author: ISHEE, J.,

text:
    Clarence BENNETT, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00054-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Clarence Bennett Jr. was convicted of aggravated assault and possession of a firearm by a convicted felon in the Circuit Court of Bolivar County, Mississippi, Second Judicial District. He was sentenced to twelve years on the conviction of aggravated assault and three years on the conviction of possession of a firearm by a convicted felon, with the sentences to run concurrently, all in the custody of the Mississippi Department of Corrections (MDOC). Bennett appeals his conviction of aggravated assault on the basis that the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On the morning of April 6, 2005, Bennett was arrested for disturbing the peace at his Cleveland, Mississippi, apartment complex. According to the record, the Cleveland Police Department received a call that Bennett had instigated a heated argument between himself and Myron Hall, who lived near Bennett in the same apartment complex, regarding Bennett improperly parking his vehicle at the apartment complex. Police officers responded to the call and arrested Bennett, who was released on bond shortly thereafter.

¶ 3. Later that day, Hall returned to the apartment he shared with his girlfriend and their children after he had picked up the children from school. Hall and his girlfriend both testified that he was accompanying the children into the apartment when Bennett opened his door and said: “If you see that tall man again, tell him I got [sic] something for him.” Hall responded: “Tell the man I got [sic] something right here.” Hall and his girlfriend stated that Bennett then stepped out of his apartment and fired several shots at Hall. Hall further testified that he was unarmed at all times and attempted to avoid injury by turning to run inside his apartment. Nonetheless, Hall suffered a “graze wound” to his back, for which he was treated and quickly released.

¶ 4. Conversely, Bennett testified that the morning incident, wherein he was arrested for disturbing the peace, was initiated by Hall. Bennett explained that as he left his apartment to take out his garbage on the morning of the shooting, Hall began an argument with him regarding the location of Bennett’s parked vehicle and its interference with Hall’s girlfriend’s parking space. Bennett stated that during the argument, Hall became increasingly agitated, began cursing at Bennett, and then approached him with a knife, at which point Bennett ran inside his apartment.

¶ 5. Bennett further testified that some time later, police officers arrived at his door and arrested him for disturbing the peace, despite his insistence of innocence. After he was bailed out of jail, Bennett claims to have visited a relative’s house, where he drank approximately one quarter of a pint of liquor. He then left and stated that upon returning to his apartment, he saw Hall in front of the apartment building, playing with his daughter. Bennett admitted he then pulled a pistol from his car and cautiously backed away from Hall with the gun hidden behind his back. Bennett testified that Hall leapt toward him, forcing him to shoot Hall in self-defense.

¶ 6. When asked what Bennett recalled about the testimony he had given the police officers at the scene of the shooting, Bennett admitted he could not remember his exact testimony as he was intoxicated at the time of the shooting. However, at Bennett’s sentencing, he told the trial court he was not attempting to shoot Hall; rather, he was attempting to shoot “a young gangster thug.”

¶ 7. Bobby Riley, a neighbor in Bennett and Hall’s apartment complex, testified at the trial regarding her observation of the shooting. Riley was present in her apartment on the day in question. She testified that she heard loud arguing between Bennett and Hall and also two shots fired; then she saw Hall attempting to escape inside his apartment. She stated that she did not see a knife or any other object in Hall’s hand, and she did not see who had fired the shots.

¶ 8. Officer Rhett Nelson, with the Cleveland Police Department, also testified at the trial. On the morning in question, he responded to the call that Bennett was disturbing the peace. He arrived at Bennett’s apartment and asked Bennett to explain the problem between himself and Hall. Officer Nelson observed distinct signs of Bennett’s intoxication, and he recalled that Bennett began yelling at passersby and ranting about his dislike for Hall and Hall’s girlfriend. Officer Nelson then arrested Bennett for disturbing the peace and stated that en route to the police station, Bennett announced he should solve his dispute by shooting Hall and Hall’s girlfriend.

¶ 9. Later that day, Officer Nelson responded to the call that Hall had been shot. Upon arriving at the scene, Hall and his girlfriend identified Bennett as the shooter and pointed Officer Nelson in the direction of Bennett’s apartment. Upon arresting Bennett in his apartment, Officer Nelson observed a nine-millimeter-shell casing outside the apartment door and Bennett’s nine-millimeter handgun and holster were later found in Bennett’s apartment.

¶ 10. On November 17, 2005, after a jury trial was held on the matter, Bennett was found guilty of aggravated assault and possession of a firearm by a convicted felon. On December 12, 2005, the trial court sentenced Bennett to twelve years for aggravated assault and three years for possession of a firearm by a convicted felon, with the sentences to run concurrently, all in the custody of the MDOC. Bennett appealed his conviction of aggravated assault and filed a motion for a judgment not withstanding the verdict (JNOV) or, in the alternative, for a new trial. The trial court denied his post-trial motion.

¶ 11. Thereafter, Bennett filed his notice of timely appeal; however, his counsel failed to file a brief, and Bennett’s appeal was dismissed under Mississippi Rule of Appellate Procedure (2)(a)(2). In September 2007, Bennett filed a motion for an out-of-time appeal, which was denied. In October 2008, Bennett appealed the denial of his motion for an out-of-time appeal. The Mississippi Supreme Court granted the appeal and reinstated Bennett’s original appeal. This Court now reviews Bennett’s appeal, which is based upon his claim that the jury’s verdict of guilty for aggravated assault is against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 12. This Court recognizes that the decision to grant or deny a motion for a new trial is within the sole discretion of the trial court. Hill v. State, 912 So.2d 991, 994 (¶ 19) (Miss.Ct.App.2004) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Accordingly, this Court utilizes an abuse-of-discretion standard of review in determining whether or not to grant or deny a motion for a new trial. Id. at 995 (¶ 25). A new trial should only be granted if “the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion [for a new trial] would result in unconscionable injustice.” Id. (citation omitted). In deciding whether a verdict is against the overwhelming weight of the evidence, “this Court must view all evidence in the light most consistent with the verdict.” Id.

DISCUSSION

¶ 13. In this case, it is undisputed that Bennett shot Hall. Bennett, Hall, and Hall’s girlfriend testified at the trial of the matter that Bennett was the shooter. Accordingly, the jury was essentially only charged with determining whether or not Bennett shot Hall in self-defense. The jury heard testimony from Bennett that he was drunk and that he and Hall had engaged in an argument on the morning of the shooting. The jury also heard testimony from Officer Nelson that Bennett was arrested for disturbing the peace following his argument with Hall and that, on the way to the police station, Bennett stated that he should shoot Hall and Hall’s girlfriend. Hall further testified that he was unarmed at the time of the shooting— testimony that was corroborated by Hall’s girlfriend as well as his neighbor, Riley. Officer Nelson also confirmed the weapon used to shoot Hall was Bennett’s nine-millimeter gun, which was found in Bennett’s apartment and the shell casing of which was discovered outside of Bennett’s apartment door directly after the shooting.

¶ 14. Bennett argues the testimonies of Hall and his girlfriend were unreliable, as both witnesses had a stake in the outcome of the case. Additionally, Bennett argues the testimony of Riley should have been disregarded because of minor inconsistencies in her testimony and because she testified that she did not see who had shot Hall. Nonetheless, witness credibility is a matter for the jury to consider and determine. Jackson v. Daley, 739 So.2d 1031, 1039 (¶ 29) (Miss.1999). This Court will not set aside a verdict merely on account of a conflict in the facts. Price v. State, 892 So.2d 294, 297-98 (¶ 15) (Miss.Ct.App.2004).

¶ 15. Accordingly, there is nothing in the record before this Court to demonstrate that the verdict convicting Bennett of aggravated assault is against the overwhelming weight of the evidence. Therefore, we affirm Bennett’s convictions and sentences.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWELVE YEARS, AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF THREE YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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


source: Caselaw Access Project

author: ISHEE, J„

license: Public Domain

text:
    James D. ROMINE, Appellant v. ALLIED WASTE NORTH AMERICA, INC. a/k/a BFI and American Home Assurance Company, Appellees.
    No. 2009-WC-01526-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      Robert H. Tyler, Biloxi, attorney for appellant.
    Stephen A. Anderson, M. Jason Sumrall, Biloxi, attorneys for appellees.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J„

for the Court:

¶ 1. James D. Romine was employed by BFI as a garbage collector and garbage-truck driver. On December 6, 2002, Ro-mine filed two petitions to controvert with the Mississippi Workers’ Compensation Commission alleging that on May 21, 2002, and then again on August 6, 2002, he was exposed to toxic and hazardous materials during the course and scope of his employment. Romine alleged that he sustained injury to his neurological system which has caused him to suffer severe involuntary-movement disorder (dystonia).

¶ 2. On February 6, 2008, after a thorough review of the medical and lay testimony, and after a review of Mississippi case law on chemical exposure, the Administrative Judge (AJ) entered an order finding that Romine’s current condition was not causally related to the exposure of chemicals on the dates in question.

¶ 3. On July 2, 2008, the AJ’s decision was affirmed by the full Commission. On August 21, 2009, the Circuit Court of Jackson County affirmed the findings of the AJ and the Commission that Romine had failed to satisfy his burden of proof in establishing a work-related injury. Aggrieved, Romine has filed this appeal. Finding no error, we affirm.

FACTS

¶ 4. Romine, who testified on his own behalf, claimed that he suffered two work-related injuries through exposure to certain toxic chemicals. He testified that on May 21, 2002, he was working as a garbage collector when the contents of containers combusted, and he inhaled a chemical that took his breath away and brought him to his knees. He experienced a constant cough and was admitted for a short hospital stay. He further testified that, after returning to work, he was again exposed to toxic chemicals on August 6, 2002. Romine testified that on this occasion he “ran the blade” on the garbage truck, and then a white cloud of smoke began to emanate from the truck. Romine’s supervisors instructed him to transport the garbage to the dump, which was six or seven miles away. Romine testified that the odor persisted the entire trip. Upon inspection at the dump, the garbage contained muriatic brick acid and pool chemicals.

¶ 5. Immediately following the second exposure, Romine began experiencing shoulder pain which then progressed into involuntary muscle movements. He was admitted to Biloxi Regional Medical Center where he was diagnosed with severe dystonia. An MRI of the brain was conducted, and a small lesion of the left basal ganglia was detected. A subsequent MRI showed that the lesion had grown in size.

¶ 6. At Romine’s initial hearing, the AJ considered the testimony and reports of Romine’s treating physicians. Dr. Richard Gorman, a neurologist, testified that exposure to toxins “would appear to be with reasonable medical probability” the cause of the disorder; however, he further testified that if metabolic disorders were ruled out, then it was his opinion that toxic exposure was the cause. Various other physicians testified at the hearing. All of Romine’s other physicians opined that the dystonia was due to “unknown etiology,” Huntington’s disease, Wilson’s disease, or chorea.

¶ 7. At the hearing, the employer/carrier offered the testimony of Dr. Jonas Kalnas, a physician who specializes in exposures to various hazards on the job. After reviewing the records of Biloxi Regional Medical Center and Romine’s treating physicians, Dr. Kalnas opined that none of the claimed exposures could have caused Romine’s condition. It was his opinion that the more likely cause was either hemangioma or la-cunar infarct and that the exposures did not cause or aggravate his condition. He further testified that prolonged and repetitive exposure to certain chemicals can cause dystonia; however, the brief exposure of chemicals to Romine could not have been the cause of his disorder.

¶ 8. After a careful and thorough review of the medical and lay testimony, the AJ denied the claim, finding that Romine had failed to prove by a preponderance of the evidence that his dystonia was causally related to the work-related incidents. The full Commission affirmed the decision of the AJ, and the circuit court affirmed the Commission’s decision. Romine now appeals the ruling of the circuit court. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 9. The standard of review in appeals of workers’ compensation cases is limited; this Court must determine only whether the decision of the Commission is supported by substantial evidence and whether the law was correctly applied. Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). “The Commission sits as the ultimate finder of facts; its findings are subject to normal, deferential standards upon review.” Casino Magic v. Nelson, 958 So.2d 224, 228 (¶ 13) (Miss.Ct.App.2007) (citing Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). Because our review is limited, this Court “will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 448 (¶ 8) (Miss.Ct.App.1999). Substantial evidence, though not easily defined, can be said to mean “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991) (citations omitted). Substantial evidence is more than a “mere scintilla” of evidence that does not rise to the level of a preponderance of the evidence; it affords “a substantial basis of fact from which the fact in issue can be reasonably inferred.” Id. We maintain this deferential standard even when we would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994).

DISCUSSION

¶ 10. Romine argues that the record is void of substantial, credible evidence to support the AJ’s findings, which were adopted without additional comment or modification by the Commission, that Ro-mine’s dystonic condition was not shown to be causally connected to the chemical incidents of May and August 2002. He further argues that reversal is necessary based on the credibility of the employer/carrier’s retained expert, Dr. Kalnas. We will address each argument individually-

A. Lack of Substantial Evidence

¶ 11. In support of his argument, Romine references Sharpe v. Choctaw Electronics Enterprises, 767 So.2d 1002, 1007 (¶20) (Miss.2000), where the Mississippi Supreme Court found the claimant’s injuries to be compensable although the medical evidence concerning causation was not definitive. However, the Sharpe decision can be distinguished from the facts of Ro-mine’s case. In Sharpe, the supreme court held that, although the medical evidence was unclear as to causation, there was undisputed evidence that Sharpe had suffered no pulmonary problems prior to his employment; he demonstrated a lung ailment; he was exposed to substances which caused pulmonary distress; and he was advised by every expert to avoid exposure to chemical irritants for fear of aggravation. Id. at 1006 (¶ 18).

¶ 12. Although it is undisputed that Ro-mine suffers from dystonia after the August incident, the AJ and the Commission found that Romine had not shown by a preponderance of the evidence that he was exposed to chemicals that would cause dys-tonia. Or, alternatively, he was not exposed to the chemicals long enough to cause the disorder. “In a workers’ compensation case, the claimant bears the burden of proving by a ‘fair preponderance of the evidence’ each element of the claim”. Moore v. Indep. Life and Accident Ins. Co., 788 So.2d 106, 112 (¶ 19) (Miss.Ct.App.2001).

B. Credibility of Dr. Kalnas

¶ 18. Romine further argues that reversal should be granted based on the credibility of the employer/carrier’s retained expert, Dr. Kalnas. The AJ, in her official opinion, noted that, although there was conflicting testimony, Dr. Kalnas’s testimony was persuasive as he specializes in this area of research. She further noted that Dr. Kalnas described his research and provided numerous scientific authorities discussing the relation of dystonia to chemical exposure, and he explained in detail how he had reached his conclusion that Ro-mine’s history was not indicative of exposure to any of these substances known to cause dystonia.

¶ 14. The Commission is the judge of the credibility of witnesses. White v. Superior Prods., Inc., 515 So.2d 924, 927 (Miss.1987). If the Commission finds the testimony to be untrustworthy or unreliable, the Commission has the authority to reject it. Id. Although there is a tendency of the appellate courts to view testimony as a whole and to view it liberally in the claimant’s favor, where medical testimony is conflicting, the decision of the Commission will be upheld whether the award is for or against the claimant. Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 269 (Miss.1966).

1115. The decision of the Commission, and the subsequent affirmation of that decision by the circuit court, that Romine failed to satisfy his burden of proof in establishing a causal connection between his movement disorder and a work-related injury is supported by substantial evidence. Therefore, we affirm.

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

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


author: ROBERTS, J.,

text:
    Terrance KUYKENDALL, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01740-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Tracy Smith and Terrance Kuyken-dall were dating at the time of her death. However, Kuykendall was ready to end the relationship, and he expressed this to Tracy. On April 13, 2008, while the couple was at Kuykendall’s grandmother’s house in Marks, Mississippi, they went to a bedroom and began arguing about the situation as Tracy did not want the relationship to end. According to Kuykendall, he went to the restroom down the hall. While there, he heard a gunshot. Upon returning to the bedroom, he saw that Tracy had been shot. The gun that was used, which Kuykendall testified that Tracy was holding when he went to the restroom, was never found.

¶ 2. While allegedly on his way to the police station to turn himself in, Kuyken-dall was arrested. He was subsequently indicted on the charge of murder. Kuyk-endall’s trial took place on September 15-17, 2009, in the Circuit Court of Quitman County. The jury found him guilty, and he was sentenced to life. Kuykendall now appeals his conviction and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTIONS FOR A MENTAL EXAMINATION; and
II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT BASED UPON THE WEATHERSBY RULE.

Finding no error, we affirm.

DISCUSSION

I. MOTIONS FOR A MENTAL EXAMINATION

¶ 3. Kuykendall argues that the trial court erred in denying his motions for a mental examination as Kuykendall’s and other witnesses’ testimonies established a valid basis for granting the request. Rule 9.06 of the Uniform Rules of Circuit and County Court states, in pertinent part, that “[i]f before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination.... ” “[T]he standard for competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding of the proceedings against him.’ ” Dunn v. State, 693 So.2d 1333, 1340 (Miss.1997) (quoting Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). The Mississippi Supreme Court has further held that a defendant who is competent to stand trial is one:

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

Martin v. State, 871 So.2d 693, 697 (¶ 17) (Miss.2004). Finally, the standard of our review is such that:

When the trial court has made a finding that the evidence does not show a probability that the defendant is incapable of making a rational defense, we will not overturn that finding unless we can say, from the evidence, that the finding was manifestly against the overwhelming weight of the evidence. The evidence must show more than a possibility that defendant is incompetent to stand trial — the evidence must go further until it appears to the trial court that there is a probability that defendant is incapable of making a rational defense. In this initial' inquiry, the trial judge must weigh the evidence and be the trier of the facts.

Id. at 698 (quoting Emanuel v. State, 412 So.2d 1187, 1189 (Miss.1982)).

¶ 4. Prior to Kuykendall’s first trial for the murder of Tracy, which ended in a mistrial, his court-appointed attorney requested a mental evaluation, but it was denied. Similarly, Kuykendall’s court-appointed attorney for his second trial for the murder charge filed a motion requesting that Kuykendall receive a mental evaluation to determine whether he could stand trial. Approximately three weeks before Kuykendall’s trial began, a pretrial hearing was held on the motion to determine his ability to stand trial.

¶ 5. At the hearing, Kuykendall’s attorney stated that after meeting with Kuyk-endall in private, he felt that Kuykendall was not competent to stand trial or have an understanding of what was happening. Specifically, the defense attorney stated that Kuykendall felt “that everybody was plotting against him,” stated that he heard voices, and expressed during his last hearing that Johnny Cochran was representing him. The trial court then asked Kuyken-dall several questions. Kuykendall stated that he felt as if he was just as equal as any other man in the courtroom. In response to the trial court’s question of whether there was a need for an examination, Kuykendall stated: “No, none whatsoever.”

¶ 6. Shirley Kuykendall, Kuykendall’s mother, then testified as to her son’s mental state. She stated that Kuykendall was a bright, intelligent, and nice kid who did not have any mental problems. Further, she testified that Kuykendall finished high school and one year of college. She also clarified that Kuykendall was referring to the Johnny Cochran Firm, rather than the man himself. This stands in contrast to Kuykendall’s aunt’s statement during his sentencing hearing that he had “lost touch with reality long ago.”

¶ 7. The trial court further questioned Kuykendall. The trial court asked when and where he was born, which Kuykendall answered. Additionally, the trial court asked when and where he had finished high school. Kuykendall appropriately answered, and he added that he graduated high school with a 3.5-grade-point average. Furthermore, the trial court asked Kuykendall if he understood the charge he faced and the consequences of being found guilty or not guilty. Kuykendall explained that he was charged with murder and would face substantial jail time if found guilty. He further understood that he would be set free if found not guilty. Additionally, Kuykendall stated that he felt he had the ability to confer with his attorney to discuss trial strategy and other pertinent matters as to his defense. Finally, Kuykendall stated that: “I understand everything. I understand [sic] it the first time I got trial [sic].”

¶ 8. The trial court then questioned two law-enforcement officers who had been able to observe Kuykendall during his pretrial incarceration. They both testified that they did not observe any actions by Kuykendall that indicated any mental imbalance. Based upon the testimony that was presented, the trial court found that:

Kuykendall has a rational understanding of the charge against him, that he does have a present ability to confer with his attorney.... So he’s well abreast of the severity of the case.... And that [Kuykendall] is in a position to confer with his attorney and to advise, to assist him in devising whatever trial strategy is necessary to defend him during the course of the trial.

Therefore, the trial court found that Kuyk-endall was mentally competent to stand trial.

¶ 9. At the conclusion of the second day at trial, Kuykendall’s attorney moved the trial court to reconsider its determination that Kuykendall was competent to stand trial. This motion was based upon the testimony of Terrance Paul Smith (Smith), Tracy’s cousin. Smith’s pertinent testimony on this matter included claims that Kuykendall told him that an “Arab kingpin [had] offered him so many kilos that — but the only way that he can [sic] get those and get in they [sic] game was if he killed Tracy.” Additionally, Smith stated that Kuykendall told him that he was having dreams involving Tracy’s mother and father telling him that Tracy had started the house fire that killed them.

¶ 10. Kuykendall also argues that his testimony during his direct examination should have required the trial court to sua sponte reconsider its earlier denials of his motions. Specifically, during his explanation of why he and Tracy temporarily moved to Texas, Kuykendall stated:

When we was on Elm Street, or whatever, you know, we had got — someone had been tryin’ to kill us, you know, when we was at her house on Elm Street, or whatever.
It started off where, you know, somebody had started puttin’ poison, or whatever, you know, in our food, or whatever, you know, and we had went to the hospital, or whatever.
So the next situation was that somebody had tampered with the gas heater, or whatever, when we was at the house, or whatever.

¶ 11. Upon our review of the record, we find that the trial court’s holding is not against the overwhelming weight of the evidence. It is clear from the trial court’s examination of Kuykendall that he understood the severity of the consequences with which he was faced. Additionally, there is no evidence that Kuykendall was unable to adequately assist in his defense. In fact, he took the stand and testified in his own defense. Therefore, we find this issue without merit.

II. THE WEATHERSBY RULE

¶ 12. Kuykendall argues that the Weathersby rule applies and that the trial court erred in denying his motion for a directed verdict because he was the only eyewitness to the killing, and his version of events was not substantially contradicted in material particulars. See Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). Specifically, in Weathersby, the supreme court held that:

where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the [SJtate, or by the physical facts or by the facts of common knowledge.

Id. at 209, 147 So. at 482.

¶ 13. As we noted in Neese v. State, 993 So.2d 837, 843 (¶ 12) (Miss.Ct.App.2008), a failure to specifically argue the Weathers-by rule before the trial court as a ground for a directed verdict constitutes a procedural bar to appellate review of that specific issue. However, procedural bar notwithstanding, we find that the Weathersby rule is inapplicable to the facts of this case.

¶ 14. Kuykendall testified that he and Tracy were in a bedroom of his grandmother’s house arguing about their relationship. Kuykendall further stated that Tracy had tried to harm herself in the past and had his pistol in her hand. According to Kuykendall, at some point, he left the bedroom and went to the bathroom. He stated that he was in the bathroom for approximately fifteen minutes before he heard a gunshot. After verifying that his grandmother and aunt, who were also in the house, were unharmed, he went back to the bedroom and saw that Tracy had been shot. Therefore, by his own testimony, Kuykendall was not an eyewitness to the killing. Because he was not an eyewitness to the killing, the Weathersby rule does not apply. See Lynch v. State, 877 So.2d 1254, 1280 (¶ 83) (Miss.2004); Kidd v. State, 258 So.2d 423, 429 (Miss.1972).

¶ 15. Further, the Weathersby rule is only applicable when the defendant’s version of the event is not “substantially contradicted by material particulars .... or by the physical facts or facts in common knowledge.” Weathersby, 165 Miss. at 209, 147 So. at 482. The evidence presented does substantially contradict Kuykendall’s version of the events making the Weathersby rule inapplicable.

¶ 16. The bullet fragments analyzed during Tracy’s autopsy were consistent with bullets fired from a Hi-Point weapon. Kuykendall owned a 9-millimeter Hi-Point gun which was neither recovered at the crime scene nor recovered since. Kuyken-dall’s explanation that he heard footsteps after the gunshot is not a reasonable explanation that someone came into the home and took the gun. Further inconsistent with his version of the event is the lack of gunshot residue on Tracy’s hands and the location of the bullet entry on the left side of the Tracy’s head. These are both inconsistent with a close contact, self-inflicted gunshot wound by a right-handed victim. Kuykendall’s previous death threats against Tracy, coupled with his statements of “I killed her” to both his best friend and later to the police, are also inconsistent with his version that Tracy had committed suicide.

¶ 17. Because Kuykendall was not an actual eyewitness to the event and his version of the event is substantially contradicted by the evidence, the Weathersby rule does not apply. As such, this issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUIT-MAN COUNTY.

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


author: MAXWELL, J.,

text:
    Frank VASSER, Jr., Appellant v. BIBLEWAY M.B. CHURCH, Appellee.
    No. 2009-CA-00612-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      T.K. Moffett, Tupelo, attorney for appellant.
    Rex F. Sanderson, Houston, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Bibleway M.B. Church filed a complaint in the Chickasaw County Chancery Court to confirm title to a piece of property it had purchased. Frank Vasser Sr. filed a motion to intervene, which the chancellor denied. Finding that Vasser Sr.’s motion to intervene was not timely under Mississippi Rule of Civil Procedure 24 and that his fraudulent representations to the chancellor weigh quite heavily against his request to intervene, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Vasser Sr. purchased the property involved in this litigation for his son, Frank Vasser Jr. The property was titled in Vasser Jr.’s name. Vasser Jr. failed to pay ad valorem taxes on the property, and Joe Robertson purchased the property at a tax sale. Robertson sold the property to Bibleway. Bibleway then brought the underlying lawsuit naming Vasser Jr. and Citifinaneial, a lien holder on the property, as defendants.

¶ 3. Citifinaneial did not answer. On July 21, 2008, Vasser Sr., falsely purporting to be Vasser Jr., filed a notice of entry of appearance and a request for additional time to answer. Less than a month later, Bibleway moved for a default judgment against the existing parties. The record contains no indication that the trial court ever ruled on Bibleway’s motion. On August 25, 2008, Vasser Sr. (again using his son’s name) filed an answer, along with a counterclaim and cross-claim. Almost two months later, in a deposition taken on October 22, 2008, Vasser Sr. admitted he had misrepresented himself as Vasser Jr. in all court documents he had previously filed. This disclosure was a surprise to the attorneys on both sides.

¶ 4. Based on Vasser Sr.’s misrepresentation of his identity, Bibleway filed a motion to strike Vasser Sr.’s pleadings. Over a month later, on December 1, 2008, Vas-ser Sr. filed a motion to intervene as a matter of right under Rule 24(a). In an order disposing of both motions, the chancellor granted Bibleway’s motion to strike, finding it was inappropriate for Vasser Sr. to file pleadings professing to be his son. The chancellor also denied Vasser Sr.’s motion to intervene finding that Vasser Sr. was not a real party in interest — that is, Vasser Jr. was the record title holder, and Vasser Sr. admitted he gave his property to his son.

¶ 5. Vasser Sr. now appeals from this decision.

STANDARD OF REVIEW

¶ 6. Rule 24 includes two basic types of intervention: (1) intervention of right and (2) permissive intervention. Generally, intervention of right poses a question of law, which we review de novo, unlike' permissive intervention, which we review for an abuse of discretion. See Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 85 So.3d 1209, 1214-15 (¶¶ 12-17) (Miss.2010). See also M.R.C.P. 24 emt; 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 1902, at 261 (2007). But according to multiple authorities, including a prior decision of the Mississippi Supreme Court, the issue of timeliness-a requirement in both types of intervention-is reviewed for an abuse of discretion. In re Hood ex rel. State Tobacco Litigation, 958 So.2d 790, 808 (¶ 65) (Miss.2007) (quoting Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977)) (“The question of whether the application is timely is largely committed to the discretion of the trial court[.]”). See also 7C Wright, Miller & Kane, § 1916, at 529-30.

¶ 7. Recently in Madison HMA, the supreme court sought to clarify a conflict regarding the applicable standard of review in its past decisions, some of which indicate that Rule 24 judgments are always reviewed for abuse of discretion. The court stated:

Rule 24, its comment, and the underlying purposes of the Rules clearly demonstrate that a de novo standard of review applies to all intervention-of-right judgments.
... It is well-settled that questions of law are to be reviewed de novo. See Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999). As Rule 24(a) addresses the right of one to intervene, it constitutes a question of law. Prudence, logic, and precedent dictate a de novo review. This position is consistent with the federal [courts’] de novo review of the denial of a motion for intervention of right pursuant to Federal Rule of Civil Procedure 24(a)(2). See Trans Chem. Ltd. v. China Nat’l Mach. Imp. and Exp. Corp., 382 F.3d 815, 822 (5th Cir.2003); [Stallworth], 558 F.2d [at] 263.

Madison HMA, 35 So.3d at 1214-15 (¶¶ 14, 17). Madison HMA did not make a distinction regarding the issue of timeliness, but the court did note “the timeliness of HMA’s motion to intervene is not in serious dispute.” Id. at 1217 (¶ 26). Nor did the court account for In re Hood’s instruction that timeliness issues are reviewed for abuse of discretion. See In re Hood, 958 So.2d at 808 (¶ 65) (citing Stallworth, 558 F.2d at 263).

¶ 8. Given the flexibility involved in a timeliness determination, the weight of authority suggests this issue is largely discretionary, even where a party moves to intervene of right. See NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973) (interpreting F.R.C.P. 24(a)-(b)); Ross v. Marshall, 426 F.3d 745, 753 (5th Cir.2005) (citing John Doe No. 1 v. Glickman, 256 F.3d 371, 376 (5th Cir.2001)); Stallworth, 558 F.2d at 263, 7C, Wright, Miller & Kane, § 1916, at 529-30. But see 7C Wright, Miller & Kane, § 1916, at 531 (Although the standard for reviewing timeliness in all Rule 24 motions is abuse of discretion, when a petitioner may intervene as of right, the court exercises its discretion in finding the application untimely with greater reluctance.).

¶ 9. However, in instances where the trial court fails to make a timeliness determination or support it with sufficient findings, the United States Fifth Circuit Court of Appeals has explained a de novo standard applies:

If a court denies a motion to intervene because it was untimely, we generally review this decision, and only this decision, for an abuse of discretion. To be entitled to the deferential standard of review, however, a court must articulate the reason the motion was untimely. If the court fails to articulate the reason the motion to intervene was untimely, we review the timeliness element de novo. It appears that a court fails to articulate a reason a motion to intervene is untimely if it does not expressly reference any of the four factors used to decide a motion to intervene’s timeliness.

Glickman, 256 F.3d at 376 (emphasis added and internal citations omitted).

¶ 10. Because the chancellor made no express finding on any of the timeliness factors but instead rested her decision on another ground, we find a de novo standard applies to our review of the timeliness of Vasser Sr.’s motion to intervene.

DISCUSSION

¶ 11. Because the denial of a motion to intervene is a final, appealable order, we have jurisdiction over this matter. See Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 380 (Miss.1987).

¶ 12. Before addressing the primary issue, we first mention that Vasser Sr. has not raised the chancellor’s decision to strike his pleadings as an issue on appeal. This issue, therefore, is procedurally barred. A.B. ex rel. C.D. v. Stone County Sch. Dist., 14 So.3d 794, 797 n. 1 (Miss.Ct.App.2009). Still we note the chancellor acted properly in striking the pleadings. The entire purpose of the intervention rules would be defeated if a party could simply join a lawsuit by misleading the court by filing pleadings under another’s name.

¶ 13. The sole issue remaining is the chancellor’s denial of Vasser Sr.’s motion to intervene as of right under Rule 24(a)(2). The following four prerequisites are required for intervention to be proper under this rule:

(1) The would be intervenor must make a timely application;
(2) He must have an interest in the subject matter of the action;
(3) He must be so situated that disposition of the action may “as a practical matter” impair or impede his ability to protect his interest; and
(4) His interests must not already be adequately represented by the existing parties.

Perry County v. Ferguson, 618 So.2d 1270, 1271 (Miss.1993). Because we find Vasser Sr.’s application untimely, we need only discuss the first element.

¶ 14. Observing that Mississippi’s Rule 24 and its federal counterpart are virtually identical, our supreme court has adopted the four-factor test employed by the Fifth Circuit in assessing the timeliness of a motion to intervene:

(1) the length of time during which the would be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene;
(2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would be interve-nor’s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case;
(3) the extent of the prejudice that the would be intervenor may suffer if his petition for leave to intervene is denied; and
(4) the existence of unusual circumstances militating either for or against a determination that the application is timely.

Pittman, 501 So.2d at 381-82 (citing Stallworth, 558 F.2d at 264-66); see also In re Hood, 958 So.2d at 806 (¶ 57), n. 16. Likelihood of success on the merits is not a factor in determining whether a motion to intervene is timely, though “the complaint in intervention should state a claim upon which relief may be granted.” Pittman, 501 So.2d at 382.

¶ 15. “ ‘Timeliness’ is not a word of exactitude or of precisely measurable dimensions.” McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir.1970). Thus, whether a motion to intervene is timely “is not limited to chronological considerations, but is to be determined from all the circumstances.” In re Hood, 958 So.2d at 806 (¶ 57) (quotation marks omitted).

(1) Length of Time

¶ 16. Vasser Sr. knew of his interest in this action well before he moved to intervene. After process was issued, Vas-ser Sr., on July 21, 2008, filed a notice of entry of appearance and a motion for additional time to answer. Vasser Sr. made both filings under his son’s name. He answered over a month later, again under his son’s name. Even after his misrepresentation was discovered during his October 22, 2008, deposition, he waited until December 1, 2008, to file his motion to intervene. Vasser Sr. had known of his interest in the litigation since at least July 21, yet he chose to proceed for months under a false identity before finally requesting to intervene. We find these facts as they relate to timeliness support the denial of his request for leave to intervene.

(¾) Prejudice to Bibleway

¶ 17. Prejudice to existing parties is ordinarily determined based on the delay “in the prosecution of claims or defenses in the pending action.” Pittman, 501 So.2d at 382. The only prejudice relevant under this factor is that caused by the potential intervenor’s failure to act promptly. In re Hood, 958 So.2d at 807 (¶ 60). The appellate court “cannot take into account any and all prejudice that the existing parties are likely to incur if intervention is permitted.’’ Id. “[Prejudice is measured at the time the motion to intervene [was] filed.” Id. (citing Pittman, 501 So.2d at 382). “[T]he most important consideration in deciding whether a motion ... is untimely is whether the delay in moving for intervention will prejudice the existing parties to the case.” 7C Wright, Miller & Kane, § 1916, at 541-48. See also McDonald, 430 F.2d at 1073 (“[T]his may well be the only significant consideration when the proposed intervenor seeks intervention of right.”).

¶ 18. Vasser Sr. is correct that he moved to intervene before any final ruling had been made. But this does not diminish the fact that Bibleway suffered prejudice. Indeed, Vasser Sr.’s misrepresentation delayed Bibleway’s efforts in its attempt to confirm title to the land.

¶ 19. Bibleway’s arguments against Vasser Sr. obviously differ from its claims against Vasser Jr. Bibleway specifically contends Vasser Jr. no longer owned the property. Bibleway argues Vasser Jr. failed to pay taxes on the property; Robertson purchased it at a tax sale; then Bibleway purchased the property from Robertson. In contrast, Bibleway’s claim against Vasser Sr., if he was permitted to intervene, would likely focus on its assertion that he never owned the property and is not in the chain of title. Bibleway contends Vasser Sr. purchased the property for his son and titled it in his son’s name. Further, Bibleway alleges Vasser Sr. borrowed money against the property without owning it.

¶ 20. Because Bibleway was for months unable to assert these claims against Vas-ser Sr., and now would be required to litigate these issues, we find delay in seeking intervention has and would prejudice Bibleway.

(3) Prejudice to Vasser Sr.

¶ 21. Prejudice under this factor is likewise determined from the time the motion to intervene is made. Pittman, 501 So.2d at 382-83.

¶ 22. We first note that Vasser Sr. does not even contend he actually owns the land. In fact, in his appellate brief, he points to the undisputed facts that the property was titled in his son’s name and that he bought the property as a gift for his son. While he claims to have paid taxes on the property, he does not deny discontinuing paying them in 2002, after which the property was sold at a tax sale. He does raise his alleged inability to protect his interests regarding his loan with Citifinancial, which apparently relates to money he borrowed against the property. Yet we are still unsure of the exact nature of the dispute between Citifinancial and Vasser Sr. Furthermore, he has failed to articulate any other specific grounds on which he would be entitled to relief. See id. at 382.

¶ 23. It is Vasser Sr.’s burden to show that his motion to intervene was timely, which includes the consideration of prejudice he has suffered. 59 Am.Jur.2d Parties § 233 (2002) (“The intervenor bears the burden to show a justiciable interest ... in the lawsuit, and to establish a reason for delay, where timeliness of the application is in issue.”). From our review, we find Vasser Sr. may suffer prejudice as a result of not being allowed to intervene, but not enough to overcome the other prevailing considerations.

(b) Unusual Circumstances

¶ 24. We are no doubt confronted with an unusual set of circumstances. Vasser Sr. made multiple false filings in his son’s name. Only upon the discovery of his true identity did he “fess up” and move to intervene. Vasser Sr. now attempts to join this litigation by making an end run around the chancellor’s grant of Bibleway’s motion to strike. We find his fraud perpetrated on the court weighs heavily against granting Vasser Sr.’s motion to intervene.

¶ 25. We also note that the “clean-hands” doctrine may have application here. “It is one of the oldest and most well known maxims that one seeking relief in equity must come with clean hands or face refusal by the court to aid in securing any right or granting any remedy.” R.K. v. J.K., 946 So.2d 764, 774 (¶ 24) (Miss.2007). Our supreme court has held that “[t]he maxim should be applied by the court sua sponte where it is shown to be applicable.” Brennan v. Brennan, 605 So.2d 749, 752 (Miss.1992). Although there is no Mississippi case applying the “clean-hands” doctrine to a motion to intervene, the doctrine has broad application and has been found to apply on numerous occasions by our courts where the party seeking relief has engaged in fraudulent conduct. See Collins v. Collins, 625 So.2d 786, 789 (Miss.1993); Cain v. Thomas, 373 So.2d 812, 814 (Miss.1979); Willenbrock v. Brown, 239 So.2d 922, 925 (Miss.1970); Ellzey v. James, 970 So.2d 193, 196 (¶ 14) (Miss.Ct.App.2007); see also Goodwin Motor Corp. v. Mercedes-Benz of N. Am., Inc., 172 N.J.Super. 263, 411 A.2d 1144, 1148 (1980) (applying the clean-hands doctrine to bar corporation from intervening where principals of corporation deliberately misled court from initial stages of litigation). We find Vasser Sr.’s conduct weighs against him in the chancellor’s denial of his motion to intervene.

CONCLUSION

¶ 26. Based upon our application of the timeliness factors, we conclude Vasser Sr. was not entitled to intervene as a matter of right. Not only was Bibleway prejudiced by Vasser Sr.’s misrepresentations and the delay in moving to intervene, we find the unusual circumstances here involving dishonesty with the court significantly outweigh any prejudice to Vasser Sr. by the denial of the motion. We therefore affirm the chancellor’s judgment.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . Vasser Jr. eventually answered on April 6, 2009.

      . The chancellor did not grant an extension of time.

      . Rule 24(a)(2) provides that "[u]pon timely application,” a party must be allowed to intervene:
      when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
      M.R.C.P. 24(a)(2).


text:
    James M. KITCHENS, Appellant v. DIRTWORKS, INC., Appellee.
    No. 2009-CA-01677-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    James Michael Priest Jr., Jackson, attorney for appellant.
    William E. Whitfield III, Kaara Lena Lind, Biloxi, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. James M. Kitchens sustained serious injuries after falling more than twenty feet from a forklift, improperly used to lift him. Kitchens’s employer was repairing a gravel hopper for D.K. Aggregates, LLC. DK Aggregates subleased the forklift from Dirtworks, Inc. Kitchens claims Dirtworks is liable for his injuries because it negligently entrusted the forklift to DK Aggregates. Kitchens alleges Dirtworks, through a common owner of both Dirt-works and DK Aggregates, knew or should have known DK Aggregates was improperly using the subleased forklift to lift people.

¶ 2. Mississippi law imposes liability on owners who entrust their vehicles or other chattels to people they know, or should have known, to be reckless or incompetent. Kitchens relies on Colorado law and argues the scope of negligent-entrustment liability should also include breach of the duty to reclaim heavy equipment if the owner learns the equipment is being used in an unsafe manner, creating a foreseeable risk of injury. Mississippi courts have not addressed this theory of negligent entrustment. But even under Colorado’s view that later-acquired knowledge of negligent use of the chattel imposes a duty to terminate the entrustment, we find Kitchens offered insufficient evidence of Dirtworks’ later actual knowledge of improper use of the forklift. Therefore, we affirm the Harrison County Circuit Court’s grant of summary judgment in favor of Dirtworks, dismissing Kitchens’s negligent-entrustment claim.

STANDARD OF REVIEW

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

¶ 4. Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶16) (Miss.Ct.App.2009) (citing Grisham, v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)). To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine issue for trial. Id. (citing Price v. Purdue Pharm. Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

FACTS

¶ 5. The facts considered in the light most favorable to Kitchens establish that in the summer of 2006, Murray Moran, part-owner and day-to-day manager of Dirtworks, was contacted by the manager of DK Aggregates, a company Moran also partly owned. DK Aggregates needed to lease a special type of forklift called a “skylift,” designed to lift large equipment but not people. The forklift was available at Puckett Rentals, but because DK Aggregates did not have an account with Puckett Rentals, Moran leased the forklift using Dirtworks’ account and “subleased” it to DK Aggregates. On the first of each month, including November 1, 2006, the week of Kitchens’s accident, Dirtworks invoiced DK Aggregates for approximately the cost of the lease with Puckett Rentals.

¶ 6. Moran did not ask DK Aggregates how it intended to use the forklift. His deposition testimony reflects he assumed DK Aggregates planned to lift pipe and equipment, as it had done when Dirtworks had rented forklifts for it in the past. Moran claimed he did not consider that DK Aggregates might use the forklift to lift people because, in the past, when DK Aggregates needed to lift people, it rented a “manlift.”

¶ 7. DK Aggregates ultimately used the subleased forklift for various tasks around the gravel pit — including lifting people. DK Aggregates owned a “man-basket,” purchased by Moran as part of an auction lot of steel pieces. According to DK Aggregates employees, they chained the man-basket to the forklift to raise and lower other employees.

¶8. Several months into the forklift’s sublease, DK Aggregates hired Pearl River Fabricators to perform welding work at the site. Moran negotiated the contract. After work had begun, Moran asked Pearl River to repair DK Aggregates’ gravel hopper. Because access to the gravel hopper was more than twenty feet in the air, a DK Aggregates employee (not Moran) lent Pearl River the forklift and man-basket to Kitchens and other welders.

¶ 9. Pearl River, unsupervised by DK Aggregates, did not chain the man-basket to the forklift. While Kitchens and two others were more than twenty feet in the air, the forklift began to tilt and the man-basket slid off the prongs of the forklift, causing serious injury to Kitchens.

¶ 10. Kitchens sued both DK Aggregates and Dirtworks for negligence. He alleged Dirtworks was negligent in entrusting DK Aggregates with the forklift. Kitchens claimed Dirtworks, through Moran, should have foreseen DK Aggregates would use the skylift in an unreasonably risky way. He further alleged that because DK Aggregates used the forklift in an unreasonably dangerous manner, causing Kitchens’s injuries, Dirtworks must share in the liability.

¶ 11. The trial court granted summary judgment in favor of Dirtworks. It found Kitchens did not present sufficient evidence to create the existence of Dirtworks’ knowledge, an essential element to Kitchens’s negligent-entrustment claim. The trial court granted Dirtworks a final judgment under Rule 54(b) of the Mississippi Rules of Civil Procedure. Kitchens timely appealed.

DISCUSSION

¶ 12. Kitchens presented no evidence that Dirtworks knew or should have known at the time DK Aggregates asked Dirtworks to rent the forklift on its behalf that DK Aggregates would use the forklift in an unreasonably dangerous way (to lift people). Moran testified that based on past rentals for DK Aggregates, Dirtworks assumed DK Aggregates would use the forklift to lift pipe and other heavy equipment. Since DK Aggregates had in the past rented a special manlift to lift people, Dirtworks also assumed that DK Aggregates would not use the forklift to lift people. Kitchens put forth no evidence creating a factual dispute whether Dirt-works’ assumptions at the time of the initial sublease were unreasonable. Thus, we affirm the trial court’s finding there was no issue of negligent entrustment in Dirt-works’ renting the forklift and initially subleasing it to DK Aggregates.

¶ 13. But there is evidence that DK Aggregates, after receiving the forklift, began using it to lift people. Kitchens argues Dirtworks learned, or should have learned, through Moran, who is part-owner of both companies, about this unreasonably dangerous use. For Kitchens to have raised a claim of negligent entrustment based on these facts, Dirtworks must have had a duty to terminate the sublease if it had, in fact, learned DK Aggregates was unsafely using the forklift. Kitchens urges that we look to the Colorado Supreme Court’s decision in Casebolt v. Cowan, 829 P.2d 352 (Colo.1992), which imposes such a duty to terminate the entrustment upon later-acquired actual knowledge that an unreasonable risk has come to light after the initial entrustment.

A. The Tort of Negligent Entrustment

1. Mississippi’s Adoption of the Negligent-Entrustment Doctrine

¶ 14. In 1924, Mississippi first imposed negligence liability on the owner, in addition to the driver, of a car driven recklessly and causing injury. Anderson v. Daniel, 136 Miss. 456, 101 So. 498 (1924). In Anderson, the car owner breached his duty by permitting his minor son, whom he knew was a reckless driver, to use his car. In 1931, the Mississippi Supreme Court imposed this same liability on another car-owning parent. Herman v. Maley, 159 Miss. 538, 132 So. 541, 542 (1931). The court reasoned “parents ... must suffer the consequences of permitting [their minor children] to drive an automobile when they know, or with reasonable care should have known, of their incompetency.” Id.

¶ 15. Over the next twenty years, the supreme court further expanded liability to employers who allowed their “incompetent” (habitually drunk) employees to use company vehicles for non-business purposes (no vicarious liability). In a series of cases, the court imposed liability on employers for their employee’s drunk driving when the employer had actual or constructive knowledge that the employee was a habitual drinker, making it foreseeable the employee would drive the company vehicle while drunk. Petermann v. Gary, 210 Miss. 438, 444, 49 So.2d 828, 830 (1951); Richton Tie & Timber Co. v. Smith, 210 Miss. 148, 156-58, 48 So.2d 618, 620-21 (1950); Levy v. McMullen, 169 Miss. 659, 665-66, 152 So. 899, 900 (1934); Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318, 322 (1933).

¶ 16. In 1951, the supreme court imposed negligent-entrustment liability on a non-parent/non-employer defendant. Dixie Drive It Yourself Sys. Jackson Co. v. Matthews, 212 Miss. 190, 54 So.2d 263 (1951). The defendant rental company, Dixie Drive It Yourself, was found liable for renting a car to a drunk driver, Shivers. Dixie had frequently rented Shivers cars. Before his first rental, Dixie required an application, including signing a statement he would not drive drunk, and references about his driving. When his references checked out, Dixie began renting cars to Shivers without further inquiry. On his 57th rental, Shivers wrecked the car because he was driving drunk. Id. at 196, 54 So.2d at 264. On the “narrow issue” of whether Dixie knew or should have known Shivers was drunk at the time he rented the ear, the supreme court found there was evidence supporting the jury’s verdict that Dixie did know. Id. at 201-02, 54 So.2d at 266-67.

2. Mississippi’s Adoption of the Restatement (Second) of Torts, Section 390

¶ 17. By the 1950s, Mississippi had adopted the Restatement (Second) of Torts, section 390, for its definition of negligent entrustment. See, e.g., Lovett Motor Co. v. Walley, 217 Miss. 384, 393, 64 So.2d 370, 374 (1953). Under section 390:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share, in or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.

Restatement (Second) Torts, § 390 (1965).

¶ 18. This court has interpreted section 390 to contain three elements required to establish a prima facie case of negligent entrustment:

(1) that the defendant supplied a third party with the chattel in question for the use of the third party;
(2) that the supplier of the chattel knew or should have known that the third party would use the chattel in a manner involving an unreasonable risk of harm; and
(3)that harm resulted from the use of the chattel.

Bullock Bros. Trucking Co. v. Carley, 930 So.2d 1259, 1262 (¶5) (Miss.Ct.App.2005).

¶ 19. In recent negligent-entrustment cases, the determining issue has been either the first element (Was the defendant a “supplier” of the chattel?) or the second (Did the supplier have actual or constructive knowledge the third party would use the chattel in an unreasonably risky way?). See, e.g., Laurel Yamaha, Inc. v. Freeman, 956 So.2d 897, 902-04 (¶¶ 18-24) (Miss.Ct.App.2007) (discussing supplier requirement); Davis v. Seymour, 868 So.2d 1061, 1063-64 (¶¶ 8-11) (Miss.Ct.App.2004) (discussing knowledge requirement).

¶ 20. Here, Dirtworks only challenges the knowledge element. It neither disputes it “supplied” the forklift, nor does it contest that harm resulted from the chattel’s use.

¶ 21. Still we find Mississippi’s definition of “supplier” is relevant to this appeal. Our courts have defined a “supplier,” for purposes of negligent entrustment, as one who has a right to control the chattel at the time of the injury. Laurel Yamaha, 956 So.2d at 903 (¶22) (citing Sligh v. First Nat’l Bank of Holmes County, 735 So.2d 963, 969 (¶¶ 38-34) (Miss.1999)). In fact, Sligh emphasizes this right to control is the “paramount requirement” of negligent-entrustment liability. Sligh, 735 So.2d at 969 (¶ 33). In contrast, the Colorado case, which Kitchens asks us to follow on the second knowledge element, defines a supplier as one who has control at the time of initial entrustment. Casebolt, 829 P.2d at 359-60.

3. The Duty to Terminate the Entrustment

1122. Focusing on the knowledge element, Dirtworks claims the trial court properly granted summary judgment because the only relevant knowledge is what Dirtworks knew or should have known at the time of the initial sublease (July or August 2006). Dirtworks argues that because Kitchens did not produce any evidence of actual or constructive knowledge at the time of the initial lending, Mississippi law does not recognize negligence under these circumstances.

¶23. Kitchens argues, because Dirt-works maintained the right to control the forklift by terminating the month-to-month sublease, its knowledge from the initial entrustment to the time of the accident is relevant.

¶24. There are no Mississippi cases addressing this specific issue. Kitchens relies on Colorado law for the proposition that within the negligent-entrustment doctrine is the duty to terminate the entrustment “if the entrustor acquires information that such an unreasonable risk exists or has come into being after the entrustment and the entrustor has the legal right and ability to end the entrustment.” Casebolt, 829 P.2d at 360. In Casebolt, an employer allowed his employee to use the employer’s car for personal use. There was no evidence the initial lending was negligent. But on the day the employee was set to return home from an out-of-town work site, the employer drank a few beers with the employee. The employer did not revoke the entrustment or discourage the employee from drinking. Id. at 354-55. That evening the employee died in a car accident caused by employee’s intoxication. The employee’s wife sued the employer, arguing the employer was liable under a negligent-entrustment theory.

¶ 25. The Colorado Supreme Court held the employer “had a duty to take reasonable action to terminate the entrustment before leaving the ... restaurant if by that time he possessed knowledge that [Lindel] Casebolt was likely to use the vehicle in a manner involving unreasonable risk of physical harm to himself or others.” Id. at 361. Relying on section 390 of the Restatement (Second) of Torts, the Colorado court found the negligent-entrustment doctrine included the duty to terminate the entrustment when a reasonable person would terminate it. Id. at 360-61.

¶ 26. While the Colorado Supreme Court recognized the Restatement’s negligent-entrustment doctrine “is intended to reflect a conclusion that a duty exists under the specific and limited circumstances for which those sections [308, 309, and 390] provide guidance,” it nevertheless expanded this duty to include terminating the entrustment when a reasonable person would terminate it.

¶ 27. In considering whether Mississippi’s negligent-entrustment doctrine is as broad as Colorado’s, we first note section 390 uses the present tense “supplies,” and this court has used the past tense “supplied” in addressing this required element. Both tenses can describe a one-time action (supplying a forklift for the day) or an action that occurs over time (supplying a forklift for four months). To say one has a duty to terminate the entrustment is another way of saying one has a duty not to continue supplying the forklift. For Dirt-works, the duty, viewed in this way, would be not to renew the month-to-month sublease on November 1, less than a week prior to Kitchens’s accident.

¶ 28. Our supreme court has stated the right to control the chattel is the “paramount requirement for liability.” Sligh, 735 So.2d at 970 (¶ 33). It logically follows that the right to control imposes a duty to exercise that control if unreasonably risky use is foreseeable.

¶ 29. We further point out that Mississippi has looked to Colorado before in determining the scope of negligent-en-trustment liability. In Sligh, Mississippi relied on Peterson v. Halsted, 829 P.2d 373 (Colo.1992), handed down by the Colorado Supreme Court on the same day as Case-bolt and relying on Casebolt’s reasoning, to determine whether a bank that financed a car was a “supplier” for purposes of negligent-entrustment liability. Sligh, 735 So.2d at 973 (¶ 63) (holding the bank was not a “supplier” because it had no right to control the vehicle after purchase). Sligh also cited Casebolt to support its conclusion the right to control is the paramount requirement for negligent-entrustment liability. Id. at 969 (¶ 33).

¶ 30. Earlier employer-employee cases appear to impose liability for continuing to allow the employee use of the vehicle, relying on what the employer knew or should have known over the course of the employment, not just what the employer knew when it started allowing the employee to use the company vehicle.

¶ 31. While there are similarities between Mississippi’s and Colorado’s interpretations of the tort, there are important distinctions we must also consider. First, Mississippi has never imposed a duty to reclaim the vehicle in a commercial transaction. In the early parent-minor child and employer-employee cases, both the parent and employers had a duty, independent of negligent entrustment, to know whether their child or employee was reckless. And they also had the ability to take the car keys back at any point. Here, Dirtworks had no duty to monitor DK Aggregates. It is not its parent company. We recognize that liability in this case, with the unique facts of a common owner, may impose an undue burden on future commercial lessors, like Puckett Rentals, which is not a defendant in this case, to monitor lessees who otherwise appeared safe and competent at the time the lease was formed.

¶ 32. Second, Mississippi, unlike Colorado, expressly follows the language of section 390, which is silent about a duty to reclaim the chattel. The Restatement (Second) of Torts has a separate section, section 318, that imposes a duty to regain control of the chattel:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts § 318 (1965).

¶ 33. In reading sections 390 and 318 together, it is arguable that Kitchens is really asking that we impose a duty closer to section 318, without proving Dirtworks was present, had the ability to control DK Aggregates, and knew of the necessity to regain control of the forklift.

¶ 34. But regardless of the origin of the duty Kitchens requests we impose — unlike the duty not to entrust initially, which can be breached by constructive knowledge— the duty to terminate the entrustment requires evidence of actual knowledge. See Casebolt, 829 P.2d at 360-61. We point out Casebolt did not impose a duty to monitor the employee’s use after the initial entrustment. Rather, the Colorado Supreme Court remanded the case to determine whether the employer possessed knowledge of the employee’s incompetence. Id.

¶ 35. Kitchens argues Dirtworks should have learned DK Aggregates was using the forklift to lift people. But, even following Casebolt’s directives, consistent with the Colorado case and our interpretation of Mississippi law, our inquiry still turns on actual knowledge. Thus, we must instead ask whether there is evidence Dirt-works “acquire[d] information” about DK Aggregates’ unreasonably risky use. Id. at 360; cf. Dixie Drive It Yourself, 212 Miss. at 202-03, 54 So.2d at 267 (imposing liability, not for failing to require another reference or application after initial rental, but for renting another car despite actual evidence of Shivers’s intoxication).

B. Dirtworks’ Knowledge

¶ 36. Kitchens’s primary evidence stems from the relationship of the two companies through their common owner, Moran. But this relationship is different than the parent-minor child relationship or employer-employee relationship frequently found in negligent-entrustment cases. In both of those relationships, there is an assumption a parent should know that his child drives recklessly or an employee should know his employee is showing up to work drunk. Here, Dirtworks is not DK Aggregates’ parent company, so it has no duty to know what DK Aggregates is doing.

¶ 37. Kitchens argues Dirtworks nevertheless knew what DK Aggregates was doing through Moran. Kitchens reasons that because Moran knew Pearl River was working on the gravel hopper, Moran should have known work on the gravel hopper required lifting Kitchens and others twenty feet in the air. Kitchens further claims Moran should have known DK Aggregates would lend the forklift and man-basket to Pearl River for this purpose.

¶ 38. While there is evidence DK Aggregates had used the forklift to lift people prior Kitchens’s accident, Kitchens failed to come forward with any evidence to show Moran or any other Dirtworks agent actually knew DK Aggregates was doing this. If there was prior improper use of the forklift, the evidence does not indicate it was on any projects involving Moran. From Kitchens’s evidence, Moran’s only involvement in day-to-day matters for DK Aggregates was on the Pearl River project. If Moran was responsible for knowing what was going on at the gravel hopper Kitchens was repairing, his responsibility arose as an agent for DK Aggregates, not Dirtworks. Only Moran’s actual prior knowledge of improper use can be imputed to Dirtworks. What Moran should have known as an agent for DK Aggregates cannot be imputed to Dirt-works.

¶ 89. Even assuming our supreme court would recognize Casebolt’s holding concerning later-acquired knowledge of unreasonable risk, Kitchens’s evidence does not raise a factual dispute of actual knowledge by Dirtworks triggering a duty to terminate the sublease. Therefore, we affirm the circuit court’s decision that Dirtworks is entitled to summary judgment as a matter of law on Kitchens’s negligent-entrustment claim.

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

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

      . Because Dirtworks did not contest Kitchens’s allegation that DK Aggregates was using the forklift improperly, we assume, for our analysis in this opinion only, that the use of the forklift was unreasonable.

      . At the time the trial court granted summary judgment to Dirtworks, DK Aggregates was still a defendant in the lawsuit.

      . Colorado recognizes two separate duties: (1) the duty not to relinquish control of a vehicle if it is reckless use is reasonably foreseeable; and (2) the duty to terminate entrustment if one still has the ability to control the vehicle and it is foreseeable further use will be reckless. Casebolt, 829 P.2d at 359-60. Colorado relies on Restatement (Second) of Torts sections 390, and 308 and 309, to impose the first duty and, unlike Mississippi, can hold sellers liable for negligent entrustment. Id. Colorado relies on the logic of the Restatement sections to impose the second duty and the strong public policy that those who have the ability to regain control should in the face of foreseeable harm to others. Id. at 360-62.

      . Colorado was guided by public policy, concluding under these circumstances the social utility of an employer being able to lend his employee a vehicle for personal reasons was low, the burden on the employer to request his keys back was also low, and the public risk of the employee driving drunk was high.

      . Section 318 has an official caveat: "The Institute expresses no opinion as to whether there may not be a duty of reasonable care to control the conduct of the third person ... where the actor, although not present, is in the vicinity, is informed of the necessity and opportunity of exercising such control, and can easily do so.”