author: BARNES, J.,

text:
    MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY Board On Law Enforcement Officer Standards and Training, Appellant v. Augustus JOHNSON, Appellee.
    No. 2010-CA-00330-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.

      Office of the Attorney General by Lisa Louise Colonias Samuel Martin Millette, attorneys for appellant.
    Alsee McDaniel, Indianola, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. After pleading guilty in 1999 to a felony charge of embezzlement, Augustus Johnson, a police officer with the Itta Bena Police Department, was discharged from employment. Pursuant to regulations, his certification as a law-enforcement officer was returned to the Board on Law Enforcement Officer Standards and Training (the Board) for the Mississippi Department of Public Safety. Nine years later, Johnson applied for a position as a patrol officer with the Mississippi Valley State University campus police (MVSU), which requested that the Board reinstate Johnson’s certification. The Board denied the request. Johnson appealed the Board’s decision, and after a hearing, the Board recalled Johnson’s certification. Johnson appealed to the Chancery Court of Leflore County which reversed the Board’s decision and remanded for a de novo hearing. Finding that the chancery court erred, we reverse and render judgment, reinstating the Board’s decision.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Johnson received his certification as a law-enforcement officer on October 10, 1990, and was employed with the Itta Bena Police Department. In 1998, facing severe personal financial difficulties, Johnson pawned five guns, two of which were the property of the police department. Johnson was charged with, and pleaded guilty to, felony embezzlement. On December 6, 1999, the Circuit Court of Leflore County ordered Johnson to complete a pretrial diversion program and pay a fine of $250. On February 26, 1999, Johnson was discharged from employment as an officer, and pursuant to the Board’s policy requirements, the Itta Bena Police Department returned Johnson’s law-enforcement certification to the Board.

¶ 3. The embezzlement charge was dismissed on August, 20, 2001, after Johnson had successfully completed his pretrial diversion program. After a request was submitted by Johnson, his criminal record was expunged in March 2008. MVSU then submitted an application to the Board on Johnson’s behalf, requesting that his certification be reinstated. In a letter dated May 1, 2009, the Board informed MVSU and Johnson: “According to our policies[,] we cannot approve his certification request. The reason for this denial is that this officer has a record of embezzlement with Pre-trial Diversion. As I am sure you are aware, [the Board] is responsible for insuring that certified officers maintain standards of good moral character.”

¶ 4. Upon Johnson’s request, the Board conducted a hearing regarding Johnson’s certification on September 11, 2008. At the hearing, Johnson was allowed to testify and present witnesses to support his case for certification. The Board, after hearing such evidence and reviewing the record, “voted unanimously to cancel and recall [Johnson’s] certificate,” noting that his conduct “violate[d] the minimum standards and diminishe[d] the public trust in [his] competence and reliability to assume and discharge the responsibilities of a law enforcement officer.”

¶ 5. Johnson appealed the Board’s findings to the Leflore County Chancery Court. The chancellor reversed the Board’s decision, determining that the Board conducted a hearing for initial certification rather than recertification and that the Board failed to submit any specific facts that it had relied upon in making its decision. The chancery court remanded the case for a de novo hearing based upon its findings. The Board has appealed the chancery court’s order; upon our review, we find that the reversal was an abuse of discretion and that the chancellor substituted his judgment for that of the agency. We reverse the chancellor’s judgment and reinstate the Board’s denial and recall of Johnson’s certification.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the decision of an administrative agency “unless the agency order was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers, or violated the constitutional or statutory rights of the aggrieved party.” Miss. Bd. on Law Enforcement Officer Standards and Training v. Clark, 964 So.2d 570, 573 (¶ 7) (Miss.Ct.App.2007) (citing Miss. Bd. on Law Enforcement Officer Standards & Training v. Voyles, 732 So.2d 216, 218 (¶ 6) (Miss.1999)). Furthermore, an appellate court “cannot substitute its judgment for that of the agency”[;] rather, the “[a]ppellate review of an agency’s decision is limited to the record and the agency’s findings.” Id. “When this Court finds that the lower court has exceeded its authority in overturning an agency decision, we will reverse and reinstate the agency’s decision.” Id.

I. Whether the Board afforded Johnson due process in denying his request for certification.

¶7. The chancery court reversed the Board’s decision and remanded for a hearing to afford Johnson an opportunity to present additional evidence for consideration by the Board. However, the Board contends that Johnson was provided appropriate due process and a chance to present such evidence at the September 11, 2008 hearing.

¶ 8. “Administrative agencies must afford minimal due process consisting of notice and an opportunity to be heard.” D.J. Koenig & Assocs., Inc. v. Miss. State Tax Comm’n, 838 So.2d 246, 254 (¶ 24) (Miss.2003) (citing State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 246 (Miss.1989)). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Carl Ronnie Daricek Living Trust v. Hancock County ex rel. Bd. of Supervisors, 34 So.3d 587, 595 (¶ 16) (Miss.2010) (citation omitted). Mississippi Code Annotated section 45-6-11(8) (Rev.2004) also states:

When the board believes there is a reasonable basis for either the reprimand, suspension, cancellation of, or recalling the certification of a law enforcement officer or a part-time law enforcement officer, notiee and opportunity for a hearing shall be provided in accordance with law prior to such reprimand, suspension or revocation.

¶ 9. In the Board’s May 1, 2008 letter, notifying Johnson of the denial of his request for certification, the Board informed him of the opportunity to request a hearing before the Board, which Johnson promptly submitted. Furthermore, at the start of the September 11, 2008 hearing, the Board asked Johnson the following:

THE CHAIRMAN: Do you understand the potential outcome of this hearing?
JOHNSON: Yes, sir.
THE CHAIRMAN: Do you understand the opportunity to have counsel, bring people to speak, submit documents and other related materials before today?
JOHNSON: Yes, sir.
THE CHAIRMAN: You understand that this hearing must be complete, and that nothing may be added to the record on appeal, and your ... application must affirm your readiness to begin and participate in this hearing today?
JOHNSON: Yes, sir.

Johnson then proceeded to testify regarding his successful completion of the pretrial diversion program and the expungement of his criminal record. Johnson also presented a witness, the former Itta Bena deputy chief of police, who testified that Johnson was an “upstanding citizen” who had made “a bad judgment” and recommended to the Board that Johnson be given a second chance. Based on this information, we find that the Board afforded Johnson sufficient due process prior to the recall of his certification at the September 11, 2008 hearing.

¶ 10. The Board also contends that it was not required to conduct a hearing in 1999 to recall Johnson’s certification, asserting that no action was needed at that time. The Board on Law Enforcement Officer Standards and Training (BLEOST) Professional Certification Policy and Procedures Manual states in Chapter 2, section 102.05 (Rev.2006):

The staff shall decide the disposition of a certificate within a reasonable time after receiving notice that a certificate has been returned. The Board may decide to:
1. delay consideration of the return of the certifícate;
2. inactivate the certificate;
3. assign stewardship of the certificate to a new law enforcement employer or;
4. annul/revoke a certificate, if issued in error or through misrepresentation or fraud.

Also, in Chapter 3, section 102.08 (Rev.2001), the manual reads: “Board hearings may be convened at the request of the director or upon the receipt of a request from an individual aggrieved of a staff finding, administrative action or to obtain relief under board policies.” (Emphasis added). Nowhere in these policy regulations does it require that the Board conduct a hearing for those actions outlined in section 102.05. Thus, the Board’s decision not to conduct a hearing after Johnson’s certification was returned in 1999 was not a violation of due process.

II. Whether the Board’s actions were consistent with its governing statutes and regulations.

¶ 11. The Board claims that it has “ample statutory authority ... to determine whether or not to reactivate and/or revoke a certificate[,]” and its decision to recall Johnson’s certificate was supported by such authority. The Board also asserts that Johnson’s certification had been merely inactive, and since Johnson “expressed no interest in returning to law enforcement,” his certification had lapsed pursuant to Board regulations. See BLEOST Profl Certification Policy and Procedures Manual, Ch. 2, § 102.09 (“When an officer, certified by Mississippi statute, leaves law enforcement employment for a period of two years or more, his or her certification will lapse.”).

¶ 12. “[A]n administrative agency’s construction of its own rules and regulations and the statutes under which it operates” is afforded great deference by this Court and reviewed de novo. Miss. Real Estate Appraiser Licensing and Certification Bd. v. Schroeder, 980 So.2d 275, 288 (¶ 34) (Miss.Ct.App.2007) (citing Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 (¶ 10) (Miss.2006)). It is apparent from the statutes and regulations that the Board has considerable discretion as to its actions regarding a returned certification. As already noted, the Board’s policy manual states that a certification may be inactivated, reassigned to a new officer, revoked, or the Board might simply delay any consideration. Further, Mississippi Code Annotated section 45-6-11(7) (Rev.2004) states:

Professional certificates remain the property of the board, and the board reserves the right to either reprimand the holder of a certificate, suspend a certificate upon conditions imposed by the board, or cancel and recall any certificate when:
(a) The certificate was issued by administrative error;
(b) The certificate was obtained through misrepresentation or fraud;
(c) The holder has been convicted of any crime involving moral turpitude;
(d) The holder has been convicted of a felony;
(e) The holder has committed an act of malfeasance or has been dismissed from his employing law enforcement agency; or
(f) Other due cause as determined by the board.

(Emphasis added).

¶ 13. Johnson’s main argument is that since his hearing was, unbeknownst to him, for the recall and cancellation of his certification, it warranted a different standard of review by the Board. In his appeal to this Court, Johnson submits: “To the extent recertification was the issue, review of the Board’s decision may properly have considered evidence other than Johnson’s plea on the criminal charge nine (9) years prior to his application, including evidence of rehabilitation.” However, Johnson has not cited to any authority to support this assertion, nor has he shown how the September 11, 2008 hearing would have been conducted differently. Although Johnson claims that the Board only took into account his felony charge, the record reflects that the Board was provided evidence not only of Johnson’s crime, but also mitigating factors surrounding the incident (i.e., his financial difficulties) and evidence of his subsequent rehabilitation.

¶ 14. We also find Johnson’s claim on appeal — that the chancellor found “that there was nothing in the record which indicated the type of hearing to which Johnson was entitled, whether recertification, recall and cancellation” — erroneous. Johnson should have been aware that a recall of his certification was a possible outcome of the proceedings. In the Board’s letter denying Johnson’s certification request, the Board quoted its policy for the recall or cancellation of certificates. Also, in the letter advising Johnson of his hearing date, the Board clearly stated: “The Board may reject any unqualified applicant for certification by a classification of not eligible and reprimand, suspend or cancel and, recall your certificate.” (Emphasis added).

¶ 15. Accordingly, we find that the Board’s actions were consistent with statutory authority and its policy and procedural regulations.

III. Whether the doctrine of laches is applicable.

¶ 16. Anticipating that Johnson might argue that the doctrine of laches bars the revocation of his certification nine years after the entry of his guilty plea, the Board makes the proactive argument that it does not bar the Board’s actions. “[T]he doctrine of laches ... prevents one from pursuing a claim after an inordinate and unjustified delay that works to the disadvantage of the responding party.” Aron v. Reid, 850 So.2d 108, 113 (¶ 20) (Miss.Ct.App.2002) (citing Allen v. Mayer, 587 So.2d 255, 260 (Miss.1991)). “Laches requires the party seeking to assert the defense show: ‘(1) delay in asserting a right or claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted.’ ” Nicholas v. Nicholas, 841 So.2d 1208, 1212 (¶ 13) (Miss.Ct.App.2003) (citations omitted).

¶ 17. As we have already observed, nothing in the Board’s regulations required the Board to conduct a hearing or take immediate action on Johnson’s certification that was returned. We also find that Johnson suffered no prejudice from the Board’s failure to take action until 2008. It was Johnson’s decision not to attempt to re-enter law enforcement for nine years, likely due to his desire to have his record expunged before doing so. In fact, the passage of nine years provided Johnson time to show evidence of rehabilitation. Also, the Mississippi Supreme Court has held that it is a well-settled principle “that a governmental entity is not charged with the laches of its officials[.]” Morrow v. Vinson, 666 So.2d 802, 805 (Miss.1995) (quoting Hill v. Thompson, 564 So.2d 1, 14 (Miss.1989)). Therefore, we agree with the Board’s contention that the doctrine of laches would not be applicable in this instance.

IY. Whether the chancellor abused his discretion in reversing the Board’s decision and remanding for another hearing.

¶ 18. The Board contends that the chancery court’s reversal of the Board’s decision to recall Johnson’s certification was an abuse of discretion. In his opinion, the chancellor reasoned that although Johnson’s certificate was never officially revoked after his dismissal in 1999, the certification was subject to a “de facto recall.” The chancellor further stated that “it is the Board’s responsibility to initiate action to examine whether circumstances exist to recall certificates.” The chancery court concluded that, since the hearing was for Johnson’s decertification instead of re-certification, the Board was required to provide “sufficient justification” for its denial.

¶ 19. We find that the chancery court’s assumption that a “de facto” recall of Johnson’s certification occurred prior to the hearing is not based on any evidence in the record. At the hearing, the chancellor observed:

So you are saying that although it is not in the record, but that Mr. Johnson had previously actually applied for either reinstatement or ability to perform as a law enforcement officer after his conviction on a couple of other occasions and was turned down. Or a letter or something was written, apparently, that said, no, you can’t hire him as a law enforcement officer, that, in fact, that would be a de facto certification, whether they call it that or not.

(Emphasis added). Sitting as an appellate court in cases involving findings by an administrative agency, the chancery court may not consider any evidence outside the record. Furthermore, the chancellor admitted that the language used by the Board in its opinion “seemed to indicate that this was the first time [certification] was actually officially canceled,” and counsel for Johnson agreed with this statement. The Board has the discretion under statutory and policy regulations to take a variety of actions regarding a certificate, including delaying consideration, inactivation, or revocation. Nowhere does it state that the failure by the Board to take affirmative action on a returned certificate constitutes a “de facto” recall.

¶ 20. To support its decision on appeal, the Board cites a similar case, Board on Law Enforcement Officer Standards and Training v. Rushing, 752 So.2d 1085 (Miss.Ct.App.1999). Bobby Ray Rushing was a deputy sheriff with the Jefferson Davis County Sheriffs Department. Like Johnson, Rushing pawned a gun that was law-enforcement property, and he was indicted for embezzlement in Marion County, Mississippi. Rushing entered a guilty plea to the embezzlement charge, and his formal plea was suspended upon his completion of requirements imposed by the court. The cause was dismissed two years later. Id. at 1087 (¶¶ 2, 3). After the charge was dismissed, Rushing immediately applied for recertification and informed the Board of the embezzlement charge, as it was unaware of the charge prior to Rushing’s request. Id. at (¶ 4). After conducting a hearing where Rushing presented various witnesses to speak on his behalf, the Board “voted to withdraw his certification as an eligible law enforcement officer.” Id. at 1088 (¶ 5). On appeal, the chancery court reversed the Board’s decision, concluding that the Board’s failure to consider the ample testimony by witnesses in support of Rushing was arbitrary and capricious. Id. at (¶ 6). However, this Court reversed the chancery court’s judgment in Rushing, stating:

The duty to assess the fitness of a particular individual to be certified to work in the important field of law enforcement is one that lies with the Board, based on its evaluation of all the evidence bearing on the question and does not lie with the friends and supporters of the candidate, no matter their number, their high station in life, or the sincerity of their conviction of the individual’s fitness.

Id. at 1091 (¶ 21). We further reasoned:

[W]e simply cannot conclude that the Board abused the discretion afforded it to determine such questions when it found Rushing’s prior conduct disqualified him from future employment in the field of law enforcement. Neither do we think that the Board abused its discretion when it failed to permit the general outpouring of community support for Rushing to persuade the Board to re-certify Rushing despite his prior commission of criminal acts constituting the crime of embezzlement.

Id. at 1091-92 (¶ 22). Here, the chancellor distinguished Johnson’s case from Rushing, stating:

There is nothing in the record -indicating that the Board took the initial step of determining the type of hearing to which Mr. Johnson was entitled. It appears that the Board handled this matter as a recall and failed to give any explanation as to why. Additionally, as stated previously, the Board had notice of Mr. Johnson’s record of embezzlement as well as his participation in a pretrial diversion program, whereas, the Board in Rushing did not know of his guilty plea.
However, this distinction is not relevant to our review and disposition. The timing of when the Board learns of a guilty plea or felony charge has no bearing on the manner in which the Board conducts its hearing. Rather, as this Court observed in Rushing: “It is the conduct and not the resulting punishment that speaks to a certificated law enforcement officer’s fitness to continue in that role.” Rushing, 752 So.2d at 1091 (¶ 19).

¶ 21. We find that the Board’s recall of Johnson’s certification was not arbitrary or capricious. Mississippi Code Annotated section 45-6-11(4) (Rev.2004) states, in pertinent part, that:

In addition to the requirements of subsections (8), (7) and (8) of this section, the board, by rules and regulations consistent with other provisions of law, shall fix other qualifications for the employment of law enforcement officers, including minimum age, education, physical and mental standards, citizenship, good moral character, experience and such other matters as relate to the competence and reliability of persons to assume and discharge the responsibilities of law enforcement officers, and the board shall prescribe the means for presenting evidence of fulfillment of these requirements.

(Emphasis added). Contained in the Board’s Policy and Procedures Manual is the “Law Enforcement Code of Ethics,” which requires every law-enforcement officer to recite, in part, the following:

I will keep my private life unsullied as an example to all; maintain courageous calm in the face of danger, scorn or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and professional life, I will be exemplary in obeying the laws of the land and the regulations of my department.

(Emphasis added). Johnson clearly failed to uphold this code of ethics. Chapter 3, section 101.04(2) of the manual reads:

Any condition, conduct or action that would breach the established minimum standards, violate the Law Enforcement Code of Ethics or would greatly diminish the public trust in the competence and reliability of a law enforcement office would be actionable as due cause for reprimand, suspension (under conditions), recall or cancellation of a certifí-cate.

Accordingly, the Board was well within its authority and discretion to recall Johnson’s certification, and its decision was supported by the evidence.

¶ 22. Also, as the Board in its brief to this Court observed, two years have elapsed since the Board’s denial of certification, and Johnson may now re-apply. Mississippi Code Annotated section 45-6-11(10) (Rev.2004) reads: “Any full-or part-time law enforcement officer whose certification has been cancelled pursuant to this chapter may reapply for certification, but not sooner than two (2) years after the date on which the order of the board can-celling such certification becomes final.”

¶ 23. We find that the chancery court exceeded its authority in its reversal and remand of the Board’s decision. Accordingly, we reverse the judgment of the chancery court, and we render a judgment to reinstate the Board’s decision.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF LEFLORE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Johnson was already employed by MVSU as a dispatcher.

      . See Miss.Code Ann. § 99-15-26(1) (Supp.2010).

      . Chapter 2, section 102.04 (Rev.2006) of The Board on Law Enforcement Officer Standards and Training (BLEOST) Professional Certification Policy and Procedures Manual states, in pertinent part, that a law-enforcement employer "should return the certificate to the Board director ... [if] the employee no longer meets all of the qualifications for employment (i.e., the employee has been convicted, pled guilty, pled nolo contendere, fined, ordered into probation or pre-trial diversion in relation to a felony or a crime involving moral turpitude, etc.”) (Emphasis added).

      . He was also indicted in Jefferson Davis County for assisting prisoners to escape, but it was not pertinent to the issue on appeal.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    The ESTATE of Christian Arkel HYNES, A Minor by and through His Natural Mother and Next Friend, Kenyatta Mashae McKNIGHT, His Natural Father and Next Friend, Anthony Hynes, Ryan Ke’Wun Jhonshea McKnight, A Minor, Anthony Malik Hynes, Jr., A Minor and Tyran Makel Davis, A Minor, As Wrongful Death Beneficiaries of Christian Arkel Hynes, A Minor, Appellants v. AMBLING MANAGEMENT COMPANY, INC. d/b/a Willow Pointe Apartments and Park Management, LLC, Appellees.
    No. 2009-CA-01629-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      Brandon I. Dorsey, attorney for appellants.
    Jason H. Strong, attorney for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In July 2007, Christian Hynes (Hynes), a minor who was an invitee on the premises of Willow Pointe Apartments (the Apartments) in Jackson, Mississippi, was killed in a hit-and-run accident in the Apartments’ parking lot. Hynes’s mother, father, and the wrongful-death beneficiaries (the Estate) filed suit in Hinds County Circuit Court alleging negligence on the part of Ambling Management Company, Inc. d/b/a Willow Pointe Apartments and Park Management, LLC (Park), the company that managed the Apartments. Thereafter, the Apartments and Park filed a motion for summary judgment. On August 21, 2009, the trial court granted the motion and dismissed the case. Aggrieved, the Estate now appeals. Finding no error, we affirm.

FACTS

¶2. On July 24, 2007, seven-year-old Hynes was visiting his aunt, Gwendolyn Thomas, at the Apartments when he, his five-year-old cousin, and his nine-year-old brother left Thomas’s residence unsupervised. The children were on the premises of the Apartments without supervision for approximately three hours before the accident occurred. Around dusk it began to rain, and the children ran through the parking lot to return to Thomas’s residence.

¶ 3. As they approached Thomas’s building, Hynes ran into the path of an oncoming vehicle that struck him and drove away. The driver of the vehicle is unknown, and there were no eyewitnesses to the incident — neither of the other two children with Hynes saw the accident occur. Hynes later passed away at a local hospital.

¶ 4. In September 2007, the Estate filed suit against the Apartments, Park, John Doe Defendants 1 through 10, and John Doe Individual Defendants 1 through 10, claiming that an alleged failure to maintain speed bumps on the premises of the Apartments was the proximate cause of Hynes’s death. In February 2009, after substantive discovery took place, the Apartments and Park filed a motion for summary judgment, which the trial court granted. In its order, the trial court concluded the Estate had not provided any evidence that the unknown driver of the vehicle in question was speeding at the time he or she struck Hynes. Additionally, the trial court found that the Estate had failed to demonstrate the Apartments and Park owed a duty of maintaining speed bumps located on the premises. Furthermore, the trial court held, assuming arguendo the Apartments and Park were required to maintain speed bumps, the Estate had not presented any evidence that the speed bump at issue was insufficient or that it had fostered a dangerous condition. Accordingly, the trial court entered a final judgment dismissing the case in August 2009. The Estate now appeals, claiming that the trial court erred in granting summary judgment.

DISCUSSION

¶ 5. This Court employs a de novo standard of review when analyzing a trial court’s decision to grant summary judgment. Leffler v. Sharp, 891 So.2d 152, 156 (¶ 9) (Miss.2004). In reviewing the grant of summary judgment, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. (citing Russell v. Orr, 700 So.2d 619, 622 (Miss.1997)). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 6. A plaintiff must submit proof of the four elements of tort, including duty, breach of the duty, causation, and damage, in order to support a negligence claim. Watson Quality Ford, Inc. v. Casanova, 999 So.2d 830, 835 (¶ 14) (Miss.2008). Here, it is undisputed that Hynes entered the premises of the Apartments at the invitation of Thomas, his aunt and a resident of the Apartments, and was playing on the premises with Thomas’s other nieces and nephews during his visit to the Apartments. We interpret that it was mutual advantageous for Thomas to invite Hynes to her residence for the children to play together; therefore, Hynes is presumed to be an invitee under the law. See Little by Little v. Bell, 719 So.2d 757, 760 (¶ 15) (Miss.1998) (citing Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978)). As such, the Apartments and Park owed Hynes “the duty to keep the premises reasonably safe and[,] when not reasonably safe[,] to warn only where there is hidden danger or peril that is not [in] plain and open view.” Id. at 760 (¶ 16) (citing Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 778 (Miss.1992)).

¶ 7. The Estate claims that a duty to maintain speed bumps located on the property, so as to minimize speeding, is included within the Apartments’ duty to keep the premises reasonably safe. In support thereof, the Estate asserts that the speed bump near the accident site was “worn.” However, the Estate provides no evidence that the Apartments and Park had an affirmative duty, either by statute or by common law, to equip the property with speed bumps, much less meet a particular standard of maintenance of the speed bumps. Additionally, there is no evidence, other than the Estate’s blanket assertion that the speed bump near the accident site was “worn,” to indicate that the speed bumps on the property were, in fact, insufficient or ineffective.

¶ 8. The Estate further claims that Hynes’s injury ought to have been reasonably anticipated by the Apartments and Park and that such foreseeability is a component of the duty owed to Hynes. In support thereof, the Estate cites to Rein v. Benchmark Construction Co., 865 So.2d 1134 (Miss.2004) (citation omitted). We agree that a determination of the existence of a duty includes whether the “injury is reasonably foreseeable.” Id. at 1143 (¶ 29) (quoting Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991)). Nonetheless, the Estate has not provided evidence to support the assertion that the Apartments and Park had reason to believe that speeding was, or ever has been, a problem at the complex. While the Estate referenced one prior altercation that had previously occurred on the premises, evidence of a fight between acquaintances at the Apartments over a decade ago does not constitute evidence of a speeding problem on the property.

119. Nonetheless, for the sake of argument, were we to assume that the Apartments and Park did owe a duty to Hynes and subsequently breached that duty, the Estate has failed to show that breach of a duty to maintain speed bumps on the property proximately caused Hynes’s injury. The Estate claims that the vehicle in question was speeding on the premises when it struck Hynes and that proper maintenance of the speed bumps would have prevented the injury. However, the Estate offers no proof whatsoever that the vehicle in question was speeding, other than statements in the Estate’s pleadings, that the vehicle was speeding. No one witnessed the incident, and the driver of the vehicle remains unknown.

¶ 10. This Court has previously held that the “nonmoving party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” Lott v. Purvis, 2 So.3d 789, 792 (¶ 11) (Miss.Ct.App.2009) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213 (Miss.1996)). “[B]are assertions are simply not enough to avoid summary judgment_The non-movant may not rest upon allegations or denials in his pleadings.” Watson v. Johnson, 848 So.2d 873, 878 (¶ 18) (Miss.Ct.App.2002) (citing Travis v. Stewart, 680 So.2d 214, 218 (Miss.1996)). Hence, even if the Estate had proven that the Apartments and Park breached a duty owed to Hynes, it failed to provide any evidence of proximate cause.

¶ 11. Accordingly, we find that the Estate failed to provide sufficient evidence proving the threshold requirement that the Apartments and Park owed a duty to Hynes and that they breached that duty. Furthermore, even if the Estate had shown that the Apartments and Park breached a duty owed to Hynes, it did not demonstrate that such a breach was the proximate cause of Hynes’s injuries. As such, we cannot find error in the grant of summary judgment to the Apartments and Park and, therefore, affirm the trial court’s judgment.

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

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


author: ISHEE, J., ROBERTS, J.,

text:
    Darrell Ray MORRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-02034-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      Darrell Ray Morris, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith, Jr., attorney for appellee.
    Before LEE, C.J., BARNES, ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. While out of prison on earned-release supervision (ERS), Darrell R. Morris physically fought with his father-in-law, Joseph Lambert, which resulted in Lambert being sent to the hospital for medical treatment. Morris was charged with domestic violence aggravated assault, and the Mississippi Department of Corrections (MDOC) scheduled a revocation hearing. Despite evidence presented to support Morris’s claim of self-defense, the MDOC ruled that Morris had violated a condition of his ERS status by fighting with another person, and Morris was sent back to prison to serve the remainder of his sentence.

¶ 2. A Jackson County grand jury later “no billed” an indictment for Morris, and he was never prosecuted on the assault charge. Morris challenged the revocation of his ERS, and after a venue change from the Jackson County Circuit Court to the Jefferson County Circuit Court, Morris’s motion for post-conviction relief (PCR) was denied. Finding that the circuit court failed to consider relevant evidence to support Morris’s claim of self-defense, we reverse the court’s decision, and render judgment to clear Morris’s record of the ERS violation.

FACTS AND PROCEDURAL HISTORY

¶ 3. Morris was convicted of aggravated assault and sentenced to twelve years in prison on May 18, 2001. Six years later, on May 22, 2007, Morris was released from prison on ERS. The ERS was set to expire on January 31, 2009.

¶ 4. On June 23, 2008, while on ERS, Morris fought with his father-in-law, Lambert. Morris claims that Lambert arrived at his house that day intoxicated. Lambert wanted to speak with his daughter, Jessica, who was Morris’s wife. Morris told Lambert that Jessica was not home, and Lambert asked if he could use the phone to call her. While on the phone with Jessica, Lambert exchanged words with her and began cursing. Morris told Lambert to hang up the phone and leave, but Lambert refused. Lambert then threw the phone at Morris and attacked him. Morris struck Lambert once with his fists, which caused Lambert’s head to bleed.

¶ 5. Morris then drove Lambert to the hospital. While in the car, Morris called his wife and told her about Lambert’s injuries. Jessica called the police, and before Morris and Lambert could get to the hospital, they were stopped by the police. Morris was arrested and charged with aggravated assault.

¶ 6. The next day, Morris received a Rule Violation Report (RVR) from his field officer. The RVR charged Morris with violating the ERS rule against fighting with another person. Morris was removed from ERS and taken into custody. On July 11, 2008, eighteen days before the revocation hearing, Morris’s earned-time credit was computed back to his sentence, moving Morris’s discharge date to March 6, 2010.

¶ 7. At his ERS revocation hearing on July 29, 2008, Morris argued that he did not violate an ERS rule because he only struck his father-in-law in self-defense, after Lambert had thrown a phone at him. Morris presented affidavits from his wife and his mother to support his claim. Jessica originally told police officers that Morris was the initial aggressor in the argument with her father. However, she later recanted the statements in her affidavit, saying that what she told police officers on the day of the argument was “inaccurate.” She also stated that after Morris’s arrest, Lambert admitted to her that he had started the fight and attacked Morris.

¶8. In her affidavit, Morris’s mother asserted that she witnessed the altercation, and Morris was only defending himself from Lambert. She stated that Lambert threw a phone at Morris and then “physically attacked [Morris].” Morris also presented an affidavit from Lambert, in which Lambert stated that he did not want to press charges or testify against Morris. The MDOC did not present any additional evidence at the hearing, other than the arrest record, nor did it dispute the evidence provided by Morris.

¶ 9. Nonetheless, the hearing officer found that Morris had violated a condition of the ERS by fighting with another person and revoked Morris’s ERS. Morris went back to prison to serve the remainder of his sentence for assault. He also lost credit for the time spent on ERS.

¶ 10. Following the revocation of Morris’s ERS, a Jackson County grand jury returned a “no bill” indictment for the charges against him for domestic aggravated assault. After the grand jury failed to indict him, Morris challenged the revocation of his ERS by filing a PCR motion in the Jackson County Circuit Court, the court wherein Morris was originally convicted and sentenced. The Jackson County Circuit Court transferred the PCR motion to Jefferson County Circuit Court, because Morris was incarcerated in Jefferson County, Mississippi.

¶ 11. In its order transferring venue, the Jackson County Circuit Court noted that Morris was attempting to challenge the revocation of his ERS, but his claim was based on his dissatisfaction with the results of his grievance filed under the administrative-review program (ARP). Morris has since completed the three-step ARP and exhausted his administrative remedies. Shortly thereafter, the Jefferson County Circuit Court denied Morris’s PCR motion, affirming the decision made by the MDOC that denied Morris’s request for relief.

¶ 12. Morris now appeals, alleging the following errors: (1) the circuit court erred in denying Morris’s PCR motion because the jury “no billed” the indictment for the charge of domestic aggravated assault, which was the basis for the revocation of his ERS; and (2) Morris was unfairly penalized because his new release date, excluding the time spent on ERS, was computed and entered into the MDOC’s system before his revocation hearing, which demonstrated bias against him.

STANDARD OF REVIEW

¶ 13. A circuit court’s denial of post-conviction relief will not be reversed absent a finding that the court’s decision was clearly erroneous. Johnson v. State, 908 So.2d 900, 902 (¶ 3) (Miss.Ct.App.2005). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 14. Morris first argues that the circuit court erred in denying his PCR motion because he was never indicted for domestic violence aggravated assault, which was the sole basis for the revocation of his ERS. He admits that he did fight with Lambert, but claims that he only struck Lambert in self-defense. Since defending oneself is an exception to the no-fighting rule, Morris maintains that he did not violate an ERS rule. Thus, he argues that the revocation of his ERS is unlawful.

¶ 15. Under Mississippi law, “[a]n inmate may forfeit all or part of his earned-time allowance for a serious violation of rules.” Miss.Code Ann. § 47-5-138(2) (Rev.2004). If the ERS is revoked, “the inmate shall serve the remainder of the sentence and the time the inmate was on earned-release supervision, shall not be applied to and shall not reduce his sentence.” Id. at § 47-5-138(7). The MDOC lists a number of violations that could cause an offender to lose his ERS status. Fighting with another person, except in self-defense, is one such violation. Assaulting any person is another.

¶ 16. A review of precedent suggests that actual proof of a violation of the rules is required before the MDOC may revoke a defendant’s ERS. While the cases cited below concern the revocation of parole, we find that the law is applicable to ERS because of the similarity indicated in the language of the ERS statute, which provides: “The period of earned-release supervision shall be conducted in the same manner as a period of supervised parole.” Id. at § 47-5-138(6).

¶ 17. As a general rule, actual proof that a defendant committed the violation is required before parole may be revoked. Alexander v. State, 667 So.2d 1, 4 (Miss.1995); Moore v. Ruth, 556 So.2d 1059, 1062 (Miss.1990). In Moore, the Mississippi Supreme Court held that an arrest alone is not sufficient to prove that the defendant committed the act which violated the parole. Moore, 556 So.2d at 1062. The Supreme Court found that once a defendant has been acquitted of the criminal charges, “the State must offer actual proof that he committed an act violating the terms and conditions of his parole, and the mere fact that he was arrested and charged with [a crime] may hardly suffice.” Id.

¶ 18. A similar standard applies to revocation of probation. Absent a criminal conviction, the State “must present actual proof that the defendant engaged in such criminal conduct.” Younger v. State, 749 So.2d 219, 222 (¶ 10) (quoting Grayson v. State, 648 So.2d 1129, 1134 (Miss.1994)). If the evidence shows that it is more likely than not that the offender violated the terms of probation, the probation need not be reinstated, even if the charges are later dismissed. Hardin v. State, 878 So.2d 111, 112 (¶ 3) (Miss.Ct.App.2003).

¶ 19. In the present case, it is undisputed that Morris fought with Lambert, which resulted in Lambert being sent to the hospital. However, Morris provided sufficient evidence at the revocation hearing that he had acted in self-defense. Morris admitted that he hit Lambert, but he claimed that he only did so after Lambert had thrown a phone at him. Morris’s wife told the police on the day of the argument that Morris was the instigator of the argument with her father. She later recanted her statements and said that Lambert admitted to her that Lambert initiated the argument and attacked Morris. It is uncontested that Morris’s wife did not witness the fight. Therefore, she had no personal knowledge of who had instigated the fight. In addition, an eyewitness account by Morris’s mother corroborated Morris’s claim that he hit Lambert only after Lambert had attacked him.

¶ 20. While it was not necessary for the MDOC to reinstate Morris’s ERS once the grand jury failed to indict him, the evidence presented at Morris’s revocation hearing must have demonstrated that he violated the terms of his ERS. Id. Based on the facts presented at the revocation hearing, the evidence does not support a finding that Morris violated an ERS rule when he fought with Lambert. The State did not present evidence, other than the arrest record, to prove that Morris had violated an ERS rule. The State also did not dispute any evidence presented by Morris that he had acted in self-defense. Thus, it cannot be shown that Morris violated the terms of his ERS. Accordingly, we hold that the circuit court’s denial of Morris’s PCR motion was clearly erroneous.

¶ 21. Morris also argues that the re-computation of his sentence was calculated eighteen days before his revocation hearing, thereby depriving him of due process and equal protection of the law. As a matter of procedure, the MDOC may recompute a prisoner’s sentence before a revocation hearing. Had the hearing officer found Morris not guilty of an ERS rule violation, then the previous dates would have been restored. We do not see how the re-computation of Morris’s sentence prior to the hearing prejudiced him. Thus, this issue is without merit.

¶ 22. Morris completed his prison sentence on March 6, 2010, before this case could be decided. Accordingly, we reverse the circuit court’s denial of Morris’s PCR motion and render a judgment to clear Morris’s record of the ERS violation.

¶ 23. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND JUDGMENT IS RENDERED TO CLEAR THE DEFENDANT’S RECORD OF THE VIOLATION OF THE EARNED-RELEASE SUPERVISION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

LEE, C.J., IRVING, P.J., MYERS, BARNES-AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND IN THE RESULT. ROBERTS, J., CONCURS IN RESULT ONLY WITH SEPARATE OPINION JOINED BY GRIFFIS, P.J. RUSSELL, J., NOT PARTICIPATING.

ROBERTS, J.,

concurring in result only:

¶ 24. While I agree with the majority’s result in clearing Darrell Morris’s record of violation of his earned-release supervision (ERS), I write separately to clarify a point of concern. My concern is this Court’s review of Morris’s claim should not be a review of a circuit court’s denial of a motion for post-conviction relief; instead, it is a review of an administrative agency’s decision and should have been analyzed as such.

¶ 25. Morris was released from prison and reclassified by the Mississippi Department of Corrections (MDOC) to ERS status on May 22, 2007. While on ERS, he retains inmate status and is still considered in the exclusive custody of the MDOC pursuant to Mississippi Code Annotated section 47-5-138(6) (Supp.2010). After his reclassification to ERS status and while on earned-release, Morris was involved in a fight with his father-in-law. As a result of the fight, a MDOC hearing officer, after a reclassification hearing, determined that Morris had violated a condition of his ERS and reclassified him from ERS status to custody status on July 29, 2008.

¶ 26. Subsequent to the hearing, the domestic-violence charge against Morris was no-billed by the grand jury. He then filed a PCR motion in the Jackson County Circuit Court, the court wherein he was convicted and sentenced. For a PCR motion, the circuit court would be the only appropriate court in which to file a PCR motion. Stanley v. Turner, 846 So.2d 279, 281 (¶ 7) (Miss.Ct.App.2003). However, Jackson County Circuit Judge Dale Har-key reviewed Morris’s PCR motion and found that it was actually an appeal of a grievance under the administrative review program (ARP). Mississippi Code Annotated section 47-5-803(2) (Rev.2004) provides that:

No state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure. If at the time the petition is filed the administrative review process has not yet been completed, the court shall stay the proceedings for a period not to exceed ninety (90) days to allow for completion of the procedure and exhaustion of the remedies thereunder.

¶ 27. On March 23, 2009, Judge Harkey entered an order transferring the matter to the Jefferson County Circuit Court, the court in the county wherein Morris was currently incarcerated, to review Morris’s PCR motion as an appeal of an administrative grievance. Jefferson County Circuit Judge Lamar Pickard entered an order on April 15, 2009, requiring the Mississippi Attorney General’s Office to answer the allegations Morris had set forth in his motion. In its answer, the MDOC, through the attorney general’s office, admitted that Morris had completed the three-step ARP and exhausted his administrative remedies as required. On June 2, 2009, Judge Pickard entered an order denying Morris’s motion and affirming the ARP decision because he concluded that the ARP decision was supported by evidence and properly applied the law.

¶28. The key point I would like to make is that this Court’s review of Morris’s claim is that of an appeal of an administrative agency’s decision and not of a PCR motion. While on ERS, Morris was under the exclusive jurisdiction of the MDOC, not the circuit court. An analysis of Morris’s claim as a PCR motion would require the Jefferson County Circuit Court to have jurisdiction over Morris’s claim, which it did not have at the time. Since his claim should be considered an appeal from an administrative agency’s decision, the standard of review is whether the decision was “arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Sanders v. Miss. Dep’t of Corrs., 912 So.2d 189, 192 (¶ 12) (Miss.Ct.App.2005) (citing Griffis v. Miss. Dep’t of Corrs., 809 So.2d 779, 782 (¶ 10) (Miss.Ct.App.2002)). Applying that standard of review, I find that the decision was arbitrary or capricious. At the administrative hearing, Morris submitted evidence from his wife, mother, and father-in-law all indicating that he had acted in self-defense. If Morris had been acting in self-defense, he would not be in violation of an ERS condition. The hearing officer blatantly disregarded this evidence that Morris had acted in self-defense during the fight with his father-in-law. As such, the decision that Morris violated a condition of his ERS, his subsequent reclassification from ERS to custody status, and the circuit court’s affirmance of that decision were in error.

¶ 29. While the majority reviews the claim as a PCR motion and properly comes to the same result using an analysis for a PCR motion, I concur in result and write separately to clarify that this Court should be reviewing Morris’s claim as a review of an administrative agency’s decision and not a PCR motion.

GRIFFIS, P.J., Joins this Opinion.

      . A "no bill” return on an indictment means that the grand jury found insufficient evidence to support a formal charge of indictment.

      . Morris filed a PCR motion in the circuit court and a subsequent appeal of the denial of that motion in this Court. Although the circuit court affirmed the MDOC’s decision based upon its review of Morris's claim under the MDOC's ARP, we note that this Court’s appropriate standard of review is that of a PCR motion. Per statute, once his administrative remedies have been exhausted, Morris may challenge the revocation of his ERS only by filing a PCR motion. Miss.Code Ann. § 99-39-5(1)(g). Because Morris has exhausted his administrative remedies and is now challenging the revocation of his ERS pursuant to Mississippi Code Annotated section 99—39—5(1)(g), we review his claims under the standard for a post-conviction-relief proceeding.

      . The statute reads in pertinent part:
      Any inmate, who is released before the expiration of his term of sentence under this section, shall be placed under [ERS] until the expiration of the term of sentence. The inmate shall retain inmate status and remain under the jurisdiction of the department.... The commissioner shall designate the appropriate hearing officer within the department to conduct revocation hearings for inmates violating the conditions of [ERS],
      Miss.Code Ann. § 47-5-138(6).


author: IRVING, P.J.,

text:
    Charity Hohm WHALEY, Appellant v. Freddie PARSON d/b/a Parson Construction Co., Appellee.
    No. 2010-CA-00020-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      B. Ray Therrell II, attorney for appellant.
    Wren C. Way, Vicksburg, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a contractual dispute between Charity Hohm Wha-ley and Freddie Parson, doing business as Parson Construction Co. Whaley hired Parson to do a variety of repairs to a historic outbuilding that Whaley owns. After completing the majority of the repairs, Parson refused to replace a number of windows on the building, claiming that he could not afford to do so. Whaley filed a complaint against Parson in the Warren County County Court, asking for $25,000 in damages as a result of Parson’s breach. The county court found that Parson had breached the contract but awarded Whaley only $1,500 in damages. Whaley appealed that judgment to the Warren County Circuit Court, which affirmed the county court’s judgment. Feeling aggrieved by that judgment, Whaley appeals and contends that the circuit court erred in affirming the county court’s judgment.

¶ 2. Having reviewed the record, we find that the record does not support the award entered by the county court and that the proper amount of damages is $5,850, less $2,000 that Whaley still owed Parson for the contract. Accordingly, we affirm the circuit court’s judgment, but we modify it to award $3,850 plus 8% interest.

FACTS

¶ 3. On November 12, 2003, Whaley and Parson entered into a construction contract. Under the terms of the contract, Parson was to do work on an outbuilding at Planter’s Hall, a historic property that Whaley owns. Specifically, the contract stated the following about the work that Parson was supposed to do regarding windows on the outbuilding:

Renovation of windows on guest house[,] which includes the wood and windows built[,] 9 pane over 6 pane, primed, painted, and installed. Guest house has ten windows and windows will be freehand adjustable with lock in center on top of 6 pane window. Windows will be constructed with historical lumber[,] such as cypress and red-heart pine.

The contract also contained provisions whereby Parson was required to repair the roof, other woodwork, and the brickwork on parts of the outbuilding. The contract explicitly stated that Parson would supply all of the materials to complete the work. Whaley was required to pay $13,000 for the work: $9,000 at the beginning, $2,000 after the roof was completed, and the final $2,000 upon completion of all the work.

¶ 4. Parson eventually completed the roof and the other non-window work to the outbuilding. Although Whaley was unhappy with how some of the work was done, Parson substantially completed all of the work. However, when Parson went to buy the windows to install in the outbuilding, the company that was making the windows, Vicksburg Woodworks, demanded $5,350 for the windows instead of $1,712, which had been quoted to him by the company. Parson testified that he simply could not pay Vicksburg Woodworks the additional money. Ultimately, Parson refused to install the windows on the outbuilding, and Whaley refused to tender the final $2,000 contractual payment and filed her complaint against Parson. In the complaint, Whaley sought damages not only for the missing windows, but also for deficiencies in the work that had been completed.

¶ 5. After hearing testimony from both Whaley and Parson, the county court made the following relevant findings:

Ms. Whaley hired Mr. Parson to cosmetically repair that 170-year-old building for the purposes of having her homeowner’s insurance cover it to where she would be able to pay a decreased premium and not have to pay a dwelling premium on the substantial antebellum home that she occupies that’s next to it. The total agreed price was $13,000.
... even if a contractor makes a bad deal, he’s still required to perform because she’s not on the same footing as he is. So what we’ve got here is the building sitting down there with three of the four items that have been substantially completed, and there are some deficiencies. And then the fourth one with regards to the windows. There are no windows down there.
All right. So, I mean, this is not really going to be subject to a mathematical computation because it’s not going to be speculative on the damages. But I’m going to have to just pick a number that is going to make her whole based on the contract not being fully completed or performed. And it would appear to me — let’s see. She — had he done the whole job[,] she would owe him $2,000. So she’s a plus two on the game right now. All right. Now, I got to plug something in for the windows, okay. I’m going to plug in $500 for the three items that exist now: [t]he roof, the cornice, and the mortar and toe. I’m going to say her damages that exist right now are $500. Those three items have been substantially performed by Mr. Parson. But I’m going to find that $500 is going to be the cost to put those in the state of repair that she could have reasonably expected them to be after he completed those. So that brings us up to the windows. All right. The only evidence that I’ve got right now as to the value of those windows, and it’s un-contradicted before me, is Freddy Parson’s testimony that it was $1,712. And that the total of that coupled with the carpenter that was going to put the thing around the brick to where the window went to it was going to be a gross sum of $3,000. So that is $3,000 for the windows. It’s $500 for the other three items that have not been completed, so that’s a total of $3,500 to bring her whole. She would owe him [$2,000 if the work was completed], so I’m deducting $2,000 for that. So judgment will be for Ms. Whaley in the amount of $1,500.

As stated by the county court, Parson testified that he had estimated that buying and installing the windows would cost approximately $3,000 based on the initial estimate given to him by Vicksburg Wood-works. Whaley never provided any evidence or testimony regarding the cost of installing the windows. The record contains a copy of the invoice given to Parson when he went to buy the windows from Vicksburg Woodworks; the invoice shows that the windows cost $5,350.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. The Mississippi Supreme Court has stated the standard of review that we must follow when handling an appeal of a county court judgment:

The county court was the fact finder, and the circuit court, as well as this Court [or the Court of Appeals], are [sic] bound by the judgment of the county court if supported by substantial evidence and not manifestly wrong. W.H. Hopper & Asso[cs.], Inc. v. DeSoto County, 475 So.2d 1149, 1152 (Miss. 1985); Dungan v. Dick Moore, Inc., 463 So.2d 1094, 1100 (Miss.1985); Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 391, 141 So. 273 (1932). Insofar as its findings of fact and conclusions of law are concerned, the judgment of a circuit or county court in a non-jury trial is entitled to the same deference on appeal as a chancery court decree. Rives v. Peterson, 493 So.2d 316, 317 (Miss.1986). That is, it will be assumed the trial judge made all necessary findings of fact in favor of appellee, whether stated or not. Brown v. Williams, 504 So.2d 1188, 1191 (Miss.1987); Rives v. Peterson, supra; Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985); Dungan v. Dick Moore, Inc., supra; Cotton v. McConnell, 435 So.2d 683 (Miss.1983). Moreover, if the judgment of such court can be sustained for any reason, it must be affirmed ... even though the trial judge based it upon the wrong legal reason. Shewbrooks v. A.C. and S., Inc., 529 So.2d 557 (Miss.1988); Allgood v. Bradford, 473 So.2d 402 (Miss.1985); Briggs v. Benjamin, 467 So.2d 932 (Miss.1985); Tedford v. Dempsey, 437 So.2d 410 (Miss.1983); Taylor v. F. & C. Contracting Co., Inc., 362 So.2d 625 (Miss.1978); Texas Gas Transmission Corp. v. City of Greenville, 242 So.2d 686 (Miss.1970); Lee v. Memphis Publ. Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428 (1943).

Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss.1990).

¶ 8. The county court found that the only evidence of the cost of the windows was Parson’s testimony, which was based on the initial estimate that Vicksburg Wood-works gave him. This finding completely ignores the invoice that Vicksburg Wood-works gave Parson when he attempted to buy the windows. That invoice valued the windows at $5,350. Parson never disputed the legitimacy of the figure, and it is apparent from Parson’s actions that he could not obtain the windows for the $1,700 or so that was originally quoted to him by Vicksburg Woodworks.

¶ 9. The overwhelming evidence showed that the windows could not be obtained for less than $5,350. We agree, however, with the county court’s assessment of the remainder of the $2,000 of the contract price against Whaley. Had the work been completed, Whaley would have owed Parson another $2,000. We also find no error in the county court’s assessment of $500 against Parson to compensate Whaley for the deficiencies in his other work.

¶ 10. Therefore, we affirm the county court’s judgment, but modify its amount. We find that judgment should be entered against Parson in the amount of $3,850, plus 8% interest. This amount represents $5,350 for the windows, plus $500 for the other deficiencies, minus the $2,000 that Whaley never paid on the contract.

¶11. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED AS MODIFIED, AND JUDGMENT IS ENTERED IN THE AMOUNT OF $3,850 PLUS 8% INTEREST. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The outbuilding is apparently a guest house or similar structure.


text:
    In re CUSTODY OF Ernesha Paris BROWN, a Minor: Earnest Brown, Appellant v. Lillie Hargrave, Appellee.
    No. 2010-CA-00595-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      Shameca S. Collins, attorney for appellant.
    Deborah McDonald, Fayette, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a custody determination by the Adams County Chancery Court, which ruled that Lillie Hargrave, the maternal grandmother of Ernesha Brown, should have custody of Ernesha. Hargrave’s custody was challenged by Earnest Brown, Ernesha’s natural father. Earnest appeals, asserting that the chancellor improperly placed custody with Hargrave instead of with him.

¶2. We find that the chancery court applied an incorrect legal standard in making its custody determination. Therefore, we reverse and remand this case to the chancery court for a custody determination utilizing the appropriate standard.

FACTS

¶ 3. Ernesha was bom on June 12, 1999. Earnest and Azelia Brown, Ernesha’s mother, divorced in 2003. Pursuant to the terms of the divorce, Azelia was granted custody of Ernesha, and although Earnest was supposed to have regular visitation after the divorce, Ernesha did not spend as much time with him as was intended. Azelia eventually remarried and had more children. On May 5, 2009, Azelia died. Hargrave took custody of all of Azelia’s children, including Ernesha.

¶4. Earnest made several unsuccessful attempts to obtain custody of Ernesha from Hargave, and eventually filed a suit for custody on July 28, 2009. Earnest’s petition alleged that Hargrave had kept him from seeing Ernesha. Earnest averred that he was a “fit and proper person to have full physical custody....”

¶ 5. In August 2009, the chancery court entered a temporary custody order finding that Hargrave should háve temporary custody of Ernesha until a final hearing could be held. The chancery court granted Earnest weekend visitations with Ernesha.

¶ 6. In November 2009, Hargrave filed an answer and counterclaim. In her pleading, Hargrave claimed that it was in Ernesha’s best interest for Hargrave to have custody and that Ernest had “shown little, if any, interest in the rearing of [Ernesha] since she was born.”

¶ 7. On December 4, 2009, the chancery court entered a final judgment regarding custody. The chancery court found that it was in Ernesha’s best interest to remain in Hargrave’s custody. In coming to that conclusion, the chancery court considered the totality of the circumstances and each of the factors found in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In its bench opinion, the chancery court noted that Earnest had never really cared for Ernesha or financially supported her and that Hargrave had helped raise and support Ernesha since she was born. The chancery court’s final judgment granted Earnest regular visitation with Ernesha. Earnest filed a timely motion to reconsider, alleging that the Albright factors should not have been used to determine custody without the chancery court first determining that Earnest was unfit as a parent. The chancery court summarily denied the motion on March 15, 2010.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. In order to reverse a chancery court’s custody determination, we must find that the court is “manifestly wrong or applied an erroneous legal standard.” Floyd v. Floyd, 949 So.2d 26, 28 (¶ 5) (Miss.2007) (citing Powell v. Ayars, 792 So.2d 240, 243 (¶ 6) (Miss.2001)).

¶ 10. We find that the chancery court applied an erroneous legal standard. As Earnest has pointed out, it is not proper for a chancery court to use the Albright factors alone when determining whether to take a child away from a natural parent. Rather, it is generally presumed that the best interest of a child is served by remaining in the custody of the child’s natural parent. Vaughn v. Davis, 36 So.3d 1261, 1264 (¶ 10) (Miss.2010). However, the presumption is not unassailable. Id.

¶ 11. In Vaughn, the minor child, Danielle, was born in 2000. Id. at 1262 (¶ 2). Danielle and her mother, Theresa, lived with Connie Davis, Theresa’s mother, after Danielle’s birth. Id. Theresa passed away in 2002. Id. After her death, Connie and Danielle’s natural father, William Vaughn, agreed that Connie should keep Danielle. Id. Vaughn did not seek custody of Danielle at that time, and he rarely visited her. Id. He also did not pay any child support. Id. In 2004, Vaughn agreed to give Connie temporary custody of Danielle. Id. at (¶ 3). The chancery court relied on the temporary custody order in concluding that Vaughn had relinquished his right to rely on the natural-parent presumption. Id. at 1264 (¶ 8). The chancery court then examined the Albright factors and found that Connie should have custody of Danielle. Id.

¶ 12. On appeal, the Mississippi Supreme Court held that the chancery court should not have found that Vaughn’s agreement to give Connie temporary custody invalidated the natural-parent presumption. Id. The supreme court noted that the primary determination in every custody case is the best interest of the child. Id. at 1264 (¶ 10). The court then noted the following regarding the chancellor’s conclusions:

The chancellor believed he had only two options. He would have to find Vaughn immoral or unfit as a parent, or that he had abandoned the child, and then do an Albright analysis to determine Danielle’s best interest.... Or, if he failed to find immorality, unfitness, or abandonment, he would have to grant custody to Vaughn without regard to Danielle’s best interest.... The chancellor found abandonment through Vaughn’s temporary agreement to temporary custody. Following this finding, the chancellor determined that Danielle’s best interest ... w[as] served by continuing to live in Connie’s home, the only home Danielle had ever known.
We find that the chancellor was not required to make such a stark choice under these facts. Our custody statute ... offers another option, a finding of desertion.... Thus, the chancellor could have treated Vaughn’s inaction prior to the agreed order as desertion of Danielle. If so, Vaughn would have forfeited the presumption he had as her natural father, even though his actions/inactions do not compare to the behavior our courts have found to constitute abandonment or constructive abandonment.
* * *
In Leverock, this Court found that a father had deserted his son by “completely avoiding both his moral and legal duties and obligations as a father for more than two years. During this period of time, he showed a complete disregard for the welfare of his young son.” The Leverock Court continued that the father had chosen “to take an extended holiday from the responsibilities of parenthood[,]” and we find that he should not now be able to claim the benefit of his status as a natural parent.

Id. at 1264-65 (¶ 11-14) (citations omitted). The supreme court reversed and remanded the case to the chancery court for a determination of whether “Vaughn relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order.” Id. at 1267 (¶ 18). The court acknowledged that: “As always in custody matters, the best interest ... of the child should guide the analysis as a polestar.” Id.

¶ 18. We find, on the basis of the supreme court’s holding in Vaughn, that the chancery court in this case should have considered whether Earnest had deserted Ernesha as a result of his interactions, or lack thereof, with her during the first ten years of her life. On remand, the chancery court must consider the natural-parent presumption and whether Earnest has lost the benefit of the presumption, either through desertion or some other conduct that has made him unfit as a parent. In the absence of desertion or other indication that Earnest is unfit, the natural-parent presumption must be considered in determining who should have custody of Ernesha.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF ADAMS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424 (Miss.2009).


author: MYERS, J., CARLTON, J.,

text:
    Kelsey RUSHING and Yumeka Rushing, Appellants v. TRUSTMARK NATIONAL BANK, Appellee.
    No. 2010-CA-00037-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Matthew Ivan Hetzel, Jackson, Tommie Lee Stingley Jr., attorneys for appellants.
    Christopher A. Shapley, William “Trey” Jones III, Christopher Ray Fontan, Jackson, attorneys for appellee.
   MYERS, J.,

for the Court:

¶ 1. Kelsey and Yumeka Rushing sued Trustmark National Bank to recover damages on the grounds of negligence, breach of fiduciary duty, breach of contract, and detrimental reliance in connection with a construction-loan agreement the Rushings had entered into with the bank for a new home. The Hinds County Circuit Court granted Trustmark’s motion for summary judgment on the basis that the Rushings had waived any causes of action they might have had against Trustmark when the they continued to renew the existing construction loan with Trustmark, despite their awareness of the causes of action they intended to pursue against the bank. Finding no error with the circuit court’s application of Mississippi’s waiver rule, we affirm the court’s judgment.

FACTS

¶2. In 2002, the Rushings purchased a subdivision lot in Madison County, Mississippi, and hired Louie and John Hale, of Hale Construction, to construct a house on the property. The Rushings were unable to obtain financing for the project until 2004 when they contacted Trustmark through Carl Sandberg, Trustmark’s Vice President of Residential Lending.

¶ 3. The Rushings closed their construction loan with Trustmark on December 24, 2004. At the closing, the Rushings and the Hales executed a building contract, and the Rushings executed a written loan agreement with Trustmark.

¶ 4. As authorized by the Rushings, the construction loan operated as a line of credit with a set amount available at Trustmark, from which various amounts could be drawn off by the Hales to pay for work as construction of the house progressed. The Hales began building the house in January 2005 and continued construction on the residence until May 2005. As work progressed on the construction of the house, a total of five draws were made to the Hales from the Rushings’ line of credit.

¶ 5. On May 31, 2005, the Rushings were contacted by the subdivision’s homeowners association about problems with the construction of the home. Concerned, the Rushings paid for Madison County inspectors to conduct an inspection of the project. The inspectors thereafter informed the Rushings that unless major changes were made, construction would ultimately fail county inspection. The Rushings halted construction and contacted Trustmark, after which the bank did not remit any further draws to the Hales.

¶ 6. On June 6, 2005, the Rushings met with Sandberg to discuss their construction loan. The Rushings renewed their original construction loan with Trustmark and borrowed additional money from the bank between June 2005 and April 2006 to complete the construction of their home. Meanwhile, the Rushings had terminated their relationship with the Hales and hired Slaughter Construction, which corrected the construction deficiencies performed by the Hales and completed construction of the new home in 2006. In May 2006, the Rushings paid off their construction loan with Trustmark after they obtained a permanent mortgage with another financial institution.

¶ 7. On May 8, 2009, the Rushings filed suit in the Hinds County Circuit Court against Trustmark, Hale Construction, and Shumaker Properties, alleging negligence, breach of fiduciary duty, fraud, civil conspiracy, breach of contract, and detrimental reliance. In the complaint, the Rushings alleged that Trustmark failed to monitor, verify, and inspect Hale Construction’s work before remitting draws to the builder. They claimed that Trust-mark’s actions forced them to incur an additional $200,000 of debt, and they sought $500,000 in compensatory damages and $1,000,000 in punitive damages as well as attorney’s fees and other damages.

¶ 8. Trustmark and Shumaker Properties each filed their own separate answers. The Rushings were unable to locate John Hale to serve him with process. Louie Hale failed to answer the complaint, and a default judgment was entered against him.

¶ 9. The circuit court granted Trust-mark’s motion for summary judgment, certified in accordance with Rule 54(b) of the Mississippi Rules of Civil Procedure as a final judgment, based on the finding that the Rushings had “waived any potential claim they may have had against Trust-mark, when they continued to renew their loan agreement with Trustmark, despite their awareness of the cause(s) of action they intended to pursue against Trust-mark.” Relying on Citizens National Bank v. Wattman, 344 So.2d 725 (Miss.1977) and other similar cases, the circuit court reasoned that waiver operated in this case “pursuant to longstanding Mississippi law.” This appeal followed.

¶ 10. The Rushings raise the same issues they presented to the circuit court in their opposition to Trustmark’s motion for summary judgment. Because we find that the circuit court did not err on the principal issue of granting summary judgment based on the waiver doctrine, we limit our discussion to that dispositive issue.

STANDARD OF REVIEW

¶ 11. This Court reviews a trial court’s decision to grant or deny summary judgment de novo. Owens v. Thomae, 904 So.2d 207, 208 (¶ 7) (Miss.Ct.App.2005). Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c).

DISCUSSION

¶ 12. The Rushings argue that the circuit court erred in applying the waiver doctrine to the facts in this case, as the rule has only been applied in cases where the plaintiffs or debtors were alleging causes of actions as either defenses to paying the notes for permanent financing or as reactions to collection actions filed by lenders. Contrarily, Trustmark argues that the waiver doctrine, as applied by the circuit court, stands for the proposition that: where a borrower has knowledge of the facts giving rise to a claim of wrongdoing against a lender in relation to a contract, the borrower cannot affirm the contract and continue to accept the benefits of the contract and then complain about the alleged wrongdoing at a later date.

¶ 13. In Wattman, the Mississippi Supreme Court concisely and emphatically stated the rule of law which governs this case as follows:

Our law is clear that the execution of a renewal note with full knowledge of the facts constituting a defense to the original note waives that defense as to the renewal. Justice Griffith explained this doctrine in Gay v. First Nat’l Bank, 172 Miss. 681, 686, 160 So. 904, 905 (1935)[:]
Where a party has full knowledge of all defenses to a note and executes a new note payable at a future date, he then waives all his defenses and becomes obligated to pay the new note. Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 604, 153 So. 818 [ (1934) ]. And where the facts and circumstances are such that a reasonably prudent person, judged by normal standards, would or should have made inquiry, which inquiry, if reasonably pursued and with ordinary diligence, would have led to full knowledge of his defenses, then it becomes the duty of the party or parties to make such inquiry or investigation before executing the renewal note, and if he fail[s] to do so[,] he is as much bound as if he had actual knowledge of all the facts.

Wattman, 344 So.2d at 728.

¶ 14. In applying the rule to that case, the Wattman court stated:

We need not decide whether the jury was properly instructed, nor whether it could properly accept the version of the facts offered by Mrs. [Evelyn] Wattman. Nor need we decide whether, accepting Mrs. Waltman’s version of the facts as true, the Bank committed any actionable wrong, either fraudulently or negligently. We have reached the inescapable conclusion that by executing the last renewal note on August 8,1973, with full knowledge of the surrounding circumstances, Mrs. Wattman waived any cause of action she might have had against the Bank based on the earlier notes. Therefore, the defendant’s peremptory instructions should have been granted.

Id. at 727.

¶ 15. The Rushings’ argument(s) on appeal notwithstanding, we do not find the lender/borrower relationship between them and Trustmark to be any different from those found in the cases of Watt-man and Gay. The Rushings, who are both attorneys, admitted in their respective depositions that prior to renewing the construction loan with Trustmark (three additional times), they were aware of Trustmark’s alleged responsibility for the construction problems they had with Hale Construction, and they intended to sue Trustmark for its alleged actionable wrong(s) once their new builder completed construction on their home. That being the case, the Rushings waived any right of action they might have had against Trustmark. Wattman, 344 So.2d at 727; see also Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 103 (¶ 22) (Miss.2008); Austin Dev. Co. v. Bank of Meridian, 569 So.2d 1209, 1212-13 (Miss.1990); Knox v. BancorpSouth Bank, 37 So.3d 1257, 1261-62 (¶ 14) (Miss.Ct.App.2010). Therefore, we affirm the circuit court’s grant of summary judgment in favor of Trustmark.

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

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS AND MAXWELL, JJ, CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J., AND RUSSELL, J. BARNES, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 17. I respectfully dissent from the majority’s opinion. The majority finds that Kelsey and Yumeka Rushing waived any claims they possessed against Trust-mark National Bank when they renewed their existing, or original, construction loan with Trustmark while aware of potential causes of action they intended to pursue against the bank. The majority bases this finding on the waiver doctrine as set forth in Citizens National Bank v. Wattman, 344 So.2d 725 (Miss.1977). A review of Wattman reveals that Wattman held that the execution of a renewal note with knowledge of the facts constituting a defense to the “original” note waived any defenses to the renewal. Id. at 728. However, no default exists in today’s case as to the debt incurred by either the renewal or the original note. In fact, a review of the record shows that the Rush-ings satisfied their debt owed to Trust-mark in full in May 2006 after obtaining long-term financing from another financial institution. Further, the record shows that nothing in the Rushings’ loan agreement with Trustmark, or in the renewal of that agreement, waived Trustmark’s obligation to perform in good faith. Accordingly, I find that the Rushings presented questions of material fact as to whether Trustmark breached its duty of good faith by negligently .managing the Rushings’ construction loan.

¶ 18. I submit that the renewal of a loan has the effect of a new promise to pay the original debt with new statute of limitations and new duties until expiration of the time applicable to the new promise to pay. Further, “[t]he law of Mississippi imposes an obligation of good faith and fundamental fairness in the performance of every contract[.] [Tjhis requirement is so pronounced that courts have the power to refuse to enforce any contract in order to avoid an unconscionable result.” Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026, 1034-35 (1121) (Miss.2010). See Miss.Code Ann. § 75-2-302 (Rev.2002).

¶ 19. As stated, in the present case, the Rushings satisfied the payment of the debt of the original loan and the additional monies received upon renewal of the loan. Hence, the Rushings assert no defenses to the payment of that note or to any note in default. The Rushings, instead, seek damages allegedly resulting from the negligent handling of their loan. No terms or conditions of their loan agreement allowed Trustmark to manage their loan in a negligent manner, or waived Trustmark’s obligation to perform in good faith. Therefore, the waiver doctrine articulated in Wattman fails to apply to the tort claims asserted by the Rushings in this case.

¶20. The obligation of good faith imposed by law into every contract is not subject to waiver. Accordingly, I submit that a contract term asserting to waive the obligation of good faith would be considered void as an unconscionable term. In Sawyers, 26 So.3d at 1034-35 (¶ 21), the Mississippi Supreme Court stated:

Substantive unconscionability is proven by oppressive contract terms such that “there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.” [Bank of Indiana, Nat. Ass’n v.] Holyfield, 476 F.Supp. 104,] 110 [ (S.D.Miss.1979) ].
“The law of Mississippi imposes an obligation of good faith and fundamental fairness in the performance of every contract!.] [T]his requirement is so pronounced that courts have the power to refuse to enforce any contract in order to avoid an unconscionable result.” Section 75-2-302 of the Mississippi Code provides: “If the court as a matter of law finds the contract to have been unconscionable it may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.”

¶21. With respect to damages, I note that the Rushings obtained new long-term financing from a different financial institute. Section 75-4-103(e) (Rev.2002) provides that “[t]he measure of damages for failure to exercise ordinary care ... is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary caret,]” and if bad faith exists, damages include “any other damages the party suffered as a proximate consequence.” See also Wise v. Valley Bank, 861 So.2d 1029, 1033-35 (¶¶ 12-17) (Miss.2003) (discussing bad faith, damages, and a bank’s duty to exercise care during the investigation of a customer’s complaint of wrongful withdrawal).

¶ 22. In conclusion, no terms or conditions in the loan agreement in today’s case waives or relieves Trustmark from its obligation to handle the administration of the Rushings’ loan with good faith and ordinary care. Therefore, the Rushings’ claims of negligence against Trustmark should have survived summary judgment since a question of fact existed as to whether Trustmark breached its duty of good faith in negligently handling in its loan administration, i.e. in providing negligent or unauthorized draws or payments to Hale Construction, resulting in damages to the Rushings. Additionally, with respect to the Rushings’ breach of fiduciary duty claim, a question of material fact existed as to whether the bank loan officer, Carl Sandberg, as an agent of the bank, created a fiduciary relationship by his representations with the Rushings, and, if so, whether Sandberg breached his fiduciary duty.

¶ 28. Based on the foregoing reasons, I respectfully dissent from the majority’s opinion.

IRVING, P.J., and RUSSELL, J„ join this opinion.

      . The record indicates that Hale Construction was associated with Shumaker Properties; Hale Construction used the latter’s Mississippi contractors' license for the project.

      . The Rushings later dismissed their claims of fraud and civil conspiracy against Trustmark.

      . The majority also cites to Gay v. First National Bank, 172 Miss. 681, 686, 160 So. 904, 905 (1935), for this same proposition.

      . See generally Chimento v. Fuller, 965 So.2d 668, 673-74 (¶¶ 23-26) (Miss.2007) (citing Crane v. French, 38 Miss. 503, 531-32 (1860) (discussing the contractual waiver of legal rights, specifically the statute of limitations).

      . I further note that nothing in the loan agreement reflects that the Rushings authorized the bank to remit draws directly to the contractor.

      . See generally 1 Gerald L. Blanchard, Lender Liability: Law, Practice and Prevention § 7:04 (Supp.2001) (discussing negligent loan administration).

      . See Miss.Code Ann. § 75-4-103(a) (Rev. 2002) (providing that "the parties to the agreement cannot disclaim a bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure”).

      . See Miss.Code Ann. § 75-4-103(a).

      . In comparison, Mississippi statutes involving commercial transactions reflect similar policy in setting forth the UCC’s objective of promoting certainty and predictability in loan transactions. See Miss.Code Ann. § 75-5-103 (Supp.2010). See also Union Planters, Nat’l Ass’n v. Rogers, 912 So.2d 116, 120-21 (¶ 13) (Miss.2005) (citing UCC § 4-406). These statutes adhere to the objective for certainty and predictability with respect to credit in requiring compliance with standard practices as set forth in Mississippi Code Annotated section 75-5-108(a) and (e) (Rev.2002). Additionally, Mississippi Code Annotated section 75-5-108(g) provides that "[i]f an undertaking constituting a letter of credit under Section 75-5-102(a)(10) contains nondocumenta-ry conditions, an issuer shall disregard the nondocumentary conditions and treat them as if they were not stated.” See Corporacion de Mercadeo Agricola v. Mellon Bank Int’l, 464 F.Supp. 88, 91 (S.D.N.Y.1978), aff'd, 608 F.2d 43 (2d Cir.1979) ("It is black letter law that the terms and conditions of a letter of credit must be strictly adhered to. There is no discretion in the bank to waive any of these requirements. The terms of the letter constitute an agreement between the purchaser and the bank.”) (internal citations omitted).

        .See generally Stanford Young, Mississippi Practice Series: Trial Handbook for Mississippi Lawyers § 32:19 (3d ed. Supp.2003) (discussing damages in breach-of-contract cases).

      . No terms or conditions in the written loan agreement authorizes Trustmark or the loan officer involved to make payments, or draws, directly to the contractor. Rather, the loan agreement only reflects the loan to the customers, the Rushings. See Humphreys County v. Guy Jones, Jr. Const. Co., Inc., 910 So.2d 1129, 1132 (¶ 14) (Miss.Ct.App.2005) (finding that ambiguous contract terms and conditions are construed against the drafter). See also Miss.Code Ann. § 75-5-108(g) (providing an issuer must disregard non-documented conditions involving credit falling under that statute).

      . See Miss.Code Ann. § 75-3-104(e) (Rev. 2002) ("An instrument is a ‘note’ if it is a promise and is a 'draft' if it is an order.”).

      . See Miss.Code Ann. § 75-4 — 102(b) (Rev. 2002) ("The liability of a bank for action or non-action with respect to an item handled by it for purposes of presentment, payment, or collection is governed by the law of the place where the bank is located.”).

      . A review of the loan agreement in the case at hand shows no privity of contract existed between Hale Construction and Trustmark. See United. Plumbing & Heating Co., Inc. v. AmSouth Bank, 30 So.3d 343, 347 (¶ 13) (Miss.Ct.App.2009).

      . See Miss.Code Ann. § 75-4-103.

      .While I acknowledge that the relationship between a bank and its depositor is generally not a fiduciary one, see Wise, 861 So.2d at 1033 (¶ 11), I assert that a question exists as to whether Sandberg, through his own misrepresentations created a fiduciary duty with the Rushings. As an agent of Trustmark, his representations would bind Trustmark. In discussing an agent's authority, this Court has provided:
      Under general Mississippi law, an agent's authority may be either actual or apparent. Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180 (Miss.1990). The issue of actual authority need not be reached if the agent had apparent authority. Baxter Porter & Sons Well Servicing Co., Inc. v. Venture Oil Corp., 488 So.2d 793, 796 (Miss.1986) (citing McPherson v. McLendon, 221 So.2d 75, 79 (1969)). "Apparent authority exists when a reasonably prudent person, having knowledge of the nature and usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent that the agent has the power he is assumed to have.” Andrew Jackson, 566 So.2d at 1180 (citing Ford v. Lamar Life Ins. Co., 513 So.2d 880, 888 (Miss.1987)).

        Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d 862, 874 (¶ 37) (Miss.Ct.App.2001).