text:
    Faye JORDAN, Appellant v. Ann WILSON, Appellee.
    No. 2007-CA-00969-COA.
    Court of Appeals of Mississippi.
    July 29, 2008.
    Rehearing Denied Dec. 2, 2008.
    Certiorari Denied March 26, 2009.

      Jim Waide, Tupelo, Luther C. Fisher, Attorneys for Appellant.
    P. Nelson Smith, Dewitt T. Hicks, Columbus, David B. McLaurin, Tupelo, Attorneys for Appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Faye Jordan filed suit in the Circuit Court of Monroe County against Ann Wilson seeking to recover damages for assault and negligence arising out of an incident where Wilson allegedly pointed a firearm at Jordan. Wilson filed a motion to dismiss, for judgment on the pleadings, and for summary judgment. The trial court granted Wilson’s motion and dismissed Jordan’s case with prejudice, finding that (1) Jordan’s complaint alleged a nonexistent cause of action for “negligent assault,” and (2) there was no evidence of intent on Wilson’s part to support the intentional tort of assault.

¶2. Jordan appeals and makes several arguments, which will be addressed under the general issue of whether the trial court erred in granting Wilson’s motion to dismiss, for judgment on the pleadings, and for summary judgment. For the reasons explained below, we find error and reverse the judgment entered by the trial court and remand this case.

FACTS

¶ 3. Jordan was employed with North Mississippi Medical Center (NMMC) as a home-health nurse. On May 13,1999, Jordan set out to provide medical care to Terry Conwill, who is a relative of Wilson. Jordan arrived at Conwill’s house, knocked on the door, received no response, and concluded that Conwill was not there. A notation in her files stated: “If [Conwill] not home, will be two houses up on left at Ann Wilson’s house — [phone number].” Jordan then drove her car to Wilson’s house, which appeared empty. She remained in her car and attempted to contact NMMC’s office in order to locate Con-will. In the meantime, Wilson, who was located nearby at her guest house and had noticed Jordan park in her driveway, got in her car and set out to investigate.

¶4. Wilson pulled up to the passenger side of Jordan’s car and a verbal exchange ensued. According to Jordan, Wilson pulled beside her with a .22 rifle, which remained pointed directly at Jordan throughout most of the encounter. The direction in which the gun was pointed is disputed by the parties: At her deposition, Jordan stated that “the gun was pointed into [her] vehicle and at [her] because [she] saw the end of it”; Wilson stated at her deposition that the gun was not pointed directly at Jordan, but it was resting across her lap and pointed into the air above Jordan. Wilson eventually pulled the gun inside her vehicle, and Jordan asked Wilson if she had just pointed a gun at her. When questioned as to why she asked this question if she already knew that a gun was pointed at her, Jordan answered as follows:

I wanted, I guess, a little humanity there, Mr. [Defense Counsel]. I looked from the end of that gun to [Wilson’s] cold blue-eyed stare ... and back to that gun and back to her and back to that gun and when she finally pulled it. in and over that steering wheel, I said, did you have a gun pointed at me? That’s the tone of voice I used.

According to Jordan’s affidavit, “[Wilson] then stared at [her] for a while and said ‘you have no business sitting in my driveway.’ ” Jordan then drove away.

¶ 5. As a result of the incident, Jordan developed a fear of being shot that caused difficulties in performing the home-health visits incident to her employment. In early 2000, Jordan went to the home of an elderly man who was in a wheelchair and covered with an afghan. He kept his right arm under the afghan, and Jordan feared that he had a gun under the afghan. This was the last home-health visit that Jordan made; she gave up her nursing job due to her fear of being shot. Jordan was treated for stress and anxiety.

¶ 6. Jordan subsequently filed a complaint against Wilson that stated in pertinent part as follows:

This is an action to recover actual and punitive damages for assault and negligence. The following facts support this cause:
On or about May, 13, 1999, Plaintiff parked her vehicle, temporarily, in the Defendant’s driveway, while attempting to locate a patient whom she was scheduled to see. The Defendant, apparently negligently believing Plaintiff was an unlawful intruder, pointed a long firearm directly toward Plaintiff. Defendant kept her firearm pointed at Plaintiff for several minutes. Plaintiff feared for her life. Plaintiff was so frightened that she was required to seek medical attention, and has had to undergo counseling. She has suffered extreme stress and anxiety, and has lost income, as a result of the Defendant’s actions.
The Defendant’s pointing of a firearm at Plaintiff was negligent conduct, since the defendant failed to use reasonable care to determine whether such an action was necessary. Pointing the firearm at Plaintiff constituted an assault. ...

¶ 7. After years of discovery, Wilson filed a motion to dismiss, for judgment on the pleadings, and for summary judgment. In this motion, Wilson argued that (1) Jordan alleged a nonexistent cause of action for “negligent assault,” and (2) even if the intentional tort of assault was properly pleaded, Jordan failed to present proof of intent on Wilson’s part. Wilson attached a copy of her affidavit and excerpts from Jordan’s deposition. Jordan filed a response to Wilson’s motion and attached a copy of her affidavit and excerpts from both her deposition and Wilson’s deposition.

¶ 8. After a hearing on the matter, the trial court granted Wilson’s motion and dismissed Jordan’s case with prejudice, finding that (1) Jordan’s complaint alleged a nonexistent cause of action for “negligent assault” because she failed to specifically allege that Wilson’s actions were willful or intentional, and (2) Wilson was entitled to summary judgment because there was no evidence of intent on Wilson’s part to cause an assault, i.e., the apprehension of a harmful or offensive contact.

¶ 9. Aggrieved, Jordan now appeals to this Court.

STANDARD OF REVIEW

¶ 10. As a preliminary matter, we consider an issue not addressed by the parties regarding the appropriate standard of review to be employed by this Court on appeal. In both Wilson’s motion and Jordan’s response, matters outside the pleadings were presented to the trial court. A motion under Mississippi Rule of Civil Procedure 12(b) or 12(c) will be treated as a motion for summary judgment under Rule 56 where matters outside the pleadings are presented and not excluded by the trial court. M.R.C.P. 12(b) and (c); Huff-Cook, Inc. v. Dale, 913 So.2d 988, 990-91(¶ 11) (Miss.2005); Westbrook v. City of Jackson, 665 So.2d 833, 836 (Miss.1995) (citing Storey v. United States, 629 F.Supp. 1174, 1180 (N.D.Miss.1986)). Similarly, a motion for summary judgment under Rule 56 will be treated as a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c) where the court acts on the motion without considering matters outside the pleadings. Millican v. Turner, 503 So.2d 289, 292 (Miss. 1987) (citing Kountouris v. Varvaris, 476 So.2d 599, 603 n. 3 (Miss.1985)).

¶ 11. In the instant case, the trial judge essentially treated Wilson’s motion as both a motion under Rule 12(b) and/or Rule 12(c) and a summary judgment motion under Rule 56. The trial judge first determined that Jordan pleaded a nonexistent cause of action for “negligent assault” and dismissed Jordan’s complaint under Rule 12(b)(6) or 12(c). In making this ruling, the trial judge apparently considered only the face of the pleadings; therefore, it seems that the motion should be reviewed as a Rule 12(b)(6) and/or a Rule 12(c) motion. However, the trial judge went on to rule — apparently in the alternative— that, even if Jordan had properly pleaded the intentional tort of assault, Wilson was entitled to summary judgment because there was no evidence of intent on Wilson’s part. In making this ruling, the trial judge apparently considered matters outside the pleadings; therefore, it seems that the motion should be reviewed as a Rule 56 motion for summary judgment.

¶ 12. Because the trial judge’s primary basis for dismissing Jordan’s case was based on Rule 12(b)(6) and/or Rule 12(c), we will review the motion as one under Rule 12(b)(6) and/or Rule 12(c). To be thorough, we will also review the trial judge’s alternative ruling, which was based on Rule 56, under the standard of review for a summary judgment motion under Rule 56. In so doing, we do not intend to encourage the method employed by the trial judge in the instant case, as the resulting unnecessary complication in procedural posture should be apparent.

¶ 13. Motions under “[b]oth Rule 12(b)(6) and Rule 12(c) are decided on the face of the pleadings alone.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1211(¶ 15) (Miss.2001). Both motions serve a similar function and both are reviewed de novo. Id. at 1210(¶ 8) (citing City of Tupelo v. Martin, 747 So.2d 822, 829(¶ 26) (Miss.1999)); see also, Jeffrey Jackson, Mississippi Civil Procedure, § 5:35 (1999) (“Like the motion to dismiss for failure to state a claim, a motion to dismiss for judgment on the pleadings tests whether, given material facts that are not in dispute, there is any legal basis for the suit.”). In ruling on a motion to dismiss under Rule 12(b)(6) or Rule 12(c), “the pleaded allegations of the complaint must be taken as true, and a dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief.” Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990) (Rule 12(b) motion); see also, R.J. Reynolds Tobacco Co. v. King, 921 So.2d 268, 270(¶ 10) (Miss.2005) (citing Bridges ex rel. Bridges v. Park Place Entm’t, 860 So.2d 811, 813(¶ 5) (Miss.2003) (Rule 12(c) motion)).

¶ 14. We review the trial court’s grant of summary judgment de novo. Moss v. Batesville Casket Co., 935 So.2d 393, 398(¶ 15) (Miss.2006) (citing Stuckey v. Provident Bank, 912 So.2d 859, 864(¶ 8) (Miss.2005)). A party is entitled to summary judgment where “the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). The movant bears the burden of demonstrating that there is no genuine issue of material fact, and the non-movant is afforded the benefit of any reasonable doubt. Moss, 935 So.2d at 398(¶ 16) (citing Tucker v. Hinds County, 558 So .2d 869, 872 (Miss.1990)).

DISCUSSION

Whether the trial court erred in granting Wilson’s motion to dismiss, for judgment on the pleadings, and for summary judgment.

¶ 15. Jordan argues that (1) the trial judge erred in granting Wilson’s motion on the ground that Jordan alleged a nonexistent cause of action for “negligent assault,” (2) the trial court erred in its determination that there was insufficient proof of intent on Wilson’s part to support Jordan’s claim of assault, and (3) there exists genuine issues of material fact as to whether Wilson was negligent. In the interests of brevity and organization, we will address Jordan’s third argument with her first argument.

1. Whether the trial court erred in dismissing Jordan’s case on the ground that she alleged a nonexistent cause of action for “negligent assault.”

¶ 16. Jordan first argues that the trial judge erred in dismissing her case because she alleged a nonexistent cause of action for “negligent assault.” She claims that her complaint did not allege a “negligent assault,” but rather two separate claims, one for negligence and one for the intentional tort of assault. Jordan argues that Mississippi Rule of Civil Procedure 8 provides a very liberal pleading standard under which she sufficiently stated a claim for relief for both negligence and assault. We agree.

¶ 17. “When a complaint is tested via a motion under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the sufficiency of the complaint is in substantial part determined by reference to Rule 8(a) and (e).” Stanton & Assocs., Inc. v. Bryant Constr. Co., 464 So.2d 499, 505 (Miss.1985). Rule 8(a) requires only that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief ... and ... a demand for judgment for the relief to which he deems himself entitled.” M.R.C.P. 8(a)(1) and (2). Similarly, Rule 8(e) instructs that “[e]aeh averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” M.R.C.P. 8(e)(1). Significantly, Rule 8 allows a plaintiff to advance alternative and/or inconsistent claims. See M.R.C.P. 8(a)(2), 8(e)(2). The Fifth Circuit Court of Appeals has stated as follows regarding the relaxed pleading requirements of Federal Rule of Civil Procedure 8:

The function of a complaint under the Federal Rules is to give the defendant fair notice of plaintiffs claim and the grounds upon which plaintiff relies. Thus, the fact that a plaintiff pleads an improper legal theory does not preclude recovery under the proper theory. When presented with a Rule 12(b)(6) motion to dismiss, the district court must examine the complaint to determine if the allegations provide for relief on any possible theory.

Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir.1987) (internal quotations and citations omitted).

¶ 18. Wilson claims that the trial court properly dismissed Jordan’s case because she pleaded a nonexistent cause of action for “negligent assault.” She cites Webb v. Jackson, 583 So.2d 946, 950-51 (Miss.1991) for the proposition that “there is no such thing as a negligent assault.” It is true that there is no cause of action for “negligent assault.” However, this is so not simply because there exists no such cause of action but, rather, because an intentional tort cannot be committed negligently. The holding in Webb simply recognizes that a claim alleging an intentional tort and a claim alleging negligence are mutually exclusive, in that, one who is found to have acted negligently cannot at the same time be found to have acted intentionally. It does not follow that one may not be found liable for either an intentional tort or negligence based on the same conduct, assuming of course that there is sufficient evidence to support a jury finding of liability on either theory. What Wilson fails to recognize is the issue of whether she acted intentionally or negligently is a question for the jury.

¶ 19. In the first sentence of her complaint, Jordan stated: “This is an action to recover actual and punitive damages for assault and negligence.” (Emphasis added). This statement along with the assertions of fact contained therein were sufficient to provide Wilson with fair notice that Jordan claimed and intended to prove the intentional tort of assault, as well as negligence. We find that, as permitted by Rule 8, Jordan permissibly pleaded a claim of both negligence and assault, notwithstanding that the claims are inconsistent. See M.R.C.P. 8(a)(2) and 8(e)(2). To the extent that the trial judge dismissed Jordan’s case for this reason, we find that he erred.

¶ 20. Questions remain, however, as to whether Jordan stated a claim for assault and negligence, respectively. In dismissing Jordan’s claims, the trial court found the following statements in Jordan’s complaint fatal to her case:

The Defendant, apparently negligently believing Plaintiff was an unlawful intruder, pointed a long firearm directly toward Plaintiff. Defendant kept her firearm pointed at Plaintiff for several minutes....
The Defendant’s pointing of a firearm at Plaintiff was negligent conduct, since the defendant failed to use reasonable care to determine whether such an action was necessary. Pointing the firearm at Plaintiff constituted an assault. ...

(Emphasis added). The trial judge quoted in isolation only the portions of these statements that are italicized above. When viewed in context, it becomes clear that Jordan’s allegations of “negligence” were directed toward Wilson’s belief that Jordan was an unlawful intruder or that pointing the firearm was necessary. As explained below, we find that this assertion of fact fatal to neither Jordan’s claim of assault nor her claim of negligence. In the discussion below, we consider each claim separately.

A. Assault

¶ 21. The intentional tort of assault is committed “where a person (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (2) the other is thereby put in such imminent apprehension.” Morgan v. Greenwaldt, 786 So.2d 1037, 1043(¶ 20) (Miss.2001) (citing Webb, 583 So.2d at 951). “An act is done with the intent of putting the other in apprehension of an immediate harmful or offensive contact if it is done for the purpose of causing such an apprehension or with knowledge that, to a substantial certainty, such apprehension will result.” Restatement (Second) of Torts § 21, cmt. d.

¶ 22. Wilson’s belief(s) regarding whether Jordan was a trespasser or whether pulling a firearm was necessary, whether labeled negligent, (or more appropriately) mistaken, or incorrect, may negate the anticipated assertion (by Wilson) of defense of self or defense of property. However, labeling Wilson’s belief as negligent does not render Jordan’s complaint insufficient to state a claim for assault. Although Jordan did not specifically refer to Wilson’s conduct as “intentional,” such is clearly implied in her complaint where she stated that Wilson “pointed a long firearm directly at [her]” and “[pjointing the firearm at [her] constituted an assault.”' The purpose of Rule 8 is to provide “fair notice” to the defendant of the basis of any claim(s) against him, not to “plead facts or state legal conclusions.” M.R.C.P. 8 cmt.

¶ 23. In her complaint, Jordan alleged that Wilson pointed a firearm at her and that she feared for her life. This was sufficient to state a claim for the intentional tort of assault. Taking the allegations in Jordan’s complaint as true, we find that Jordan could prove a set of facts in support of her assault claim which would entitle her to relief. Therefore, we find that Jordan’s complaint stated a claim for assault, and the trial judge erred in dismissing Jordan’s claim for assault under Rule 12(b)(6) and/or 12(c).

B. Negligence

¶ 24. To prevail on a claim of negligence, one must establish that “(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result.” Delta Reg’l Med. Ctr. v. Venton, 964 So.2d 500, 504(¶ 8) (Miss.2007) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)).

¶ 25. Taking the facts alleged in Jordan’s complaint as true, we find that they are such that Jordan could prove a set of facts that would entitle her to relief on her claim of negligence. Jordan would be entitled to relief if the jury were to believe that Wilson rested the gun on the windowsill without the intent required to constitute an assault, Wilson’s conduct breached the standard of care, and Jordan’s injuries were foreseeable. Under the liberal pleading standard of Rule 8, we find that Jordan sufficiently stated a claim for relief for her claim of negligence, and the trial court erred in dismissing her negligence claim under Rule 12(b)(6) and/or Rule 12(c).

2. Whether the trial court erred in granting Wilson’s motion because there was insufficient proof of intent on Wilson’s part to support Jordan’s claim of assault.

¶ 26. Jordan next claims that the trial judge erred in finding that there was no evidence of intent on Wilson’s part. In dismissing Jordan’s case, the trial judge determined that, even if Jordan’s claim for assault was not dismissed under Rule 12(b)(6) or 12(c), “summary judgment [under Rule 56] would be appropriate because there [was] no evidence before the court of any intent on [Wilson’s] part to cause either an assault [sic] or the apprehension of such.” Therefore, we review this issue as a motion for summary judgment under Rule 56.

¶ 27. As stated above, for purposes of assault, “[a]n act is done with the intent of putting the other in apprehension of an immediate harmful or offensive contact if it is done for the purpose of causing such an apprehension or with knowledge that, to a substantial certainty, such apprehension will result.” Restatement (Second) of Torts § 21, cmt. d. It is well settled that intent is a question of fact for the jury and “is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time.” Miss. State Bd. of Nursing v. Wilson, 624 So.2d 485, 494 (Miss.1993) (citation omitted). We now examine the evidence regarding Wilson’s intent to determine if there is a genuine issue of material fact to be presented to the jury.

¶ 28. It is undisputed that Wilson had a gun resting on her windowsill as she pulled beside Jordan. Although the direction in which the gun was pointed is disputed by the parties, we consider the evidence in the light most favorable to Jordan, who claimed that the “the gun was pointed into my vehicle and at me because I saw the end of it.” From this, we find that there was ample evidence to create a genuine issue of material fact as to whether Wilson pointed the firearm at Jordan either intending to put Jordan in imminent apprehension of a battery or with substantial certainty that pointing a gun at Jordan would bring about such a result.

¶ 29. Accordingly, we find that the trial court erred in its alterative ruling that Wilson was entitled to summary judgment under Rule 56 on Jordan’s claim of assault because there was no evidence before the court of intent on Wilson’s part.

CONCLUSION

¶30. We find that Jordan’s complaint stated a claim for relief for negligence and assault, and the trial court erred in dismissing her claims under Rule 12(b)(6) or Rule 12(c). Likewise, we find that there are genuine issues of material fact on both of Jordan’s claims, and the trial court erred in dismissing these claims under Rule 56. Accordingly, we find that the trial court erred in granting Wilson’s motion to dismiss, for judgment on the pleadings, and for summary judgment. We reverse the judgment entered by the trial court and remand this case for further proceedings.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE 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.

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

      . Conwill is referred to in the record both as Wilson’s stepfather's niece and as Wilson’s mother.

      . To this end, Jordan testified at her deposition that she could see "a tiny sliver of metal.”

      . On this point, a leading commentator on the law of torts explains in his hornbook:
      Although there is no overlap between intent and negligence, it is sometimes difficult to discern whether a given set of conduct falls in one category or another. The evidence offered in a case may permit the trier to draw different inferences, so that some jurors would conclude that a defendant acted intentionally while others would conclude that he acted only negligently. If the evidence warrants either a finding that the defendant acted with substantial certainty or that he took an unreasonable risk, the jury might be permitted to find either negligence or intent.
      Dan B. Dobbs, The Law of Torts, § 24, 49 (2000).

      . The comment to Rule 8 states that:
      The purpose of Rule 8 is to give notice, not to state facts and narrow the issues as was the purpose of pleadings in prior Mississippi practice. Consequently, the distinctions between '‘ultimate facts” and "evidence” or conclusions of law are no longer important since the rules do not prohibit the pleading of facts or legal conclusions as long as fair notice is given to the parties.

      . We additionally note that Jordan could prevail on her claim of negligence because the mental and/or emotional injuries she allegedly suffered were medically cognizable. See Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3-5 (¶¶ 7-12) (Miss.2007).

      . We note that the trial court made no specific ruling regarding Jordan’s negligence claim.
      Thus, it is unclear whether the trial judge dismissed the claim under Rule 12 or Rule 56. In any event, we find that there existed genuine issues of material fact as to each element of Jordan’s negligence cause of action, and Wilson was not entitled to judgment under either Rule 12 or Rule 56.

      .We assume the trial judge meant that he found no evidence of intent to cause a battery or the apprehension of such.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    William Ray STRIEBECK, Appellant, v. Ruth Ann Brent Provenza STRIEBECK, Appellee. William R. Striebeck, Appellant, v. Ruth Ann Brent Provenza Striebeck, Appellee.
    Nos. 2007-CA-01185-COA, 2004-CA-00507-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2008.

      Willard L. Mcllwain, Greenville, attorney for appellant.
    Luther Putnam Crull, attorney for ap-pellee.
    Before LEE, P.J., CHANDLER, GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This is the second appeal before this Court in this divorce action. William (Bill) Striebeck and Ruth Ann Provenza Strie-beck were married in August 1991. Bill is an attorney in private practice. Ruth Ann is an educator employed by the Greenville School District; she also works part time at a community college. They were granted a divorce by the Washington County Chancery Court in November 2003. Both parties appealed the monetary aspects of the judgment. The provisions of the first chancery court order that are pertinent to this second appeal required Bill to pay Ruth Ann $34,055 in equitable distribution for her half of the equity in the marital home, and $750 per month in periodic alimony.

¶ 2. In 2005, we reversed and remanded with instructions that the chancery court should: (1) valúate Ruth Ann’s interest in a family trust/partnership and determine whether this interest was marital or non-marital property; (2) valúate the amount of attorney’s fees earned by Bill in several cases referred to as “the Bridge Matter” and determine if these were marital or non-marital assets; (3) analyze the marital assets and equitably divide them; and (4) after equitable distribution and taking into account the financial needs of each party, determine the amount, if any, of permanent alimony warranted. Striebeck v. Striebeck, 911 So.2d 628, 634-35 (¶¶ 20-26) (Miss.Ct.App.2005).

¶ 3. A different chancellor was appointed on remand by the supreme court. On November 29, 2006, the newly appointed chancellor held a hearing, at which additional testimony and documentary evidence concerning the parties’ financial situations were introduced. In the chancellor’s judgment, she placed a current value of $611,087.21 on Ruth Ann’s interest in the family trust/partnership and classified this property as non-marital. The chancellor calculated the amount of attorney’s fees earned by Bill in the Bridge Matter to be $360,616.41 and classified this property as marital. The chancellor awarded Ruth Ann $75,000 of the $360,616.41 in equitable distribution of the marital estate. The chancellor also found that no alimony was warranted in light of the equitable division of the marital estate, Ruth Ann’s earning ability, and Ruth Ann’s non-marital property, as well as Bill’s previous payment to Ruth Ann of $34,055 for her share of the equity in the marital home.

¶ 4. Bill appeals and asserts three errors: (1) the chancellor erred in equitably dividing the marital property by awarding Ruth Ann an interest of Bill’s attorney’s fees earned in the Bridge Matter; (2) the chancellor erred in changing the finding by the original chancellor that Ruth Ann rendered little assistance to Bill in his law practice; and (3) the chancellor ex-red in not granting Bill’s motion to reimburse him for the alimony paid “after the Court of Appeals reversed an erroneous grant of the alimony by the original trial court.” We address the first two issues in one analysis, because they both pertain to the chancellor’s decision that Ruth Ann was entitled to $75,000 as equitable distribution. The last issue pertains to whether Bill is entitled to some relief after paying $28,500 in periodic alimony during the pen-dency of the first appeal and the judgment on remand that found no periodic alimony was wai-ranted. Finding no error, we affirm.

DISCUSSION

I. EQUITABLE DISTRIBUTION.

II. RUTH ANN’S ASSISTANCE IN BILL’S LAW PRACTICE.

¶5. These two issues are argued simultaneously in the briefs. Essentially, Bill’s argument is that because the parties separated in 2000, and Ruth Ann’s contribution to his law practice occurred in the early years of the marriage before he entered into the contracts yielding the Bridge Matter attorney’s fees, it was “inequitable” to distribute any part of them to Ruth Ann. However, there is no doubt that Bill performed the legal work earning the attorney’s fees during the time of the marriage. While Bill does not appear to argue that the chancellor erred in applying the Ferguson factors, we will briefly address that issue.

¶ 6. “When this Court reviews a chancellor’s decision in a case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule.” Yelverton v. Yelverton, 961 So.2d 19, 24(¶ 6) (Miss. 2007). Therefore, we will “not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous standard was applied.” R.K v. J.K., 946 So.2d 764, 773(¶ 17) (Miss. 2007). Marital property includes “any and all property acquired or accumulated during the marriage.” Owen v. Oiven, 928 So.2d 156, 160(¶ 12) (Miss.2006) (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). The supreme court identified eight factors for chancery courts to consider in equitable distribution analysis: (1) substantial contribution to the accumulation of the property; (2) disposal of marital property; (3) prior distribution of assets; (4) market and emotional value of the assets; (5) the value of property brought into the marriage; (6) tax consequences; (7) eliminating friction between the parties; and (8) the needs of the parties to financial security regarding the combination of assets, income, and earning capacity. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The chancellor rendered findings for each of the Ferguson factors.

(1) Substantial contribution to the accumulation of the property.

¶ 7. The chancellor found that both parties contributed to the accumulation of marital property. Although Bill and Ruth Ann did not live together while Bill was earning the Bridge Matter fees, in the early years of the marriage, Ruth Ann assumed part of Bill’s student loans from law school when they refinanced their home, gave Bill $15,000 for his law office building, and assisted in answering Bill’s office phone. Moreover, the chancellor found that during the “lean years” of Bill’s early practice, Ruth Ann worked two jobs and contributed to joint accounts for family living expenses.

(2) Disposal of marital property.

¶ 8. The chancellor found neither party disposed of marital property.

(3) Prior distribution of assets.

¶ 9. The chancellor found that the first trial had resulted in Bill paying Ruth Ann $34,055 for half the equity of the marital home.

(4) Market and emotional value of assets.

¶ 10. The chancellor found this factor did not apply.

(5) The value of property brought into the marriage.

¶ 11. This has been an issue on remand, and the chancellor valued Ruth Ann’s family trust/partnership at $611,087.21. The chancellor further found Bill’s individual net worth was $60,166.96 and Ruth Ann’s individual net worth was $793,876.08.

(6) Tax consequences.

¶ 12. The chancellor found no evidence going to these. Bill contends there were tax consequences involved in the equitable distribution of assets, but he does not assign any error.

(7) Eliminating friction between the parties.

¶ 13. The chancellor found there was obvious friction, and periodic payments should be avoided.

(8) The needs of the parties to financial security regarding the combination of assets, income, and earning capacity.

¶ 14. The chancellor found both parties were employed. And, although Bill’s monthly salary was slightly higher than Ruth Ann’s salary, Ruth Ann could request funds from the family trust/partnership if needed.

¶ 15. The substance of Bill’s argument is that the chancellor erred in the equitable distribution of marital property because he and Ruth Ann separated before he commenced working on the Bridge Matter, and Ruth Ann’s net worth far exceeds his own. However, there is no doubt that the fees from the Bridge Matter were marital property, and Ruth Ann materially assisted him in building his practice earlier in the marriage. The record shows that there was no property division or temporary support order entered prior to Bill receiving the attorney’s fees. Further, pursuant to the division of the Bridge Matter fees, the chancellor awarded Bill $288,616 — nearly five times that awarded to Ruth Ann. Equitable distribution does not require an equality in the separate estates. Owen v. Owen, 798 So.2d 394, 399(¶ 14) (Miss.2001). Based on this record, there is no abuse of discretion, and this issue is without merit.

III. REIMBURSEMENT FOR ALIMONY PAID.

¶ 16. The initial chancery court judgment in this case required Bill to pay $750 per month in periodic alimony. The record shows he paid $28,500.

¶ 17. In our first opinion in this matter, we reversed and remanded with instructions for the chancellor to consider whether any alimony was warranted after determining the parties’ non-marital estates and equitably distributing marital property. Upon remand, Bill filed a motion with the chancery court for restitution of the alimony he had paid. The chancellor did not issue an order specifically determining the merits of Bill’s motion for restitution. However, in the opinion at issue in this appeal, the chancellor specifically found that Bill should be credited with the amount of alimony he paid pursuant to the initial divorce decree when he paid the $75,000 in equitable distribution to Ruth Ann. Thus, Bill has actually prevailed on the issue of the periodic alimony he paid. What really is at issue in this assignment of error is that Bill sought to have Ruth Ann’s equitable distribution award of $75,000 entirely reversed in issues I and II. And then, in issue III, he sought to recoup the $28,500 as well. We do not mean to imply that Bill has done anything but take his right of appeal and offer good faith arguments as to why he should prevail on both issues of equitable distribution as well as alimony. However, the framing of the issues can be confusing because the credit for the $28,500 paid in alimony is entangled in both issues.

¶ 18. In his brief before this Court, Bill contends that his motion for restitution was “denied by implication.” We disagree. It is clear from the record he prevailed on this issue. In order to appeal an issue, a party must have been aggrieved by the judgment. See, e.g., Dunn v. Dunn, 853 So.2d 1150, 1152 (¶¶ 3-6) (Miss.2003). As such, Bill lacks standing to assert this issue.

¶ 19. Moreover, even assuming there was standing (which we do not find), Bill frames this issue as one of first impression: whether “a paying spouse should be restored to the position occupied prior to the rendition of an erroneous grant of alimony in a divorce judgment.” This characterization is not what occurred in this case. This Court did not reverse and render the alimony award in the first divorce judgment. Instead, we reversed and remanded to address the issue of alimony after equitable distribution determined the respective financial positions of the parties. Striebeck, 911 So.2d at 635(¶ 26). The initial award of alimony was not unjustified in light of the fact that Bill retained possession of the marital home while Ruth Ann and the couple’s minor daughter were living in Ruth Ann’s mother’s home. The effect of the equitable distribution on remand is that Ruth Ann retained the $34,055 from her share of the marital residence’s equity. She also was awarded $75,000 in equitable distribution. From that amount, the chancellor found Bill should be credited with the $28,500 he had previously paid in alimony. Thus, Ruth Ann ultimately was awarded $34,055 for the equity in the marital home, and $46,000. Rather than being an issue of first impression, this issue is one of “the law of the case” with a trial court effectuating the holding of an appellate court. See, e.g., Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 440(¶9) (Miss. 1999). There is no merit to this assignment of error.

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

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


author: LEE, P.J.,

text:
    ESTATE OF Lakeshia Denise CARR, Deceased, By and Through Minnie MACFIELD, Administratrix, Appellant, v. The CITY OF RULEVILLE, Appellee.
    No. 2007-CA-00007-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2008.
    Rehearing Denied Dec. 16, 2008.
    Certiorari Denied March 26, 2009.

      J. Murray Akers, Nick Crawford, attorneys for appellant.
    Jeffrey S. Dilley, attorney for appellee.
    Before LEE, P.J., CHANDLER and GRIFFIS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 18, 2003, Lakeshia Denise Carr filed a criminal complaint with the Ruleville Police Department against her estranged boyfriend, Rodney White. Carr stated that White had threatened her with a gun. Carr and White had a history of domestic problems, which were caused by White. An arrest warrant for White was issued shortly thereafter. Larry Mitchell, acting Chief of the Ruleville Police Department, interviewed Carr at the time she filed the complaint and prepared the arrest warrant. Chief Mitchell was unable to locate White. The conduct of Chief Mitchell’s search for White is at issue in this appeal.

¶ 2. On August 26, 2003, Carr was at her mother’s home near Drew, Mississippi when White entered the home, shot and killed Carr, and then killed himself. Carr’s mother, Minnie Macfield, on behalf of Carr’s estate, filed a wrongful death suit in the Sunflower County Circuit Court against the City of Ruleville and the City of Drew. The complaint against the City of Drew was later dismissed. The suit, which was filed pursuant to the Mississippi Tort Claims Act, Mississippi Code Annotated sections 11-46-1 to 11-46-23 (Rev.2002), alleged that the City of Ruleville (the City) failed to take reasonable steps to find White or otherwise protect Carr from White.

¶ 3. After a bench trial on the matter, the trial court concluded that the actions of Chief Mitchell in attempting to execute the warrant were discretionary in nature; thus, the City was entitled to the discretionary function immunity pursuant to Mississippi Code Annotated section 11-46-9(l)(d) (Rev.2002). Macfield now appeals, asserting that the trial court erred by applying the wrong legal standard to the conduct of the City.

STANDARD OF REVIEW

¶ 4. The standard of review for a judgment entered following a bench trial is well settled. “ ‘A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000) (quoting Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993)). This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo. Id.

DISCUSSION

¶ 5. On appeal, Macfield argues that the trial court erred by applying the wrong legal standard to the conduct of the City. Specifically, Macfield contends that the trial court should have determined whether Chief Mitchell acted with reckless disregard of Carr’s safety, and the trial court erred in determining that Chief Mitchell’s conduct involved a discretionary function. Sections 11 — 46—9(l)(c) and (d) state the following:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

¶ 6. “In determining whether governmental conduct is discretionary[,] the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic[,] or political policy alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588(¶ 15) (Miss.2001). Regarding the first question, we must determine whether the function is discretionary or ministerial. Dancy v. East Miss. State Hosp., 944 So.2d 10, 16(¶ 19) (Miss.2006). The supreme court has held that a function or duty is discretionary “[w]hen an official is required to use his own judgment or discretion in performing a duty....” Harris v. McCray, 867 So.2d 188, 191(¶ 12) (Miss. 2003). A function is considered ministerial “[if] the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141(¶22) (Miss. 1999).

¶ 7. In finding that Chief Mitchell’s conduct in executing the arrest warrant was discretionary, the trial court stated the following:

Clearly, the manner in which Chief Mitchell elected to execute the arrest warrant involved the exercise of discretionary function. The decision of how to execute a warrant includes an analysis of basic investigative decisions, including, the decision of what type of investigation to conduct prior to the execution of the warrant, considerations of resources, risk, and danger, the urgency of capturing the subject, and whether to execute the warrant at night or during the day, inside or outside of a house, and with or without force. All of which involved profoundly difficult policy or judgment considerations.... The claims herein asserted arise from the performance of discretionary functions, the City of Ruleville has sovereign immunity for the claims asserted by the Plaintiff by virtue of Miss.Code Ann. § 11-46-9(l)(d).

We find sufficient evidence to support the trial court’s findings. Immediately upon executing the arrest warrant, Chief Mitchell began searching for White. Chief Mitchell was informed by Carr that White could be found at Carr’s house in the morning before Carr left for work or at White’s grandmother’s house in Drew. Chief Mitchell arranged for Carr’s house to be monitored for several mornings at the time Chief Mitchell was informed White was usually there. Chief Mitchell also personally visited Carr’s house on more than one occasion and also interviewed Carr’s neighbors. Chief Mitchell sent a copy of the arrest warrant to the Drew Police Department, whereupon an officer was dispatched to White’s grandmother’s house. Tom Long, an expert in the fields of law enforcement practice and procedure, testified that serving an arrest warrant involves the exercise of discretion, and Chief Mitchell’s actions in attempting to execute the search warrant were reasonable and appropriate under the circumstances.

¶8. Because the trial court determined that the City was entitled to the discretionary function immunity, it did not address whether the City was immune under the police protection provision of section 11-46-9(l)(c). Therefore, we do not find it necessary to discuss Macfield’s remaining issue.

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

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


author: ISHEE, J.,

text:
    Atiba PARKER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00490-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2008.
    Rehearing Denied Jan. 6, 2009.
    Certiorari Denied March 26, 2009.

      Leslie S. Lee, Carrie A. Jourdan, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. In November 2006, Atiba Parker was convicted of two counts of the sale of cocaine and sentenced to serve twenty years on Count I and fourteen years on Count II, to run consecutively, in the custody of the Mississippi Department of Corrections.

¶ 2. Aggrieved, Parker now appeals that: (1) the circuit court erred in refusing to sever Counts I and II of his indictment; (2) the circuit court erred in refusing to grant a continuance; (3) the circuit court erred in refusing to grant one of his peremptory challenges during jury selection; (4) the circuit court erred in refusing to grant a mistrial; and (5) his sentence constitutes cruel and unusual punishment under the Eighth Amendment given his mental condition.

¶ 3. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 4. Parker was arrested and charged with three separate counts of selling cocaine after being videotaped selling the drugs to a police informant on three separate occasions. The first sale took place several days before the second. The third sale happened the day after the second and was arranged during the second sale. Parker subsequently moved to have all of the counts severed for trial purposes. The circuit court granted Parker’s motion to sever with respect to the first sale, but allowed the State to proceed to trial jointly on the other two sales.

¶ 5. During jury selection, after defense counsel struck four white jurors in a row, the State made an objection to several of defense counsel’s proposed peremptory challenges, arguing that they were racially motivated and, therefore, unconstitutional under Batson. These proposed challenges included Juror No. 32, a seventy-nine-year-old white male and retired member of the United States Navy. The circuit court requested race-neutral reasons for defense counsel’s peremptory challenges. The race-neutral reasons provided by counsel for Parker for striking prospective Juror No. 32 were that he was a retired member of the United States military and that he had recently served on a civil jury. The circuit judge subsequently prevented Parker’s counsel from using a remaining peremptory challenge on Juror No. 32; however, the court’s ruling was not based on the proffered reasons that he was retired military personnel or that he had recently served on another jury, but solely based on the fact that Parker’s counsel had failed to exclude the same juror from another veni-re in a different trial earlier in the week.

¶ 6. After a two-day trial in November 2006, Parker was convicted on two counts of the sale of cocaine and sentenced to twenty years on Count I and fourteen years on Count II, to be served consecutively. Parker now appeals.

DISCUSSION

I. The circuit court did not err in refusing to sever Counts I and II of the indictment.

¶ 7. We review a circuit court’s denial of a motion to sever multiple counts of an indictment for abuse of discretion. Rushing v. State, 911 So.2d 526, 532(¶ 12) (Miss.2005). The general authority to charge and try defendants for multiple counts in the same indictment is provided by Mississippi Code Annotated section 99-7-2(1) (Rev.2007), which provides:

Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

¶ 8. Furthermore, the supreme court has established a three-part test for lower courts to use in order to determine whether a multiple-count indictment is proper. These are as follows: (1) “whether the time period between the occurrences is insignificant”; (2) “whether the evidence proving each count would be admissible to prove each of the other counts”; and (3) “whether the crimes are interwoven.” Rushing, 911 So.2d at 533(¶ 14) (citing Corley v. State, 584 So.2d 769, 772 (Miss.1991)).

¶ 9. Here, the circuit court noted that Counts I and II were separated by only one day, that the alleged crimes were the same, and that they involved substantially the same facts and witnesses. The trial court severed Count III of the indictment, finding it to be too remote in time to be included on the same indictment, even though it was separated from the others by only three days. Accordingly, we cannot say the circuit court abused its discretion in refusing to sever Counts I and II of the indictment. Therefore, this issue is without merit.

II. The circuit court did not err in denying Parker’s motion for a continuance.

¶ 10. We will not reverse the decision of a circuit court to deny a motion for a continuance unless the denial is an abuse of discretion or results in manifest injustice. Ross v. State, 954 So.2d 968, 1007(¶ 91) (Miss.2007) (citation omitted).

¶ 11. Parker argues that due to the fact that his counsel had completed a political campaign only a week prior to trial, and was involved in a proceeding in court the day before his trial began, the circuit court’s refusal to allow a continuance resulted in manifest injustice; therefore, he should be granted a new trial.

¶ 12. At the time of his trial, Parker had been under indictment for six months. Discovery had been conducted, and subpoenas had been issued. His counsel was apparently experienced in handling drug-sale cases. We find nothing in the record indicating that manifest injustice resulted from the denial of Parker’s motion for a continuance. Accordingly, we find that this issue is without merit.

III. The circuit court did not err in refusing to grant one of Parker’s peremptory challenges.

¶ 13. Parker next argues that the circuit court erred in refusing to grant one of his counsel’s peremptory challenges. He points out that his attorney offered race-neutral reasons for the peremptory challenge in response to the State’s objection to the challenge on the ground that it was racially motivated and, therefore, unconstitutional under Batson v. Kentucky, 476 U.S. 79, 90, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 14. Batson was originally intended to prevent racial discrimination in the use of peremptory challenges during jury selection by the State. The application of Batson has since been expanded in scope several times and now extends to, among other things, the use of peremptory challenges by criminal defendants. See Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). To determine whether a party has improperly used a peremptory challenge to discriminate against a potential juror, the objecting party must first make a prima facie showing of discrimination that race was a criteria for the exercise of the challenge. Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995) (citing Batson, 476 U.S. at 96-97, 106 S.Ct. 1712). The'burden then shifts to the party exercising the challenge to offer a nondiscriminatory reason for the proposed strike. Id. The trial court must then make a determination of whether the objecting party has met its burden to prove its prima facie case for discrimination, and the court must accept or reject the proponent’s proffered race-neutral reasons. Id. At this stage, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Henley v. State, 729 So.2d 232, 240(¶ 38) (Miss.1998) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

¶ 15. In this case, the State made a sufficient prima facie showing that race was a possible criteria in the defense counsel’s exercise of peremptory challenges, including the challenge to Juror No. 32. The defense then offered alleged non-pre-textual race-neutral reasons for striking Juror No. 32, namely, that he was retired military personnel and had recently served on a civil jury. The circuit judge then found that the proffered reasons were pre-textual and sustained the State’s Batson objection.

¶ 16. As our standard of review in this case indicates, Batson determinations are highly fact intensive, based in large part on the trial court’s findings concerning the credibility of the race-neutral reasons offered with respect to a specific juror. Therefore, we accord great deference to those determinations absent a clearly erroneous result. Our supreme court noted in Henley:

Determination of pretext involves an analysis of factual findings which are similar to those found under step one: the extent and nature of voir dire on the grounds upon which the strike is being exercised; the relation between the reasons for the strike and the facts of the case; the demeanor of the attorney and the prospective juror; and, disparate impact upon a minority or gender class.

Henley, 729 So.2d at 240(¶39) (footnotes omitted).

¶ 17. Here, very little voir dire was conducted with respect to Juror No. 32. The record indicates that Juror No. 32 did not respond to any questions asked during voir dire. However, the record also indicates that both parties made use of knowledge that had been gleaned from a previous voir dire proceeding earlier in the week that examined the same venire, and over which the same circuit judge presided. More importantly, the demeanor of the defense attorney with respect to that previous voir dire proceeding and the one at issue here is telling. The defense attorney, when questioned by the circuit judge, first represented to the court that the reason Juror No. 32 was not struck during the previous proceeding was due to the fact that she ran out of challenges. The circuit judge disputed the truthfulness of the representation by defense counsel, and defense counsel responded that she was merely “kidding” and that she was saying it “as a joke.”

¶ 18. Faced with this situation, we cannot say that the circuit judge committed error in finding that the reasons proffered by the defense attorney were merely pre-textual under Batson. Accordingly, we find that this issue is without merit.

IV. The circuit court did not err in refusing to grant a mistrial.

¶ 19. Parker argues that the circuit court erred in denying his motion for a mistrial. That motion arose from a question asked by the prosecution of a defense character witness on cross-examination, in which the prosecutor mentioned previous narcotics charges against Parker. After defense counsel objected, the jury was sent home, and the circuit judge asked for arguments on the subject the next morning.

¶ 20. The next day, both sides made their arguments on the issue. The circuit judge found that the prosecutor improperly asked the question about the previous narcotics charges against Parker and that the prosecutor should have first asked for a balancing test to be conducted outside the presence of the jury under Porter v. State, 735 So.2d 987, 989(¶ 5) (Miss.1999). Parker’s counsel then made a motion for a mistrial. The circuit judge denied the motion, but the judge did instruct the jury to disregard the improper question. All jurors indicated that they could follow the instruction to disregard.

¶ 21. In all cases, “[t]he judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared.” Carpenter v. State, 910 So.2d 528, 534(¶23) (Miss.2005) (quoting Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990)). Furthermore, in the absence of any evidence to the contrary, there is a presumption that the jury followed all of the trial court’s instructions in reaching its verdict. Reid v. State, 266 So.2d 21, 28 (Miss.1972).

¶ 22. In this case, the prosecutor mistakenly asked an improper question. The circuit judge asked for arguments on the issue, correctly identified the error, and took appropriate remedial steps. Those steps included: instructing the jury to disregard the content of the improper question and asking each juror to affirm that he or she could do so. There is no evidence to indicate that the jurors failed to heed the circuit judge’s instruction. Therefore, we cannot say that the circuit judge abused his discretion in failing to grant Parker’s motion for a mistrial. Accordingly, this issue is without merit.

Y. Parker’s sentence is not cruel and unusual under the Eighth Amendment.

¶ 23. Parker argues that his consecutive sentences of twenty years and fourteen years, totaling thirty-four years, constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Parker concedes that his sentence is within the limits permitted by statute in this state; instead, he makes what amounts to be a policy argument, citing the small amount of drugs involved in his crimes and his relatively young age of twenty-nine.

¶ 24. Generally, sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996). Our supreme court has held, however, that a sentence which is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds. Id. at 538.

¶ 25. Parker, however, offers no eases supporting his argument that consecutive sentences for serious drug offenses that fall within the statutory limits are “grossly disproportionate.” Therefore, we cannot say that the circuit judge abused his discretion or violated Parker’s constitutional right to be free from cruel and unusual punishment when he sentenced Parker. Accordingly, we find that this issue is without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF COUNT I, SALE OF COCAINE, AND SENTENCE OF TWENTY YEARS, AND COUNT II, SALE OF COCAINE, AND SENTENCE OF FOURTEEN YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND A FINE OF $10,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

IRVING, J., CONCURS IN PART AND IN THE RESULT.


author: KING, C.J.,

text:
    James PRUITT and Karlotta Pruitt, Appellants, v. The ZONING BOARD OF the CITY OF LAUREL, Mississippi Planning Commission, The City Council of Laurel, Mississippi, Appellees. James Pruitt and Karlotta Pruitt, Appellants, v. The Zoning Board of the City of Laurel, Mississippi Planning Commission, The City Council of Laurel, Mississippi, Appellees.
    Nos. 2007-CP-01516-COA, 2007-CP-01518-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2008.

      James Pruitt, pro se.
    Karlotta Pruitt, pro se.
    David M. Ratcliff, Laurel, attorney for appellees.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. James and Karlotta Pruitt appealed the City of Laurel’s city council’s denial of the Pruitts’ petition to rezone property and the denial of the Pruitts’ request for a variance. The Circuit Court of Jones County dismissed both actions with prejudice. The Pruitts appeal the dismissals, and the two actions have been consolidated on appeal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

I. Petition to Rezone

¶ 2. The Pruitts filed a petition to rezone property that they owned from industrial and residential to commercial in hopes of locating a food trailer on the property, locating a restaurant in the building at 1300 Susie B. Ruffin Drive, and using one parcel as a parking lot. A public hearing was held before the zoning board. Numerous residents opposed the Pruitts’ petition to rezone, arguing that the Pruitts’ business plans would have a negative effect on the neighborhood. In a unanimous decision, the zoning board denied the Pruitts’ petition to rezone. The Pruitts appealed this decision to the city council and requested that the city council grant them an appeal hearing on the issue. On April 17, 2007, the city council met, reviewed the zoning board’s denial of the Pruitts’ petition to rezone, and, in a five-to-two-vote, denied the Pruitts’ request for a hearing before the city council.

¶ 3. On May 3, 2007, the Pruitts filed an appeal in the circuit court. The zoning board and the city council filed a motion to dismiss the Pruitts’ appeal, alleging that the Pruitts failed to perfect their appeal. In response, the Pruitts filed a motion to strike the motion to dismiss and alleged that the city council’s president was responsible for filing the bill of exceptions. The circuit court dismissed the appeal stating, “[the Pruitts] have failed to meet the requirements of section 11-51-75 ... of the Mississippi Code,” which states that an appeal must be filed within ten days and the aggrieved party must file a bill of exceptions. Aggrieved, the Pruitts filed this appeal on August 30, 2007.

II. Request for a Variance

¶ 4. During the same time, the Pruitts also filed a request for a variance to Local Ordinance No. 1372-2000 section 3-31(b)(2), which states that no privilege license shall be granted for the sale and/or consumption of beer and/or light wine when the structural premises is located within four hundred feet of a church or a school. A public hearing was held before the zoning board. During the hearing, the Pruitts explained that they owned a food business located at 1503 Susie B. Ruffin Drive, and they wanted to sale beer at the facility. The Pruitts claimed that the Mississippi Tax Commission issued them a beer permit and privilege license; after which, they applied for a license to sell packaged beer in the City of Laurel. The City of Laurel denied the Pruitts’ application because the food business was located less than four hundred feet away from a daycare center.

¶ 5. The Pruitts argued that: (1) their business was more than four hundred feet away from the daycare center, and (2) a daycare center is not a school; therefore, the daycare center should not have been used as a point to ascertain the distance requirement. The daycare center was located on lot number nine, but the daycare owner also owned lots ten and eleven and planned to expand the daycare center to these lots in the future. A city inspector measured the distance from the daycare center to the Pruitts’ business. The inspector wrote a letter to Susan Norman, the zoning board secretary, stating that the Pruitts’ property was 402 feet away from the daycare center when measured from lot nine, but the Pruitts’ property was only 320 feet away when measured from lot eleven. The inspector stated that the points of the property lines were mere speculation, and he denied any statement insinuating that he supported or validated the Pruitts’ position of compliance. In addition to the inspector’s statement, numerous residents attended the hearing and opposed the Pruitts’ request for a variance. In a unanimous decision, the zoning board denied the Pruitts’ request for a variance based on the proximity of the Pruitts’ facility to the daycare center and community opposition. On July 3, 2007, the Pruitts appealed the denial of their request for a variance to the city council. The city council unanimously affirmed the zoning board’s decision.

¶ 6. The Pruitts appealed to the circuit court on July 11, 2007. On July 19, 2007, the zoning board and the city council filed a motion to dismiss the action, stating that the Pruitts failed to comply with Mississippi Code Annotated section 11-51-75. The very next day, minutes from the zoning board and city council meetings were filed, but the record is unclear who filed the meetings’ minutes. Soon after, the Pruitts filed a “motion to vacate the motion to dismiss.” In this motion, the Pruitts alleged that they requested a bill of exceptions from the city council, but the city council’s secretary informed the Pruitts that she was unaware of that requirement. The Pruitts then filed a motion to compel the city council to provide a bill of exceptions. A motions’ hearing was held on July 30, 2007, and the circuit court judge informed the Pruitts that he was affirming the city council’s decision because the city council did not act arbitrarily or capriciously. The circuit court granted the motion to dismiss the Pruitts’ appeal, simply stating that the Pruitts failed to comply with section 11-51-75. The Pruitts filed this appeal on August 30, 2007.

¶ 7. The two cases were consolidated on appeal. The Pruitts raise twelve assignments of error for this Court to consider. However, for the sake of efficiency, the Pruitts’ concerns are best summarized by the following two assignments of error:

I. Whether the circuit court erred by dismissing the Pruitts’ appeal of the denial of their petition to rezone, and
II. "Whether the circuit court erred by dismissing the Pruitts’ appeal of the denial of their request for a variance.

ANALYSIS

¶ 8. When reviewing a zoning decision, this Court applies the same standard of review that the circuit court is bound to follow: whether the decision was arbitrary or capricious and whether the decision was supported by substantial evidence. Adams v. Mayor & Bd. of Aldermen of the City of Natchez, 964 So.2d 629, 633(¶9) (Miss.Ct.App.2007) (citing Broadacres, Inc. v. Hattiesburg, 489 So.2d 501, 503 (Miss. 1986)). The threshold issue in both of these matters is whether the Pruitts timely and properly filed their appeal in the circuit court.

I. Whether the circuit court erred by dismissing the Pruitts’ appeal of the denial of their petition to rezone.

¶ 9. The zoning board and the city council argue that the Pruitts’ appeal was properly dismissed because the Pruitts failed to appeal within ten days of the city council meeting in which their petition to rezone was denied, and the Pruitts failed to file a bill of exceptions. Conversely, the Pruitts maintain that they had thirty days in which to appeal the city council’s denial of their petition to rezone.

¶ 10. Mississippi Code Annotated section 11-51-75 (Rev.2002) states the requirements for appeals to circuit court from municipal authorities as follows:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.

As stated in section 11-51-75, an appeal from an adverse decision of the city council must be filed within ten days. “The statute’s ten (10) day time limit in which to appeal ... is both mandatory and jurisdictional.” Bowen v. DeSoto County Bd. of Supervisors, 852 So.2d 21, 23(¶3) (Miss. 2003) (citing Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990)). If the appeal is not filed within ten days, the action should be dismissed as untimely. Id.

¶ 11. The record indicates that the city council denied the Pruitts’ petition to rezone on April 17, 2007. The Pruitts did not appeal to the circuit court until May 3, 2007, clearly more than ten days after the city council’s decision. The Pruitts improperly rely on Uniform Rule of Circuit and County Court 5.04 in support of their argument that they had thirty days in which to file their appeal. Rule 5.04 provides, in pertinent part, that: “[t]he party desiring to appeal a decision from a lower court” must do so “within thirty (30) days of the entry of the order or judgment being appealed.” (Emphasis added). Rule 5.04 specifically addresses the time in which to appeal from a lower court, and neither the zoning board nor the city council is a court. Rather, the statute of limitations for appeals from decisions of these entities is properly addressed by Mississippi Code Annotated section 11-51-75.

¶ 12. As mandated under section 11-51-75, the Pruitts had only ten days in which to file their appeal, and they failed to do so. Therefore, we find that the circuit court did not err by dismissing the Pruitts’ appeal of the city council’s denial of their petition to rezone.

II. Whether the circuit court erred by dismissing the Pruitts’ appeal of the denial of their request for a variance.

¶ 13. The zoning board and the city council argue that the circuit court properly dismissed the Pruitts’ appeal of the denial of their request for a variance because the Pruitts failed to file a bill of exceptions. The Pruitts maintain that it was not their responsibility to file the bill of exceptions, contending that it was the city council’s responsibility. Additionally, the Pruitts present a rather illogical argument disputing whether a daycare center is a school as defined by Mississippi law.

¶ 14. When appealing to the circuit court from the decision of a municipal authority, the aggrieved party is responsible for preparing a bill of exceptions, which must be signed by the president of the city council. See Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638-39(117) (Miss.2001) (citing Miss.Code Ann. § 11-51-75 (Rev.1972)). The bill of exceptions serves as the record on appeal and embodies the facts, judgment, and decision involved in the proceedings below. Id. In its appellate capacity, the circuit court must limit its review of the evidence to the bill of exceptions. Id. (citations omitted). “If the bill of exceptions is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, then the [circuit] court does not have a record upon which it can intelligently act.” Hollywood Cemetery Ass’n v. Bd. of Mayor & Selectmen of the City of McComb, 760 So.2d 715, 719 (¶ 16) (Miss.2000) (citations omitted).

¶ 15. Contrary to the Pruitts’ beliefs, the city council was not responsible for preparing the bill of exceptions. As the aggrieved party, it was the Pruitts’ duty to prepare the bill of exceptions. By not assuming their duty to file the bill of exceptions, the Pruitts failed to perfect them appeal. The Pruitts attached several documents to their appeal to the circuit court as exhibits: some local rules, sections of the Mississippi Code, and the letter from the inspector. But even assuming that the Pruitts also filed the zoning board’s and the city council’s minutes, these documents do not constitute a bill of exceptions.

¶ 16. In this case, a copy of the city council’s minutes by itself could not possibly provide all of the facts necessary to establish the Pruitts’ claim of error. Unfortunately, the Pruitts did not provide the circuit court with sufficient evidence to verify their allegations, and the Pruitts failed to comply with section 11-51-75 by not embodying the facts and the proceedings below in a bill of exceptions signed by the president of the city council.

¶ 17. Even if the Pruitts had filed a bill of exceptions, we would still affirm the decision of the circuit court. “An appellate court sitting in review of findings of fact affords deference to an administrative decision in which the decision to grant or deny a variance is at issue, and if the decision can be viewed as ‘fairly debatable,’ it will not be disturbed on appeal.” Beasley v. Neelly, 911 So.2d 603, 608 (¶ 12) (Miss.Ct.App.2005) (quoting Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss. 1992) (stating that “[t]he zoning decision of a local governing body which appears to be ‘fairly debatable’ will not be disturbed on appeal, and will be set aside only if it clearly appears the decision [was] arbitrary, capricious, discriminatory, illegal, or [was] not supported by substantial evidence.”)). In the hearing held on July 30, 2007, the circuit court judge said that he had reviewed the case and found that the city council did not act arbitrarily or capriciously. Based on a review of the record, we agree. The zoning board denied the Pruitts’ request for a variance based on the proximity of the Pruitts’ facility to the daycare center and community opposition. After its review, the city council upheld the zoning board’s decision. We find that the decisions reached by the zoning board and the city council are fairly debatable and neither arbitrary nor capricious. Thus, we find that the circuit court did not err by dismissing the Pruitts’ appeal of the denial of their request for a variance.

CONCLUSION

¶ 18. We find that the Pruitts’ appeal of the city council’s denial of their petition to rezone was time-barred. We also find that the Pruitts’ appeal of the city council’s denial of their request for a variance was proeedurally barred because the Pruitts failed to file a bill of exceptions. Thus, we affirm the circuit court’s dismissal of the Pruitts’ claims based on these grounds.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: BARNES, J.,

text:
    Thomas Dorsey CAMPBELL, Appellant, v. CONSERVATORSHIP OF Thomas Dorsey CAMPBELL and Amsouth Bank, Appellees.
    No. 2007-CA-00906-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2008.

      Richard V. Dymond, Gulfport, attorney for appellant.
    No Attorney of Record, attorney for ap-pellees.
    BEFORE KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Thomas Dorsey Campbell appeals the judgment of the Chancery Court of Lamar County, which denied his petition to terminate his conservatorship. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 1985, Campbell suffered a serious brain injury from an on-the-job accident, when he fell approximately thirty feet onto a concrete floor after inhaling hydrogen sulfide. He was declared mentally incompetent, and his father established a conser-vatorship for him in 1986. In 1988, Campbell received a settlement of over $2,000,000 for the accident. AmSouth Bank, then operating as Deposit Guaranty National Bank, was appointed the conservator of Campbell’s estate.

¶3. In 2002, the chancery court terminated the conservatorship over Campbell’s “person,” but not over his estate. Campbell filed a petition to terminate the con-servatorship over his estate in February 2005. Attached to his petition were two physicians’ evaluations performed three years earlier in 2002, by Drs. Michael Lowry and Keith McLarnan. Dr. Lowry’s letter explained that Campbell was a former patient, and in the months and years following Campbell’s injury, Dr. Lowry had found Campbell incompetent and in need of a conservator to manage his affairs. However, Campbell had progressed well over the past ten years — acquiring a GED, starting a family, and earning a degree from a community college. Dr. Lowry concluded that, from his standpoint, Campbell seemed competent to manage his financial affairs. Dr. McLarnan’s report stated Campbell has post-traumatic seizure disorder, but “[bjarring any personality disturbance disorders unknown to this examiner, the patient appears to be competent.” Dr. McLarnan’s report did acknowledge that Campbell had told him he had been trying to get control of his compensatory award since 1995. He had seen multiple doctors, all of whom, Campbell claims, found him to be competent. Thus, Dr. McLarnan concluded in his report “why the patient is in this examiner’s office is not clearly understood ... having never seen the patient before.”

¶4. Three months after Campbell filed his petition to terminate in May 2005, the chancery court approved the withdrawal of $10,000 from Campbell’s estate, as he had been charged with possession of a controlled substance, and it was necessary for him to retain legal counsel for his criminal defense.

¶ 5. In March 2007, a hearing was held in the Lamar County Chancery Court on Campbell’s petition to terminate his con-servatorship. Present and testifying were Campbell, his attorney of record at the time, and his guardian ad litem, Nathan Farmer. Three documents were entered into evidence: a neuropsychology evaluation by Dr. Andrew Dickson, Ph.D., dated November 20, 2006; a letter from Farmer, dated June 8, 2006; and an AmSouth account statement of Campbell’s conserva-torship from July through September 2006, which reflected an ending market value of $344,231.94.

¶ 6. Dr. Dickson, a psychologist, provided a more recent medical evaluation than the ones which were on file, upon the direction of Farmer. His report dated November 2006 recommended that Campbell complete an Alcoholics Anonymous (AA) treatment program, and once that was completed, he saw no reason why Campbell would not have the cognitive capacity to manage his own money. Campbell’s wife, who accompanied him to Dr. Dickson’s clinical interview, denied Campbell had any cognitive problems, as did Campbell himself. In his report, however, Dr. Dickson concluded that Campbell’s “denial” of cognitive problems, depression, and anxiety was “a bit disquieting.” Dr. Dickson also remarked that Campbell stated, regarding his settlement, that “they” were afraid that he would spend his money. Dr. Dickson reported that the “configuration of validity scales was suggestive of someone who is trying to ‘look good.’ ” Dr. Dickson concluded, however, that “if [an] attorney can produce in vivo evidence of emotional stability, (for example, no legal involvement, paying bills on time), then this would attest to his emotional stability.”

¶ 7. In his letter to the chancellor, Farmer reported that it was his opinion Campbell had sufficient knowledge and was competent enough to handle his finances. At the hearing, Farmer testified that Campbell has been taking some banking and finance courses at a local community college and had good grades; also Campbell understands what money is and how to make change. Regarding his employment history, Campbell has followed blueprints, fixed electrical systems, and done various remodeling work.

¶ 8. Campbell, testifying on his own behalf, stated he felt confident that he could handle his own financial affairs. After the accident, it was his father who initially set up the guardianship. At the time, Campbell explained, he was not married. However, in 1995 he married the mother of his daughter; the daughter was approximately three years old at the time they married. He also has a step-daughter. The chancellor, noting that this was the third or fourth time that Campbell had appeared before him trying to terminate his guardianship, asked Campbell what had changed since the prior attempts to terminate the guardianship. Campbell responded, “I’ve got more sense than most people out there.” The chancellor noted Campbell had been “in trouble with the law” since the last attempt to terminate. Campbell’s lawyer, however, explained that Campbell entered a “best interest plea.” Campbell’s counsel maintained that the drugs, which were found in the toolbox of Campbell’s truck, did not belong to Campbell, and because of some “problems with the evidence,” the case was nonadjudicated.

¶ 9. The chancellor proceeded to ask Campbell questions about Campbell’s relationship with his father. In the past, the chancellor pointed out Campbell’s father had not thought it wise to terminate the guardianship. Regarding his monthly income through the conservatorship, Campbell testified he receives $3,500 from the AmSouth account. In addition, he receives approximately $1,161 in monthly social security disability benefits. Furthermore, the insurance company owes future payments totaling approximately $800,000. Campbell testified that every four years, until 2028, he will receive “a big chunk of money” from this source. The chancellor concluded by expressing his main concern to Campbell: “how can we be assured that you’re not going to waste your money?”

¶ 10. In May 2007, the chancellor entered an order denying Campbell’s petition to terminate his guardianship, stating:

The evidence in this matter does not convince the Court that ... Campbell possesses the requisite ability and capacity to manage his estate and financial affairs. The ward has a history of dissipating his estate and the monies that are allotted to him for monthly living expenses. While the Guardian Ad Li-tem and a medical expert have concluded that he is mentally able to make everyday decisions that are necessary for functioning as an independent adult (to which this Court still has serious reservations), this does not mean that he is fiscally and financially responsible.
The ward also recently engaged in unlawful conduct which led to the expenditure of $10,000 for legal fees. This occurred within the previous year, and raises serious questions about the ward’s ability to handle his own financial affairs.

From this judgment, Campbell now appeals. We note that the Appellees did not file a brief, and there has been no entry of appearance by an attorney on their behalf. The Mississippi Supreme Court has held that failure of the appellee to file a brief “is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.” Reddell v. Redded, 696 So.2d 287, 288 (Miss. 1997). The Mississippi Supreme Court has also held that “[ajutomatic reversal is not required where the appellee fails to file a brief.” Selman v. Selman, 722 So.2d 547, 551(¶ 13) (Miss.1998). With these precepts in mind, we consider the merits of Campbell’s argument.

DISCUSSION

¶ 11. Campbell contends that there was no evidence introduced at the hearing supporting the position that he remains incompetent to handle his own affairs. The guardian ad litem, Farmer, testified that he reviewed the reports of Drs. Lowry, McLarnan, and Dickson. Campbell points out all three consultants and Farmer took the position that he is competent to handle his financial affairs without a conservator-ship.

¶ 12. Our standard of review in this case is important and limited. When reviewing decisions by a chancellor, we will not disturb his findings of fact unless they are manifestly wrong or clearly erroneous. In re Bardwell, 849 So.2d 1240, 1245(¶ 16) (Miss.2003). If there is substantial evidence in the record to support the chancellor’s findings, those findings must be affirmed. Id. However, this Court may reverse a decree of a chancellor if his decision appears to be manifestly wrong. Harvey v. Meador, 459 So.2d 288, 293 (Miss.1984).

¶ 13. A conservatorship may be granted for reasons associated with advanced age, physical incapacity, or mental weakness if a person “is incapable of managing his own estate.” Miss.Code Ann. § 93-13-251 (Rev.2004). The process of establishing a conservatorship is well established. The chancery court shall conduct a hearing to determine whether a conservator is needed. Miss.Code Ann. § 93-13-255 (Rev. 2004). At its discretion, the court may appoint a guardian ad litem who represents the interest of the person in question and will be present at the hearing. The chancellor “shall be the judge of the number and character of the witnesses and proof’ presented; however, there shall be at least two physicians, or a physician and a psychologist, each of whom shall make a personal examination of the person and file a written report of the results. These persons may also testify at the hearing. Id.

¶ 14. In Harvey, the supreme court noted that conservatorship statutes have broadened the definition of persons for whom assistance may be afforded by the court. Harvey, 459 So.2d at 291. A declaration of non compos mentis is no longer necessary for establishing a conservator-ship; this procedure is intended to “encompass a broader class of people than just the incompetent.” Id. at 291-92. In articulating the standard for establishing a conservatorship, Harvey states:

Mental weakness, as opposed to the more strict application of mental incompetency, is another statutory standard which also employs some vagueness. Mere lack of good business judgment, not amounting to some degree of wasted or dissipated property, is not a sufficient standard. Mental weakness which renders the subject incapable of understanding and acting within discretion in the ordinary affairs of life is sufficient.

Harvey, 459 So.2d at 292 (citation omitted) (emphasis added). The Harvey court goes on to adopt a “management competency test” to determine whether a conservator should be appointed. Factors to consider are: “ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or other similar factors.” Id.

¶ 15. It is also well established that chancellors are the “superior guardians” over persons with disabilities and must take all necessary steps to conserve and protect the best interest of the wards of the court. Bardwell, 849 So.2d at 1248(¶ 24) (citing Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826, 138 So. 593, 595 (1932)). Once the conservatorship is established, the chancellor will have discretion in determining whether a ward under a conservatorship shall have an allowance and, if so, how much. In re Conservatorship of Stallings, 523 So.2d 49, 53 (Miss. 1988). This is because, unlike wards of the court who have been declared non compos mentis, wards under conservatorship may have the mental ability to manage a limited monthly income. Id. at 52. Thus, as articulated in Stallings:

[competency is not an either/or. In considering whether a conservatorship should be established, the Chancery Court is inevitably in the relative world of shades of gray. Some persons are so incapable of handling their affairs that a conservator must be charged to do everything. Yet there are many circumstances where it is neither necessary nor desirable....

Id. at 53.

¶ 16. We find these same considerations and factors apply in the decision whether or not to terminate a conservator-ship. In Campbell’s case, while there is evidence in the record that Campbell may be competent to handle his financial affairs, namely, the three reports (two from 2002 and one from 2006) and Farmer’s recommendation, there are certain red flags regarding Campbell’s behavior that may indicate he does not have the mental fortitude to “act within discretion in the ordinary affairs of life.” The chancellor apparently took these into account, and we cannot say he erred in doing so.

¶ 17. Of foremost concern are Campbell’s criminal legal issues after he filed his petition. Even though the drug charge was “nonadjudicated” and Campbell claims the drugs were not his, this incident, at the very least, shows his ability to be influenced by others, because the drugs were in the toolbox of his truck. At the most, it may also be indicative of a more serious drug problem. The incident cost him $10,000 in legal fees. Apparently, this was not the first time Campbell had been involved with drugs or alcohol, as Dr. Dickson noted in 1997 that Campbell had completed an AA treatment program, and in 2006 he recommended Campbell complete another program.

¶ 18. Moreover, the three doctors’ reports, while ultimately concluding that Campbell was competent, were not free from evidence justifying continuation of the conservatorship. In 2002, Dr. McLar-nan reported that Campbell said he had been trying to get control of his compensatory award since 1995 and had been deemed competent by numerous doctors. If this was the case, Dr. McLarnan questioned why Campbell was in his office, as he had never treated him before and, thus, was not familiar with his case history. Additionally, he merely concluded Campbell was “competent” without elaborating. Dr. Lowry’s letter of 2002 was more specific, stating that after Campbell suffered “a significant brain injury many years ago,” he felt that he needed a conservator; however, he now found Campbell “competent to manage his financial affairs.” However, there were no test results or evaluations attached to Dr. Lowry’s letter, as there were with the other evaluations. Dr. Dickson’s 2006 report, the most recent and detailed, indicates Campbell’s absolute “denial” of problems was “disquieting” and indicative of someone who was trying to “look good.” Dr. Dickson qualified his opinion on Campbell’s cognitive capacity to handle his own financial affairs. He stated evidence in Campbell’s life of emotional stability would be proven by such things as lack of legal involvement, and this would attest to his competency. However, as discussed above, Campbell had actually suffered criminal “legal involvement” before this report was made and of which Dr. Dickson was apparently unaware.

¶ 19. The chancellor also noted in his order that Campbell has a history of “dissipating his estate and the monies that is allotted to him for monthly living expenses.” We note the record is replete with petitions, photographs, and subsequent orders from 2005 to expend funds from the conservatorship for the purpose of purchasing supplies for repairs and renovations to the Campbells’ home and swimming pool. We cannot say, on the record before us, whether this is part of the history of “dissipation” the chancellor refers to, as we only have the documents in the record since the time the petition to terminate was filed. However, there is no evidence to dispute the chancellor’s contention that assets have been dissipated. Furthermore, the chancellor stated in his order that he had serious reservations about whether Campbell was even functioning as an independent adult, which would certainly impact his ability to manage his finances. Finally, there is a lack of evidence presented from any family member or friend who might know Campbell well that he has the ability to manage his property and assets. Farmer’s statement at the hearing that Campbell knows what money is and how to make change is not indicative of fiscal responsibility.

¶ 20. While we commend Campbell for his educational endeavors in banking and finance at the community college and his recuperation from a serious brain injury, we are mindful that the issue of “competency” inhabits “the world of shades of gray.” We also recognize a chancellor’s foremost duty is to protect the best interests of the ward, and we find no evidence that the chancellor was motivated by any other purpose in his ruling. After applying the proper standard of deference to the chancellor’s findings, and after carefully examining the record, we cannot say he erred. This Court finds substantial evidence to support the chancellor’s denial of Campbell’s petition to terminate his con-servatorship. Accordingly, we affirm the judgment of Chancery Court of Lamar County.

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

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

      . The record does not contain any prior physicians’ evaluations.

      . Dr. Dickson also indicated that when he saw Campbell in 1997, Campbell had completed an AA program during that time period as well.

      . We have no indication in the record whether Campbell completed this second AA program.