author: DECUIR, Judge. SAUNDERS, J.

text:
    Jennifer Ann BREAUX v. ST. CHARLES GAMING COMPANY, INC. d/b/a Isle of Capri Casino, et al.
    Nos. 10-1349, 11-128.
    Court of Appeal of Louisiana, Third Circuit.
    June 22, 2011.
    Daryl A. Higgins, A. Mark Flake, Gau-dry, Ranson, Higgins & Gremillion, LLC, Gretna, LA, for Defendants/Applicants, St. Charles Gaming Company, Inc., American Guarantee and Liability Insurance Company.

      Robert E. Morgan, Attorney at Law, Lake Charles, LA, James F. DeRosier, DeRosier Law firm, L.L.C., Lake Charles, LA, for Plaintiff/Respondent, Jennifer Ann Breaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, OSWALD A. DECUIR, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

11 Jennifer Ann Breaux sued St. Charles Gaming Co., Inc., d/b/a Isle of Capri Casino, and American Guarantee and Liability Insurance Co., under general maritime law for damages resulting from a fall on the M/V Crown, a floating casino permanently moored to a dock in Lake Charles. The trial court granted summary judgment in Breaux’s favor on the issue of maritime jurisdiction and denied St. Charles Gaming’s cross motion for summary judgment on the same issue. St. Charles Gaming appealed the summary judgment and filed a writ application seeking review of the denial of summary judgment in its favor. The appeal and writ application have been consolidated for our review.

The allegations in the record before us reveal that Breaux arrived at the casino in the late evening of September 11, 2004 or in the early morning hours of September 12, 2004. She became intoxicated and, at 4:00 a.m., she fell from a stairway onto the ground below, suffering serious injuries. Her blood alcohol content was measured at 0.38%. Breaux pursued her claim under the general maritime law after the trial court granted summary judgment in favor of St. Charles Gaming on the issue of whether Louisiana state law provides a remedy for damages caused by an adult’s intoxication after the sale or serving of alcoholic beverages. In the first summary judgment, the trial court relied on La.R.S. 9:2800.1, which provides in part:

The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.

In an effort to circumvent Louisiana’s anti-dram shop liability law, Breaux alleges that her cause of action is controlled by federal maritime law which contains no similar provision barring the claims asserted herein. Breaux’s claim of admiralty | jurisdiction is based on the fact that her fall occurred on a permanently moored floating casino, a watercraft she contends is a vessel in navigation for purposes of general maritime law. The trial court agreed, stating in summary judgment that “plaintiffs claim falls within admiralty jurisdiction[.]” For the following reasons, we reverse, grant the writ application, and render judgment in favor of St. Charles Gaming.

The record before us shows that the M/V Crown was originally placed into service in Lake Charles as a functioning gambling boat that would cruise the Calcasieu River and Lake Charles while providing gaming activities for its passengers. In 2001, the Louisiana legislature amended the gambling laws so as to prohibit gambling boats in Lake Charles from conducting cruises or excursions. In accordance with La.R.S. 27:65, since March 27, 2001, the M/V Crown has been docked and its licensee, St. Charles Gaming, has not conducted any cruises. The M/V Crown was fitted with four winches, each holding steel cables to permanently secure the vessel to the dock. Utilities including electricity, water, telephone, sewer, cable television, surveillance, and data processing lines were attached to the vessel from land-based sources. Since the law was changed, the crew has been significantly-reduced, and the captain is no longer responsible for any navigational duties. The M/V Crown has not been licensed by the Coast Guard since 2001. Nevertheless, the vessel still contains the equipment necessary for navigation and theoretically could sail again in the future if brought back into compliance with Coast Guard regulations.

In Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005), the Supreme Court discussed “the distinction drawn by the general maritime law between watercraft temporarily stationed in a particular location and those permanently affixed Rto shore or resting on the ocean floor.” 543 U.S. at 493-494, 125 S.Ct. 1118. The Court explained and clarified the term “vessel in navigation” with the following analysis:

[T]he point was that structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time....
Instead, the “in navigation” requirement is an element of the vessel status of a watercraft. It is relevant to whether the craft is “used, or capable of being used” for maritime transportation. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft’s use “as a means of transportation on water” is a practical possibility or merely a theoretical one.

543 U.S. at 496, 125 S.Ct. 1118 (citations omitted.) In support of its rationale, the Court discussed with approval the longstanding case of Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926), in which a wharfboat previously in navigation was no longer a “vessel” after it was permanently attached to the shore by cables and used as a floating platform to transfer freight and for storage. The Court also cited with approval Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.1995), a case involving a floating casino permanently moored to the shore but otherwise capable of navigation. Finding the vessel was removed from navigation, the Pavone court described the casino as a work platform, which status precluded it from being a vessel for purposes of the general maritime law.

Since the Stewart case was handed down, the United States Fifth Circuit decided De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir.2006), which held that the M/V Crown, the same gambling boat at issue in the present case, is not a vessel for purposes of admiralty jurisdiction. St. Charles Gaming refers this court to other jurisprudence holding that, since the 2001 amendment to La.R.S. 27:65, | .(Louisiana’s permanently moored casinos are not vessels in navigation for purposes of maritime jurisdiction: Martin v. Boyd Gaming Corp., 374 F.3d 375 (5th Cir.2004), cert. denied, 543 U.S. 1187, 125 S.Ct. 1396, 161 L.Ed.2d 189 (2005); Hertz v. Treasure Chest Casino, LLC, 274 F.Supp.2d 795 (E.D.La.2003); Bourgeois v. Boomtown, LLC, 2009 WL 5909119 (La. App. 5 Cir. 5/21/09), writs denied, 09-1357 (La.9/25/09), 18 So.3d 68; cert. denied, — U.S. -, 130 S.Ct. 1699, 176 L.Ed.2d 182 (2010); In re Silver Slipper Casino Venture, 264 Fed.Appx. 363 (5th Cir.2008).

In this appeal, Breaux disputes the correctness of the De La Rosa decision, surmising the court had incomplete information regarding the M/V Crown and describing the case as a radical departure from U.S. Supreme Court jurisprudence. To the contrary, we find nothing in the De La Rosa opinion indicating the court had incomplete or inaccurate facts regarding the M/V Crown, and we find the jurisprudence determinative of this case to be squarely in line with the position advocated by St. Charles Gaming.

The cases relied upon by Breaux in support of maritime jurisdiction include Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990); and Quinn v. St. Charles Gaming Co., Inc., 01-794 (La.App. 3 Cir. 2/6/02), 815 So.2d 963, writ denied, 02-694 (La.4/12/02), 813 So.2d 412. None of these cases involve watercraft that were permanently moored to the shore. The Quinn case specifically pertains to the M/V Crown, but the cause of action arose in 2000, while the vessel was conducting cruises and other excursions in Lake Charles. Sisson focused on a yacht that caught fire while docked at a marina, and Grubart involved a barge used for work in the Chicago River. None of these cases pertained to vessels which had been taken out of | finavigation as the M/V Crown was in 2001. Breaux also cites Bd. of Comm’rs v. M/V Belle of Orleans, 535 F.3d 1299 (11th Cir.2008), a maritime lien case in which the court specifically noted it would use a broader definition of the term “vessel” than in a maritime tort case.

We conclude the trial court erred in finding maritime jurisdiction in this case. Breaux was injured while on a gaming boat permanently attached to the shore, not used in navigation, and not performing any traditional maritime activity. Federal jurisprudence previously cited herein has interpreted maritime jurisdictional rules and definitions as they pertain to similar casinos, finding such casinos to be outside the definition of a “vessel in navigation.” We choose to follow that jurisprudence. As this court stated in Gaspard v. Transworld Drilling Co., 468 So.2d 692, 695 (La.App. 3 Cir.1985), “uniformity of general maritime law is best served by following the rule established by our federal brethren.”

Accordingly, we reverse summary judgment granted in Breaux’s favor in the appeal filed by St. Charles Gaming. We likewise grant the writ application filed by St. Charles Gaming seeking reversal of the denial of summary judgment on the same issue.

Summary judgment is hereby granted in favor of St. Charles Gaming, and Breaux’s claims asserted under the general maritime law are hereby dismissed. Costs of these appellate proceedings are assessed to Jennifer Ann Breaux.

REVERSED, WRIT GRANTED, AND RENDERED.

SAUNDERS, J., dissents and assigns written reasons.

THIBODEAUX, Chief Judge, dissents for the reasons assigned by Judge SAUNDERS.

SAUNDERS, J.

dissents and assigns written reasons.

hi disagree with the majority opinion in both its methodology and result regarding whether the M/V Crown is a “vessel” for purposes of federal admiralty jurisdiction, and whether federal admiralty jurisdiction is proper. Regarding methodology and whether the M/V Crown is a “vessel,” the majority opinion seems to draw a bright-line rule that since our legislature enacted La.R.S. 27:65 “Louisiana’s permanently moored casinos are not vessels in navigation for purposes of maritime jurisdiction.” Such a bright-line rule does not follow the methodology that is mandated by the United States Supreme Court in Stewart v. Dutra Construction Company, 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005).

The Stewart court, as courts have done since nearly the dawn of this issue, looked to 1 U.S.C.A. § 3 to determine if a watercraft is a “vessel.” “The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C.A. § 3 (emphasis added). The majority opinion fails to specifically address whether the M/V Crown fits within the language of 1 U.S.C.A. § 3. Instead, it cites De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir.2006) as support for its conclusion that |;>the M/V Crown is not a “vessel” for purposes of federal admiralty jurisdiction. It is true that in De La Rosa the United States Fifth Circuit found that the M/V Crown was not a “vessel” in navigation for purposes of maritime jurisdiction. However, Breaux contends that the record available to the De La Rosa court was insufficient and explains that this insufficiency is why-the United States Fifth Circuit reached its conclusion. Our court is not privy to the record available to the De La Rosa court. An appellate court decides its cases on the record before it. See La.Code Civ.P. art. 2164. I feel that this court should focus on the record before it and make a proper analysis of whether the M/V Crown is a “vessel” under 1 U.S.C.A. § 3 rather than create a hard and fast rule that federal admiralty jurisdiction does not apply to all permanently moored watercraft casinos in Louisiana.

As previously stated, I also do not agree with the result of the majority opinion regarding whether the M/V Crown is a “vessel” for purposes of federal admiralty jurisdiction. My reading of the record before us is that the M/V Crown is clearly “a watercraft capable of being used as a means of transportation on water.” 1 U.S.C.A. § 3. The majority opinion states, “the [M/V Crown] still contains the equipment necessary for navigation and, theoretically, could sail again in the future if brought back into compliance with Cost Guard regulations.” My reading of 1 U.S.C.A. § 3 is that having the proper paperwork from the Coast Guard is not a factor in whether a watercraft is a “vessel” for federal admiralty jurisdiction purposes. Rather, this statement made by majority opinion that the M/V Crown “contains the equipment necessary for navigation and ... could sail again in the future” is all that is necessary for this watercraft to be a “vessel” under 1 U.S.C.A. § 3.

Further, my opinion that the M/V Crown is a “vessel” under 1 U.S.C.A. § 3 ladoes not end the analysis necessary to determine whether federal admiralty jurisdiction is applicable to the case before us. Federal admiralty jurisdiction and vessel status are separate issues.

The majority opinion finds no federal admiralty jurisdiction in this case. Again, I disagree with the majority opinion’s methodology and result.

The proper methodology is set forth in Grubart, Inc. v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995). In Grubart, the United States Supreme Court, when discussing the proper test to determine whether federal admiralty jurisdiction is applicable to a case before a court, stated the following:

a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C.App. § 740. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved,” [Sisson v. Ruby,] 497 U.S. [358], at 363, 110 S.Ct. [2892], at 2896, 111 L.Ed.2d 292, to determine whether the incident has “a potentially disruptive impact on maritime commerce,” id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct. at 2897, 2896, and n. 2.

Grubart, Inc., 513 U.S. at 534, 115 S.Ct. at 1048.

Accordingly, the proper methodology consists of a determination of whether Breaux has met the location test and the two prongs of the connection test. Here, the majority opinion fails to address the location test or the first prong of the connection test. Rather, it simply states “Breaux was injured while on a gaming boat ... not performing any traditional maritime activity.”

Finally, I disagree with the result of the majority opinion that federal admiralty 1 Jurisdiction is not applicable to this case. Clearly, Breaux has met the location test. The alleged tort, serving excessive alcoholic beverages to an intoxicated passenger, occurred on navigable water, i.e. the Calca-sieu River.

I also feel that Breaux has met the first prong of the connection test. This court, in Quinn v. St. Charles Gaming Co., Inc., 01-794, p. 4 (La.App. 3 Cir. 2/6/02), 815 So.2d 963, 967, writ denied, 02-694 (La.4/12/02), 813 So.2d 412, dealt with an issue nearly identical to the one before us. In Quinn, the estate of a motorist who was killed in a collision with an extremely intoxicated casino patron brought a tort action against the casino boat company for its provision of excessive amounts of alcohol to the patron without adequate supervision. This court, in determining whether Quinn’s estate met the first prong of the connection test heeded the direction of Grubart, 513 U.S. at 538-39, 115 S.Ct. at 1051 and determined “the intermediate level of possible generality.” It did so by describing it “as the provision of alcohol to passengers on board a vessel without adequate supervision, with the occurrence of damages on land.” Quinn, 815 So.2d at 967.

Here, the incident can be characterized “as the provision of alcohol to passengers on board a vessel without adequate supervision, with the occurrence of damages” on that very same boat. Id. The Quinn court then found that “the provision of alcohol in this manner could possibly have a disruptive effect on maritime commerce, such as where a large party of passengers become inebriated injuring themselves or other patrons or fall overboard causing a disruption to maritime commerce due to search and rescue operations.” Based on the reasoning of Quinn, I feel that Breaux has met the first prong of the connection test.

Likewise, I feel that the Quinn court’s reasoning dictates a finding that Breaux also met the second prong of the connection test. The second prong of the connection test was discussed in Grubart, 513 U.S. at 539-40, 115 S.Ct. at 1051, wherein the United States | ¡^Supreme Court stated:

In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. We ask whether a tortfeasor’s activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand.

In performing the proper analysis of the connection test, the Quinn court stated, “[w]e have no difficulty in finding that the general character of the activity at issue shows a substantial relationship to a traditional maritime activity. The duties owed by vessel owners to their passengers have long been found a traditional maritime concern.” Quinn, 815 So.2d at 968. I agree with the Quinn court. Carrying passengers and providing for their safety are clearly a traditional maritime activities.

The majority opinion distinguishes Quinn from the case before us by pointing out that Quinn was decided while the M/V Crown was conducting cruises. While this is accurate, whether the M/V Crown was conducting cruises is not relevant as to why Breaux cited Quinn. Breaux cited Quinn to bolster her position that this court has already reached a determination on whether federal admiralty jurisdiction is applicable to the M/V Crown in its distribution of alcoholic beverages to patrons and the resulting damages. Whether the M/V Crown conducts cruises is a relevant factor in determination of its status as a “vessel,” not a fact conveniently necessitating disregard through distinguishment.

In my view, given the analytical framework established by the United States Supreme Court, and the proper application of that framework, federal admiralty jurisdiction applies to the case before us. Accordingly, I would affirm the trial court and deny the writ.

I would note that the defendant, St. Charles Gaming Company, Inc. (St. Charles), while conceding the capability of the M/V Crown to be used in navigation, countered that it would lose its gaming license if it did navigate. What St. Charles does not say is that the 1 ^legislation prohibiting its gaming while in navigation was enacted at its request and the request of all gaming watercraft owners. They did so to increase their profits by decreasing their costs through employing a smaller crew and increasing their revenue by not having players leave the watercrafts rather than be trapped on them during a cruise. St. Charles has benefitted greatly from the legislature granting its request. Not satisfied, it now invites us to relieve it from Jones Act Protection for its crew and passengers as a byproduct of legislature that has already given it great benefit. In my view, we should decline this invitation. Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Dewayne Ladale TUGLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00171-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied May 3, 2011.
    Certiorari Denied Sept. 1, 2011.
    George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Midday on October 24, 2007, Bonnie Brassel arrived at the home of William and Carolyn Garrett, her sister and brother-in-law, to celebrate Carolyn’s birthday. As she was about to enter the house she saw a man with a gun and screamed out. The Garretts heard the scream and opened the door. The assailant then pointed the gun at William and demanded money. William was able to slam the door. Unsure what to do, the would-be robber fled to his awaiting dark-brown truck. After the Garretts contacted law enforcement, Detective Mario Magsby noticed a brown truck and gave chase. The truck crashed into another vehicle, and the driver fled. However, the driver was soon found and identified as Dewayne Tugle. Tugle was later tried and convicted in the Circuit Court of Coahoma County of attempted armed robbery, felon in possession of a weapon, and felony fleeing. Tugle now appeals.

FACTS

¶2. On October 24, 2007, at approximately 11:00 a.m., Brassel pulled into the driveway of the Garretts’ home and pulled around to the back of the house. She testified that she noticed an unoccupied dark-brown, older-model truck with light colors on it. During the ensuing investigation, she identified the truck Tugle was driving as the truck she saw that day. As she walked toward the back door a man appeared from around the house with a gun and approached her. Brassel estimated that the man was ten feet away when she first saw him. Brassel described the man as a black male having a bald head, a beard, and wearing a light-colored sweatshirt. She further described the gun as light-colored. Brassel testified that at this point William opened the back door, and Brassel ran in the opposite direction.

¶ 8. She testified that she was not able to identify Tugle from a photographic lineup shown to her the afternoon of October 24th. Brassel explained that she was unable to make an identification because the pictures were blurry, and she did not have her reading glasses when she looked at the array. At trial, Brassel identified Tugle as the man with the gun she saw in the Garretts’ yard on October 24th. She stated, “at the moment that I saw [Tugle] when we came in here, I just knew it was him.”

¶4. Carolyn was the next to testify. She stated that she, William, Brassel, and others planned to eat lunch together to celebrate her birthday. Carolyn stated that on the day of the attempted robbery William indicated that Brassel was at the house, and Carolyn went to the kitchen to greet her. Once there, Carolyn heard a loud scream. She and William thought that a dog had scared Brassel, so William opened the door. However, William immediately tried to close the door. Carolyn also testified that someone was trying to kick the door open, but William finally managed to shut it and apply the dead-bolt lock after three attempts. Carolyn then testified that William proclaimed: “[H]e’s got a gun. He’s got a gun. Go get the gun.” Carolyn stated that once William locked the door, she saw a man in the kitchen window approximately six to eight feet away from her hesitate before running off. Carolyn stated that she did not get a good look at him but that he was a black man, heavyset, wearing a light-colored sweatshirt. Once he ran off, Carolyn went outside to check on her sister and saw the man running toward a dark-brown truck parked next door. She then ran back inside with Brassel and called the police as she and William looked out of the front window and saw the dark-brown truck drive away.

¶ 5. Carolyn was later shown a photographic lineup containing a picture of Tu-gle, but she was unable to identify him. She testified that she later identified the dark-brown truck Tugle was driving when he crashed as the truck she saw the assailant drive away from her home. However, on cross-examination, she testified that she could not be sure that it was the same truck, but it looked exactly like the one she had seen at her house.

¶ 6. Detective Magsby testified that he worked for the Coahoma County Sheriffs Department and received a call from that indicated that an attempted robbery had taken place. The description of the perpetrator was a black male, with a beard, a bald head, and wearing a light-colored sweatshirt who left the scene of the crime in a dark-colored pickup truck. On his way to the Garretts’ home, Detective Magsby passed a truck that matched the description given. He observed that the truck failed to make a complete stop at a stop sign. Additionally, the driver’s actions of continuously looking at Detective Magsby’s unmarked patrol car raised Detective Magsby’s suspicions. He noted that the driver had on a white t-shirt and red baseball cap. Detective Magsby turned around, got behind the truck, and called in the license-plate number. Mags-by then activated his vehicle’s blue lights, which were mounted on the interior dashboard. The truck initially slowed as if to stop, but suddenly, it sped up. At this point, Detective Magsby turned on the unmarked patrol car’s siren. The driver momentarily lost control and nearly hit a utility pole, but the truck continued to evade Detective Magsby.

¶ 7. Detective Magsby testified that it was raining, and he estimated the truck’s speed at thirty-five to forty miles an hour. During the chase, the driver of the truck lost control of the vehicle several times. Detective Magsby also stated that there were other cars and traffic on the road during the chase. Detective Magsby testified that upon approaching one intersection, the truck bypassed it by driving through an adjacent parking lot. Soon after, the truck lost control for the last time and collided with a parked car. The driver exited the truck and started running.

¶ 8. Although he was momentarily stuck in traffic, Detective Magsby gave chase. However, he lost sight of the driver. Another detective showed up on the scene, and the two detectives began searching the area. Walking past where he last saw the driver, Detective Magsby found a white t-shirt and red baseball cap on the ground. A few moments later Detective Magsby saw a black man with a bald head and no shirt running down an adjacent alleyway. A short chase ensued before additional law-enforcement officers arrived and the driver, who was Tugle, was apprehended.

¶ 9. Once Tugle was in custody, Detective Magsby went back to the scene of the crash. In the truck he found Tugle’s wallet and a light-colored sweatshirt on the backseat. A gun case was also found within a block of the crash. The gun case contained a loaded .38-caliber pistol. Detective Magsby learned that the pistol and truck belonged to John Tugle, who is Tu-gle’s uncle. Detective Magsby identified Tugle as the driver of the truck.

¶ 10. Detective Magsby testified that he later went to the Garretts’ home and showed William, Carolyn, and Brassel a photographic lineup containing Tugle’s picture. However, no one could make a positive identification of Tugle. On cross-examination, Detective Magsby stated that William actually picked a photograph that was not Tugle.

¶ 11. On cross-examination, Detective Magsby testified that he could not see if Tugle was carrying anything when he exited the truck. Detective Magsby also stated that no fingerprints were found on the pistol, gun case, or any of the bullets recovered. Additionally, Tugle’s defense attorney pointed out that the date on the printout resulting from Detective Mags-by’s calling in the truck’s license-plate number was dated the day before the attempted robbery. However, Detective Magsby stated that it must have been a typo.

¶ 12. William was the last witness for the State. He testified that he opened the door to let Brassel inside and there was a man at the bottom of the steps with a gun in one hand, which was pointed at William, and a small stick in the other. William testified that the man with the gun told him to give him money. William immediately tried to shut the door, but the armed man tried to push his way inside. William testified that he pushed the armed man out of the house with the door and locked it behind him. William stated that once the armed man left, he looked out of the window and saw a dark-colored truck drive away. William stated that he “was scared to death.”

¶ 13. William described the gun as a .38 or .32-caliber, short-barreled, light-colored “revolver.” He identified the gun that was found in the blue gun case as the gun that was pointed at him. He described the man that pointed the gun at him as a black male, with a bald head, and a beard. William also stated that the light-colored sweatshirt that was found on the backseat of the wrecked truck was the shirt that the attempted robber had been wearing. When asked about his misidentification when shown the photographic lineup by Detective Magsby, William explained that the photograph he had selected was his best guess that day as to the picture of the attempted robber. However, William identified Tugle in court as the person who had tried to rob him.

¶ 14. Ruthie Lott was the defense’s first witness. She was the owner of the vehicle that Tugle crashed into. She testified that she heard the crash and looked outside. She saw Tugle exiting the truck. Lott testified that she saw Tugle immediately after the crash, and she did not see a blue gun case or gun.

¶ 15. Tugle’s mother and uncle testified on his behalf. John, Tugle’s uncle, testified that the truck and gun were his and that he had let Theresa, Tugle’s mother, borrow them. Theresa testified that she placed the gun and gun case underneath the truck seat. However, Theresa stated that she did not tell Tugle that the gun was in the truck. She further stated that she was working at the time of the attempted robbery.

¶ 16. Dawn Holmes testified that she and Tugle were members at the same church. She stated that she spoke with Tugle the day of the attempted robbery at 10:49 or 10:50 a.m., and the call lasted seventeen minutes. During cross-examination, she stated that the reason she was so sure of the time and length of the call was because it was lunch time.

¶ 17. Tugle took the stand and testified in his own defense. He testified that he was a convicted felon, but he denied attempting to rob anyone. When asked about the car chase, Tugle stated that he saw a black car behind him and a patrol car behind the black car. He believed the patrol car wanted the black car to stop. Tugle testified that he never saw Detective Magsby’s blue lights and was not trying to elude Detective Magsby. Tugle further stated that he had never seen the gun that was found. Tugle testified that he never lost control of his vehicle prior to crashing into Lott’s car. Tugle stated that after the crash, he was dazed, and his head was bleeding. He claimed he took his shirt off and held it to his head. Tugle testified that his cellular phone billing report showed that he had spoken with Holmes and corroborated Holmes’s testimony.

¶ 18. During cross-examination, Tugle stated that at the time Detective Magsby was behind him, he was heading to his mother’s house. Tugle testified he was wearing a white t-shirt, red skull-cap, and pajama pants. Tugle stated that he ran after the crash because he did not want to go to jail for not having car insurance. As a rebuttal witness, Detective Magsby held up the white t-shirt that was found during the search for Tugle. Detective Magsby noted that the t-shirt did not have any blood on it.

PROCEDURAL HISTORY

¶ 19. Tugle was indicted on four counts. Counts I and II alleged that Tugle had attempted to arm rob William and Carolyn, respectively. Count III alleged that Tugle was a felon in possession of a weapon. And Count IV alleged that pursuant to Mississippi Code Annotated section 97-9-72 (Rev.2006), Tugle operated his vehicle in a reckless manner when he failed to come to a stop after being given a signal to stop from a law-enforcement officer who had reasonable suspicion that Tugle had committed a crime. Following the State’s case-in-chief, the trial court granted Tu-gle’s motion for direct verdict as to Count II, but the court allowed the case to proceed on Counts I, III, and IV. The jury subsequently returned guilty verdicts on all three remaining counts. The trial court sentenced Tugle to twenty-four years in the custody of the Mississippi Department of Corrections for Count I, eight years for Count III, and five years for Count IV, with the sentence in Count I to run consecutively to the sentence in Count III, the sentence in Count III to run consecutively with Count I, and the sentence in Count IV to run concurrently with Count I and Count III. Tugle now appeals.

DISCUSSION

I. IDENTIFICATION JURY INSTRUCTION

¶20. Tugle argues that the trial court erred in refusing proposed jury instruction D-2 on identification, which stated:

The Court instructs the Jury that in reaching your verdict you are to consider all of the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of DEWAYNE TUGLE as the perpetrator of the crime. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict DEWAYNE TUGLE you must be satisfied beyond a reasonable doubt of the accuracy of the identification of DEWAYNE TUGLE. If, after considering all of the evidence concerning the crime and the witnesses] identification of DEWAYNE TUGLE as the person who committed the crime, you are not convinced beyond a reasonable doubt that he is the person who committed the crime, then you must find him not guilty.
Identification testimony is an expression of belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising the identification testimony of a witness, you should consider the following:
1) Did the witness have an adequate opportunity to observe the offender?
2) Did the witness observe the offender with an adequate degree of attention?
3) Did the witness provide an accurate description of the offender after the crime?
4) How certain is the witness of the identification?
5) How much time passed between the crime and the identification?
If, after examining all of the testimony and the evidence, you have a reasonable doubt that DEWAYNE TUGLE was the person who committed the crime, then you must find DEWAYNE TUGLE not guilty.

¶ 21. Tugle concedes that a trial court is required to give such an instruction, if requested, when “the identification of the accused rests entirely upon the testimony of a single witness.” Thomas v. State, 766 So.2d 809, 811 (¶ 8) (Miss.Ct.App. 2000). However, Tugle argues that because his convictions relied upon the testimony and identification of witnesses who had previously failed to identify him as the perpetrator, and in fact identified other individuals, he was entitled to have the jury instructed with jury instruction D-2.

¶ 22. Jury instruction D-2 was approved by the Mississippi Supreme Court in Davis v. State, 568 So.2d 277, 280 (Miss.1990). However, as stated above, a defendant is only entitled to such an instruction if requested and if he is identified as the guilty party by, at most, one witness to his alleged crime. Warren v. State, 709 So.2d 415, 421 (¶ 28) (Miss.1998). Although it is true that William and Brassel failed to correctly identify him prior to trial, they did in fact testify that Tugle was the individual who had attempted to arm rob them. Further, through cross-examination, the jury was made aware of William’s pretrial misidentification. As such, we find that the trial court did not err in refusing jury instruction D-2. This issue lacks merit.

II. LATE DISCOVERY

¶ 23. Brassel failed to identify Tugle in a pretrial photographic lineup, and she did not identify him at court during Tu-gle’s first trial. However, she did make an in-court identification at his second trial. Tugle objected and argued that Bras-sel’s identification amounts to a discovery violation. At the conclusion of the subsequent bench conference, the trial court initially sustained the objection. However, the trial court asked Tugle’s defense counsel what he required to cure the discovery violation, and a transcript of Bras-sel’s testimony during Tugle’s first trial was requested. The trial court arranged for Tugle’s defense counsel to received the transcript by the end of the day, which was Monday, August 17, 2009. The trial court also continued the trial until Wednesday morning in order to give Tu-gle’s defense counsel an adequate amount of time to review the transcript.

¶ 24. Wednesday morning, Tugle’s trial resumed. Tugle’s defense counsel stated that he still objected to Brassel’s identifying Tugle in court. However, he abandoned the objection based upon a discovery violation and argued Brassel’s identification would be unfairly prejudicial given the fact that Brassel could not identify Tugle at the time of the crime or during Tugle’s first trial. The prosecutor explained that although Brassel could not identify Tugle from a photographic lineup shortly after the commission of the crime, Brassel told the prosecutor after Tugle’s first trial that after seeing Tugle in person, she was sure he was the individual who had tried to rob her and William. After hearing additional argument on the matter, the trial court noted that there was no longer an objection based upon a discovery violation and held that Tugle’s defense counsel’s current objection based upon prejudice was overruled as the trial court found the testimony to be more probative than prejudicial.

¶ 25. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion.” Montgomery v. State, 891 So.2d 179, 182 (¶ 6) (Miss.2004). The supreme court has enumerated the following procedures when a discovery violation is asserted before the trial court:

1. Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc.
2. If, after this opportunity for familiarization, the defendant believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue.
3. If the defendant does request a continuance, the State may choose to proceed with trial and forego using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance.

Randolph v. State, 852 So.2d 547, 564 (¶ 52) (Miss.2002).

¶ 26. The court further stated:

When the State fails to follow discovery procedures a reversal is not warranted in every case. Box v. State, 437 So.2d [19] at 21 [ (Miss.1983) ]. This Court has held that a “[n]on-discovered evidence may be admitted at trial if the party against whom that evidence is offered is given a reasonable opportunity to make adequate accommodation.” Robinson v. State, 508 So.2d 1067, 1071 (Miss.1987).

Id. The trial court followed these guidelines and granted Tugle’s defense counsel time to review Brassel’s former testimony. Additionally, Tugle’s defense attorney effectively abandoned his objection based upon the prosecution’s alleged discovery violation. As such, we find this issue without merit.

III. WEIGHT OF THE EVIDENCE

¶ 27. Tugle argues that his convictions for attempted armed robbery and felon in possession of a firearm were not supported by the weight of the evidence. In Wilkins v. State, 1 So.3d 850, 854 (¶ 11) (Miss.2008), the supreme court held:

A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial.... [T]his Court set out the standard of review for weight of the evidence, stating:
when reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We have stated that on a motion for new trial:
... The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
The evidence should be weighed in the light most favorable to the verdict.

(Internal citations omitted).

¶ 28. The jury was presented with testimony and evidence that Tugle: (1) attempted to feloniously take, (2) money from William, (3) against his will, (4) by putting William in fear of immediate injury by the exhibition of a deadly weapon, i.e., the gun. See Miss.Code Ann. § 97-3-79 (Rev.2008). Further, Tugle admitted he was a prior-convicted felon. See Miss. Code Ann. § 97-37-5 (Supp.2009). We find that allowing the verdicts to stand will not sanction unconscionable injustice. This issue has no merit.

IV. LEGAL SUFFICIENCY

¶ 29. Tugle argues that the evidence presented to the jury was lacking, as a matter of law, to sustain a conviction under Court IV, felony fleeing. The supreme court has stated:

[T]he critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Carr v. State, 208 So.2d 886, 889 (Miss.1968). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Stewart v. State, 986 So.2d 304, 308 (¶ 12) (Miss.2008) (quoting Jones v. State, 904 So.2d 149, 153-54 (¶ 12) (Miss.2005)).

¶30. Under Count IV, Tugle was alleged to have violated Mississippi Code Annotated section 97-9-72. According to section 97-9-72(1):

The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor....

However, section 97-9-72(2) enhances the punishment when, “[a]ny person ... by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life.... ” The only evidence of the chase came from the testimonies of Detective Magsby and Tugle. We find that Tugle’s actions satisfy the elements above and that the evidence presented was legally sufficient to support the conviction for Count IV. As such, this issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, ATTEMPTED ARMED ROBBERY, AND SENTENCE OF TWENTY-FOUR YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT III AND CONCURRENTLY WITH THE SENTENCE IN COUNT IV; COUNT III, FELON IN POSSESSION OF A FIREARM, AND SENTENCE OF EIGHT YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I AND CONCURRENTLY WITH THE SENTENCE IN COUNT IV; AND COUNT IV, FELONY FLEEING, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I AND III, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEALS ARE ASSESSED TO COAHOMA COUNTY.

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


author: ISHEE, J.,

text:
    Khristoffer Mandell HEARRON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00366-COA.
    Court of Appeals of Mississippi.
    Jan. 25, 2011.
    Rehearing Denied April 26, 2011.
    Certiorari Denied Sept. 1, 2011.
    Khristoffer Mandell Hearron, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. After three separate convictions of drug charges over a span of several years, Khristoffer Hearron was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC) under the habitual-offender statute by the Warren County Circuit Court in December 1995. Hearron appealed his conviction at least once, in 1998, and it was denied in 1999. He later filed this motion for post-conviction relief (PCR), which was subsequently dismissed by the circuit court as a successive writ. Aggrieved, he appeals. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In November 1990, Hearron pleaded guilty in the Warren County Circuit Court to possession of cocaine. Hearron was sentenced to three years in the custody of the MDOC and was ordered into the Regimented Inmate Discipline Program (RID), which allows offenders to earn an early release by- successful completion of certain program requirements. After completing RID in April 1991, Hearron was released and placed on probation for the remainder of his sentence.

¶3. Subsequently, Hearron’s probation was revoked because he had violated the probation terms. He was returned to the custody of the MDOC to complete the remainder of his prior three-year sentence. After completing his sentence and being released, Hearron was again convicted in the Warren County City Court of simple possession of cocaine in August 1995. He was subsequently sentenced to six years in the custody of the MDOC.

¶4. In October 1995, Hearron was indicted in Warren County Circuit Court for possession of cocaine with the intent to distribute. Shortly thereafter, an order was entered amending the indictment to include a count alleging Hearron to be a habitual offender. In December 1995, He-arron was convicted of possession of cocaine with the intent to distribute as a habitual offender, and the circuit court sentenced him to thirty years in the custody of the MDOC.

¶ 5. Hearron filed an unnumbered PCR motion in July 1998, arguing that he did not understand the consequences of entering a guilty plea. After some debate and confusion as to the PCR motion’s corresponding conviction, the circuit court correctly associated the PCR motion with He-arron’s November 1990 conviction. The circuit court held the PCR motion in abeyance until the guilty-plea transcript could be located or transcribed.

¶ 6. Meanwhile, on January 4, 1999, the record reflects that Hearron filed a supplemental PCR motion adding an allegation of ineffective assistance of counsel. The record further reflects that the circuit court entered an order on January 6, 1999, stating that the PCR motion and supplemental PCR motion were barred by the three-year statute of limitations found in Mississippi Code Annotated section 99-39-5 (Supp.2010). The circuit court further held that despite the time bar, it had fully examined Hearron’s PCR motion, Hear-ron’s supplemental PCR motion, the guilty-plea transcript and determined that Hearron’s claims lacked merit. Accordingly, the circuit court dismissed Hearron’s PCR motion and his supplemental PCR motion.

¶ 7. Thereafter, the record becomes vague regarding Hearron’s legal procedural history. The record contains a PCR motion filed in August 2004. The 2004 PCR motion challenged the circuit court’s 1999 determination that Hearron’s 1998 PCR motion and the 1999 supplemental PCR motion were time-barred, the validity of his 1996 conviction as a habitual offender, and his counsel’s effectiveness in the 1996 trial. However, while the PCR motion was filed with the Warren County Circuit Clerk in August 2004, it appears that Hearron actually signed the PCR motion and allegedly mailed the PCR motion sometime in July 2003. The record lacks a ruling on the 2004 PCR motion.

¶ 8. Finally, the general docket sheet of the record indicates that Hearron filed another PCR motion in January 2007, under a separate civil cause number, and that the motion was denied as a successive writ in February 2007. The February 2007 denial is that which is on appeal. While the February 2007 order is present in the record, the alleged January 2007 PCR motion is not. Additionally, in denying the alleged January 2007 PCR motion as a successive writ, the February 2007 order references the circuit court’s denial of He-arron’s PCR motion in 1999 and also references another alleged denial of a PCR motion in 2003 — despite the fact that the neither the general docket sheet nor the record itself provides any reference to a PCR motion filed in 2003 and/or ruled on in 2003.

¶ 9. Accordingly, the following is substantiated by the record: (1) Hearron filed a PCR motion in 1998, which was denied in 1999 as being time-barred; (2) Hearron signed and mailed a PCR motion in July 2003, which was not filed by the circuit clerk until August 2004; and (3) in February 2007, the circuit court denied a PCR motion allegedly filed by Hearron in January 2007, which referenced prior denials in 1999 and 2003. After several attempts by this Court to garner proper documentation from the circuit court, the circuit clerk clarified that the August 2004 PCR motion was “given a[new] post[-]conviction civil number in January 2007”; hence, the February 2007 order corresponds with the August 2004 PCR motion.

¶ 10. This Court remains without knowledge as to why the circuit clerk reassigned Hearron’s 2004 PCR motion with a new civil cause number, why there was no mention of the reassignment in the record, or the reasons for the circuit court’s nearly three-year delay in adjudicating Hearron’s 2004 PCR motion. Furthermore, the existence and contents of the circuit court’s purported 2003 order and the alleged corresponding PCR motion referenced in the circuit court’s February 2007 order remain unknown.

¶ 11. Despite lingering questions regarding Hearron’s procedural history, it is clear that at least one PCR motion was previously filed in 1998 and denied in 1999. As such, the circuit court’s most recent dismissal of Hearron’s PCR motion as a successive writ is proper. Therefore, we affirm the circuit court’s ruling.

STANDARD OF REVIEW

¶ 12. This Court reviews a trial court’s dismissal of a PCR motion under an abuse of discretion standard. Strickland v. State, 43 So.3d 1179, 1181 (¶ 10) (Miss.Ct.App.2010) (quoting Burrough v. State, 9 So.3d 368, 371 (¶ 6)). Nonetheless, we review questions of law de novo. Id.

DISCUSSION

¶ 13. Mississippi Code Annotated section 99-39-23(6) (Supp.2010) provides that second or successive PCR motions are proeedurally barred. In order to proceed with a successive PCR motion, a prisoner must show one of the following: (1) the existence of newly discovered evidence which would alter the outcome of the prisoner’s sentence; or, (2) an intervening decision from the United States Supreme Court or State of Mississippi that would have adversely affected the outcome of the prisoner’s case; or, (3) the prisoner must show that biological evidence exists which was either not previously tested or could be subjected to more advanced biological testing and which would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence; or, (4) the prisoner claims that his sentences have expired or his conditional release was unlawfully revoked; or, (5) the prisoner claims that the trial court’s error infringed on his fundamental constitutional rights. Miss.Code Ann. § 99-39-23(6) (Supp.2009); Rowland v. State, 42 So.3d 503, 506 (Miss.2010). Essentially, “an appellant is granted one bite at the apple when requesting post-conviction relief.” Dobbs v. State, 18 So.3d 295, 298 (¶ 9) (Miss.Ct.App.2009) (internal citations omitted).

¶ 14. Though the record is ambiguous as to Hearron’s procedural history, there is no question that Hearron’s current PCR motion on appeal is not his first PCR motion to have been filed and adjudicated. Indeed, the record unquestionably shows that Hearron filed a PCR motion in 1998 which was denied by the circuit court in 1999. Hence, the PCR motion on appeal is a successive writ, regardless of our questions regarding other alleged PCR motions that were previously filed.

¶ 15. Additionally, Hearron has not asserted that newly discovered evidence would alter his sentence, nor has he provided this Court with a dispositive intervening decision by the Mississippi Supreme Court or the United States Supreme Court. Finally, Hearron has not argued that biological evidence even exists in this case. As such, he has not provided this Court with proof that he is entitled, under an exception, to consideration of a successive PCR motion. Accordingly, we find no error in the circuit court’s dismissal of Hearron’s latest PCR motion as a successive writ.

¶ 16. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


author: KING, C.J., IRVING, J.,

text:
    In the Matter of the ESTATE OF Arlyn E. DARBY, Deceased: Office of the Governor, Mississippi Division of Medicaid, and State of Mississippi, Appellants v. Linda Darby STINSON, Executrix, Appellee.
    No. 2010-CA-00335-COA.
    Court of Appeals of Mississippi.
    Feb. 22, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 1, 2011.

      William Harris Mounger Jr., Charles Palmer Quarterman, Jackson, attorneys for appellants.
    Ralph Edwin Chapman, Clarksdale, Joseph Harland Webster, Robert Lawson Holladay, Indianola, attorneys for appel-lee.
   KING, C.J.,

for the Court:

¶ 1. The DeSoto County Chancery Court granted summary judgment in favor of Linda Darby Stinson, executrix of the estate of Arlyn Darby, denying the Division of Medicaid’s claim against the estate. The chancellor determined that the estate was composed of exempt property, which descended outside of the probate estate, free and clear of any debts and claims of the Division of Medicaid or any other creditor. Medicaid raises three issues: (1) whether Medicaid is entitled to reimbursement from Darby’s estate, (2) whether exempt property is included within Darby’s estate for purposes of the Medicaid estate recovery program, and (3) whether Darby’s execution of the contract for Medicaid benefits waived his right to claim exemptions.

¶ 2. We find no error and affirm.

FACTS

¶ 3. Arlyn E. Darby was a resident of the Sardis Community Nursing Home at the time of his death on May 20, 2009. Darby had been receiving Medicaid benefits while he was a resident of the nursing home. At the time of his death, Darby owned his house and a small amount of personal property. The value of his homestead did not exceed $75,000 and the value of his personal property did not exceed $10,000. The property was devised to his children and one grandchild.

¶4. The Division of Medicaid filed a probate claim against the estate pursuant to the provisions of Title 42 of the United States Code section 1396p(b) (2006) and Mississippi Code Annotated section 43-13-317 (Rev.2009). The claim of $123,716.13, represented the total amount Medicaid expended for Darby’s medical care after he reached the age of fifty-five.

¶ 5. Linda Darby Stinson, Darby’s daughter and executrix of the estate , filed an objection to the probated claim asserting that the property Darby owned was exempt property and not subject to Medicaid’s claim. Stinson relied on Mississippi’s homestead exemption statute to support her objection. The relevant portion of the statute reads “a householder shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence.” Miss.Code Ann. § 85-8-21 (Rev.1999). Medicaid responded to the objection arguing that the real property was not exempt property because none of Darby’s heirs were living in the home and declaring it as their homestead.

¶ 6. Stinson filed a motion for summary judgment requesting the court to determine that Medicaid’s claim was not valid against Darby’s property. Stinson alleged that because the property was exempt, it passed outside of the estate and therefore, was not subject to Medicaid’s claim. In response to Stinson’s argument that the property was exempt, Medicaid argued that even if the property were exempt, Stinson contractually waived the exemption when she submitted the application for Medicaid benefits on behalf of Darby. The court granted summary judgment in favor of Stinson. Medicaid then timely filed its notice of appeal.

ANALYSIS

¶ 7. “This Court reviews summary judgments de novo.” Point S. Land Trust v. Gutierrez, 997 So.2d 967, 975 (¶ 18) (Miss.Ct.App.2008) (quoting Stallworth v. Sanford, 921 So.2d 340, 341 (¶ 5) (Miss.2006)). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In determining whether the trial court properly granted summary judgment, we view the evidence in the light most favorable to the non-moving party. Gutierrez, 997 So.2d at 975 (¶ 18) (citing Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 17) (Miss.2006)).

1. Entitlement to Reimbursement

¶ 8. There is no dispute of Medicaid’s right to recover its expenses from the property of a recipient’s estate. The Omnibus Budget Reconciliation Act of 1993 included a provision requiring states to seek recovery of nursing home services, home and community-based services and related hospital and prescription drug services from the estate of a deceased Medicaid recipient who was fifty-five years of age or older when the assistance was received. 42 U.S.C. § 1396p(b). Effective July 1, 1994, pursuant to Mississippi Code Annotated section 43-13-317, Mississippi implemented its estate recovery program.

¶ 9. The governing statute is as follows:

(1) The division shall be noticed as an identified creditor against the estate of any deceased Medicaid recipient under Section 91-7-145.
(2) In accordance with applicable federal law and rules and regulations, including those under Title XIX of the federal Social Security Act, the division may seek recovery of payments for nursing facility services, home- and community-based services and related hospital and prescription drug services from the estate of a deceased Medicaid recipient who was fifty-five (55) years of age or older when he or she received the assistance. The claim shall be waived by the division (a) if there is a surviving spouse; or (b) if there is a surviving dependent who is under the age of twenty-one (21) years or who is blind or disabled; or (c) as provided by federal law and regulation, if it is determined by the division or by court order that there is undue hardship.

Miss.Code Ann. § 43-13-317.

2. Exempt Property

¶ 10. Even though it appears that Medicaid has the right to recover from Darby’s estate, the more difficult task is determining what property is included within that estate. The Omnibus Budget Reconciliation Act defines the estate as follows: “For purposes of this subsection, the term ‘estate,’ with respect to a deceased individual — (A) shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of State probate law ....” 42 U.S.C. § 1396p(b)(4)(A) (emphasis added).

¶ 11. However, the next subsection of the Act grants each state the option of expanding the definition of estate to include,

“any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”

42 U.S.C. § 1396p(b)(4)(B).

¶ 12. The federal statute clearly permits each state to specifically define what assets are included within an estate for purposes of Medicaid recovery. The State Medicaid Manual, provided by the Centers for Medicare & Medicaid Services, which is the Medicare and Medicaid governing agency within the United States Department of Health and Human Services, instructs each state to “Specify in your State plan the definition of estate that will apply.” State Medicaid Manual, § 3810 B.

A. Definition of Estate

¶ 13. Pursuant to 42 U.S.C. section 1396p(b)(4)(B), a number of states have expanded the definition of estate to allow recovery beyond probate assets. Following the direction of the state medicaid manual, some states have incorporated a broad definition of estate for Medicaid expense recovery programs to include, but not limited to; living trusts, joint property and accounts, life insurance proceeds, non-probate assets, and the entirety of both a beneficiary’s and his or her spouse’s estates. Not only are states permitted to expand the assets included in a beneficiary’s estate, but many states allow liens, authorized by the Tax Equity and Fiscal Responsibility Act of 1982, to be placed on real property even before the death of the Medicaid recipient. Currently, there are very few states that limit estate recovery until after the beneficiary’s death while also limiting recovery from assets within the probate estate; Mississippi is a member of this category.

¶ 14. The Mississippi statute permitting estate recovery does not expand the definition of estate and provides that recovery is permitted “[i]n accordance with applicable federal law....” Miss. Code Ann. § 43-13-317. The applicable federal statute permits Medicaid to recover from those assets of Darby’s that pass through probate according to Mississippi law. 42 U.S.C. § 1396p(b)(4)(A).

B. Mississippi’s Probate Laws

¶ 15. Neither party disputes that Darby’s real property qualified as his homestead exemption pursuant to Mississippi Code Annotated section 85-3-21 (Rev.1999). The Mississippi Supreme Court has held exempt property is not part of the estate to be administered and descends directly by statute; and this is true whether the estate is solvent or insolvent De Baum v. Hulett Undertaking Co., 169 Miss. 488, 494-95, 153 So. 513, 515 (1934) (citations omitted). The descent of exempt property is governed by Mississippi Code Annotated section 91-1-19 (Rev. 2004), which states, “The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent....” The supreme court has interpreted this statute to allow those entitled, including spouse, children and grandchildren, to inherit the exempt property in fee simple free of the decedent’s debts. See Weaver v. Blackburn, 294 So.2d 786 (Miss.1974).

¶ 16. Mississippi Code Annotated section 91-1-21 provides that exempt property is not liable for the debt of the decedent if there is a surviving spouse, children or grandchildren. The supreme court has held that the specific language of section 91-1-21 continues a decedent’s homestead exemption for a surviving spouse, children or grandchildren. Mem’l Hosp. at Gulfport v. Franzke, 634 So.2d 117, 118 (Miss.1994). Therefore, Darby’s children and grandchild are entitled to inherit the exempt property free of his debts.

¶ 17. Medicaid raises an argument that the broad homestead exemption descent statute coupled with a narrow definition of estate will limit the effectiveness of the estate recovery act. It is true that the Mississippi homestead exemption descent statute places no limitation on the age of the surviving children or grandchildren, nor does it impose occupancy restrictions. However, the statutes concerning the homestead, and its descent, are plain and unambiguous. This Court will not engage in statutory interpretation if a statute is plain and unambiguous. In re Guardianship of Duckett, 991 So.2d 1165, 1181 (¶ 37) (Miss.2008) (citation omitted).

¶ 18. Darby predeceased his children and a grandchild to whom he devised all of his property. Pursuant to the unambiguous language of the statutes, coupled with case law, the homestead, with its exemption, passed from Darby to his children and grandchildren free of his debts. Thus, Medicaid is not entitled to pursue a claim against the exempted property as it is not a part of the estate. We find this issue without merit.

3. Waiver

¶ 19. Medicaid claims that Stinson waived the exemption when she entered into a contractual relationship with Medicaid on behalf of Darby in order to become eligible for benefits. Medicaid argues that waiver is found in the following language of the contract, which states:

I (We) understand that upon my/our death, the Division of Medicaid has the legal right to seek recovery from my estate for services paid by Medicaid in the absence of a legal surviving spouse or a legal surviving dependent. Consideration will be made for hardship cases. An estate consists of real & personal property. Estate recovery applies to nursing homes, home and community based waiver clients age 55 or older.

¶ 20. Medicaid suggests that the language “an estate consists of real & personal property,” waives Darby’s right to claim his homestead exemption. A waiver is defined as a voluntary surrender or relinquishment of some known right, benefit or advantage. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 964 (Miss.1999) (citation omitted). There is a general presumption against the finding of a waiver, and the party asserting the waiver bears a heavy burden of proof. Walker v. J.C. Bradford & Co., 938 F.2d 575, 577 (5th Cir.1991) (citations omitted).

¶ 21. This Court has further explained the necessary requirements for a valid waiver, saying:

Under Mississippi law, a “waiver” presupposes a full knowledge of a right existing, and an intentional surrender or relinquishment of that right. It contemplates something done designedly or knowingly, which modifies or changes existing rights, or varies or changes the terms and conditions of a contract. It is the voluntary surrender of a right. To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived.

Taranto Amusement Co., Inc. v. Mitchell Assocs., Inc., 820 So.2d 726, 729 (¶ 13) (Miss.Ct.App.2002).

A. Knowledge of Waiver

¶ 22. The record does not support the idea that Darby had any knowledge of the benefits a homestead exemption provided, nor that he intentionally waived his right to the benefit of that exemption. The contract does not provide any information pertaining to, or even mention, the significance of any exemption.

¶ 23. The purpose of homestead exemption is to protect families from financial misfortune by preventing creditors from using a family’s home to satisfy debts. Biggs v. Roberts, 237 Miss. 406, 411, 115 So.2d 151, 153 (1959). “This has been the law and the recognized public policy of this state for many years.” Id. As valuable as the homestead exemption is, a party must be informed in order to waive the right. Many states have implemented laws governing the procedure in which a waiver of the homestead exemption may be accomplished, and at least two states have implemented laws governing the specific language that must be contained within a contract to effectuate a valid waiver. In this case, there is no substantial evidence to support the suggestion that Darby had any knowledge of the existence or significance of his right to waive his homestead exemption.

B. Intent to Waive Exemption

¶ 24. There is no evidence of Darby’s intent to waive any of his, lights. In determining a party’s intent within a contract, the court must look to the express language of the contract. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss. 2010). In this case, the alleged waiver clause merely provides a general definition of “estate.” This general definition of estate does nothing to state, or even suggest, that it takes precedence over the homestead exemption statute nor does the language within the contract adopt the specific language of the federal statute to affirmatively include non-probate assets within the estate.

¶ 25. If a contract is clear and unambiguous, then it must be interpreted as written. Architex Ass’n, Inc. v. Scottsdale Ins. Co., 27 So.3d 1148, 1157 (¶ 20) (Miss.2010) (citation omitted). The clause is clear and unambiguous in explaining to a Medicaid applicant that in exchange for services, Medicaid is entitled to assert a claim against the real and personal property comprising the recipient’s estate. By entering into the contract, Darby merely acknowledged Medicaid as a creditor of his estate. Unfortunately, Darby’s estate has no property against which Medicaid may recover. Considering the general presumption against the finding of a waiver coupled with the lack of evidence that Darby knew the significance or intended to waive his right to an exemption, we find this issue without merit.

¶ 26. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

dissenting:

¶ 27. With respect, I dissent from the majority’s holding that this case should be affirmed. I would reverse and render the chancery court’s judgment, which found that Stinson had not waived her right to a homestead exemption for Darby’s property. I believe that the application that Stinson submitted for Medicaid benefits effectively waived Stinson’s right to assert a homestead exemption.

¶ 28. For clarity’s sake, I also quote the relevant portion of Darby’s Medicaid application:

I (We) understand that upon my/our death, the Division of Medicaid has the legal right to seek recovery from my estate for services paid by Medicaid in the absence of a legal surviving spouse or a legal surviving dependent. Consideration will be made for hardship cases. An estate consists of real & personal property. Estate recovery applies to nursing homes, home and community based waiver clients age 55 or older.

I would find that this plain language constitutes a waiver of Darby’s homestead exemption. In the statement, Darby (or Stinson on his behalf) acknowledged that the Division of Medicaid could “seek recovery” from his estate. There was no limitation stated on the recovery other than that “[cjonsideration will be made for hardship cases.” In my opinion, a reasonable person reading this statement would understand that he was allowing the Division of Medicaid to recover from his estate, regardless of any existing homestead exemption.

¶ 29. Therefore, I would reverse and render.

      . Darby's wife predeceased him.

      . 42U.S.C. § 1396p.

      .Currently, all fifty states and the District of Columbia have implemented estate recovery programs. Michigan was the last state in 2007. Mich. Comp. Laws Ann. 400.112g.

      . Transmittal 75, or § 3810(B) of the State Medicaid Manual, United States Department of Health and Human Services, Health Care Financing and Administration, (January 2001), provides policy clarification on mandatory and optional recovery measures to for Medicare and Medicaid Services.

      . Maine (Me.Rev.Stat.Ann.tit.22, § 14.)

      . Washington (Wash. Rev.Code Ann. § 43.20B.080.)

      . Missouri (Mo.Rev.State. § 473.398.)

      . Utah (Utah Code Ann. §§ 26-19-2.); Iowa (Iowa Code Ann. § 249A.5.)

      . Idaho (Idaho Code Ann. § 56-218.); Kansas (Kan.Stat.Ann. § 39-709.); New York (N.Y. Soc. Serv. Law § 369.)

      . 42 U.S.C. § 1395.

      . Alabama (Ala. Admin. Code r. 560-X-33-.03.); Georgia (Ga. Comp. R. & Regs. 111 — 3— 8-.07.)

      . Mississippi, along with Arkansas, Michigan, New Mexico, North Carolina, Pennsylvania, South Carolina, Texas, Vermont, and West Virginia, limit recovery until after the beneficiary's death and from the assets of the estate.

      .In 2005, the Texas Legislature addressed this very issue and amended its probate code in order to clearly provide that the descent of the homestead exemption passed only to the spouse and minor children. Previously, the language was ambiguous in regard to adult children. Tex. Prob.Code Ann. § 271. The Colorado Legislature requires occupancy for the homestead exemption to extend to heirs. Colo.Rev.Stat. Ann. 38-41-203.

      . Both Iowa and North Dakota require the following text within the contract in order to accomplish a valid waiver: "I understand that homestead property is in many cases protected from the claims of creditors and exempt from judicial sale and that, by signing this contract, I voluntarily give up my right to this protection for this property with respect to claims based upon this contract.” N.D. Cent.Code. § 47-18-05.1 and Iowa Code Ann. § 561.22.