author: MYERS, P.J.,

text:
    Jane PECANTY, Appellant v. MISSISSIPPI SOUTHERN BANK as Merged with State Bank & Trust Company of Cleveland, Mississippi, Mississippi Banking Institutions, Jimmy D. Tarver and Sheila M. Tarver, Appellees.
    No. 2008-CA-01886-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.
    Rehearing Denied Aug. 31, 2010.
    Certiorari Denied Dec. 9, 2010.

      Mark W. Prewitt, Vicksburg, attorney for appellant.
    Rebecca B. Cowan, Jackson, Kenneth B. Rector, James Randolph Sherard, Vicksburg, Allison McDonald Brewer, Joseph Walter Gill, Jackson, attorneys for appel-lees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. A final judgment was entered by the Warren County Chancery Court which held the defendant, VFW Post 1034, Inc. (VFW) liable for damages as a result of withdrawing the lateral support from the property of the plaintiff, Jane Pecanty (Pecanty). Prior to that judgment being entered, the chancery court granted summary judgment for the defendants-appel-lees, Mississippi Southern Bank, as merged with State Bank and Trust Company of Cleveland, Mississippi (the “Banks”), and Jimmy and Sheila Tarver (the “Tarvers”). Pecanty appeals, averring that the chancery court erred in granting summary judgment to the Banks and the Tarvers. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1985, Pecanty and her husband, Mitch Pecanty, purchased a home in Vicksburg, Mississippi. In 2000, VFW purchased an adjacent piece of property located behind and downhill from the Pecantys’ property. Shortly thereafter, VFW began a landscaping project which included heavy excavation to the hillside abutting VFW’s and the Pecantys’ respective properties. As a result of the excavation, the Pecantys began experiencing significant erosion in the rear of their property.

¶ 3. On April 30, 2001, the Pecantys entered into a written agreement with VFW, in which VFW agreed to restore the Pecantys’ property to its original state; and to ensure that no further erosion of land would occur, VFW promised to erect a retaining wall by July 1, 2001. According to the agreement, VFW admitted that the “cut made to the hill” caused erosion of the dirt to the extent that the property owned by the Pecantys “was eroding away and being lost.” VFW promised that in the event that the restoration did not continue to maintain the Pecantys’ property “in its original state so as to prevent any further sloughing or loss of land or damages[,]” VFW would “promptly cause said property to be repaired and maintained. ...” The agreement added, “in the event of [VFW’s] failure to do so, VFW shall be responsible ... for all damages sustained, together with reasonable attorney’s fees and costs.... ”

¶ 4. As promised, VFW erected a retaining wall; however, the Pecantys still continued to experience significant erosion on their property. VFW undertook no further efforts to remedy the damage to the Pecantys’ property or make any modifications to the retaining wall.

¶ 5. In 2001, Pecanty’s husband became seriously ill, and Pecanty began focusing all of her attention on her husband’s convalescence. Meanwhile, the Banks acquired VFW’s property in September 2001. The Banks thereafter conveyed the property to the Tarvers in February 2005. Following her husband’s death in 2006, Pecanty refocused her attention on the continuing damage to her property. According to Pecanty, damage was occurring “with every rainfall.”

¶ 6. On October 30, 2006, Pecanty filed a complaint in chancery court seeking an injunction and damages against both VFW and the Banks. Pecanty alleged that VFW, after having purchased the property adjacent to hers in 2000, “undertook to make improvements on its property which included altering the landscape by dirt work and grading a hillside to such an extent and degree so as to alter the natural flow of run-off water between the two properties.” Pecanty further alleged that the alteration of the natural flow of water has caused and continues to cause serious erosion and sloughing of her property. She requested the chancery court to compel VFW and the Banks, jointly and severally, to erect such permanent retaining walls, barriers, or other structures necessary to prevent any further washing and/or erosion to her property. She further requested that she be awarded monetary damages entitled for the restoration and reclamation of her real property.

¶ 7. In July 2007, the Banks filed a motion for summary judgment, arguing that Pecanty’s cause of action against them was barred by the three-year statute of limitations set forth in Mississippi Code Annotated section 15-1-49 (Rev.2003). The chancery court found that the limitations period prescribed by section 15-1-49 began running on July 1, 2001, when VFW failed to perform its contract. Accordingly, the Banks were granted a judgment as a matter of law and were dismissed, with prejudice, as defendants in the case.

¶ 8. On December 21, 2007, by order of the chancery court, the Tarvers, the then title owners of the property previously owned by VFW, were joined as defendants in Pecanty’s suit against VFW. Subsequently, the chancery court granted the Tarvers’ ore tenus motion for summary judgment, finding that Pecanty’s cause of action against them was also barred under the three-year statute of limitations set forth in section 15-1-49.

¶9. In October 2008, Pecanty’s case against VFW was heard on the merits in the chancery court. At the hearing, Pe-canty testified that after VFW erected the retaining wall, her property “kept washing.” She said that from that point forward neither VFW nor the subsequent owners ever made any effort to try and eliminate the damage that was occurring on her property.

¶ 10. Geotechnical expert, Dr. George Hammitt, testified on behalf of Pecanty. Dr. Hammitt explained that Pecanty’s property is comprised of loess soil, a highly-erodible type of soil prevalent throughout Warren County, Mississippi. According to Dr. Hammitt, before VFW cut into the hillside, a natural-lateral support existed on the hill abutting the two properties wherein the loess soil had obtained “a point of equilibrium.” By cutting into the hill, VFW both altered the stability of the natural support and affected the surface and subsurface laminar flow of water on Pecanty’s property. Dr. Hammitt said that the retaining wall built by VFW was improperly designed and negligently constructed. He described the wall as consisting of old railroad cross-ties stacked and held together by steel-vertical posts. In Dr. Hammitt’s opinion, no engineering went into the constructing of the wall. He said that because no arrangements were made for drainage behind the wall, the loess soil is now “being transported by water in, under, through, and around the wall.”

¶ 11. The chancery court found that VFW executed an agreement with Pecanty to restore her property for the damage it had caused with its excavation, but it did “nothing to rectify” the damages incurred therefrom. Accordingly, the chancery court entered a judgment in favor of Pe-canty and awarded her monetary damages.

¶ 12. Feeling aggrieved by the chancery court’s grant of summary judgment to the Banks and the Tarvers, Pecanty appeals, raising one issue: “Whether damages to an adjoining landowner by the previous owner and subsequent purchaser constitutes a continuing tort which would toll the statute of limitations.”

STANDARD OF REVIEW

¶ 13. Summary judgments are reviewed de novo. Hurdle v. Holloway, 848 So.2d 183, 185 (¶ 4) (Miss.2003). “A summary judgment motion is properly granted when no genuine issue of material fact exists.” Jackson v. Carter, 23 So.3d 502, 504 (¶ 5) (Miss.Ct.App.2009). “The moving party has the burden of demonstrating that no genuine issue of material fact exists within the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and that he is entitled to judgment as a matter of law.” Id.

DISCUSSION

¶ 14. As previously mentioned, VFW did not file an appeal in this matter, and Pecanty did not assign any point of error to the chancery court’s final judgment with respect to VFW. The issue we have before us pertains solely to the chancery court’s decision to grant summary judgment in favor of the Banks and the Tarvers. Thus, the following discussion is limited to that decision.

¶ 15. Pecanty contends that while VFW was the party responsible for the excavation that caused the removal of her property’s lateral support and failed to perform its contract, the Banks and the Tarvers, as subsequent title holders, neglected their respective duties to maintain their property. Pecanty contends that the damages to her property are the result of separate acts which constitute a continuing tort, and the subsequent purchasers of the property previously owned by VFW have a duty to eliminate the continuous torts committed against her property. Accordingly, Pecanty avers that because the statute of limitation begins anew with each subsequent injury, the chancery court erred in granting summary judgment in favor of the Banks and the Tarvers.

¶ 16. As Pecanty points out, there is very little Mississippi case law dealing with lateral-support claims. The only case we could find that substantively addressed this type of grievance is Lerner Jewelers, Inc., v. L.L. Glascock, Inc., 199 So.2d 66 (Miss.1967). In Lemer, a jury found that a construction company was not negligent for its failure to prevent “foundation and soil movement” on an adjacent landowner’s property, the movement of which caused damage to the adjacent landowner’s building. Id. at 67. On appeal, the supreme court passed on the issue of whether a contractor could be held strictly liable for damages based on the loss of lateral support to an adjoining landowner’s building as a result of excavation work performed by the contractor. Id. at 67-69. Pursuant to a city building code that governed in the case, the owner of the property who hired the contractor was required to take certain measures in order to safeguard the adjoining owner’s property. Id. at 68-69. In affirming the jury’s verdict, the Lemer court stated that “generally ... where a statute or building code places liability on the owner, the contractor is not liable in the absence of negligence.” Id. at 69. Lemer noted that the liability of the contractor was governed by the common law, and, generally, under common law, “the right to lateral support applies to land in its natural state and not to the additional weight of buildings or other structures placed on the land.” Id. Accordingly, Lerner held that the lower court did not err in granting jury instructions relative to negligence. Id.

¶ 17. Here, distinguishable from Lerner, we have at issue the undisputable loss of lateral support to land in its natural state, with no statute or building code that controls. Under common law traditions, “adjoining [land]owners have a natural right to the lateral support of each other’s ground[;][t]his principle ... applies only to land in its natural state[;][t]he duty to provide lateral support is ongoing, and one of continued support running against the servient land.” 1 Am.Jur.2d Adjoining Landowners § 44 (2005). The duty is absolute and is not predicated on negligence. 2 C.J.S. Adjoining Landoumers § 8 (2003).

¶ 18. The duty, however, does not preclude a landowner from excavating upon his or her land; but:

... landowners who excavate their land must do so in a manner that protects adjoining property in its natural state from collapsing or eroding away. Consequently, the excavating landowner must excavate in such manner that his or her neighbor’s land will not, by its own weight or through the action of the elements, fall into the excavation, and may be required to replace by artificial means the natural support removed by excavation.

1 Am.Jur.2d Adjoining Landowners § 52. The Restatement (Second) of Torts section 817 (1979) provides, in part, the following:

(1) One who withdraws the naturally necessary lateral support of land in another’s possession or support that has been substituted for the naturally necessary support, is subject to liability for a subsidence of the land of the other that was naturally dependant upon the support withdrawn.
h. What is subsidence. A subsidence is any movement of the soil from its natural position. This movement may be in any direction. It may be of surface or subsurface soil. A shifting, falling, slipping, seeping or oozing of the soil is a subsidence....
i. Liability is for subsidence. The withdrawal of the naturally necessary lateral support ... subjects the actor to liability ... but does not make him liable in an action for damages unless, and until, a subsidence occurs.... The actor may provide artificial support to replace natural lateral support, and if he does so and it prevents subsidence no action lies against him. The statute of limitations does not begin to run until a subsidence occurs and it runs then only for that subsidence. The actor continues subject to liability for a further distinct subsidence although it flows from the same act.
To make the actor liable, the subsidence must be substantial. The rule that the law will not concern itself with trifles is applicable. Thus the fall of a few grains of sand is not actionable.

(Emphasis added). But see Easter v. Dundalk Holding Co., 199 Md. 324, 86 A.2d 477 (1952). There, the Court of Appeals of Maryland acknowledged that "with regard to lateral-support claims the prevailing view is that a cause of action arises, not from the moment a lawful excavation is made, but from the time when some damage occurs therefrom. Id. at 479 (citation omitted). The Easter court suggested, however, that there may be “a possible distinction between the latent danger of subsidence through the removal of subja-cent support and the patent loss of lateral support through erosion.” Id.

¶ 19. Limitations theory aside, what is clear is that the great weight of authority holds where a landowner has withdrawn lateral support from adjacent property, he or she remains liable notwithstanding the subsequent transfer of his or her land to a third person. A purchaser of land “is not liable for a condition or consequence resulting from a former owner’s excavation leaving the adjoining land without lateral support, in the absence of negligence on his or her part, and has no duty to restore such support.” 2 C.J.S. Adjoining Landowners § 27; see also Keck v. Longoria, 28 Ark. App. 277, 771 S.W.2d 808, 811 (1989) (“we think it is clear that the general rule does not hold the owner or possessor of property liable for the withdrawal of lateral support unless he is the one who withdraws the support”); First Nat’l Bank and Trust Co. v. Universal Mortgage & Realty Trust, 38 Ill.App.3d 345, 347 N.E.2d 198, 200 (1976) (a defendant, whose predecessor in title caused the removal of adjacent landowner’s lateral support, had no duty to restore such support); Paul v. Bailey, 109 Ga.App. 712, 137 S.E.2d 337, 340 (1964) (the person who makes the excavation which causes injury to the adjoining property is the one who is liable for damages, not the person in possession at the time of the injury); Spoo v. Garvin, 236 Ky. 113, 32 S.W.2d 715, 716 (1930) (subsequent purchaser not liable for condition or consequences resulting from act of former owner which altered natural support to adjacent property).

¶ 20. On the other hand, there is authority that a current landowner may be held liable to an adjoining landowner for damage caused by an excavation made by a predecessor in title, “where the predecessor in title took appropriate steps to preserve the lateral support by building a retaining wall which the current owner allowed to fall into disrepair.” 1 Am. Jur.2d Adjoining Landowners § 56. The case of Gorton v. Schofield, 311 Mass. 352, 41 N.E.2d 12, 13 (1942), cited by Pecanty, illustrates this principle sounding in equity. In Gorton, the Supreme Judicial Court of Massachusetts upheld a decree from a bill in equity which ordered the defendant to provide adequate support to the plaintiffs land by strengthening an existing retaining wall on the defendant’s land. Id. at 15-16. The excavation was made, and the wall was built on the defendant’s land by a predecessor in title sometime between 1848 and 1876 to provide lateral support for the plaintiffs property. Id. at 14. The plaintiffs land began subsiding soon after the defendant demolished a stable located on his land in 1937; the stable had abutted the retaining wall for years and furnished it with additional support. Id. at 13. In affirming the decree, the Gorton court reasoned as follows:

[Wjhere a land-owner had made an excavation in his land, and thereby removed the lateral support to which his neighbor is entitled, but had built a solid retaining wall to prevent subsidence, which, during his ownership, prevented it, and had then sold his land to another and that other to others, and, owing to a subsequent owner — it might well be fifty years after — permitting the retaining wall to decay and no longer to answer the purpose for which it was constructed, with the result that his neighbor’s land has subsided, he would be liable to answer in damages for the injury, and the man whose failure to keep up the retaining wall was the effective cause of the injury would go scot free, and that too where the subsidence would not have occurred if the retaining wall had been kept in repair.

Id. at 15 (citation and internal quotations omitted).

¶ 21. We agree with the appellees, Gorton is distinguishable from the instant case before us. Here, we do not have at issue a properly-constructed retaining wall that was allowed to fall into disrepair; rather, we have a wall that was not constructed or designed properly and has failed to function since its completion. Restatement (Second) of Torts § 817 provides the following:

k. Substituted or remote support. The actor may avoid liability by furnishing artificial support, such as a retaining wall, sufficient to replace the natural support withdrawn. The later withdrawal of the artificial support subjects the person who withdraws it to ... liability. ... Even if the artificial support is not withdrawn, the actor remains liable if it proves inadequate and subsidence occurs that would not have occurred if the natural support had not been withdrawn. This is true regardless of the care exercised in providing the artificial support.

¶ 22. Applying these principles to the instant case, we think it is abundantly clear that VFW was the sole party at fault. Neither the Banks nor the Tar-vers were responsible for removing the lateral support from Pecanty’s land, nor were they responsible for constructing the retaining wall which — as Pecanty, herself, admitted — has, at all times, failed to fulfill its purpose.

¶ 23. Nonetheless, citing to Long v. Magnolia Hotel Co., 227 Miss. 625, 86 So.2d 493, 496 (1956), Pecanty contends that separate and apart from VFW’s actions and omissions, a genuine issue of material fact exists as to whether either of the subsequent landowners was negligent in failing to maintain them property in a responsible manner, so as to alleviate the persisting damage that continues to occur on her property. Pecanty submits that the “erosion, washing, sloughing, and cowing” of her property, which “is not a sudden event,” is a dangerous condition and constitutes a continuing tort, thereby tolling the statute of limitations.

¶ 24. We do not find Long analogous. In Long, the roof of the plaintiffs restaurant was damaged by overhanging bricks; the bricks fell from the Hotel Vicksburg while a contractor, who had been hired by the hotel, was performing repairs following a tornado. Id. at 494-95. The supreme court said the “landowner who, himself or by others under his direction or permission, negligently or unskillfully performs an act on his premises” could be held liable for damages to the restaurant’s roof. Id. at 496. (citation omitted). The supreme court held that the hotel company and the contractor owed a duty to the plaintiff to exercise reasonable care to avoid injury to her property when they undertook to remove the overhanging bricks, and the fact that her building had already been damaged by the tornado did not affect their liability for additional damage caused by their negligence. Id. The court opined as follows:

[I]t was necessary that prompt action be taken to eliminate the danger that existed as a result of the unsafe condition of the outer wall of the hotel building. But the fact that the dangerous condition had been created as a result of a tornado, and that quick action was required to eliminate the danger, did not relieve the hotel company and its contractor from the duty to exercise due care not to injury unnecessarily the appellant’s property.

Id.

¶ 25. Unlike in Long, our defendants, as mentioned, had no involvement with the removal of Pecanty’s lateral support or in the construction of the retaining wall. Further, other than the accumulation of mud on the servient property’s driveway as a result of the slow but sure secretion of loess soil through the wall, there is no affirmative indication that either subsequent landowner had any reason to suspect — prior to Pecanty’s complaint in chancery court — that a problem existed with Pecanty’s property, much less a dangerous condition. Despite its defective utility, the retaining wall, according to the evidence, for all intents and purposes is a sturdy structure. Dr. Hammitt even testified that if he were to restore Pecanty’s property, he would leave the retaining wall standing and would place a mesh fabric on the face of it; in his opinion, this would allow the water to drain through while preventing the soil from coursing through along with the water.

¶ 26. The rule in Long, which Pecanty proposes should apply here, is in accordance with Restatement (Second) of Torts section 366, which states, “[o]ne who takes possession of land upon which there is an existing structure or other artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for physical harm caused to them by the condition.... ” As the appellees point out, an argument advocating the application of section 366 in a lateral-support claim was rejected by the Court of Appeals of California in Lee v. Takao Building Development Co., 175 Cal.App.3d 565, 220 Cal.Rptr. 782 (Cal.Ct.App.1985). In Lee, the defendant was granted summary judgment on a complaint alleging that he negligently failed to repair the portion of a demolished building that had provided lateral support for the plaintiffs’ property. Id. at 567-68, 220 Cal.Rptr. 782. Relying on section 366, the plaintiffs argued on appeal that the defendant’s failure to take steps to repair the dangerous condition caused by the removal of the lateral support was, in itself, an act of negligence. Id. at 568, 220 Cal.Rptr. 782. The Lee court disagreed. Lee found that the principles espoused in section 366 were not controlling on the issue of “whether a subsequent owner is liable for the loss of an adjoining owner’s lateral support when the loss was caused by the acts of a previous owner.” Id. Lee opined as follows:

The parties cite no California case deciding the issue of whether a subsequent purchaser of land is liable for the removal of lateral support caused by the previous owner, and we find no California case so deciding. The court in Sager v. O’Connell [,] ... 67 Cal.App.2d 27, 153 P.2d 569 [ (Cal.1944) ], in determining the liability for the decay of a bulkhead erected to provide lateral support, stated that to recover a judgment against an owner it is essential to show that he or she is guilty of some act of negligence in connection with the lateral support of the adjoining property. Other jurisdictions are in accord in finding liability only where the party has acted to remove the support. The court in Fir. Nat. Bank & Trust Co., ... 38 Ill.App.3d 345, 347 N.E.2d [at 200,] citing Restatement of Torts section 817, subdivision j, and 2 Corpus Juris Secundum, Adjoining Landowners, section 25, held that an owner of real estate is not liable to an adjoining owner for loss of lateral support where alteration of the natural condition was made by a predecessor in title. (Accord McKamy v. Bonanza Sirloin Pit, Inc., ... 195 Neb. 325, 237 N.W.2d 865 [ (Neb.1976) ]; [Paul ], ... 109 Ga.App. 712, 137 S.E.2d 337). The result should be no different where it has been alleged that the loss of support was caused by the removal of an artificial structure.

Id. at 569, 220 Cal.Rptr. 782.

¶ 27. In the case before us, the legal cause of harm to Pecanty was the removal of lateral support to her property. Neither the Banks nor the Tarvers removed the lateral support, nor did they cause the same to be removed. A dysfunctional retaining wall was built in 2001, which neither the Banks nor the Tarvers constructed or caused to be constructed. Since no action on either of their parts was the legal cause of the harm caused to Pecanty’s property, neither can be held strictly liable. Nor are the Banks and the Tarvers liable for any negligent-failure to act. While the weight of authority suggests that they may have owed a reasonable duty to maintain a properly-built retaining wall, we find no persuasive authority which instructs that they bore the additional burden of putting right what was VFW’s wrong solely on the basis that they were subsequent title holders. Thus, we find no actionable negligence on the part of the Banks or the Tarvers.

¶ 28. Because we find no liability on the part of either the Banks or the Tarvers in this instance, it is unnecessary for us to address Pecanty’s theory with regard to continuing torts and/or latent injuries. Such a discussion would be academic and, under the facts and circumstances of this case, unwise. Regardless of the chancellor’s legal reason for granting summary judgment, she arrived at the right outcome with respect to the Banks and the Tarvers. See Reed v. Weathers Refrigeration and Air Conditioning, Inc., 759 So.2d 521, 526 (¶ 17) (Miss.Ct.App.2000) (“[I]f the judgment of such court can be sustained for any reason, it must be affirmed, ... even though the trial judge based it upon the wrong legal reason.”).

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

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

      . VFW did not appeal the judgment.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Lee Ann WILLIAMS, Appellant v. Nicholas Joe WILLIS, Appellee.
    No. 2009-CA-00974-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2010.

      James David Moore, attorney for appellant.
    Rebecca C. Phipps, attorney for appel-lee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On May 22, 2008, Lee Ann Williams (Lee Ann) filed a complaint in Alcorn County Chancery Court for contempt and modification of child custody. Lee Ann shared joint custody of her daughter, Mak-enzie Cheyenne Willis (Makenzie), with the child’s father, Nicholas Joe Willis (Nicholas). Lee Ann alleged that a material change in circumstances adverse to the best interests of the minor child had occurred in Nicholas’s home since the entry of the chancery court’s February 15, 2008, custody order. Lee Ann sought primary physical and legal custody of Makenzie with restricted visitation for Nicholas. The chancery court heard testimony at a hearing on the matter and subsequently denied Lee Ann’s motion for modification. Lee Ann now appeals the judgment of the chancery court, which denied her motion for modification of child custody. Finding no error, we affirm the judgment of the chancery court.

FACTS

¶ 2. On August 23, 2007, the chancery court entered a temporary order modifying its former custody order and granting joint legal and physical custody of Maken-zie to Lee Ann and Nicholas. The chancery court ordered that Makenzie reside with Nicholas during the school year, subject to Lee Ann’s weekend visitation. The chancery court granted Lee Ann extended visitation during school holidays and summer vacation. The chancellor again modified her custody order on February 15, 2008, granting Lee Ann a third weekend per month of visitation with Makenzie.

¶ 3. Later, in May of 2008, Lee Ann filed a complaint for contempt and modification of the chancery court’s February 15, 2008 custody order. Lee Ann alleged that Nicholas’s wife mistreated Makenzie, leaving fingernail marks on her arm after grabbing her too forcefully. In addition to presenting the evidence of the fingernail marks left on Makenzie’s arm, Lee Ann argued at trial that Makenzie earned poorer grades while living with Nicholas. Further, Lee Ann alleged that Nicholas failed to seek proper medical care for Makenzie after she developed numerous cavities in her teeth, failed to keep Lee Ann informed regarding Makenzie’s medical appointments and school activities, and failed to identify Lee Ann on school and medical records as a parent and point of contact in case of emergency. Lastly, Lee Ann argued that Nicholas and his wife interfered with Lee Ann’s visitation with Makenzie.

¶ 4. The chancellor found that Lee Ann failed to provide proof that a material change in circumstances had occurred in Nicholas’s home since the chancery court issued its last custody order in February 2008 and denied her motion for a modification of custody. However, the chancellor admonished Nicholas for failing to include Lee Ann on Makenzie’s school and medical records, thereby making it difficult for Lee Ann to obtain medical treatment for Mak-enzie and copies of her school records. On appeal, Lee Ann argues that the chancellor erred in not awarding her physical and legal custody of Makenzie.

STANDARD OF REVIEW

¶ 5. On appeal, this Court will not disturb a chancellor’s factual findings regarding custody modification unless the chancellor’s findings are “manifestly wrong, clearly erroneous, or the proper legal standard was not applied.” Duke v. Elmore, 956 So.2d 244, 247 (¶ 6) (Miss.Ct.App.2006).

DISCUSSION

¶ 6. Before undertaking a discussion of the merits of Lee Ann’s appeal, we note that Lee Ann, through her attorney, failed to cite any authority to support the assignment of error contained in her brief. The Mississippi Rules of Appellate Procedure provide clear guidance on this point. Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure provides that an argument advanced on appeal “shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” This Court has held that the “[fjailure to comply with M.R.A.P. 28(a)(6) renders an argument proeedurally barred.” Birrages v. Ill. Cent. R.R., 950 So.2d 188, 194 (¶ 14) (Miss.Ct.App.2006) (citations omitted). Notwithstanding the procedural bar, this Court now turns to an analysis of the issue presented on appeal.

¶ 7. When seeking a modification of child custody, the noncustodial parent must prove that a material change in circumstances has occurred in the custodial parent’s home since the most recent custody decree, the material change adversely affects the child, and a modification of custody is in the best interest of the child. Giannaris v. Giannaris, 960 So.2d 462, 467-68 (¶ 10) (Miss.2007). Any change in custody must be predicated on the conduct of the custodial parent that poses a danger to the mental or emotional health of the child. Id. at 467 (¶ 9) (quoting Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). The chancellor must consider the totality of the circumstances when determining whether a material change in circumstances has occurred. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss.Ct.App.2002) (citing Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)). Further, the party seeking the modification of custody bears the burden of proving by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003) (citing Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996)).

¶ 8. The chancellor found that Lee Ann failed to meet her burden of proving that a material change in circumstances adverse the children occurred in Nicholas’s home. A guardian ad litem appointed to represent Makenzie’s best interests testified that the guardian ad litem saw no evidence of a material change in circumstances. The evidence at trial indicated that the incident in which Maken-zie’s step-mother left fingernail marks on her arm was isolated, and failed to indicate a home environment dangerous to Makenzie’s health. The supreme court in Giannaris held that “[a]ll courts must be consistent, diligent, and focused upon the requirement that ‘only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.’ ” Giannaris, 960 So.2d at 467 (¶ 9) (quoting Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991)). Chancellors must consider the totality of the circumstances in a modification action, and an isolated incident generally will not be sufficient to justify a change of custody. Id. at (¶ 10) (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)).

¶ 9. A chancellor sitting as a fact-finder in a custody case enjoys wide discretion, and reviewing courts defer to a chancellor’s findings of fact when supported by substantial evidence. Blevins v. Bardwell, 784 So.2d 166, 170 (¶ 12) (Miss.2001). We find no abuse of discretion in the chancellor’s finding that Lee Ann failed to prove a material change in circumstances had occurred in Nicholas’s home since the last custody order. Accordingly, we affirm the chancellor’s decision to deny Lee Anris request for a custody modification.

¶ 10. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BARNES, J.,

text:
    Richard THORNTON, Appellant v. Charles D. HOLLOWAY, Appellee.
    No. 2009-CA-01262-COA.
    Court of Appeals of Mississippi.
    Nov. 23, 2010.

      Carter Dobbs Jr., attorney for appellant.
    No Brief Filed, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Monroe County Chancery Court entered a final judgment in favor of Charles D. Holloway, naming him the sole owner of funds from an interpleader action, and denying, without prejudice, Richard Thornton priority to the funds through his writ of garnishment. Thornton appeals the chancellor’s judgment, claiming that the funds were vested in Holloway prior to judgment; therefore, Thornton had a claim to a portion of the funds. Finding error, we reverse and render judgment in favor of Thornton.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal originated when Thornton instituted action for Holloway’s failure to repair and restore Thornton’s 1968 Chevrolet truck. The chancery court entered a default judgment against Holloway on November 13, 2003, ordering Holloway to complete the repair and restoration of the truck and to return the truck to Thornton within thirty days. The judgment also stated that, if Holloway failed to comply, then he must return the truck intact, reimburse Thornton his payment of $7,378, and pay $2,500 in punitive damages. Holloway did not repair and/or restore the truck, nor did he return the truck to Thornton and pay the fees. Thornton filed a Complaint for Citation for Contempt. The Monroe County Chancery Court entered another order on August 24, 2004, holding Holloway in contempt and requiring him to pay $2,500 for Thornton’s attorney’s fees, plus court costs of $150. These fees were in addition to the $9,878 already owed from the November 2003 order. However, no payments were ever made by Holloway.

¶ 3. On March 16, 2005, Amory Federal Savings and Loan Association (Amory Federal) filed a complaint for an inter-pleader, seeking to determine ownership of $15,598.56, which the bank held. These funds were a result of a previous land transaction between Holloway and John Kendall, the named defendants in the in-terpleader action. In March 1995, Kendall had purchased land in Monroe County, using a loan from Amory Federal. The loan required Kendall to maintain fire insurance. When Kendall failed to comply with the requirement, Amory Federal purchased the fire insurance and charged the premium to Kendall’s account as authorized by the loan agreement. In 1999, Kendall conveyed the property to Holloway, providing that Holloway would make the payments to Amory Federal. The house subsequently was destroyed by fire, and Amory Federal was paid $35,000 under the fire insurance policy. After paying off the remaining mortgage debt, $15,598.56 remained. This amount is the basis for the interpleader action.

¶ 4. Thornton filed a writ of garnishment against Amory Federal on March 18, 2005, in connection with his August 2004 judgment. After Amory Federal filed an answer to the writ of garnishment claiming that the proper party to the funds had yet to be determined, Thornton filed an answer in the nature of an interpleader and a counter-complaint, stating that his writ of garnishment constitutes a first hen upon the interplead funds and that Holloway owed him $12,588 (the original $12,528 plus a $60 enrollment fee and garnishment costs).

¶ 5. On May 16, 2005, the chancery court entered an order consolidating the 2003 and 2005 causes: Cause Number 2005-144-48-L, the interpleader action filed by Amory Federal, and Cause Number 2003-501-48-L, the original judgment against Holloway. This was done to enable the chancery court to “order the proper disbursement of the funds in one cause of action, and when the funds were disbursed, Cause Number 2005-[144]-48-L would be closed. At the same time, any other matters or any further proceedings could continue in Cause Number 2003-501-48-L.” In that order, it was also noted that a default judgment had been entered against Kendall, “leaving Charles Holloway and Amory Federal as the only parties in that action.”

¶ 6. A hearing was held on June 6, 2005. As a result, on August 1, 2005, the chancery court, nunc pro tunc to the June 6, 2005 hearing, granted relief to Amory Federal, allowing it to interplead its claims to the funds and releasing it from any claims by Thornton or Holloway. The funds were ordered to be held by the chancery court. Meanwhile, on June 24, 2005, Thornton had filed another writ of garnishment against the Monroe County Chancery Clerk’s office, the custodian of the insurance funds. The chancery clerk’s office filed an answer disclaiming any indebtedness to Thornton.

¶ 7. During the course of these proceedings, Holloway entered bankruptcy. On April 6, 2006, upon agreement among the parties and the bankruptcy trustee, the United States Bankruptcy Court for the Northern District of Mississippi entered an order granting leave from an automatic stay, allowing the chancery court to pro-, ceed with the cause. Hearings were conducted by the chancery court on May 22, 2006, and June 13, 2006. Holloway argued at the May 2006 hearing that the garnishment action was premature. A motion for partial judgment on the pleadings was also filed by Thornton, seeking a determination by the chancery court that the funds be adjudged the property of Holloway, in order that they may be subject to Thornton’s writs of garnishment. Holloway, in his answer, contended that Thornton lacked standing to bring the motion.

¶ 8. At the June 13, 2006, hearing, the chancery court entered a bench opinion, stating that the funds did not vest in Holloway until the court’s judgment; therefore, “any writ of garnishment would be premature in the eyes of [the] Court to secure those funds until they have actually vested in [Holloway].” The funds were then ordered to be paid to Holloway. The chancery court then issued a final judgment on May 7, 2009, nunc pro tunc to its June 2006 bench opinion. The final judgment was “entered without prejudice to the Defendant, Richard Thornton, to pursue whatever writs of garnishment he may desire to proceed[.]” Thornton filed a motion to alter or amend the judgment or, in the alternative, for a new trial, which the chancery court denied on July 1, 2009. Thornton now appeals, claiming that the court erred in denying his motion. Finding that Holloway confesses error, we reverse and render the judgment of the chancery court.

STANDARD OF REVIEW

¶ 9. An appeal from a chancery court’s decision is given a limited standard of review, using an abuse-of-discretion standard. Deliman v. Thomas, 16 So.3d 721, 724 (¶ 13) (Miss.Ct.App.2009) (citing Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss.2002)). “The Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous or the court has applied an incorrect legal standard.” Id. (citing In re Estate of Ladner v. Ladner, 909 So.2d 1051, 1054 (¶ 6) (Miss.2004)). Issues of law are reviewed de novo. Id.

DISCUSSION

¶ 10. The appellee, Holloway, has not filed a brief with this Court. When this situation occurs, this Court has two options. First, we may “take the ap~ pellee[’]s failure to file a brief as a confession of error and reverse.” J.J. v. Smith, 31 So.3d 1271, 1273 (¶ 10) (Miss.Ct.App.2010) (quoting Miller, 815 So.2d at 1119 (¶ 7)). This option is favored “when the record is complicated or of large volume and ‘the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.’ ” Id. However, if “the record can be conveniently examined and such examination reveals a ‘sound and unmistakable basis or ground upon which the judgment may be safely affirmed[,]’ ” we may “disregard the appel-lee[’s] error and affirm.” Id.

¶ 11. Upon review, we cannot find that the chancery court provided “a sound and unmistakable basis” that would excuse Holloway’s confession of error. In the bench opinion issued on June 13, 2006, the chancellor stated:

This Court finds as a matter of law that when this policy was purchased and the proceeds paid from these funds — by the payment of these funds that any sur-plusage or overage therefrom became the property of Charles Holloway. And, accordingly, any writ of garnishment would be premature in the eyes of this Court to secure those funds until they have actually vested in him. They have not vested in him until now, even though the insurance policy allowed the existence of the funds by virtue of the fact that [Amory Federal] actually purchased the policy. This was on property owned by Mr. Holloway. So the whole subject property was the subject of the insurance policy that was held by [Amory Federal] to protect its own interest. Thereby, Mr. Holloway became, really, the recipient of the entitlement owner of these funds by default.

(Emphasis added). Stating that this was a case of first impression, the chancery court cited no authority for its ruling.

¶ 12. The Mississippi Supreme Court has consistently held over the years “that insurance policy proceeds are properly the subject of garnishment.” Briggs v. Benjamin, 467 So.2d 932, 934 (Miss.1985). In Meridian Land & Industrial Co. v. J.B. Ormond & Co., 82 Miss. 758, 35 So. 179, 180 (1903), the supreme court specifically held that a property-insurance claim, that had been adjusted and submitted to the court for litigation to determine whether the judgment creditor or insured had claim to the funds, was subject to garnishment. The supreme court stated that:

The money due or the right of action under the policy is the property of some one, and as such can be subjected to the owner’s debts by proper legal process. Then to whom does the money or right of action belong? By operation of law, it belongs to the person deemed by the law to have been the owner of the property destroyed; and, the moment its ownership is fixed, it becomes liable, like all other property, to the debts of its owner.

Id. at 180-81. Admittedly, this case is not precisely on point with Meridian Land as the actual insured in this case was Amory Federal, not Holloway. However, as the chancellor noted in his bench opinion, Amory Federal “actually purchased an insurance policy insuring the interest of Mr. Holloway in this property,” and Amory Federal disclaimed any ownership in the surplus funds.

¶ 13. Further, although the chancellor in this case claimed that the funds were not vested in Holloway until July 2006, Kendall, the only other defendant in the initial interpleader action, had no vested interest in the funds by virtue of the default judgment entered against him. As the chancellor said, Holloway “became ... the recipient of the entitlement owner of these funds by default.” Thus, when Kendall no longer had any claim to the funds and the funds were handed over to the registry of the court by virtue of the August 1, 2005, nunc pro tunc order, only Thornton and Holloway remained as claimants to the insurance surplus funds. As a result, applying the rationale from Meridian Land, these funds were subject to Thornton’s second writ of garnishment issued to the Monroe County Chancery Clerk.

¶ 14. We find that the chancery court erred in finding that Thornton’s writ of garnishment was premature; consequently, there was no “sound and unmistakable basis” to excuse Holloway’s confession of error. We reverse and render the judgment of the chancery court.

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

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

      . As Holloway was currently in bankruptcy, the funds were actually to be paid to the Chapter 13 Trustee.


text:
    Arvin Phillip JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00552-COA.
    Court of Appeals of Mississippi.
    Nov. 30, 2010.

      Charles E. Lawrence Jr., attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. On February 27, 2009, Arvin Phillip Johnson was convicted of possession of cocaine by a jury in the Marion County Circuit Court and sentenced to sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with nine years suspended, five years of post-release supervision, and to pay a $3,000 fine. He now appeals claiming that: the evidence of cocaine should have been excluded as it was the result of an illegal search, and the court erred in denying his motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. On December 5, 2006, agents from the Mississippi Bureau of Narcotics (MBN) were in Marion County, Mississippi, conducting a drug buy-bust operation. The target of the operation was an individual named “Teddy,” who was allegedly selling drugs out of a small, locally-owmed convenience store located on Highway 13 South. The MBN agents used a wired, confidential informant to make contact with Teddy and buy some marijuana using marked “buy” money. There were two sets of MBN teams: one located north of the store, and one located south of the store. However, the store was not under visual surveillance. When the informant arrived at the store to purchase the drugs, Teddy came outside and got into the informant’s vehicle. Teddy then placed a call to a man named Walter, who arrived a short time later with the marijuana. Teddy sold the drugs to the informant and gave half of the marked money to Walter, who got into his car and drove away. One of the MBN teams was alerted to stop Walter and arrest him.

¶ 3. In the meantime, the informant had returned to the other MBN team with the purchased marijuana. The remaining agents immediately went to the store to arrest Teddy. In the few minutes between the time that the informant had left and the agents had arrived, another ear drove up to the store and parked under the store’s awning, by the gas pumps. Teddy and another individual were standing in between the car and the front door talking. The individual with Teddy was Johnson. The agents put both men in handcuffs and had them lie on the ground, although Johnson was not considered to be under arrest at that point. The agents conducted a pat-down search of both men, but they found no weapons, drugs, or marked “buy” money. The agents then conducted a search of the nearby vehicle. When the sun visor of the car was pulled down, a plastic white grocery bag fell out. Inside the bag was a rock-like substance, later confirmed to be 0.7 gram of cocaine. A gun was also found just inside the front door of the store.

¶ 4. Johnson was indicted for possession of a controlled substance (cocaine) in violation of Mississippi Code Annotated section 41-29-139(c) (Rev.2005). As Johnson previously had been convicted and sentenced to eight years in the custody of the MDOC for possession of a controlled substance, he was charged as a second and subsequent offender under Mississippi Code Annotated section 41-29-147 (Supp.2006). On the day of the trial, February 27, 2009, Johnson filed a motion to suppress the evidence of the cocaine, claiming it was the result of an illegal search. He also filed a motion in limine to exclude all references to his previous conviction. The circuit judge denied the motion to suppress, but sustained the motion in limine.

¶ 5. Johnson was convicted and subsequently sentenced to sixteen years in the custody of the MDOC, with nine years suspended upon successful completion of the conditions of his sentence, five years of post-release supervision, and to pay a $3,000 fine. Johnson filed a motion for a JNOV or, in the alternative, a new trial, which was denied by the circuit court. Johnson now appeals the denial of his motion to suppress and his motion for a JNOV or, alternatively, a new trial. Finding no error, we affirm the judgment of the circuit court.

I. Whether the circuit court erred in denying Johnson’s motion to suppress.

¶ 6. Johnson contends that the circuit court erred in denying his motion to suppress the evidence as the search of the vehicle was illegal, and the evidence obtained from the search should have been excluded. In reviewing a circuit court’s denial of a motion to suppress, we look to see “whether substantial and credible evidence existed to support the ruling.” Baker v. State, 991 So.2d 185, 187 (¶ 6) (Miss.Ct.App.2008) (citing Qualls v. State, 947 So.2d 365, 372 (¶ 18) (Miss.Ct.App.2007)). “[A]bsent a finding that the ‘[circuit court] applied an incorrect legal standard, com mitted manifest error, or made a decision contrary to the overwhelming weight of the evidence^]’ ” we will not disturb the court’s findings on appeal. Simmons v. State, 805 So.2d 452, 482 (¶ 64) (Miss.2001) (citing Taylor v. State, 733 So.2d 251, 255 (Miss.1999)). The standard of review of a circuit court’s admission or exclusion of evidence is abuse of discretion. Id. (citation omitted).

¶ 7. Individuals are protected from unreasonable searches and seizures by the Fourth Amendment to the United States Constitution. Tate v. State, 946 So.2d 376, 382 (¶ 17) (Miss.Ct.App.2006) (citing Unit ed States v. Grant, 349 F.3d 192, 196 (5th Cir.2003)). However, warrantless searches may be conducted in certain instances, such as “a consensual search, a search incident to arrest, an inventory search, a search under exigent circumstances if probable cause exists, and a search of a vehicle when making a lawful contemporaneous arrest.” Bradley v. State, 934 So.2d 1018, 1022 (¶ 7) (Miss.Ct.App.2005) (citing Graves v. State, 708 So.2d 858, 862-63 (¶ 2) (Miss.1997)).

¶ 8. Johnson correctly asserts that, at the time the vehicle was searched, he was not under arrest. Agent John Harless affirmed this when questioned by defense counsel, as follows:

Q. All right. Now at the time that my client, Arvin Johnson, was placed on the ground and cuffed, was he under arrest?
A. No, sir. Not at that time.
Q. All right. And he was not under arrest because there was — he was not the focus of this buy-bust; is that correct?
A. That’s correct.
Q. Had no information that he had done anything improper or violated the law whatsoever?
A. No, sir.

“[T]he Fourth Amendment of the United States Constitution ‘applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.’ ” McLendon v. State, 945 So.2d 372, 379 (¶ 15) (Miss.2006) (citing Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). Further, “an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Baker, 991 So.2d at 187 (¶ 8) (quoting Linson v. State, 799 So.2d 890, 893 (¶ 8) (Miss.Ct.App.2001)). In the case before us, Johnson arrived at the store immediately after the drug sale to the MBN informant, and Agent Harless testified that Johnson was detained mainly to make sure that evidence was not being taken from the scene.

¶ 9. We find that the search was reasonable to ensure the safety of law enforcement in the context of Teddy’s arrest. “It is a fundamental concept of police work that officers, in the course of conducting an investigation that involves close contact with persons suspected of criminal activity, are entitled to take reasonable precautions to ensure their safety.” Dees v. State, 758 So.2d 492, 495 (¶ 9) (Miss.Ct.App.2000). The purpose of a pat-down search is to ensure the safety of law enforcement. Anderson v. State, 16 So.3d 756, 760 (¶ 10) (Miss.Ct.App.2009) (citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Agent Harless testified that the MBN agents conducted a pat-down search of Teddy and Johnson for weapons and then performed a “wing-span search, which would be areas around them that[,] had a struggle ensued!,] they could easily ... obtain a weapon!.]” This included “the areas around the store, around the front of the store on the ground and the front ... compartment of the car where Mr. Johnson would have access to.”

¶ 10. Johnson argues that, as he was already handcuffed and on the ground, it was unnecessary to search the car for weapons. “If the protective search goes beyond what is necessary to determine if the suspect is armed, it is not longer valid under Terry[,] and its fruits will be suppressed.” Id. (quoting Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). To support his argument, Johnson cites to Ferrell v. State, 649 So.2d 831 (Miss.1995). In Ferrell, the Mississippi Supreme Court found that the search of Ray Anthony Ferrell’s car was not a search incident to arrest as Ferrell had already been “frisked, handcuffed, and placed in the back-seat” of the patrol car. Id. at 833. Therefore, the officer “could have had no reasonable fear that Ferrell might have a weapon.” Id. Similarly, in a recent case, Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 1723-24, 173 L.Ed.2d 485 (2009), the United States Supreme Court held that:

Police may search a vehicle incident to a recent occupant’s arrest only if the ar-restee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

(Emphasis added). As in Ferrell, the suspect in Gant had been handcuffed and put into the police car before the search took place. Therefore, both cases are distinguishable from the present one.

¶ 11. Here, the MBN agents, upon arriving at the store to arrest Teddy, encountered an unknown party, Johnson, who was talking to Teddy and standing next to a car. See United States v. Albert, 579 F.3d 1188, 1195 (10th Cir.2009) (“An individual’s known connection with drug transactions is a factor supporting reasonable suspicion to frisk that individual for weapons.”) (citing United States v. Garcia, 459 F.3d 1059, 1065 (10th Cir.2006)). Agent Harless testified that this situation, coupled with the loss of manpower, presented the MBN agents with an immediate safety concern. He stated:

A. [Tjypically in these type situations we operate with numbers, with numerical superiority for our safety. Ideally we had it planned where there were six of us to take down one person to insure our safety. Well, as a result of [Walter] leaving and us sending the other vehicle down here, we pulled in -with only three officers. And instead of the one person we were expecting, there were two people. So we’ve gone from expecting there would be six officers to arrest one person to three officers to deal with two individuals.
A situation where if a fight were to start or one started resisting, it would be entirely possible for someone to get to any type weapon.
Q. Was safety, officer safety, yours and the other officers, a concern at this time?
A. Yes, sir. Always is, especially in a situation where you’ve lost the numerical advantage.

Plus, as the circuit judge noted, Johnson was “in very close proximity to the driver’s door of the car.” Agent Harless testified:

Q. And [Johnson] is standing next to his car and he’s at the door of the driver’s door?
A. Yes, sir. It would be like if you exited your vehicle, you know, as you exited your vehicle and he stepped out to have a conversation. If you got out of your vehicle and he came out and you were carrying on a conversation.
Q. So all [Johnson] had to do was reach behind him real quick and open that door?
A. Yes, sir.

¶ 12. Further, in rejecting Johnson’s motion to suppress, the circuit court also observed that there are many instances where a handcuffed suspect may still “obtain weaponry or other items to the detriment and danger” of law enforcement. The United States Court of Appeals for the Fifth Circuit also has noted this danger, stating:

Handcuffs are a temporary restraining device; they limit but do not eliminate a person’s ability to perform various acts. They obviously do not impair a person’s ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person’s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person’s size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. Finally, like any mechanical device, handcuffs can and do fail on occasion.

United States v. Sanders, 994 F.2d 200, 209 (5th Cir.1993) (emphasis added) (footnote omitted). The circuit judge, sitting as the fact-finder, was in the best position to evaluate the evidence, such as Johnson’s height and build and his proximity to the vehicle, based on the totality of the circumstances. Thus, we agree with the circuit court’s finding that it was reasonable for law enforcement to search the front area of the car in order to ensure officer safety. We find that the circuit court did not abuse its discretion in denying Johnson’s motion to suppress as credible evidence existed to support the ruling. This issue is without merit.

II. Whether the circuit court erred in denying Johnson’s motion for a JNOY or, alternatively, a new trial.

¶ 13. For the purposes of efficiency and clarity, we will combine Johnson’s remaining issues. At trial, Johnson was convicted of possession of a controlled substance in violation of Mississippi Code Annotated section 41-29-139(c). Specifically, the jury found that Johnson, although not in actual possession of the cocaine, had constructive possession. Johnson argues that the State failed to prove all the elements of constructive possession; therefore, the evidence was insufficient to support his conviction. Johnson claims that there is neither any evidence that he drove the car to the store, nor that he was the owner of the vehicle where the drugs were found; consequently, he claims that he did not have constructive possession of the cocaine.

¶ 14. “A motion for a JNOV challenges the sufficiency of the evidence.” Thomas v. State, 14 So.3d 812, 822 (¶ 36) (Miss.Ct.App.2009) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). A court’s denial of a motion for a JNOV will be upheld if, “viewing the evidence in the light most favorable to the State,” a rational trier of fact could find that “the essential elements of the crime existed[.]” Id. “If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient.” Id.

¶ 15. “To support a conviction for possession of a controlled substance, ‘there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.’ ” McClellan v. State, 34 So.3d 548, 553 (¶ 15) (Miss.2010) (citing Wall v. State, 718 So.2d 1107, 1111 (¶ 13) (Miss.1998)). In Barnett v. State, 987 So.2d 1070, 1073(¶ 7) (Miss.Ct.App.2008), this Court defined constructive possession as follows:

Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent. Constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant. Roberson v. State, 595 So.2d 1310, 1319 (Miss.1992). “There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular contraband and was intentionally and consciously in possession of it. Curry v. State, 249 So.2d 414, 416 (Miss.1971).

Barnett, 987 So.2d at 1073 (¶ 7). “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Gales v. State, 29 So.3d 65, 76 (¶ 35) (Miss.Ct.App.2009) (quoting Curry, 249 So.2d at 416). In an instance like this case, where “the defendant is the driver but not the owner of the car that contains the drugs, the State must show additional incriminating facts to link the defendant to the contraband.” Harris v. State, 977 So.2d 1248, 1250 (¶ 7) (Miss.Ct.App.2008) (citing Ferrell, 649 So.2d at 835).

¶ 16. Here, we find that the State provided sufficient incriminating facts to support constructive possession. Johnson is correct that no one saw him in the car. However, we find it reasonable for the jury to infer that Johnson arrived in the car. It is the province of the jury “to resolve matters regarding the weight and credibility of the evidence.” Stevenson v. State, 733 So.2d 177, 186 (¶ 37) (Miss.1998) (quoting Hiter v. State, 660 So.2d 961, 964 (Miss.1995)). When the confidential informant left the convenience store, the vehicle in question was not present, nor was Johnson. When the police arrived minutes later, the vehicle was parked in front of the store, and Johnson was standing next to it, talking to Teddy. Further, there was no evidence presented that any other persons were there when the agents arrived, although a few store patrons did come and go while the detention and search were being conducted.

¶ 17. As to the ownership of the vehicle, it was determined that Johnson was not the owner; in fact, no definitive evidence was presented regarding who owned the car. However, when questioned about the ownership of the car, Agent Harless testified that: “I believe going from memory, and I could be incorrect, I believe the owner was Mr. Johnson’s mother.” He also stated that “later that evening as we were preparing to depart, I’m unsure if it was [Johnson’s] father or one of his family members arrived I believe to take custody of the vehicle.” Defense counsel raised no objection to this testimony. Therefore, it is reasonable to presume that Johnson was related to and/or knew the owner of the car. Moreover, Johnson was alone with Teddy, a known drug dealer. Johnson was standing next to the driver’s side of the car, within reaching distance of the sun visor where the cocaine was found. Viewing the evidence in the light most favorable to the State, we find that the State presented sufficient evidence for a reasonable and fair-minded jury to find Johnson guilty of constructive possession of a controlled substance.

¶ 18. Johnson also contends that it was error for the circuit court to deny his motion for a new trial. “[A] motion for a new trial challenges the weight of the evidence.” Fulgham v. State, 12 So.3d 558, 562 (¶ 20) (Miss.Ct.App.2009) (citing Hearn v. State, 3 So.3d 722, 741 (¶ 56) (Miss.2008)). Sitting as a “thirteenth juror,” this Court must “determine whether a verdict is against the overwhelming weight of the evidence^] ... examining] the evidence in the light most favorable to the verdict.” Patterson v. State, 37 So.3d 702, 704 (¶ 10) (Miss.Ct.App.2010) (citing Bush, 895 So.2d at 844 (¶ 18)). We will only reverse a circuit court’s denial of a motion for new trial when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Fulgham, 12 So.3d at 562 (¶ 20) (citing Hearn, 3 So.3d at 741 (¶ 57)).

¶ 19. After reviewing the evidence, we find that it supports the verdict. Teddy had Walter bring contraband to the store for the sale, and Johnson was present at the store, talking to Teddy, only a few minutes after the MBN informant bought drugs from Teddy. The cocaine was found in the driver’s sun visor, within Johnson’s reach. The evidence was that the car likely belonged to a relative of Johnson’s; there was no one else present who owned the vehicle, and the car was not there when the informant bought the marijuana from Teddy.

¶ 20. Therefore, we find that the evidence supports the circuit court’s denial of Johnson’s motion for a JNOV or, alternatively, a motion for a new trial and affirm.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH NINE YEARS SUSPENDED, FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $3,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The conditions of Johnson’s sentence was that he obtain a GED certificate and be subjected to evaluation and treatment for drug/alcohol dependency, including completion of the MDOC’s Intensive Drug and Alcohol Program.