source: Caselaw Access Project

author: PIERCE, Justice, for the Court: RANDOLPH, Justice,

license: Public Domain

text:
    James FORTENBERRY and Linda Fortenberry v. CITY OF JACKSON, Mississippi and Nationwide Mutual Fire Insurance Company. Flynn Wallace and Kathleen Wallace v. City of Jackson, Mississippi and State Farm Fire and Casualty Company.
    Nos. 2008-CT-00270-SCT, 2008-CT-00271-SCT.
    Supreme Court of Mississippi.
    Feb. 10, 2011.
    Rehearing Denied Oct. 20, 2011.

      Ken R. Adcock, Ridgeland, attorney for appellants.
    Pieter John Teeuwissen, Claire Barker Hawkins, attorneys for appellees.
   ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court:

¶ 1. This case comes before the Court from the Mississippi Court of Appeals, which found on appeal that the City of Jackson was not immune from liability under the Mississippi Tort Claims Act, because its duty to maintain the municipal sewage system was a ministerial function as set forth by its own 1977 Subdivision Ordinance. The City petitioned for certio-rari and asserts that the Court of Appeals erred because: (1) it did not properly apply portions of the Mississippi Tort Claims Act; (2) it misconstrued the purpose of Mississippi Code Section 21-27-189; and (3) it erroneously applied a city ordinance retroactively. Because municipalities are immune from liability for discretionary functions under the Mississippi Tort Claims Act, we reverse the decision of the Mississippi Court of Appeals and reinstate and affirm the judgments of the Hinds County Circuit Court.

FACTS

¶ 2. The homes of James and Linda For-tenberry and Flynn and Kathleen Wallace were built in the 1960s in a subdivision that was suited with six-inch clay drainage pipes for the sewage system. In 1971, the subdivision was annexed by the City of Jackson (“City”), and later, the City passed a Subdivision Ordinance in 1977 (the “Ordinance”), which mandated that the sewage pipes installed in the City measure eight inches in diameter. The sewage system in this neighborhood is the subject of both cases.

¶ 3. On different dates in April 2003, raw sewage flooded each family’s home. Specifically, the Fortenberry home flooded with sewage through its toilets and bathtubs to a depth of six to eight inches. When the Fortenberry home flooded, the Jackson area had received 7.38 inches of rain. City workers, responding to a complaint submitted by the Fortenberrys, found that the City’s sewer main had overflowed because of the large amount of rainwater and that the owner’s cleanout was not working. Almost three weeks later, the Wallace home flooded to a depth of one foot. On the day their home flooded, the Jackson area had sustained 3.24 inches of rain. After investigation, City workers found and then cleared a blockage in the sewer line that was causing it to choke.

¶ 4. Due to the flooding, the Fortenber-rys and the Wallaces unsuccessfully submitted claims to the City. Both families also filed claims with their respective insurers. The Fortenberrys received $6,700 from their insurer, but the Wallaces received nothing from their insurer. Both families filed suit in Hinds County Circuit Court against the City, seeking damages for their losses. The City moved for summary judgment in both cases, asserting that the City was immune from liability under the Mississippi Tort Claims Act (“MTCA”), and both claims were dismissed. The Hinds County Circuit Court, First Judicial District, found that, because the operation and maintenance of the City’s sewage system was a discretionary function, the City was immune from liability under the MTCA, granting summary judgment to the City.

¶ 5. Both families timely appealed. The Court of Appeals combined their cases, as the issues are the same and involve similar facts. In Fortenberry v. City of Jackson, the Mississippi Court of Appeals concluded that, under the Ordinance, the duty to operate and maintain the sewer system is ministerial rather than discretionary, thereby defeating the protection of the MTCA. Fortenberry v. City of Jackson, 71 So.3d 1211, 1217-18 (Miss.Ct.App.2010). The City unsuccessfully filed a motion for rehearing, and subsequently filed a writ of certiorari, which was granted by this Court.

DISCUSSION

¶ 6. Summary judgment should be granted only when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court utilizes a de novo standard when examining a grant or denial of summary judgment. Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 364 (Miss.2004) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988)). “The trial court must carefully review all the evidentiary matters in the light most favorable to the non-moving party.” Id. (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). “When doubt exits whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment has been sought should be given the benefit of every reasonable doubt.” Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983) (citing Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967); Heyward v. Pub. Hous. Admin., 238 F.2d 689, 696 (5th Cir.1956)).

¶ 7. Review of a government entity’s immunity under the MTCA triggers de novo review, since immunity is a question of law. City of Jackson v. Harris, 44 So.3d 927, 931 (Miss.2010). The three issues before this Court will be discussed together as one, because the main issue before the Court is whether the City’s operation and maintenance of its sewer system is a discretionary or ministerial function. If it is discretionary, the City is immune under the MTCA.

A. The City’s operation and maintenance of its sewer system is a discretionary function, and neither state nor federal law causes that function to be ministerial.

¶ 8. The method of determining whether an act is discretionary or ministerial is well-settled. See Dancy v. East Miss. State Hosp., 944 So.2d 10, 16-17 (Miss.2006). A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee. See Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924-25 (Miss.2006); Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 923 (1935). However, a duty is ministerial if it is positively imposed by law and required to be performed at specific time and place, removing an officer’s or entity’s choice or judgment. Covington County Sch. Dist. v. Magee, 29 So.3d 1, 5 (Miss.2010) (quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999)). This Court employs the public-policy function test when determining whether an act of a governmental entity or its employee is discretionary. Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999) (citing U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). Under this test, the Court must answer two questions: 1) did the conduct or activity involve an element of choice or judgment; and if so, 2) did that choice or judgment involve social, economic, or political policy? Dancy, 944 So.2d at 16.

1. Under the first prong of the public-function test, the City’s decision to operate and maintain its sewage system involved an element of judgment as provided by Mississippi Code Section 21-27-189(b).

¶ 9. The City asserts that its decision to operate and maintain the sewer system is a discretionary function as provided by statute. The statute on which the City relies reads in relevant part:

A municipality, as defined in Section 21-27-163, is authorized and empowered, in the discretion of its governmental authorities, to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:
(b) To construct, operate and maintain sewage systems, sewage treatment facilities and sewage disposal systems in the manner and to the extent required by the metropolitan area plan.

Miss.Code Ann. § 21-27-189(b) (Rev.2007) (emphasis added)

¶ 10. In this case, Section 21-27-189(b) clearly allows the City to operate and maintain its sewage system according to its discretion, which alone would satisfy the first prong. However, the Fortenber-rys and the Wallaces assert that the City’s duty became ministerial once it undertook the obligation to operate and maintain the sewage system, and therefore, the City cannot escape liability through the MTCA. Both families provide cases in an attempt to support the proposition that, once the City employs its discretion, a ministerial duty arises to exercise ordinary care in the upkeep of the sewage system in order to provide reasonably safe conditions. See City of New Albany v. Barkley, 510 So.2d 805 (Miss.1987); City of Meridian v. Bryant, 232 Miss. 892, 100 So.2d 860, 862 (1958); City of Meridian v. Sullivan, 209 Miss. 61, 45 So.2d 851 (1950); Cain v. City of Jackson, 169 Miss. 96, 152 So. 295 (1934) City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355 (1933); Fewell v. City of Meridian, 90 Miss. 380, 43 So. 438 (1907); Tyler v. City of Bay St. Louis, 34 So. 215 (Miss.1903).

¶ 11. While the above-cited cases do involve allegedly negligent municipalities and consequent property damage, none addresses the difference between discretionary and ministerial functions. Despite the City’s alleged maintenance failures, this Court previously has held that failing to exercise ordinary care does not remove a governmental act from immunity under the MTCA. Collins v. Tallahatchie County, 876 So.2d 284, 289 (Miss.2004).

¶ 12. The Fortenberrys and the Wal-laces also rely on City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60 (Miss.2005). In Internal Engine, this Court decided that the City was negligent for failing to maintain a drainage ditch that had flooded the business of Internal Engine. Id. at 63. Even though that case is similar, it does not address the central issue. The neglected maintenance in Internal Engine was not covered by statute, but in this case, the City’s obligation to operate and maintain its sewage system is specifically made discretionary by statute. See Miss.Code Ann. § 21-27-189(b) (Rev. 2007). This Court previously has acknowledged that having a statute bolsters the discretionary distinction. See State for Use and Benefit of Brazeale v. Lewis, 498 So.2d 321 (Miss.1986); see also Coplin v. Francis, 631 So.2d 752, 754 (Miss.1994). In Internal Engine, the issue of whether the City’s decision was discretionary or ministerial was not a question, and here, that is the central question for the Court. Because the statute clearly permits the City to use its discretion, the Fortenberrys and the Wallaces cannot rely on the same negligence theory outlined in Internal Engine to support their claims.

¶ 13. While the Fortenberrys and Wal-laces further provide statements made by the City engineer and complaints made by themselves and/or their neighbors over the course of a three-year period, no authority supports their assertions that the statements and complaints can convert a statutorily designated discretionary function into a ministerial one. They cite Mississippi Department of Human Services v. S.W., in which the Court of Appeals had the difficult task of determining whether DHS was liable to a juvenile who had been sexually abused by the Department’s employees. Miss. Dep’t of Human Servs. v. S.W., 974 So.2d 258, 256 (Miss.Ct.App. 2007). There, we found that the use of a manual, which outlined preventive procedures, converted the discretionary functions of DHS into ministerial functions. Id. at 260. This case is different from S.W., because no authority or action converts the City’s decision from discretionary to ministerial.

¶ 14. The Court of Appeals looked to the 1977 Jackson Subdivision Ordinance, which required larger sewage pipes, to provide that authority, and determined that the City’s decision was a ministerial function rather than a discretionary function. In making that determination, the Court of Appeals relied on Mississippi Code Section 21-27-189(b) and (i) for support. Fortenberry, 71 So.3d at 1217. However, Section 205 of the Ordinance clearly exempts subdivisions established before 1977. See Jackson, Miss., Ordinances art. II § 205(4) (1977). Nothing in the record establishes that the subdivision in question is not legally established and recorded, nor is there any indication that this subdivision has been altered in any way since 1977.

¶ 15. The Court of Appeals also relied heavily on the testimony of David Willis, the City engineer, to determine that there was a genuine issue of material fact as to whether the City’s decision to operate and maintain its sewage system was discretionary or ministerial. Willis testified that sewer lines in the subdivision did not meet the minimum pipe size for sewer lines in the City, required by the Ordinance to provide for sufficient sewage flow through the City. However, as previously stated, the Ordinance does not apply to the subdivision where the Fortenberry and Wallace homes are located. Therefore, the minimum size requirements did not impose a duty upon the City to replace the sewer lines that service the Fortenberry and Wallace homes.

¶ 16. A discretionary function clearly granted by statute cannot be converted into a ministerial function without some factual basis that removes an officer’s and entity’s choice or judgment regarding its decision. The Ordinance, cited case authority, and the testimony of the city engineer all fail to persuade us on this point. Therefore, under the first prong of the public-policy function test, the City’s decision to operate and maintain its sewage system as it saw fit involved an element of choice or judgment as clearly was granted to it by the Legislature.

2. Under the second prong of the public-function test, the City’s exercise of its judgment provided by Mississippi Code Section 21-27-189(b) involved social, economic, and political policy.

¶ 17. U.S. v. Gaubert, from which we adopted our public-function test essentially considered the social, economic, and political policy components of this test under the umbrella of the more broad term “public policy,” stating that the Federal Tort Claims Act protects “governmental actions and decisions based on considerations of public policy.” The City’s decision incorporates public policy, because the Legislature clearly has provided that municipalities can, in their discretion, decide to operate and maintain their sewage systems. See Miss.Code Ann. § 21-27-189(b) (Rev.2007). The Legislature is the best interpreter of public policy. See City of Starkville v. 4-County Elec. Power Ass’n, 909 So.2d 1094, 1106 (Miss.2005). Obviously, the Legislature believed that municipalities are better suited to make decisions with regard to operating and maintaining their sewage systems. Therefore, operating and maintaining a sewage system is an exercise of public policy. Once the City took on the sewage system, it could fairly operate and maintain its system throughout the City with its best interests in mind. See Coplin, 631 So.2d at 754-55.

¶ 18. Further, operating and maintaining sewage systems clearly implicate, specifically, both economic and social policy. First, operating and maintaining a sewage system affects social policy, because the City’s sewage must be removed to promote human welfare in the City. It is clear from the record that this was the City’s objective. Every time a complaint was made, the City investigated each claim and made repairs accordingly. It is undisputed that the City did fix problems when they arose. The record contains documentation indicating that the City workers went to both homes and unplugged the lines causing the flooding. Thus, it is clear that the City put forth an effort to promote human welfare by trying to solve problems as they arose.

¶ 19. Second, the City’s decision relates to economic policy, because the City must have the funds necessary to operate and maintain its sewage system. See Coplin, 631 So.2d at 755. The Fortenberrys and the Wallaces claim the City collects $ 20 million in sewage fees, which further supports the idea that the City’s decisions relate to economic policy. Municipalities regularly are faced with the tough decision to maintain and repair their sewage systems or to replace the systems and incur higher costs. In their attempts to be stewards of taxpayer dollars and sewage fees, municipalities often are forced to use their discretion in deciding to repair or replace their sewer lines.

3. Federal law does not cause the City’s decision to be ministerial.

¶ 20. The Court of Appeals also relied on Mississippi Code Section 21-27-163(m), which defines a “metropolitan area plan.” Fortenberry, 71 So.3d at 1216 (citing Miss.Code Ann. § 21-27-163(m) (Rev. 2007)). That section states:

“Metropolitan area plan” means a comprehensive plan for water quality management and the control and abatement of pollution within the metropolitan area, consistent with applicable water quality standards established pursuant to the Federal Water Pollution Control Act.

Miss.Code Ann. § 21-27-163(m) (Rev. 2007). This definition, in addition to statements made at oral argument, prompted the Court of Appeals to acknowledge federal law. The Court of Appeals chose not to reach so far as to find a material question of fact, but decided it was clear that the City’s duty was ministerial. Fortenberry, 71 So.3d at 1218-19. Because this Court finds that, under Mississippi law, the City’s decision to operate and maintain its sewage system is discretionary, this Court still must determine whether federal law transforms the City’s decision into a ministerial function. We find that it does not.

¶21. Argument was not provided on this issue, but as the Court of Appeals correctly points out, we can look to other legal authority, because de novo review applies. Id. The Federal Water Pollution Control Act (the “Act”) makes it unlawful to discharge sewage into the environment. See 33 U.S.C.A. §§ 1311(a)(1995) and 1362(6)(2008). However, the Act is a set of goals and policies of Congress, and it does not provide a set of standards that a municipality must follow in operating and maintaining its sewage system. See 33 U.S.C.A. § 1251(1987). In fact, the Act defers to the states and their respective municipalities in deciding how to prevent and eliminate pollution. 33 U.S.C.A. § 1251(b). The plaintiffs made no allegations that the City was dispersing pollutants into the environment. Here, an aging sewer line backed up due to excessive rainwater and flooded two homes. Therefore, this Court must return to the regulations and guidelines as set forth by Mississippi regarding pollution.

¶ 22. As previously discussed, Mississippi law provides a municipality with discretion to operate and maintain its sewage system, but Mississippi has established an agency to monitor pollution, the Mississippi Department of Environmental Quality (“MDEQ”). The plaintiffs alleged no law or regulation established by the MDEQ which sets forth a specific procedure for operating and maintaining sewage systems. Moreover, no allegations were made that the City is in violation of any state or federal regulation or law or of any of its waste-removal and treatment permits. Accordingly, the City’s decision remains a discretionary function.

B. Liability under the MTCA for discretionary functions

¶ 23. The history of sovereign immunity in Mississippi shows that municipalities were not given immunity with regard to proprietary functions until recently. Presley v. Miss. State Highway Comm’n, 608 So.2d 1288, 1291 (Miss.1992); see also Miss. Transp. Comm’n v. Rector, 663 So.2d 601, 602 (Miss.1995). This Court considers a municipality a political subdivision, which entitles it to the protections of the MTCA. Wayne Gen. Hos. v. Hayes, 868 So.2d 997, 1003 (Miss.2004). One of the protections with which a municipality can shield itself is the waiver-of-immunity exemption based upon the exercise of a discretionary function. See Robinson v. Indianola Mun. Separate Sch. Dist., 467 So.2d 911, 915 (Miss.1985); see also Miss.Code Ann. § 11 — 46—9(l)(d) (Rev. 2002). Therefore, when a municipality, such as the City, otherwise could be liable for a discretionary decision that resulted in damage to another, it is shielded from liability through the protections of the MTCA. See Harris ex rel Harris v. McCray, 867 So.2d 188, 189-90 (Miss.2003).

¶ 24. The City’s decision is discretionary because it meets both prongs of the public-policy function test. In addition, the decision made by the City to operate and maintain its sewage system was a discretionary function granted by statute. Therefore, the Court of Appeals’ decision relying on the Ordinance to find that the City had a ministerial duty to operate and maintain the sewage system at issue is misplaced. The City’s decision is discretionary under the principles of the public-policy function test, and the applicable statute allows the City to operate and maintain its sewer system according to its discretion and without rigid guidelines.

¶ 25. Applicability under any one of the provisions of Mississippi Code Section 11-46-9 provides immunity for a governmental entity and its employees. Miss.Code Ann. § 11-46-9 (Rev.2002); See State v. Hinds County Bd. of Supervisors, 635 So.2d 839, 842 (Miss.1994) (“the State cannot be held liable for damages if the conduct falls within one of the exceptions found in Miss.Code Section 11-46-9”) (emphasis added). The City’s argument that the Court of Appeals overlooked Mississippi Code Section 11 — 46—9(l)(b) is not necessary, because Section 11-46 — 9(l)(d) provides the City with immunity. Therefore, the Court finds that the City has immunity under Mississippi Code Section 11-46-9(l)(d) alone, without discussion of Mississippi Code Section 11 — 46—9(l)(b).

CONCLUSION

¶ 26. Because the City’s decision to operate and maintain its sewage system is discretionary, the MTCA applies with full force and purpose. Therefore, the City is immune from liability. There is no material question of fact in that regard, and summary judgment in the City’s favor is affirmed. Accordingly, we reverse the Court of Appeals and reinstate and affirm the ruling of the Hinds County Circuit Court.

¶ 27. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENTS OF THE HINDS COUNTY CIRCUIT COURT ARE REINSTATED AND AFFIRMED.

WALLER, C.J., CARLSON, P.J., AND DICKINSON, J., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, KITCHENS AND CHANDLER, JJ.

RANDOLPH, Justice,

Dissenting:

¶ 28. According to the circuit court, “[wjhen to repair, how to repair, where to repair, and how much money to spend on repairs are all decisions better left to the city governments of this state.” In my opinion, the circuit court’s conclusion, upheld by the Majority, is overbroad and misconstrues the plain language of Mississippi Code Section 21-27-189(b). (Maj. Op. at ¶ 26). Therefore, I respectfully dissent.

¶ 29. Under Section 21 — 27—189(b), there is no question that the City had the discretionary authority “[t]o construct, operate and maintain sewage systems.... ” Miss. Code Ann. § 21-27-189(b) (Rev.2007). Stated otherwise, the City was empowered to engage in such activities by itself, or to defer such functions to the private sector. This decision was indeed discretionary. But there is a vast difference between the statutorily supported discretion to engage in such activities, and the practical, mundane, day-to-day operation and maintenance actions which arise after the exercise of such discretion, to which the statute does not speak. For example, does the City have the discretion to decline to take water samples to determine its fitness for consumption? Can the City refuse to stop raw sewage from entering its water supply? May the City simply decline to replace a broken water main on High Street? Once the City exercises its discretionary “powers and authority” to “construct, operate and maintain[,]” it is then incumbent that its employees exercise concomitant duties in operation and maintenance. Miss.Code Ann. § 21-27-189(b) (Rev. 2007). Such duties are neither exclusively discretionary nor ministerial. Instead, a case-by-case analysis is appropriate.

¶ 80. Following the adoption of the Mississippi Tort Claims Act (“MTCA”), this Court considered a factually analogous case in which Internal Engine Parts Group (“Engine Parts”) sought damages “for alleged acts of negligence and breach of contract against the City of Jackson for property damage sustained during a period of heavy rainfall and flooding.” City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 62 (Miss.2005). Engine Parts maintained that the flood damage it sustained was caused by a nearby drainage ditch, maintained by the City, “that was filled with pre-existing debris and materials which obstructed the flow of water.” Id. This Court addressed “[w]hether the City was negligent for failing to inspect and maintain the drainage ditch, and consequently allowing a dangerous condition to exist.” Id. at 64 (emphasis added). In affirming the circuit court’s judgment in favor of Engine Parts, this Court stated that “Section 11-46-9 is the applicable statute to determine the immunity of the City, and § 11-46-9 fails to establish such immunity.” Id. at 62, 64. Both the circuit court and the Majority attempt to distinguish Internal Engine by arguing that, unlike the operation and maintenance of a sewage system, the neglected maintenance of a drainage ditch is not made discretionary by statute. (Maj. Op. at ¶ 12). But as noted in ¶ 29 supra, the City’s obligations in operation and maintenance of a sewage system are not automatically rendered discretionary by Section 21-27-189(b). Therefore, I would find that Internal Engine is in direct conflict with the Majority’s holding, and that it supports reversing the circuit court’s entry of summary judgment on behalf of the City.

¶ 31. In some instances, the City’s operation and maintenance actions will involve “an element of choice or judgment” which implicates “social, economic or political policy alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001) (citing Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999)). For example, the municipality’s annual budgeting meetings addressing system improvements would likely be discretionary. As the circuit court stated, “[tjhis [cjourt will not mandate which particular sewage pipes the City should fix, and what amount of monies it should expend on its sewage repair.” But such logic does not authorize the City to operate and maintain the sewage system in place with unfettered discretion “and without rigid guidelines.” (Maj. Op. at ¶24). Surely, many day-to-day operation and maintenance decisions can be ministerial. See ¶ 29 supra (examples provided). The Majority’s approach paints with too broad a brush, foreclosing the possibility that any (not one) of the City’s operation and maintenance decisions involving its sewage system may be ministerial. (Maj. Op. at ¶ 12) (“the City’s obligation to operate and maintain its sewage system is ... made discretionary by statute.”).

¶ 32. In conclusion, the circuit court erred in granting summary judgment on the “one-size-fits-all” basis that Section 21-27-189(b) rendered discretionary all of the City’s operation and maintenance decisions. In so concluding, I pass no judgment on the cause and/or forseeability of the backflow of raw sewage at issue, i.e., whether that result was precipitated by an “act of God” (the heavy rainfall), the disrepair of a homeowner’s cleanout, a blockage in the homeowners’ service lines and the City’s main sewer line, and/or surface water entering the sewer lines through cracks. But if the City’s operation or maintenance of the sewage system is implicated as a cause, then the circuit court must consider whether the surrounding actions of the City were discretionary or ministerial. That issue cannot be resolved by Section 21-27-189(b), such that summary judgment predicated thereon was improper. Therefore, I respectfully dissent.

LAMAR, KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . Mississippi Code Section 21 — 27—189(i) authorizes municipalities in their discretion to "adopt all necessary and reasonable rules and regulations to carry out and effectuate any waste treatment plan adopted for the metropolitan area.” Miss.Code Ann. § 21-27-189(i) (Rev.2007).

      . "A subdivision legally established and recorded prior to the adoption of this Subdivision Ordinance, but only if there are no alterations of said subdivision, shall be exempt from the requirements of this Subdivision Ordinance.” Jackson, Miss., Ordinances art. II § 205(4) (1977) (emphasis added).

      . U.S. v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).

      . Mississippi Code Section 21-27-163(n) refers to the Act as 33 U.S.C.S. § 1151. However, the Act has been amended, and the numbering has been changed to 1251 rather than 1151. Miss.Code Ann. § 21-27-163(n) (Rev.2007).

      . Proprietary functions are somewhat similar to discretionary functions. Proprietary functions are those not required by statute or law, giving the municipality freedom to carry out the function or not. Anderson, By and Through Doss v. Jackson Mun. Airport Auth., 419 So.2d 1010, 1014 (Miss.1982).

      . Moreover, prior to the adoption of the MTCA, this Court repeatedly held municipalities liable for the negligent maintenance of drains and sewage systems. See City of Meridian v. Bryant, 232 Miss. 892, 895, 100 So.2d 860, 861 (1958) (affirming judgment against the City of Meridian for water damage to the Bryants' property resulting from the City permitting debris to accumulate around nearby storm sewers, noting that "the tendency of drains to become obstructed must be kept in view, and ... the situation must be remedied from time to time so as to maintain adequate drainage in each case”); City of Meridian v. Sullivan, 209 Miss. 61, 68-69, 45 So.2d 851, 852-53 (1950) (affirming judgment against the City of Meridian for water damage to Sullivan’s property resulting from the City breaking a large hole in Sullivan's culvert and “negligently failing] to keep its own culverts free from obstructions ... ”).

      . This Court has stated that 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, the act and discharge thereof is ministerial.

        Collins v. Tallahatchie County, 876 So.2d 284, 289 n. 9 (Miss.2004) (quoting Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 267-68 (Miss.2003)).


author: GRIFFIS, P.J., for the Court:

text:
    Cordell K. KNIGHTEN Sr., Appellant v. Shimberely HOOPER, Appellee.
    No. 2010-CA-00377-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2011.
    Derwin B. Govan, attorney for appellant.
    Philip Mansour Jr., Greenville, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. The Washington County Chancery Court ordered Cordell K. Knighten Sr. (“Knighten”) to pay $400 per month in child support, which was a downward deviation from the statutory child-support guidelines, to Shimberely Hooper for the care of their son. On appeal, Knighten argues that the chancellor erred when she: (1) failed to make written findings explaining how she arrived at the $400 amount and (2) failed to address which parent would be allowed to claim the child as a dependent for income-tax purposes. We find no error and affirm.

FACTS

¶ 2. Knighten and Hooper were never married and, except for a brief three-month period, never resided together in the same home. Their son, Cordell Knighten Jr. (“CJ”), was born in 1999. He was ten years old at the time of trial.

¶ 3. Knighten had three other children with two different women following his relationship with Hooper — a son who was five years old at the time of trial, and two twin daughters who were two years old. Knighten never married the children’s mothers. The children did not reside with Knighten, nor was he under any court order to pay child support for them. He had an informal arrangement with the mothers to provide support as needed.

¶ 4. In July 2008, Knighten filed a petition for custody of CJ. Hooper counterclaimed for custody and child support. Following a bench trial, the chancellor awarded sole physical custody to Hooper and ordered Knighten to pay $400 per month in child support. Knighten appeals.

STANDARD OF REVIEW

¶ 5. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

1. Whether the chancellor erred when she did not make detailed written findings as to why she set child support at $100.

¶ 6. The chancellor decided, in writing, that a downward deviation from the child-support guidelines was appropriate in light of Knighten’s obligations to his three other children. If the chancellor had strictly applied the guidelines, Knighten would have been ordered to pay $526.12 per month. Instead, the chancellor ordered him to pay $400 per month.

¶ 7. On appeal, Knighten argues that the chancellor erred when she did not explain, in writing, how she arrived at the precise amount of $400. In essence, Knighten argues that the chancellor was required to show the math and her reasons for the reduction. He appears to argue that further transparency in the chancellor’s calculation would result in an amount lower than $400 per month.

¶ 8. The Mississippi Legislature has provided statutory guidelines to determine the amount of child support. Miss.Code Ann. § 43 — 19—101(1)—(4) (Rev.2009). These guidelines presumptively apply if the pay- or’s annual adjusted gross income is greater than or equal to $5,000 but less than or equal to $50,000. Id. The guidelines provide that for one child the payor should be required to pay 14% of his adjusted gross income. Miss.Code Ann. § 43-19-101(1).

¶ 9. To arrive at the adjusted gross income, the chancellor starts with “all potential sources that may reasonably be expected to be available to” the payor. Miss. Code Ann. § 43-19-101(3)(a). Then, the chancellor subtracts from that amount certain deductions. Two of the deductions consider the payor’s obligations to other children. The chancellor must deduct a prior court-ordered child-support obligation. Miss.Code Ann. § 43 — 19—101 (3)(c). If there is no such obligation, but the payor is the parent of children who reside with him, the chancellor may deduct an amount “appropriate to account for the needs” of those children. Miss.Code Ann. § 43 — 19—101 (3) (d).

¶ 10. Here, the chancellor correctly determined that neither of these deductions applied. Knighten was not under a court order to support his other children, and the children did not reside with him. The chancellor then determined that 14% of Knighten’s monthly adjusted gross income was $526.12. Presumptively, that was the amount he was required to pay.

¶ 11. Although the deductions did not apply, the chancellor decided that it was equitable to consider Knighten’s other children. Chancellors may deviate from the child-support guidelines if they determine, in writing, that application of the guidelines would be unjust or inappropriate in the particular case. Miss.Code Ann. § 43-19-101(2). When deciding whether a deviation is appropriate, chancellors may take into account, among other things: “[a]ny ... adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.” Miss.Code Ann. § 43-19-103© (Rev.2009).

¶ 12. Here, the chancellor wrote that “[t]he Court does consider that Mr. Knighten has three other minor children that he has to provide for.... The Court further considers all other factors and finds that it is reasonable for Mr. Knighten to pay .... $400 per month.” Thus, the chancellor determined, in writing, that a deviation from the guidelines was appropriate based on a reasonable and necessary existing expense — namely, Knighten’s obligation to support his other children.

¶ 13. Knighten correctly argues that the chancellor did not explain in detail how she settled on the precise amount of $400. However, he cites no authority that supports his proposition that such a detailed explanation was required. The chancellor was faced with great uncertainty in this case. Given the informal arrangement Knighten had with the mothers of his other children, it was unclear exactly how much Knighten paid to support the children. When there is no court-ordered child support for the other children, there will inevitably be uncertainty in this regard. In light of that uncertainty, chancellors must be afforded flexibility and discretion so that they may do equity under the circumstances.

¶ 14. The chancellor, in her discretion, determined that a downward deviation in the amount of $126.12 per month was appropriate and equitable in light of Knight-en’s obligations to his other children. We find that the chancellor’s decision was within her discretion. This issue is without merit.

2. Whether the chancellor erred when she did not address the dependency exemption in her judgment.

¶ 15. Instead of closing arguments, the chancellor requested that each party submit written proposed findings of fact and conclusions of law. In his written submission, Knighten raised, for the first time, the issue of whether or not he should be allowed to claim CJ as a dependent for income-tax purposes. The chancellor did not address the issue in her judgment, and on appeal, Knighten argues that the omission was error.

¶ 16. After reviewing the pleadings and the trial transcript, we find that Knighten did not properly raise this issue through his pleadings or the evidence presented at trial. See M.R.C.P. 8, 15. As a result, Hooper was not given notice and an opportunity to respond. The issue was not subjected to the adversarial process and, as such, was not properly before the chancellor for consideration. Therefore, the chancellor did not err when she refused to address the issue in her judgment.

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

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

      . We note that the Mississippi Supreme Court has held that the payor is not entitled to a downward modification of child support on the basis that he has had more children since the support order was entered. Bailey v. Bailey, 724 So.2d 335, 338-39 (¶ 11) (Miss.1998) (overruling Grace v. Dep’t of Human Servs., 687 So.2d 1232, 1233-34 (Miss.1997)). In other words, he cannot "sire himself out of his child-support obligation.” Id. We also note that there is considerable disagreement among the states as to whether so-called "after-born children” should be considered at all, regardless of whether the issue arises in a modification proceeding or in an original child-support determination. Laura W. Morgan, Child Support Guidelines: Interpretation and Application § 3.04[b] (1st ed. 1996 & Supp.2001). The argument is often made that the payor should not be allowed to continue to procreate to the financial detriment of his existing children. Id. Neither party to this appeal challenges the chancellor’s consideration of the three children who were born after CJ. Therefore, we do not address the applicability of the Bailey holding.


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

text:
    James FORTENBERRY and Linda Fortenberry, Appellants v. CITY OF JACKSON, Mississippi and Nationwide Mutual Fire Insurance Company, Appellees. Flynn Wallace and Kathleen Wallace, Appellants v. City of Jackson, Mississippi and State Farm Fire and Casualty Company, Appellees.
    Nos. 2008-CA-00270-COA, 2008-CA-00271-COA.
    Court of Appeals of Mississippi.
    Feb. 16, 2010.
    Rehearing Denied June 29, 2010.

      Ken R. Adcock, Ridgeland, attorney fox-appellants.
    Pieter John Teeuwissen, Ridgeland, Claire Barker Hawkins, attorneys for ap-pellees.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J„ for the Court:

¶ 1. In April 2003, raw sewage flooded the homes of Flynn and Kathleen Wallace and James and Linda Fortenbei-ry due to blockage in the City of Jackson’s (City) sewage lines. The Appellants sued the City for damages. In response, the City moved for summary judgment, which the circuit court granted. The Appellants now timely appeal. We reverse the circuit court’s entry of summary judgments in favor of the City and remand the cases for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the 1960s, a developer built the subdivision where the Appellants’ homes flooded with sewage. The developer installed six-inch clay drainage pipes in the subdivision sewage system. In 1971, the City annexed the Wallaces’ property. In 1977, the City passed its 1977 Subdivision Ordinance, which mandated, among other required criteria, that sewage pipes comply with minimum-design standards, in that the pipes must measure at least eight inches in diameter. Mississippi Code Annotated section 21 — 27—189(b) (Rev.2007) authorizes the City to pass such ordinances to ensure that sewage operations comply with the metropolitan area plan and federal law. The City’s engineer provided that these minimum-design standards in the ordinance were current and that the six-inch pipes installed in the Appellants’ subdivision were not compliant with the ordinance.

¶ 3. The Appellants assert that on April 6, 2003, as a result of the City’s breach of its duty to repair and maintain the municipal sewage system, raw sewage flooded the Fortenberrys’ home to a depth of approximately six to eight inches. On April 24, 2003, raw sewage again flooded the Fortenberrys’ home. Also, on April 24, 2003, raw sewage flooded the Wallaces’ home. A blockage in the City’s sewer line that serviced the Appellants’ homes caused all three sewage floods. The Appellants stated in their complaints that experts advised them to immediately evacuate their homes because of the health hazards of living in a home contaminated with raw sewage.

¶ 4. David Willis, the City’s designee, stated in his deposition testimony that: “The City should operate [its] [sewerage] system to minimize health risks to the customer or the environment.” Willis also testified about the City’s 1977 Subdivision Ordinance, stating that “[s]ince 1977, the City adopted minimum-design standards in [its] subdivision ordinance that requires or sets out some allowance for infiltration and inflow [in the City’s sewer lines] ...” Willis acknowledged that the pipes servicing the Appellants’ homes “[did] not meet the current design standards that were adopted in 1977.”

¶ 5. After sewage flooded the Appellants’ homes, they gave notice of claim to the City regarding damages. In response, the City denied the Appellants’ claims. The Appellants filed suit. In turn, the City moved for summary judgment alleging that the City possessed discretion in determining whether to provide the resources necessary for the construction, maintenance, or repair of sewer lines within its jurisdiction. Additionally, the City contended that it possessed immunity from liability pursuant to the Mississippi Tort Claims Act (MTCA).

¶ 6. The circuit court granted the City’s motion for summary judgment, but the Court considered only a portion of section 21-27-189(b) in its ruling. In finding discretionary immunity, the circuit judge stated the following:

The [Legislature granted the City the authority to construct, operate and maintain [sewerage] systems pursuant to section 21-27-189[b] which states:
A municipality, as defined in section 21-27-168, is authorized and empowered, in the discretion of its governmental authorities, to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:
(b) To construct, operate and maintain sewerage systems ...
This statute was enacted prior to the MTCA. However, its plain language gives the governmental authorities the power to maintain their [sewerage] systems using their discretion.

(Ellipsis in original). We note that the remainder of the above-stated statute was absent from the circuit court’s opinion.

STANDARD OF REVIEW

¶ 7. For a summary judgment motion to be properly granted, the court must determine that no genuine issue of material fact exists and that the moving party must be entitled to a judgment as a matter of law. M.R.C.P. 56(c). “The moving party has the burden of demonstrating that no genuine issue of material fact[ ] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Howard v. City of Biloxi, 943 So.2d 751, 754 (¶ 4) (Miss.Ct.App. 2006). We apply a de novo standard of review to a trial court’s grant of summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 15) (Miss.2006).

WHETHER THE CITY WAS IMMUNE FROM SUIT PURSUANT TO SECTION ll-46-9(l)(d)

¶8. The City argues on appeal that maintenance of the City’s sewerage system is discretionary in nature; therefore, the City enjoys immunity from suit pursuant to Mississippi Code Annotated section ll-46-9(l)(d) (Supp.2009). The Appellants, however, argue that the challenged conduct in this case is ministerial in nature; thus, it is not subject to the discretionary-function exception as set forth in section ll-46-9(l)(d).

¶ 9. The MTCA authorizes suits against the State and its political subdivisions for damages “arising out of the torts of such governmental entities and the torts of their employees while acting within the scope of their employment....” Miss.Code Ann. § 11-46-5(1) (Rev.2002). However, the MTCA provides enumerated exceptions to the State’s waiver of immunity.

¶ 10. The exception relied upon by the circuit court and the City in this case falls under the discretionary-function exemption, which is found in section 11^6-9(l)(d) and enunciates that neither the State nor its employees are liable for any claim based upon the performance or the failure to perform a discretionary function, “whether or not the discretion be abused.”

¶ 11. “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.” Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16 (¶ 18) (Miss.2006) (citation omitted). The Court has explained the difference between discretionary and ministerial duties in the following manner:

A duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty. Dancy v. East Miss. State Hosp., 944 So.2d 10, 17-18 (¶ 19) (Miss.2006) [ (citation omitted) ]. On the other hand, “a duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment.” Mississippi Dep’t of Transp. v. Cargile, 847 So.2d 258, 267 (¶ 85) (Miss.2003) [(citation omitted) ]. The United States Supreme Court has explained that “the requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ ” United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 ... (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 ... (1988)).

Miss. Dep’t of Human Servs. v. S.W., 974 So.2d 253, 258 (¶ 11) (Miss.Ct.App.2007).

¶ 12. Our inquiry, thus, turns on whether the City’s duty to maintain the City’s sewerage system required the City to exercise policy-based judgment, or whether the City was instead bound to perform its duties in accordance with mandatory directives imposed by law, policy, or regulation. See id.

¶ 13. Because the circuit court based its ruling upon a partial analysis of section 21-27-189(b) in finding that the duty to maintain the sewerage system constituted a discretionary function, we must construe the plain language of the statute that forms the basis of the circuit court’s opinion. In so doing, we borrow basic principles of statutory construction, which we find very useful to our analysis. First, “[t]he primary rule of construction is to ascertain the intent of the [L]egislature from the statute as a whole and from the language used therein.” MIC Life Ins. Co. v. Hicks, 825 So.2d 616, 621 (¶ 12) (Miss.2002). If ambiguity is found, we resolve the meaning of the ambiguous statute by applying the statute consistently with other statutes addressing the same or similar subject matter. State ex rel. Hood v. Madison County ex rel. Madison County Bd. Of Supervisors, 873 So.2d 85, 90 (¶ 19) (Miss.2004). If statutes are irreconcilably inconsistent, a specific statute controls over a general statute. Id. at 91 (¶ 22). With these rules of statutory interpretation to guide us, we now examine the statute at issue and the City’s various duties.

¶ 14. As stated, we must begin by reviewing the statute partially considered by the circuit judge. Mississippi Code Annotated section 21-27-161 (Rev.2007) of the Metropolitan Area Waste Disposal Act authorizes the City to provide for the safe transportation of sewage “in order to prevent and control the pollution of the waters in this state.” Additionally, section 21-27-189, which the Legislature enacted in 1975, provides that a municipality is authorized to exercise various powers and authorities within its metropolitan area. In the present case, the circuit court based its grant of summary judgment upon a partial reading of section 21-27-189(b). However, we find that this case requires a reading of section 21-27-189 in its entirety, as well as the related statutes that provide definitions to the terms set forth in section 21-27-189. Section 21-27-189 states the following:

A municipality, as defined in [s]ection 21-27-163, is authorized and empowered, in the discretion of its governmental authorities, to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:
(a) To operate and manage sewerage systems, sewage treatment facilities and sewage disposal systems and related facilities serving the metropolitan area in conformance with the metropolitan area plan.
(b) To construct, operate and maintain sewerage systems, sewage treatment facilities and sewage disposal systems in the manner and to the extent required by the metropolitan area plan.
(c) To accept and utilize grants and other funds from any source for waste treatment management purposes.
(d) To establish and maintain rates and charges for the use of the services of such sewerage systems, sewage treatment facilities and sewage disposal systems within the metropolitan area, and from time to time to adjust such rates, to the end that the revenues therefrom will be sufficient at all times to pay the expenses of operating and maintaining such works, facilities and systems and all of the municipality’s obligations under any contract or bond resolution with respect thereto.
(e) To incur short and long-term indebtedness under the provisions of [sjections 21-27-161 through 21-27-191 or other applicable statutes.
(f) To adopt rules and regulations necessary to carry out the implementation of the metropolitan area plan and to assure the payment of each participating person or public agency of its proportionate share of treatment costs.
(g) To refuse to receive any waste from any public agency or subdivision thereof or any other person which does not comply with the provisions of the metropolitan area plan applicable to the particular area within which such public agency or subdivision thereof or any other person is located.
(h) To accept industrial waste for treatment and to require the pretreatment of same when within the opinion of the municipality such pretreatment is necessary.
(i) To adopt all necessary and reasonable rules and regulations to carry out and effectuate any waste treatment plan adapted for the metropolitan area.
(j)To require by ordinance or by contract with a public agency or other person that all waste within the metropolitan area be disposed of through sewerage systems, treatment facilities and sewage disposal systems which comprise a part of the metropolitan area plan, to the extent that the same may be available, but no public agency shall be precluded from constructing, operating and maintaining its own sewerage system if the same be a part of the metropolitan area plan.

(Emphasis added).

¶ 15. Then, Mississippi Code Annotated section 21-27-163(m) (Rev.2007) addresses the same subject matter and defines the metropolitan area plan as “a comprehensive plan for water quality management and the control and abatement of pollution within the metropolitan area, consistent with applicable water quality standards established pursuant to the Federal Water Pollution Control Act.” (Emphasis added). Hence, in reading the two statutes together, if the City chooses to exercise the authority granted by the Legislature to operate and maintain a municipal sewage system, then the City must do so in a manner consistent with the water-quality standards established by the Federal Water Pollution Control Act (The Act), in accordance with its metropolitan-area plan, and with any rules and regulations adopted by the City itself.

¶ 16. In reading section 21-27-189 as a whole, we turn to subsection (i) of section 21-27-189, which was not evaluated by the circuit court. This subsection states that the City is authorized “[t]o adopt all necessary and reasonable rules and regulations to carry out and effectuate any waste treatment plan adopted for the metropolitan area” to ensure compliance with the metropolitan-area plan. Miss.Code Ann. § 21-27-189®. Legislative history reflects that the Legislature adopted section 21-27-189 in 1975. Then, in 1977, the duly-elected City Council of Jackson outlined in detail the mandatory-design standards for the City’s sanitary sewage system in its 1977 Subdivision Ordinance to ensure compliance with the federal water-quality standards. In doing so, the City exercised the executive authority provided in section 21-27-189®. In accordance with the testimony of David Willis, an engineer and the City’s Mississippi Rule of Civil Procedure 30(b)(6) deposition witness, the ordinance relevant to this case provides for minimum-design standards of the sanitary sewer system for each subdivision and requires a minimum pipe size of eight inches. By virtue of this municipal ordinance, the City imposed upon itself a mandatory duty to ensure that all pipes conform to the eight-inch requirement. According to Willis, this minimum-design standard allows for sufficient capacity for sewage flow.

¶ 17. When the circuit court granted the City’s motion for summary judgment based on section 21-27-189(b), the circuit court analyzed only a portion of that section, failing to consider the impact of section 21-27-189 as a whole as applied to the facts in this case. Again, the circuit court in its opinion granting summary judgment quoted section 21-27-189(b) in the following manner verbatim:

A municipality, as defined in section 21-27-163, is authorized and empowered, in the discretion of its governmental authorities, to exercise the following powers and authority within the area and territories comprising the metropolitan area of which it is a part:
(b) To construct, operate and maintain sewerage systems ...

(Ellipsis in original).

¶ 18. We find that the circuit court erred in its interpretation and application of only a portion of section 21-27-189(b) and in failing to apply the related statutes referred to in the text of section 21-27-189. Additionally, the court also erred in ignoring the City’s requirement to abide by the Act when it granted the City’s motion for summary judgment. An analysis of section 21-27-189(b) provides that if a municipality exercises the enumerated powers and authority outlined by the statute, the exercise of such power, i.e., to construct, operate, and maintain the sewerage system, must be done in a manner consistent with the metropolitan area plan. However, a municipality possesses the discretion under this statute as to whether or not it wants to run its own sewage system. Sewage operations could be run by the private sector. If the municipality chooses to exercise this authority, compliance with the applicable water-quality and pollution-control laws is required to protect the public health and water quality. Section 21-27-163(m) clearly defines the term “metropolitan area plan” and provides that such a plan must be consistent with applicable water-quality standards established pursuant to the Act.

¶ 19.' Moreover, section 21-27-189® states that the City can adopt all necessary and reasonable rules and regulations to carry out and effectuate any waste-treatment plan adopted for the metropolitan-area plan and any rules and regulations the City adopts to carry out this plan. In this case, the City exercised such authority by adoption of an ordinance ministerial in nature. Again, the circuit court failed to consider the entirety of section 21-27-189 as well as the impact of the City’s 1977 Subdivision Ordinance. The City’s 1977 Subdivision Ordinance sets forth a ministerial duty in that all sewage pipes must comply with minimum-design standards in that they must measure at least eight inches in diameter. Such a requirement eliminates the element of choice or judgment by city employees. Therefore, no rightful option but adherence to the requirements existed.

¶ 20. In turning again to the facts of the case, the City’s sewer lines servicing the Appellants’ property only measure six-inches in diameter. The City’s designee, Willis, in his Rule 30(b)(6) deposition testimony, testified that the City’s 1977 Subdivision Ordinance sets forth current minimum-design standards for sewage pipes and stated that the pipes servicing the Appellants’ homes “[did] not meet the current design standards that were adopted in 1977.”

¶ 21. In this case, as stated, the plain language of the statutory grant of authority necessarily entailed compliance with the metropolitan-area plan, federal law, and any city rules and regulations enacted to ensure compliance with the metropolitan-area plan. In the exercise of this statutory authority to adopt rules and regulations locally, the City adopted its own minimum standards as provided in the 1977 Subdivision Ordinance that set forth no discretion or choice as to minimum-design standards, stating that the sewerage system pipes shall conform to a minimum pipe size of eight inches.

¶ 22. Curiously, at oral argument, the City argued that any adverse decision by this Court or other external regulation regarding the operation and maintenance of the City’s operation of the municipal sewage system would violate the municipal board executive authority and hence would violate the separation of powers. The City’s assertions at oral argument ignored the existence or obligation to comply with its own 1977 Subdivision Ordinance, as well as any preempting federal or controlling state law. Before 1972, the City’s argument might have been plausible. However, we note that federal law controls when addressing the discharge of pollutants that affect our nation’s waters. 33 U.S.C. § 1251 et seq. (2006). Further, sewage is defined by the Act as a pollutant, thus drawing the City’s sewage systems under the Act’s regulations. 33 U.S.C. § 1362(6) (2006).

¶ 23. Even though the Act and pollution-permit requirements apply to discharge of sewage, this Court need not turn to the controlling federal environmental-water-quality law to find the existence of a material question of fact as to whether a breach of ministerial duty occurred by the City sufficient to survive a motion for summary judgment. The City adopted the Subdivision Ordinance in 1977, imposing standards upon itself with respect to the appropriate minimum size of sewage pipes; no outside legislative body or judiciary imposed that ordinance upon the City. The City’s own engineer asserted the existence of this minimum-design standard, thereby establishing sufficient evidence to create a question of material fact as to whether the City breached a ministerial duty. State statutory law exists authorizing municipalities that operate sewage systems to adopt all necessary and reasonable rules and regulations needed to carry out its waste-water-treatment plan, and this plan in accordance with state statute, must comply with the Act and permitting standards. Nonetheless, the City’s argument that only the City can impose regulations upon its sewage operations fails to acknowledge the application of the Act to our nation’s waters, water quality, sewage discharge, and municipal-sewage operations. Our well-established standard of review provides that we review the grant of summary judgment de novo. Moss, 935 So.2d at 398 (¶ 15). Consequentially, while we are confined to the facts set forth in the record, this Court may consider controlling legal authority not contained in the record when reviewing a case de novo.

¶ 24. We are reminded that Rule 3.3 of the Mississippi Rules of Professional Conduct requires that counsel disclose to the tribunal any legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. The record in this case fails to reflect the applicable portions of the federal Act or to discuss the status of the City’s compliance with municipal-sewage-permitting standards.

¶ 25. At oral argument, in asserting a separation-of-powers argument, the City maintained that they retained sole regulatory authority over the City’s discharge of sewage and municipal-sewage operations. However, our research reflects that the Act applies to the discharge of sewage and municipal-sewage operations. 33 U.S.C. § 1251 (2006) et seq.; Nat’l Cotton Council of Am. v. U.S. Envtl. Prot. Agency, 553 F.3d 927, 929 (6th Cir.2009). Historically speaking, case law reflects that after continuous pollution of our nation’s waters, Congress recognized that the discharge of pollutants affects public health and the quality of our water sources and, therefore, created the Act “to restore and maintain the chemical, physical and biological integrity of the [njation’s waters.” Nat’l Cotton Council, 553 F.3d at 930. The goal of the Act is to achieve better water quality, “which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” Id.

¶ 26. In order to achieve this goal, the Act provides that the discharge of any pollutant by any person shall be unlawful. 33 U.S.C. § 1311(a) (2006). As noted above, pollutant is a statutorily-defined term that includes sewage. 33 U.S.C. § 1362(6). The United States Supreme Court has held that this list is not exhaustive, and that the term pollutant should be interpreted broadly. Nat’l Cotton Council, 553 F.3d at 930 (citing Rapanos v. United States, 547 U.S. 715, 724, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006)).

¶ 27. Knowledge of applicable municipal-sewage-permit requirements and regulations implementing the Act would assist the Court to understand the scope and breadth of the regulatory requirements and pollution-permit requirements pertaining and applicable to the City’s sewage operations. However, such knowledge is superfluous to the resolution of the issues at hand. A genuine issue of material fact exists in this case as to whether the City violated a ministerial duty that the record reflects the City articulated and imposed on itself in the 1977 Subdivision Ordinance as to minimum-design standards and sewage pipe size. Accordingly, we reverse and remand.

¶ 28. Therefore, for the above reasons, we find that the record reflects evidence that the City breached a ministerial duty set forth in its own 1977 Subdivision Ordinance which contained no element of choice. Evidence may show that the municipal-sewage operations may have also violated other requirements, including ministerial requirements, imposed by the Act, state law, and municipal-sewage-permitting standards. To this extent, a question of material fact exists as to whether the City breached a ministerial duty, and as a result, the discretionary-function exemption does not bar a claim against the City. Therefore, we find that the circuit court erred in granting the summary judgments in favor of the City. Accordingly, we reverse the summary judgments in favor of the City and remand the cases to the circuit court for further proceedings consistent with this opinion.

¶ 29. THE JUDGMENTS OF THE HINDS COUNTY CIRCUIT COURT ARE REVERSED, AND THESE CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THESE APPEALS ARE ASSESSED TO THE APPELLEES.

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

KING, C.J.,

dissenting:

¶ 30. I dissent from the majority’s opinion herein, and would affirm the grant of summary judgment by the Hinds County Circuit Court. The Hinds County Circuit Court found that the repair and maintenance of a city sewer system is a discretionary function; thus the City of Jackson’s actions were protected by sovereign immunity.

¶ 31. The appellants filed suit against the City of Jackson for damages sustained to their homes from a sewage backup. They alleged that the backup was caused by the failure of the City of Jackson to properly maintain and repair the sewer line. The appellants further assert that the primary failure of the City of Jackson was in not making regular inspections of the sewer lines, not repairing the damaged sewer lines, and not replacing inadequate sewer lines with larger adequate sewer lines.

¶ 32. The appellants own homes in a subdivision, which was developed in the 1960s outside of the municipal boundaries of the City of Jackson. The sewer system for this subdivision was designed and installed by the developer. The developer placed six-inch sewer lines in the subdivision. In 1971, this subdivision was annexed by the City of Jackson. In 1977, the City of Jackson adopted a subdivision ordinance, which required a specific size sewer line in subdivisions. The sewer line that was installed by the subdivision developer and which served the appellants’ homes was inadequate when viewed under the 1977 ordinance. However, there is nothing in the subdivision ordinance as adopted in 1977 that makes it apply as a retroactive mandate to subdivisions annexed by the City of Jackson prior to its adoption. In fact just the opposite is true. The ordinance specifically states that it does not apply retroactively but instead applies only to new subdivisions or redevelopment of existing subdivisions. Unless clearly indicated as having retroactive application, laws are applied prospectively. See Bd. on Law Enforcement Officer Standards and Training v. Voyles, 732 So.2d 216, 219 n. 1 (Miss.1999).

¶ 33. The appellants argue that the City of Jackson had an absolute and clearly-defined duty to repair and maintain sewer lines, which allowed for no discretion as to when, where, or how the sewer lines were to be maintained. The Hinds County Circuit Court in a well reasoned opinion rejected this position. The trial court correctly noted that the repair and maintenance of sewer system is a discretionary function rather than a ministerial function. It reached this conclusion by looking at Mississippi Code Annotated section 21 — 27—189(a)—(b) (Rev.2007), which provides a municipality the authority “in the discretion of its governmental authorities” to operate and manage sewer sys-terns and to construct, operate and maintain sewer systems.

¶ 34. Matters which are within the discretion of the governing body allow for the exercise of judgment as to when, where, how, and by whom an action is to be done. On the other hand, actions that are ministerial in nature do not allow for the exercise of any discretion by the governing body as to what action is to be taken, when the action is to be taken, where the action is to be taken, how the action is to be taken, or by whom the action is to be taken. Essentially, a ministerial act is done based simply upon a checklist that dictates when, where, how, and by whom an action is to be taken.

¶ 35. The record placed before this Court does not indicate the existence of any checklist which tells the City of Jackson when to repair or replace a sewer line, where to replace a sewer line, how to replace a sewer line, or by whom the sewer line is to be replaced. To hold that the decision of when, where, and how to repair or replace sewer lines in subdivisions annexed by the City of Jackson prior to the adoption of the 1977 Subdivision Ordinance is a ministerial function rather than a discretionary function would deprive the City of Jackson of the ability to adopt policies to determine the best use and the order of use of its limited resources. I am unaware of any law, which does in fact remove from the discretion of the City of Jackson the policy decision as to the best use and order of use of its resources for the replacement of the sewer lines. See Frazier v. Miss. Dep’t of Transp., 970 So.2d 221, 224 (¶ 9) (Miss.Ct.App.2007) (finding that “in the absence of notice, a governmental entity’s decision to maintain or repair roads ... is purely discretionary .... ”); see also Hobson v. City of Vicksburg, 848 So.2d 199, 202 (¶ 7) (Miss.Ct.App.2003) (finding that a city’s decision to close a dilapidated bridge rather than enforce a contractual right to have the bridge repaired was discretionary).

¶ 36. Because the decision as to when, where and how to replace the sewer lines is a discretionary duty, the City of Jackson is cloaked with immunity pursuant to Mississippi Code Annotated section 11-46-9(1)(d) (Supp.2009). See Frazier, 970 So.2d at 224 (¶ 9). There is nothing in the record before this Court to indicate that this could be anything other than a discretionary duty. In the absence of any reason to believe this function is not discretionary, there is no reason to return this case to the trial court.

¶ 37. I therefore dissent and would affirm the grant of summary judgment.

IRVING, BARNES AND ROBERTS, JJ., JOIN THIS OPINION.

      . Because we have consolidated the Wallace and Fortenberry cases, for the sake of clarity, we generally will refer to both the Wallaces and the Fortenberrys as the "Appellants” throughout this opinion.

      . This Act is commonly referred to as the Clean Water Act.

      . The version of the Federal Water Pollution Control Act currently in effect is based on the Federal Water Pollution Control Amendments of 1972, which expanded and strengthened the earlier legislation.


text:
    Alfonso RIVERA-GUADIANA, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00809-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2011.

      Leslie S. Lee, Jackson, Hunter N. Ai-kens, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. Alfonso Rivera-Guadiana appeals his conviction of sexual battery under Mississippi Code Annotated section 97-3-95 (Rev.2006). On appeal, he argues that: (1) the circuit court erred when it refused a jury instruction on reasonable doubt, and (2) the verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On February 10, 2009, Rivera-Gua-diana knocked on the back door of the Gulf Gardens Baptist Church’s “mission house” in Gulfport, Mississippi. The church operated an outreach program for the needy out of the house. Jane Doe, the Director of Missions and the sole resident of the house, answered the door. Rivera-Guadi-ana asked Doe if she would give him a ride to Walmart so that, he could buy some groceries. She agreed. Rivera-Guadiana stored his bicycle inside the house for safekeeping.

¶ 3. Upon their return from Walmart, they re-entered the house. According to Doe, Rivera-Guadiana then locked the door behind them. He asked her for a kiss, which she refused. A struggle ensued. He pushed her against the refrigerator; then she pushed him against some nearby shelves. He then pushed her into an adjacent bedroom and threw her down on the bed. She fought him for a while. He then punched her in the face. She testified that, at that point, she simply gave up. According to Doe, Rivera-Guadi-ana then inserted his penis into her vagina without her consent and performed intercourse until he ejaculated.

¶ 4. According to Rivera-Guadiana, after they got back from Walmart, he went inside the house to retrieve his bicycle. He then asked her, “Can we be more than friends?” She responded that they could. They then shook hands and said, “Hello.” They hugged and kissed for a while. Then he asked, “Why don’t we just make love?” She said, “Okay.” She told him to wait in the kitchen while she cleaned up the bedroom. A few moments later she called to him to enter the bedroom. He found her on the bed with her pants down to her knees. According to Rivera-Guadiana, they then had consensual intercourse.

¶ 5. Later that same day, Doe reported the attack to the Gulfport Police Department. She did not report that it was a sexual assault at that time. Later that night, an officer called Doe and asked for more information. She then told the officer that she had been sexually assaulted.

¶ 6. Officer William Collins testified that he went to the mission house that night to investigate. He discovered Doe distraught and crying. Her face was puffy and red. A shelf in the kitchen was damaged. He took a photograph of her face, which was later admitted into evidence. It shows Doe with a puffy, red face. Doe described Rivera-Guadiana and his bicycle to Officer Collins. Officer Collins relayed that information over the radio. Later that night, another officer spotted the bicycle outside a nearby residence. Rivera-Guadiana was found asleep inside.

¶ 7. Rivera-Guadiana was convicted of sexual battery and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections.

ANALYSIS

1. Whether the circuit court erred when it denied Rivera-Guadiana’s proffered jury instruction on reasonable doubt.

¶ 8. Rivera-Guadiana argues that the circuit court erred when it refused to give jury instruction D-9. Rivera-Guadia-na claims that the circuit court gave jury instruction D-4, which addressed reasonable doubt, but the content of instruction D-9 was not covered in instruction D-4. The State argues that the circuit court adequately instructed the jury on reasonable doubt and that instruction D-9 was improper because it was an effort to define reasonable doubt.

¶ 9. In Agnew v. State, 783 So.2d 699, 702 (¶ 6) (Miss.2001), the Mississippi Supreme Court stated the standard of review for a challenge to jury instructions as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

¶ 10. Rivera-Guadiana offered jury instruction D-9. It reads:

The Court instructs the jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, or the insufficiency of the evidence; but, however it arises, it is your sworn duty to find Alfonso Rivera-Guadiana “not guilty.”

The prosecutor objected on the grounds, stating: “[I]t’s an attempt to define the burden of proof. And I’d also state that it’s cumulative to D-4, as well as D-3, both previously given. And this would be the third instruction to define ‘reasonable doubt’ or I’m sorry to set forth the burden of proof.” Rivera-Guadiana’s counsel responded that it was an accurate statement of the law. The circuit court determined that it was “adequately covered in the Court’s instruction, as well as the previously given defense instruction”; therefore, the court refused instruction D-9.

¶ 11. If a criminal defendant proffers a jui*y instruction that correctly states the law, is not covered elsewhere in the instructions, and has any foundation in the evidence produced at trial, that instruction must given. Banyard v. State, 47 So.3d 676, 681 (¶¶ 12-13) (Miss.2010).

¶ 12. Here, the State argues that the burden of proof was covered in other jury instructions. Instruction S-l listed the elements of the crime of sexual battery and then stated:

If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty of Sexual Battery.

Instruction D-3 reads:

The Court instructs the jury for the defendant Alfonso Rivera-Guadiana that if they believe from the evidence that he is only probably guilty, they must find him not guilty.

Instruction D^4 provided, in part, that:

Where there is a controverted issue of facts and the testimony fails to show beyond all reasonable doubt that the State’s contention in regard to that issue of facts is true, then the presumption of law controls, and the court says to you specifically that you must find such issue in favor of Alfonso Rivera-Guadiana.

¶ 13. In Martin v. State, 854 So.2d 1004, 1009-10 (¶ 13) (Miss.2003), the supreme court held that the jury had been adequately instructed on reasonable doubt. There, one of the jury instructions listed the elements of the crime and then stated that, if the State had failed to prove one of those elements beyond a reasonable doubt, the jury would have to return a verdict of not guilty. Id. The supreme court held that that instruction alone sufficed to announce the law of the case with respect to the State’s burden of proof. Indeed, the phrase “reasonable doubt” defines itself. Id.

¶ 14. Rivera-Guadiana urges this Court to adopt Judge Ishee’s special concurring opinion in Lett v. State, 902 So.2d 630, 639-40 (¶¶ 30-36) (Miss.Ct.App.2005), wherein he encouraged the Mississippi Supreme Court to follow other states “to define reasonable doubt for our jurors.” In his opinion, he noted that current Mississippi law does not allow a jury instruction to define “reasonable doubt.” Id. at 639 (¶ 30). We must follow supreme court precedent; therefore, we cannot adopt Rivera-Guadiana’s proposed change in the law.

¶ 15. Read as a whole, we find that the jury instructions adequately covered the State’s burden of proof. Thus, the trial court adequately set forth the law governing the charges brought and did not err when it refused to give instruction D-9. See Vaden v. State, 965 So.2d 1072, 1074 (¶ 5) (Miss.Ct.App.2007). This issue is without merit.

2. Whether the verdict is against the overwhelming weight of the evidence.

¶ 16. Rivera-Guadiana next argues that the verdict is against the overwhelming weight of the evidence. When reviewing such a claim, this Court asks whether the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

¶ 17. There was no dispute that Rivera-Guadiana and Doe had sexual intercourse. The only question was whether Doe consented. She claimed that she did not, and Rivera-Guadiana claimed that she did.

¶ 18. Sex crimes seldom have third-party witnesses. Thus, whether there was consent must be decided based on conflicting stories from the victim and the accused. This Court has held:

Our case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.

Price v. State, 847 So.2d 290, 293 (¶ 12) (Miss.Ct.App.2003) (citing Crawford v. State, 754 So.2d 1211, 1222 (¶ 31) (Miss.2000) (overruled on other grounds)); see also McDonald v. State, 816 So.2d 1032, 1034 (¶ 7) (Miss.Ct.App.2002).

¶ 19. Here, Doe’s testimony was not discredited. Her testimony was corroborated by other evidence. Officer Collins testified that, when he arrived at the mission house, she was distraught and crying. Her face was puffy and red, which was consistent with her testimony that Rivera-Guadiana had hit her. A shelf in the kitchen was damaged, which was also consistent with her testimony that she had pushed Rivera-Guadiana into the shelf during their struggle.

¶ 20. It is the jury’s role to listen to the witnesses and determine their credibility. Price, 847 So.2d at 293 (¶ 12) (citing Hughes v. State, 724 So.2d 893, 896(¶ 18) (Miss.1998)). It is this Court’s role to reverse the jury’s verdict only if it is so contrary to the overwhelming weight of the evidence that, if affirmed, we would sanction an unconscionable injustice. Bush, 895 So.2d at 844 (¶ 18).

¶ 21. Here, we do not find the jury’s verdict is against the overwhelming weight of the evidence. Accordingly, this issue is without merit.

¶ 22. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Because of the nature of the crime, we use a pseudonym for the victim’s name.


text:
    Lance Ericson DUPRE, Appellant v. Pamela Denise DUPRE, Appellee.
    No. 2010-CA-00496-COA.
    Court of Appeals of Mississippi.
    Sept. 27, 2011.

      Calvin D. Taylor, attorney for appellant.
    William Michael Kulick, Ocean Springs, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. This case concerns a divorced father’s nonpayment of child support and alimony. The Jackson County Chancery Court found Lance Dupre in willful contempt of court, ordered his incarceration for ninety days, terminated future alimony obligations, determined the amount of past-due and owing child support and alimony, and set terms for repayment. Lance appeals. We find no error and affirm.

FACTS

¶ 2. Lance and Pamela Dupre were married in 1984. They had two children, Lacey and Jordan Dupre. Lacey was born in 1982, and Jordan was born in 1990. During the marriage, the family resided in a house in Pascagoula, Mississippi.

¶ 3. Lance and Pamela were divorced in 2004. They entered into an agreement on the issues of child custody, child support, alimony, and property division. Their agreement was adopted by the chancellor and made part of the divorce decree.

¶ 4. Pamela was awarded full custody of Jordan. Lance was to pay $1,000 a month in child support and $200 per month in permanent alimony. He also had to make the car payments on Pamela’s 2003 Chevrolet Malibu until the loan was paid off. The marital home was awarded to Lance, but Pamela could continue to live in it for six months.

115. By the time of the divorce, Lance had moved to Nashville, Tennessee, to manage a physical therapy business. That business eventually failed, and Lance became a full-time interior designer in Nashville. Meanwhile, Pamela and Jordan remained in the marital home in Pascagoula. They stayed in the home well after the six-month period specified in the divorce decree.. During that time, Lance continued to make the mortgage payments.

¶ 6. In August 2005, Hurricane Katrina hit Pascagoula and rendered the marital home unliveable. Pamela and Jordan moved to Gautier, Mississippi, to live with Pamela’s boyfriend and employer, Steve Pemberton. Jordan was very unhappy with that situation.

¶ 7. One year later, Jordan, who was sixteen-years old at the time, moved back into the dilapidated house in Pascagoula by himself. He was able to make sufficient repairs to render one room in the house liveable. Lance provided Jordan with a stove and refrigerator and paid the mortgage and utility bills. Pamela provided Jordan with a window-unit air conditioner, made frequent trips to Pascagoula to check on him, and gave him cash for various expenses. Pamela remained in Gautier.

¶ 8. Jordan lived in the house by himself and continued to attend Pascagoula High School, until his graduation in May 2008. Thereafter, Lance quit making the mortgage payments, and the house went into foreclosure. In July 2008, Jordan moved into an apartment with a friend, and the lender foreclosed on the house.

¶ 9. Following the divorce, Lance did not abide by the terms of the divorce decree. Specifically, he did not pay the $1,000 a month in child support. He did not pay the $200 a month in alimony. And he did not make the car payments on the Malibu.

¶ 10. In September 2006, Pamela filed a petition for contempt based on Lance’s noncompliance with the divorce decree. Lance answered the petition and counterclaimed for, among other things, termination of his alimony obligation. Several continuances were granted before a bench trial was held on August 13, 2009. On September 22, 2009, the chancellor entered findings of fact and conclusions of law. It is from that judgment that Lance appeals.

STANDARD OF REVIEW

¶ 11. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

1. Whether the chancellor gave Lance credit for the insurance settlement check.

¶ 12. According to Pamela, Lance was injured at a hotel when a framed painting or picture fell on him. He eventually settled with the hotel’s liability insurer for $6,720.75. He gave Pamela the settlement check. Pamela testified that she used the check to pay off a large part of the debt on the Malibu.

¶ 13. In her petition for contempt, Pamela asked the chancellor to find Lance in contempt for, among other things, his failure to pay off the debt on the Malibu as required by the divorce decree. The chancellor found that because Lance had given Pamela the settlement check and that she had used the check to pay off the debt on the car, Lance was not in contempt on this issue.

¶ 14. On appeal, Lance asserts that the chancellor did not give him credit for the settlement check. Lance makes no effort to explain why the chancellor’s application of the check to the debt on the Malibu was improper. We find that the chancellor’s order considered the settlement check, and Lance was given credit for this sum paid. This issue is without merit.

2. Whether Lance’s' child-support obligation ceased when Jordan moved back into the Pascagoula home.

¶ 15. The chancellor determined that $62,000 in unpaid child support had vested. He subtracted from that amount various contributions to the care of Jordan that Lance had made over the years. After making those deductions, the chancellor determined that Lance owed Pamela $30,701.96 in past-due child support.

¶ 16. On appeal, Lance argues that Jordan was emancipated when, at the age of sixteen, he left Pemberton’s house and returned to the Pascagoula house to live by himself. Lance argues that his child-support obligation ceased at that time. However, an issue may not be raised for the first time on appeal. Luse v. Luse, 992 So.2d 659, 663 (Miss.Ct.App. 2008). After reviewing the record, we do not find where Lance plead this issue or presented it to the chancellor for a decision. Therefore, this issue is procedurally barred.

3. Whether the chancellor set the wrong date for the termination of Lance’s alimony obligation.

¶ 17. The chancellor determined that because Pamela was cohabitating with Pemberton, Lance’s future alimony obligations were terminated. The question, however, remained as to how much alimony was past-due and owing. To answer this question, the chancellor had to determine the date on which Lance’s alimony obligation ceased. The chancellor determined that Lance’s obligation ceased on the date he filed his counterclaim that sought termination of alimony—January 23, 2007. As a result, the chancellor determined that $5,800 in unpaid alimony had accrued and vested between the entry of the divorce decree and January 23, 2007.

¶ 18. On appeal, Lance argues that his obligation ceased on the date Pamela moved in with Pemberton. That exact date is unclear, but it was sometime in September 2005. If Lance is correct, he would be entitled to a substantial reduction in the amount of past-due alimony he owes.

¶ 19. “Cohabitation by the payee spouse creates a presumption that a material change in circumstances has occurred justifying termination of alimony. Scharwath v. Scharwath, 702 So.2d 1210, 1211 (¶ 6) (Miss.1997). The payee spouse then bears the burden to prove no mutual support between cohabitants. Id.” Dill v. Dill, 908 So.2d 198, 203 (¶ 15) (Miss.Ct.App.2005).

¶20. Here, the chancellor determined that because Pamela was cohabitating with Pemberton, the presumption of a material change in circumstances was raised. He further found that Pamela had not rebutted the presumption. Therefore, Lance’s future alimony obligations were terminated. Neither party to this appeal challenges that ruling.

¶ 21. Lance argues that he was entitled, not only to termination of his future alimony obligations, but also to retroactive modification back to the date Pamela began living with Pemberton. The general rule is that permanent alimony payments vest when due and cannot be modified. McCardle v. McCardle, 862 So.2d 1290, 1293 (¶ 16) (Miss.Ct.App.2004) (citations omitted). This general rule has been qualified to give chancellors discretion to modify retroactively back to the date the petition to terminate or modify the alimony was filed. Wallace v. Wallace, 12 So.3d 572, 576 (¶ 19) (Miss.Ct.App.2009) (citations omitted). That is exactly what the chancellor did in this case. Accordingly, we find that the chancellor was not in error, and this issue is without merit.

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

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

      . Lacey was emancipated at the time of the divorce due to her age.