awarding the Blanchards $13,000 in damages. This issue is without merit.

¶ 39. THE JUDGMENT OF THE MONROE COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.

      .The Natural Gas Act provides:
      When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated: Provided, [t]hat the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.
      15 U.S.C. § 717f(h) (2006).

      . A natural-gas company, like Tarpon, must obtain the Mississippi State Oil and Gas Board’s approval prior to exercising its right to eminent domain. See Miss.Code Ann. § 53-3-159 (Rev.2003).

      . The order setting the trial was filed on November 3, 2009.

      . The Blanchards’ attorney had been diagnosed with colon cancer, which had spread to his liver and lungs.

      . In Columbia, the Ohio Supreme Court determined that “you must award nominal damages to the holder of [mineral] Iease[s] even if the presence of native oil and gas in paying quantities is not proven to a reasonable probability.” Columbia, 620 N.E.2d at 50. Because the Blanchards owned mineral rights, Holcombe assigned a value of $10 per acre, for a total of $250, in damages even though the undisputed evidence was that the reservoir was depleted and that there was no commercially recoverable gas remaining.

      . Furthermore, the jury disregarded Holcom-be’s calculation of just compensation of $6,500 and awarded the Blanchards $13,000 in damages.