author: LEE, C.J., ROBERTS, J.,

text:
    Carolyn EPPERSON, Appellant v. SOUTHBANK, Appellee.
    No. 2010-CA-00056-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Nov. 1, 2011.

      B. Sean Akins, Ripley, attorney for appellant.
    William M. Beasley, Rachel Marie Pierce, Tupelo, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. This case involves four certificates of deposit (CDs) funded by Carolyn Ep-person’s father, C.K. Rickman. The CDs were opened at SOUTHBank in Corinth, Mississippi, in 1993. The CDs were held by C.K. and his wife, Juanita, as trustees for Carolyn Epperson and Randy Thompson. Epperson is C.K.’s daughter and Juanita’s stepdaughter. Randy is C.K. and Juanita’s biological son. C.K. died in 1999. In 2000, the beneficiaries of the CDs retitled the CDs in the name of “Juanita Rickman or Carolyn Epperson or Randy Thompson.” Juanita was given possession of the actual certificates signed by herself, Epperson, and Randy.

¶ 2. On February 15, 2005, Epperson went to SOUTHBank to check the balances of the CDs. The balances were shown in full. She returned again on October 21, 2005. She was notified that on March 8, 2005, one of the CDs had been cashed. Epperson asked a bank associate, Margie Franks, to withdraw the funds from the remaining CDs. Franks told Ep-person that she could not withdraw the money without the original certificates. Epperson did not have the original certificates and did not pursue the matter further. On February 17, 2006, Juanita and Randy went to SOUTHBank and consolidated the remaining three CDs into a new CD. Epperson’s name was not on the new CD. The new CD was titled in the name of “Juanita Rickman or Randy Thompson or Doris Thompson.”

¶ 3. Epperson filed a complaint against SOUTHBank in the Circuit Court of Al-corn County alleging that the bank had breached its duty to her by refusing to allow her to withdraw the funds from the CDs. As damages, she requested the full amount of the consolidated CD, interest, punitive damages, and attorney’s fees.

¶ 4. SOUTHBank filed a motion for summary judgment, and Epperson filed a cross-motion for summary judgment. The parties stipulated that there were no genuine issues of material fact in dispute; thus, the only issue before the trial court was the contractual interpretation of the CDs. SOUTHBank argued in its motion that the plain language of the CDs required proper documentation for withdrawal. Epperson argued that the language did not require her to surrender the original CD in order to receive the funds. The trial court granted summary judgment in favor of SOUTHBank, finding that Epperson was required to present the original certificates for withdrawal.

¶ 5. Aggrieved, Epperson now appeals, asserting that summary judgment was erroneously granted in favor of SOUTH-Bank.

STANDARD OF REVIEW

¶ 6. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(e). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

Ownership of the CDs

¶ 7. Epperson argues that SOUTH-Bank erroneously refused her request to withdraw three CDs because she did not possess the original certificates. Epper-son asserts that there was no language in her agreement with SOUTHBank that required possession of the certificates for withdrawal. She asserts that the requirement that she submit the original CDs was not logical since the CDs were held by three individuals, and it was impossible for all three parties to possess the original CDs at the same time.

¶ 8. It is undisputed that the CDs were owned jointly by “Juanita Rickman or Carolyn Epperson or Randy Thompson.” However, there was some confusion on behalf of Franks, the bank associate with whom Epperson had spoken, as to which party was the “real owner” of the CDs. Franks responded as follows when asked a hypothetical question about the procedure for withdrawal of a lost CD:

A. Well, we do have a form for lost CD’s.
Q. Okay.
A. I mean, [Epperson] couldn’t have come in here and said we’ve lost these CD’s.
Q. Okay.
A. The real owner of it would have to come in and say they are lost.
Q. Okay. And in the case of the CD’s that Mrs. Epperson was asking about on October the 21st of 2005,1 mean, in that case Juanita Rickman was the real owner of those CD’s?
A. Right.
Q. Okay. And based on that she would have been the only person who could have gotten that money?
A. Right.

¶ 9. Franks was mistaken about Juanita being the only “real owner” of the CDs. This Court has stated that “[w]hen an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely his own.’ ” DeJean v. DeJean, 982 So.2d 443, 449-50 (¶ 14) (Miss.Ct.App.2007) (quoting Drummonds v. Drummonds, 248 Miss. 25, 31,156 So.2d 819, 821 (1963)). This is important because Mississippi Code Annotated section 81-5-63(1) (Supp.2010) “insulates banking institutions with statutory immunity in case a deposit made in the name of two or more persons is withdrawn by one of the named parties.” Id. at 449 (¶ 13). Section 81-5-63(1) states:

When a deposit has been made or is hereafter made in the name of two (2) or more persons, payable to any one (1) of those persons, ... the deposit or any part thereof or interest or dividends thereon may be paid to any one (1) of those persons, without liability whether one or more of those persons is living or not, and the receipt of acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made....

¶ 10. The CDs stated the owners were “Juanita Rickman or Carolyn Epperson or Randy Thompson.” Thus, each of them was a real owner and should have been treated as such. Because of the word “or” between the parties’ names, each was allowed to treat the CDs as if they were entirely his or her own. SOUTHBank should have treated the three parties equally and not have favored Juanita. Ep-person had an equal right to withdraw the CDs.

Interpretation of the Contractual Language

¶ 11. CDs are non-negotiable, non-transferable instruments. Because Article 3 of the Uniform Commercial Code does not apply to non-negotiable instruments, “the redemption of the CD[s] [are] governed by rules other than those contained in Article 3, namely contract law.” DeJean, 982 So.2d at 447 n. 1. The standard of review for interpretation of a contract is de novo. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010). An appellate court “first look[s] to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parol evidence.” Id. (citing Warwick v. Gautier Util. Dist, 738 So.2d 212, 215 (¶ 8) (Miss.1999)). The “ ‘canons’ of contract construction” are applied “[i]f the parties’ intent is unclear _” Id. (citing HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105 (¶26) (Miss.2003)). The court may only consider extrinsic evidence if the meaning remains ambiguous. Id. (citing HeartSouth, 865 So.2d at 1105 (¶ 26)).

¶ 12. The four CDs purchased in 1998 by C.K. and Juanita stated that in order to make a withdrawal prior to maturity, the owner “must properly endorse-the certifícate and present it to us [ (SOUTH-Bank) ]....” However, the CDs opened in 2000 do not contain this language. When the CDs were renamed in 2000, Epperson, Juanita, and Randy signed a new document entitled “Consumer Account Agreement.” This document was used uniformly for all of SOUTHBank’s accounts, including checking and savings accounts. Under a heading entitled “withdrawals,” the Consumer Account Agreement states:

Unless otherwise clearly indicated on page 1, any one of you who signs this form including authorized signers, may withdraw or transfer all or any part of the account balance at any time on forms approved by us. ... We reserve the right to refuse any withdrawal or transfer request which is attempted by any method not specifically permitted .... Withdrawals from a time deposit prior to maturity or prior to the expiration of any notice period may be restricted and may be subject to penalty....

(Emphasis added).

¶ 13. The trial court found that the language “on forms approved by us” indicated that the original CD must be presented for the withdrawal of the CDs prior to matui’ity. The trial court reasoned that the “forms” referred to in the agreement were the CDs themselves.

¶ 14. SOUTHBank asserts that it was standard banking practice to require the presentation of CDs for withdrawal prior to maturity. But we note that at some point between 1993 and 2000, SOUTH-Bank changed its agreements by omitting the requirement that a CD holder “must properly endorse the certificate and present it to us....” SOUTHBank argues that despite the omission of the foregoing language in the 2000 CD, its internal requirement that the original CD be presented to the bank never changed. It appears that SOUTHBank is trying to enforce contractual language that is no longer in existence and not applicable to the 2000 contract among the parties.

¶ 15. Looking to the express wording of the contract, there is no language requiring the presentation of the original CDs for withdrawal of funds at any time. The language from the 1993 CDs requiring endorsement and presentation of the original certificates was omitted from the 2000 CDs. This type of clause is not inherent under the UCC but is typically added by a bank to mitigate the risk of making payment to someone not entitled to payment. DeJean, 982 So.2d at 450 (¶ 16). While endorsements are required for the transfer of a negotiable instrument under Article 3, Article 3 does not apply to a non-negotiable instrument, such as a CD. Miss.Code Ann. § 75-3-102(a) (Rev.2002). Thus, there is no legal requirement that a CD be endorsed or presented.

¶ 16. At her deposition, Franks was asked why Epperson was not allowed to withdraw the CDs. Franks stated that the original certificates must be presented pursuant to SOUTHBank’s policy. When asked where this policy was found, she responded, “I really don’t know. It could have been on the back of the CD — I mean, on the signature card.” The following exchange then occurred:

Q. How do you deal with a situation where the person who has the CD won’t let the person who doesn’t have the CD get the CD?
A. That’s between them, I guess, if they don’t want to give it to them.
Q. Okay.
A. That doesn’t have anything to do with us.

¶ 17. Apparently, Franks was unaware that SOUTHBank’s policy requiring presentation of the certificates had changed. Franks had been an employee of the bank for forty-six years. It is likely she was following a policy that she assumed was still in place in the bank’s documents.

¶ 18. Viewing the documents as a whole, we can find no specific language that instructs the customer on how to redeem the CDs. The phrase “on forms approved by us” does not indicate on its face that the original CDs must be presented or signed. It is well settled that this Court must construe any ambiguities in a contract against the drafter. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352-53 (Miss.1990). Absent specific language requiring that the original CDs be presented for withdrawal, we must find in favor of Epperson.

¶ 19. On October 21, 2005, when Epper-son requested to withdraw the three remaining CDs from SOUTHBank, their values were $84,078.91, $84,078.91, and $65,025.63. We award Epperson the total of these three CDs, which is $233,183.45. Accordingly, the judgment of the trial court is reversed and rendered in favor of Epperson in the amount of $233,183.45 plus interest at the legal rate of eight percent per annum from October 21, 2005. Miss.Code Ann. §§ 75-17-1(1) (Rev.2009) and 75-17-7 (Rev.2009).

¶ 20. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

IRVING, P.J., MYERS, BARNES, ISHEE, MAXWELL AND RUSSELL, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., AND CARLTON, J.

ROBERTS, J.,

concurring in part and dissenting in part:

¶ 21. This case was decided by the circuit judge on cross-motions for summary judgment by Carolyn Epperson and SOUTHBank. The subject matter of the motions dealt exclusively with SOUTH-Bank’s potential underlying liability to Ep-person for failing to allow her to withdraw the funds from the three CDs. If liability existed, the specific issue of the amount of contractual damages and interest thereon was neither submitted to nor decided by the circuit court.

¶ 22. The majority finds that this case should be reversed and rendered and awards Epperson $233,183.45 plus interest of eight percent per annum beginning from October 21, 2005. While I agree with the majority’s finding that Epperson is entitled to the value of the three CDs she attempted to withdraw on October 21, 2005, I must disagree with the majority’s computation of the amount she is to receive and the interest rate applied. Therefore, I dissent in part and would reverse and remand this case to the circuit court for the computation of the proper amount, including interest and subtracting any penalty for early withdrawal, that Ep-person is entitled to receive.

¶ 23. In her complaint dated October 16, 2008, Epperson requested damages in the amount of “$234,164.05 with interest from October 21, 2005[,] together with punitive damages and attorney’s fees along with any other damages to which [she] may be entitled.” Because Epperson properly demanded pre-judgment interest as required by Mississippi Rule of Civil Procedure 8 and was successful in her breach-of-contract claim, she is entitled to the pre-judgment interest demanded. In a breach-of-contract case, “the prevailing party ... is entitled to have added legal interest on the sum recovered computed from the date of the breach of the contract to the date of the decree.” Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 971 (¶ 53) (Miss.1999) (quoting Stockett v. Exxon Corp., 312 So.2d 709, 712 (Miss.1975)) (emphasis added). Epperson is entitled to pre-judgment interest beginning on October 21, 2005, the day SOUTHBank breached the contract by refusing to allow Ep-person to withdraw the funds. Although she properly demanded pre-judgment interest, Epperson did not specify the interest rate, nor was the interest rate ever determined by the circuit court. Further, the parties never stipulated to a specific interest rate that would be charged.

¶ 24. The majority follows Mississippi Code Annotated section 75-17-1(1) (Rev. 2009) when determining the interest rate at eight percent. The statute reads in pertinent part:

The legal rate of interest on all notes, accounts and contracts shall be eight percent (8%) per annum, calculated according to the actuarial method, but contracts may be made, in writing, for payment of a finance charge as otherwise provided by this section or as otherwise authorized by law.

Id. (emphasis added). However, I submit that Mississippi Code Annotated section 75-17-7 (Rev.2009) rather than section 75-17-1 is the controlling statute in this case. The statute reads:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

Miss.Code. Ann. § 75-17-7.

¶ 25. In DeJean v. DeJean, 982 So.2d 443, 447 n. 1 (Miss.Ct.App.2007), this Court found that the redemption of a CD is not governed by Uniform Commercial Code Article 3 and is, instead, governed by contract law. Applying contract law, it is well settled that “parties are bound by the language of the contract where a contract is unambiguous.” Union Planters Nat’l Bank, N.A. v. Jetton, 856 So.2d 674, 678 (¶ 15) (Miss.Ct.App.2003) (citing Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 404 (Miss.1997)). The appropriate annual interest rate should be found in the language of each CD since CDs may have varying interest rates. I submit that since contract law governs, the circuit judge should look to the language of each CD as it was on October 21, 2005, to determine the appropriate amount of prejudgment and post-judgment interest to award. Pursuant to the statute, the circuit judge should hold a hearing to determine the appropriate amount due Epperson as of October 21, 2005, on the three CDs and the appropriate contractual interest rate per each CD. Miss.Code Ann. § 75-17-7.

¶ 26. Epperson should receive a sum of money equal to the amount she would have received had she been allowed to withdraw the money on October 21, 2005, plus any contractual interest that has accrued. However, the circuit judge should also subtract any early-withdrawal penalties that Epperson would have suffered had she been able to withdraw the money at the time she requested.

¶ 27. Therefore, I find that Epperson is entitled to the sum of money contained in each of the three CDs less any penalty suffered for early withdrawal. The interest at a rate to be determined by the language in each CD should be added to that sum. I would remand this case to the circuit judge for a proper determination as to these damages that Epperson should be awarded.

GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Anna WHITE, Appellant v. John WHITE, Appellee.
    No. 2009-CA-01701-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.
    Rehearing Denied April 3, 2012.
    Certiorari Denied July 19, 2012.
    Amy D. Saling, attorney for appellant.
    Richard Shane McLaughlin, Nicole H. McLaughlin, attorneys for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This case is before this Court on appeal from the judgment of the Alcorn County Chancery Court by Anna White, challenging the award of custody of her minor children to John White, Anna’s former husband. We find that the chancellor correctly applied the Albright factors in determining the best interests of the children and, therefore, affirm the chancellor’s judgment.

FACTS

¶ 2. Anna and John were wed on October 13, 2001, in Lauderdale County, Alabama. Their marriage produced two children: Drew, born on May 10, 2002, and Kelli, born on March 13, 2003. Anna suffers from an optic-nerve condition which affects her eyesight, leaving her unable to drive. She also uses a wheelchair as a result of injuries she received in a car accident that rendered her an incomplete paraplegic.

¶ 3. During most of them marriage, the Whites resided in Alcorn County, Mississippi. John worked at ThyseenKrupp, ,and Anna stayed home with the children. John’s parents, Rick and Dorothy White, often assisted John and Anna in caring for the children.

¶ 4. In 2005, shortly before Kelli’s second birthday, Anna’s mother, Lynn Mitchell, claimed that Kelli disclosed to her that Rick had inappropriately touched her genitals. Rick denied the allegations when confronted by John and Anna. In December 2007, Anna claimed that Kelli again told her that Rick had inappropriately touched Kelli’s genitals. Anna and John again confronted Rick about the allegations, and Rick again denied touching Kelli inappropriately.

¶ 5. The allegations of abuse eventually caused strain on the Whites’ marriage, and on May 23, 2008, Anna and John separated. On May 28, 2008, Anna filed for a divorce in the chancery court on the ground of habitual cruel and inhuman treatment or, in the alternative, on the ground of irreconcilable differences. Anna retained custody of the children and moved them to an apartment in Lawrence-burg, Tennessee. After a hearing on August 13, 2008, the chancellor entered a temporary order granting Anna primary custody of the minor children and granting John visitation every other weekend. The temporary order also instructed John not to expose his children to Rick.

¶ 6. On February 20, 2009, the Whites filed a consent to divorce on the ground of irreconcilable differences but left the following issues for the chancellor to decide: custody of the children, visitation rights, restrictions to be placed upon contact with the paternal grandparents, determination of marital property and division of property, debts, child support, medical insurance for the children, alimony, and attorney’s fees. On May 22, 2009, the chancellor appointed a guardian ad litem (GAL) to represent the children and investigate the allegations of sexual abuse. On July 24, 2009, the GAL filed her initial report with the court. The GAL filed a supplemental report on August 10, 2009, at the request of the chancelloi’, to discuss the issues of whether Rick was a threat to the children and whether it would be harmful to the best interests of the children to be in Rick’s presence, even in a restricted manner. The GAL interviewed the Whites and their children, the paternal grandmother, the maternal grandparents, several neighbors, friends, and the proposed witnesses of both parties. Additionally, the GAL visited Anna’s home and personally supervised a visitation between Rick, Kelli, and Drew. In her supplemental report, the GAL concluded that Rick presented no threat to the children and recommended that they be allowed to visit with him. However, the GAL cautioned that because of the length of time since the children had last engaged in any contact with Rick, visitation should be restricted, and she suggested that Rick not be allowed to be alone with Kelli.

¶ 7. On August 14, 2009, the chancellor entered a judgment awarding John primary physical custody of the children, finding that such was in the children’s best interests. The chancellor found no credible evidence supporting the sexual-abuse allegations. On August 24, 2009, Anna filed a motion for a new trial, reconsideration, or other relief. On September 21, 2009, the chancellor entered a final judgment and denied Anna’s request for a new trial, reconsideration, or other relief. Anna now appeals the chancellor’s August 14, 2009 judgment and the September 21, 2009 final judgment, arguing that the chancellor erred by determining that Rick did not sexually abuse Kelli, failing to make appropriate findings as to each Al-bright factor, and inappropriately weighing Anna’s physical disability when determining primary physical custody of the children. We find that Anna’s assertions of error can be summarized as a single consideration of whether substantial evidence supports the chancellor’s findings and custody determination.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. Chancellors possess broad discretion in domestic-relations cases, and an appellate court will not disturb the findings of a chancellor “unless the chancellor was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Williams v. Williams, 37 So.3d 1171, 1174 (¶ 4) (Miss.2010) (quoting Giannaris v. Giannaris, 960 So.2d 462, 467 (¶ 8) (Miss.2007)). When reviewing a case on appeal, an appellate court “does not reevaluate the evidence, retest the credibility of witnesses, [or] otherwise act as a second fact-finder.” Bower v. Bower, 758 So.2d 405, 412 (¶ 31) (Miss.2000) (citation omitted).

¶ 10. In considering Anna’s claims, we acknowledge that the “the polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright, 437 So.2d at 1005. With respect to determining a child’s best interest, the Mississippi Supreme Court has stated that chancellors making custody decisions must consider the age of the child; the health and sex of the child; the continuity of care prior' to the separation; parenting skills and willingness to provide primary childcare; employment and responsibilities of employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school, and community record of the child; the preference of the child; stability of the home environment and employment of each parent; and other factors relevant to the parent-child relationship. Id.

¶ 11. In applying the standard of review, we find that substantial evidence undergirds the chancellor’s decision. As to the Albright factors, the chancellor found that the age of the children, the continuity of care prior to separation, the emotional ties of parent and child, and the preference expressed by the children favored neither parent. However, the chancellor concluded that Kelli’s well-being had been negatively impacted by the sexual-abuse allegations, and, therefore, the factor regarding the health of the children slightly favored John. As to parenting skills and willingness to provide childcare, the chancellor found that Anna’s pursuit of the sexual-abuse allegations and unwillingness to allow the children to participate in extracurricular activities had had a negative impact, and, therefore, this factor also favored John. The chancellor found that the employment of the parents favored John as well, because he was employed and had expressed a willingness to modify his employment to allow more time with the children. The chancellor found that the physical health of the parties favored John due to Anna’s “significant physical limitations, ... being crippled from the waist down and legally blind.” The chancellor found that the moral fitness of the parents slightly favored Anna, as she had taken the children to church. As to the home, school, and community record of the children, the chancellor noted that the children had performed well in Tennessee, but Anna’s inability and unwillingness to allow the children to participate in extracurricular activities caused that factor to favor John slightly. The chancellor found that John had been steady in his employment and place of residence, while Anna was unemployed and living in a home “clearly above her financial means”; as a result, the chancellor found that the factor of stability of the home environment favored John. In discussing other factors relevant to the parent-child relationship, the chancellor noted the following regarding the sexual-abuse allegations and the effect that they had had on Kelli:

A strong concern that this [c]ourt has is that the [p]laintiff[, Anna White,] has not only allowed, but with the well-meaning instigation of her motherf, Lynn Mitchell], to keep a healing process of [Kelli White] from happening by continually bringing up the subject of [the] alleged sexual abuse by [Rick White], which the [c]ourt has found did not occur based upon the lack of credible evidence submitted to the [c]ourt, and this is harmful to the child and children. It is with [sic] particular note that [Edward Mitchell], maternal grandfather of the children and father of the [p]laintiff[, Anna White], testified that [Kelli] did not remember anything about the first incident. So, how was it that [Kelli] became aware of it again unless someone planted it in her mind? The undersigned [c]hancellor has answered this by reaching his conclusion that this was placed into the mind of [Kelli] through her mother[, Anna White,] by constant instigation of [Kelli’s] grandmother, [Lynn Mitchell], whose own testimony the [c]ourt found to be unresponsive and evasive in part, but caring for the children as a whole.

The chancellor then concluded that this factor favored John. In his final judgment, that was entered after Anna filed a motion for a new trial, the chancellor noted that there was a strong emotional bond between Anna and Drew but explained that it was in the children’s best interests to remain together in John’s custody. The chancellor also noted that Anna’s disability “was the least of the [Albright] factors” that he had relied upon.

¶ 12. In his opinion and judgment addressing custody, the chancellor acknowledged that he was bound to consider the factors set forth in Albright when determining the best interests and welfare of the children. As explained above, the chancellor found that multiple factors favored John, while only the moral-fitness factor favored Anna. The record shows that the chancellor carefully considered each of the Albright factors before determining that John should have custody of the minor children. Given our standard of review, we find no reason to overturn the chancellor’s judgment.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Fictitious names have been used for the parties in this case to protect the identity of the minor children.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).


author: CARLTON, J.,

text:
    Johnny Ray SIMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00777-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.
    Rehearing Denied May 1, 2012.
    Certiorari Denied July 26, 2012.
    Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, Carol Leatrice Jones, Deborah J. Gambrell, Hattiesburg, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., MYERS, ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Johnny Ray Sims was indicted for capital murder for the kidnapping and murder of Jamaya Griffith. On appeal, Sims claims that the State failed to provide sufficient evidence to support his conviction. Finding no error, we affirm.

FACTS

¶ 2. On March 1, 2006, Mary Glen Knight (Knight) spent the day caring for her three great-grandchildren — five-year-old Jamaya Griffith, four-year-old Jané Griffith, and their baby sister, Jaylyn Knight. Knight lived on Doc Bass Lane in rural Jefferson Davis County, Mississippi. Sims and his sister, Margaret, lived down the street from Knight; Sims lived in a house he inherited from his parents, and Margaret lived in a trailer behind Sims’s house.

¶ 3. Jané, who was ten-years old at the time of trial, testified that on the day of March 1, 2006, she and Jamaya spent the day playing in the front yard of Knight’s house. Jané stated that Sims approached the girls and asked if their uncle, Lee Morris Knight, was at home. When Jané told Sims that their uncle was at the hospital, Sims asked Jané if she wanted to come over to his house and see his new big screen television. Jané responded that she would have to first check with her great-grandmother to obtain permission.

¶ 4. Knight testified that while Jamaya and Jané played outside in her front yard, she remained inside of the house. Knight explained that when she heard a man’s voice outside, she went to the porch to investigate. Knight spotted Sims, and she stated that once Sims saw her, he left the premises and walked down the road towards his house. Knight asked Jané what Sims had said to her, and Jané repeated that Sims had invited her over to see his big screen television. Knight testified that during this conversation, Jamaya was standing beside her on the porch.

¶ 5. Knight then went back inside of the house to retrieve her laundry, and when she returned to the porch, she testified that Jamaya was no longer in the yard. Jané told Knight she had last seen Jamaya riding her bike down the street and following Sims. Concerned, Knight began searching for Jamaya in the yard and inside of Knight’s house. When she failed to find Jamaya, Knight then went to Sims’s house, where she began knocking on the door and yelling for both Jamaya and Sims. Knight testified she never saw Ja-maya’s bicycle outside of Sims’s house during her search. Knight’s granddaughter, Regina Knight, and daughter, Marlene Asencio, arrived approximately thirty to forty minutes after Knight had started searching for Jamaya.

¶ 6. Knight testified that Sims’s sister, Margaret, eventually came home. Knight asked Margaret to go into Sims’ house and see if he was inside of the house. Margaret beat on the door, but no one answered. Margaret entered Sims’s house through a side door, and then she came out and told Knight that Sims had been asleep. Sims opened the door and exited the house, and he explained that he had been asleep when Knight banged on the door.

¶ 7. Marlene testified that upon arriving on Doc Bass Lane, she went to Sims’s house and found Sims outside. Marlene asked Sims to search his house, but in response, Sims walked next door to Margaret’s trailer. According to Marlene, Margaret eventually asked the women if they wanted to search Sims’s house. Marlene testified that she then observed Sims walk down from Margaret’s trailer and enter the house through a side window. Marlene heard Sims move furniture around before finally unlocking the door. Marlene stated that after entering the house, she smelled bleach in the bathroom. Upon entering the bathroom, she observed Sims’s shirt soaking in bleach, and Marlene testified that “it looked to me like there was blood” on the shirt. Marlene asked Sims why his shirt was soaking in bleach, and she also asked Sims why his shirt looked like it had blood on it. Sims denied that his shirt had any blood on it. Marlene testified that she and Knight proceeded to search the house, but they did not check in the closets or in two of the bedrooms. After failing to find Jamaya, Knight and Marlene called the Jefferson Davis County’s Sheriffs Department.

¶ 8. Deputy Sheriff Ronnie Barnes of the Jefferson Davis County Sheriffs Departs ment responded to the call. When he arrived at Doc Bass Lane, he spoke with the family and then began searching for Jamaya. Barnes questioned Sims, and Sims claimed that he saw Jamaya riding down the road on her bike. Barnes continued to search for Jamaya until Sheriff Henry McCullum summoned him back to Sims’ house. Sheriff McCullum then asked Deputy Barnes to search Sims’s house.

¶ 9. Deputy Barnes testified that upon entering Sims’s house, he found Jamaya’s bicycle, covered by a blanket. He also noticed a strong smell of gasoline. Deputy Barnes eventually found Jamaya’s body, clothed only in a shirt and socks, and lying under a pile of clothes inside the closet of the southwest bedroom. Deputy Barnes called the Mississippi Bureau of Investigation (MBI) for assistance; he then roped off the crime scene and waited for the MBI investigators to arrive.

¶ 10. After his arrest, Sims denied harming Jamaya, and he informed the MBI investigators that earlier that day, he and a friend had driven to Bassfield, Mississippi. Sims explained to the investigators that his girlfriend, Angie Robinson, bleached his shirt that he had worn earlier in the day. Sims informed the investigators that a friend, whom Sims identified as Kenny, also visited his house that day. Sims was unable to provide any identifying details about Kenny; he did not know Kenny’s last name, his address, where he had met Kenny; and he could not describe Kenny’s vehicle. Sims stated that he went to sleep and woke up to knocking on his front door. Sims denied having visited Knight’s house earlier that day.

¶ 11. A crime scene analyst with the MBI testified as to his investigation of the crime scene. The investigator found Ja-maya’s underwear in the closet next to her body. Jamaya’s pants, one of her shoes, and a bloody knife were found in a piece of carpet rolled up in the laundry room. The investigator found Jamaya’s other shoe under the bed in the southwest bedroom. The investigator testified he found blood stains on the mattress in that same bedroom, as well as blood spatters on the wall beside the bed containing the bloody mattress.

¶ 12. Jamaya’s underwear, Jamaya’s pants, Sims’s underwear, the knife believed to have been used to kill Jamaya, and a swatch from the mattress in Sims’s bedroom all tested positive for blood. DNA tests established that a hair removed from Jamaya’s vaginal area belonged to Sims, and the blood on Sims’s underwear and on the mattress contained a mixture of Sims’s DNA and Jamaya’s DNA. Sims’s fingerprint and a palm print were also recovered from the middle of Jamaya’s bicycle handlebar.

¶ 13. At trial, Dr. Steven Hayne, the forensic pathologist who performed the autopsy on Jamaya’s body, testified that he found a total of twelve stab wounds to Jamaya’s body. Dr. Hayne also found superficial injuries to Jamaya’s face and neck. Dr. Hayne testified that the bruising around Jamaya’s neck and the small areas of bleeding over the facial area were consistent with incomplete strangulation. Dr. Hayne also noted a one-inch tear to the vulva and vaginal area, which produced blood. Dr. Hayne ultimately listed the cause of Jamaya’s death as multiple stab wounds. Dr. Hayne testified that the knife found rolled up in the carpet in the utility room appeared consistent with the stab wounds on Jamaya’s body.

¶ 14. Sims was indicted for capital murder, and a trial was held in the Jefferson Davis County Circuit Court. At the close of the State’s case-in-chief, Sims moved for a directed verdict, which was ultimately denied. After the trial, the jury convicted Sims of capital murder, and the circuit judge sentenced Sims as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) to life without eligibility for parole or probation.

¶ 15. Sims filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial, which the circuit judge subsequently denied. Sims appeals the denial of his post-trial motions, arguing that the circuit court should have granted his motion for a JNOV because the evidence lacked legal sufficiency to support the conviction of capital murder.

STANDARD OF REVIEW

¶ 16. Regarding the legal sufficiency of the evidence, the Mississippi Supreme Court in Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) explained:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a JNOV], the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] 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.

(Internal citation and quotations omitted). Further, the appellate court should examine the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation omitted). This Court will reverse a conviction only if, upon examination of the evidence, we find that the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty[.]” Id,, (citation omitted). In sum, a reversal on the ground of insufficient evidence means that an acquittal was the only proper verdict for the defendant. Id. at 844 (¶ 18).

DISCUSSION

¶ 17. Sims argues that the circuit court erred in denying his motion for a directed verdict based on the insufficiency of the evidence to support his capital murder conviction. Sims submits that he was indicted for capital murder, not simple murder, due to the State’s claim that Sims killed Jamaya while in the process of kidnapping her. Sims claims that for the capital murder conviction to stand, the State bore the burden to prove each element of the underlying kidnapping offense beyond a reasonable doubt. Sims argues that the State failed to meet its burden of providing sufficient evidence to prove that Sims kidnapped Jamaya.

¶ 18. Mississippi Code Annotated section 97-3-53 (Supp.2011) defines kidnapping as:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child.

We acknowledge the prosecution is required to prove each element of the underlying offense of kidnapping in order for the capital-murder conviction to stand. Underwood v. State, 708 So.2d 18, 35 (¶ 49) (Miss.1998). Sims argues that the State failed to produce evidence that he forcibly seized or confined Jamaya. Sims cites, to Jané’s testimony at trial, wherein Jané, one of the last people to see Jamaya alive, stated that she saw Jamaya riding her bicycle down the street behind Sims. Sims submits that Jané never testified that Sims threatened or forcibly seized Jamaya.

¶ 19. Sims further argues the State failed to provide sufficient evidence that he inveigled or tricked Jamaya into entering his house. Sims claims Jané testified that during Sims’s alleged conversation inviting Jané over to his house, Jamaya was several yards away. Sims further claims that Jané stated she was unsure if Jamaya even overheard the conversation.

¶ 20. In examining this issue, we turn to guidance from the Mississippi Supreme Court. In Hughes v. State, 401 So.2d 1100, 1105 (Miss.1981), the supreme court restated Mississippi Code Annotated section 97-3-51 (Rev.2006) in order to clearly set forth the different elements that may constitute kidnapping under the statute:

Every person who shall, without lawful authority,
(1) forcibly seize and confine any other,
(2) or shall inveigle or kidnap any other
(3) with intent
(a)to cause such person to be secretly confined or imprisoned in the state against his will,
(b) or to cause such other person to be sent out of this state against his will,
(c) or to cause such other person
(1) to be deprived of his liberty,
(2) or in any way held to service against his will ...
Under the statute the [S]tate must prove that a person, without lawful authority, either (1) forcibly seized and confined another person, or (2) inveigled or kidnapped another person, intending to subject such other person to either (a), (b), or (c) above.

¶ 21. The State argues that Jane’ never testified that Jamaya was standing at a far distance from Jané during her conversation with Sims. In our review of the transcript, regarding the distance between where Sims was standing and where Jama-ya was standing during the conversation, Jané compared the distance to the length from the witness stand to a curtain in the courtroom. However, we do acknowledge that Jané testified that she did not know whether or not Jamaya had heard Sims talking to her about his television.

¶22. The State also cites to Knight’s testimony that Jamaya stood next to Knight when Jané relayed to Knight her conversation with Sims. The State submits that a reasonable juror could infer that Jamaya overheard Sims ask Jané if she wanted to see his big screen television or overheard Jane’s account to Knight of the conversation with Sims. In Myers v. State, 770 So.2d 542, 544 (¶ 7) (Miss.Ct.App.2000), this Court explained that “[ijnvei-gling has no component of force, but only of coaxing. One does not forcibly inveigle. Guilt exists if [the defendant] coaxed [the victim] ... with the intent secretly to confine her against her will.” The Myers Court held that the young girl entered into Myers’s vehicle willingly after he promised to drive her home, but the Court found that such an act constituted inveigling once Myers decided not to take the girl home and instead drove her into another state. Id. at 548 (¶ 23).

¶23. Sims also asserts that only circumstantial evidence of kidnapping exists in the present case. However, in Underwood v. State, 708 So.2d 18, 35 (¶ 49) (Miss.1998), the Mississippi Supreme Court stated: “Circumstantial evidence is sufficient to prove the elements of kidnapping.” The supreme court further explained that “direct evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt.” Id. (citation omitted).

¶ 24. The State argues that the record contains substantial circumstantial evidence for the jury to find that the prosecution met its burden of proof regarding the kidnapping charge; namely, the State contends that no conceivable reason existed for Jamaya or her bicycle to be found inside of Sims’s house but for Sims inveigling her to enter his house under the premise of seeing his new television. The State submits that a reasonable juror could infer that Sims tricked Jamaya into coming inside of his house, confined her, and then took her bicycle inside to conceal her location.

¶ 25. The State cites Neal v. State, 451 So.2d 743, 757-58 (Miss.1984), wherein the supreme court held that circumstantial evidence such as the victim’s dress, location of the body, and bruised condition of the body were sufficient to show that the victim did not voluntarily accompany Neal. In the present case, the bruises to Jamaya’s face and neck, the evidence of strangulation, the removal of part of her clothing, and also the tears in her vaginal area all “would indicate that force was used at some point in time to make her do something against her will.” Id. at 758.

¶ 26. Under our judicial system, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. Id. See, e.g., Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). After reviewing the transcript and record, we find that the jury in the present case was properly instructed regarding the elements of kidnapping. We also agree that the State presented sufficient circumstantial evidence to prove the elements of kidnapping such that reasonable and fair-minded jurors could have found that Sims inveigled Jamaya with the intent to cause her to be secretly confined or imprisoned against her will. See Miss.Code Ann. § 97-3-19(2)(e) (Rev.2006). Indeed, the verdict herein reflects that the jury found Sims was guilty of the kidnapping of Jama-ya prior to her murder. Considering the evidence in the light most favorable to the prosecution, we find that reasonable jurors could find Sims guilty of kidnapping beyond a reasonable doubt. This issue is without merit.

¶ 27. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

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

      . The name is spelled as Jane' in the record, but we have reflected it as Jané in this opinion.

      . Regina Knight is Jamaya's mother.


author: GRIFFIS, P.J.,

text:
    Jerome PATTERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00466-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied April 17, 2012.
    Certiorari Denied July 19, 2012.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   GRIFFIS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is granted, and our original opinion is withdrawn, with this opinion substituted in lieu thereof.

¶ 2. Jerome Patterson was convicted in the Choctaw County Circuit Court of sale of hydrocodone and sentenced to fifteen years in the custody of the Mississippi Department of Corrections with seven years suspended and eight years to serve followed by five years of supervised probation. He appealed, and the appeal was assigned to this Court. He asserts a single issue, which we state verbatim: whether the trial court erred when it failed to grant appellant’s motion for a continuance where the State failed to timely disclose the name and address of a witness and confidential informant until the day before trial. We find that the circuit court correctly determined that the State did not commit a discovery violation and that the circuit court did not abuse its discretion in denying Patterson’s motion. Therefore, we affirm.

FACTS

¶ 3. On September 24, 2009, a Mississippi Bureau of Narcotics agent, Steven Woodruff, used a confidential informant (“Cl”) to purchase twelve hydrocodone tablets from Patterson. Agent Woodruff searched the Cl and then gave him money for the drug purchase. Agent Woodruff observed the Cl walk to Patterson’s pickup truck “open the driver’s door, get something out, put something in and walk back.” A camera was secreted upon the Cl’s person, and the recording showed an unidentifiable person walking to a pickup truck and transferring unidentifiable objects in a manner similar to Agent Wood-ruffs observations. Both Agent Woodruff and the Cl observed Patterson standing nearby his pickup truck. When the Cl returned from Patterson’s pickup truck to Agent Woodruffs location, Agent Wood-ruff searched him and retrieved the twelve hydrocodone tablets. Both Agent Wood-ruff and the Cl, who was ultimately identified as Steven Sanders, were eyewitnesses to the transaction, and both testified at trial. The only other witness called was a forensic scientist with the Mississippi Crime Laboratory who testified that the tablets were indeed hydrocodone. The defense rested its case without calling any witnesses or presenting any evidence.

¶ 4. The sale occurred on September 24, 2009. Thereafter, Patterson was arrested and had an initial appearance before a justice court judge on October 16, 2009. Defense counsel was appointed, and a preliminary hearing was scheduled for November 12, 2009. Patterson made bond on October 16, 2009, and the preliminary hearing was cancelled by order dated November 5, 2009.

¶ 5. Patterson was indicted on January 19, 2010. He was arraigned on January 26, 2010, and his trial was set for Tuesday, February 16, 2010. He filed a motion for discovery on January 28, 2010, and the State responded on February 2, 2010. The record is clear that the State provided all material required; however, the name of the Cl was redacted at that time. Trial was initially set for February 16, 2010, but it was continued by the trial judge until February 18, 2010. One day prior to trial, on February 17, 2010, the circuit court held a motion hearing upon, among other things, Patterson’s motion for a continuance.

¶ 6. At the hearing, Patterson’s attorney stated that he had met with Patterson on February 9, 2010, and they viewed the dvd recording together. Patterson’s attorney stated that he had been in plea negotiations with the State until February 11, 2010. He further stated that the State identified the Cl “a couple of days” after the initial discovery response on February 5, 2010. Patterson’s attorney was unable to locate Sanders despite having been given his name. The State provided Patterson with Sanders’s telephone number on February 15, 2010, which was two days before the motion hearing. Nevertheless, at the motion hearing, Patterson’s attorney stated that he had not been able to interview Sanders. It appears that Patterson’s attorney telephoned Sanders on February 15, 2010, but Sanders declined to speak with him about the drug transaction. The State responded at the motion hearing that it would make Sanders available at 11:00 a.m. for Peterson’s attorney to interview him, and it would also provide Patterson’s attorney with the Sanders’ NCIC sheet at that same time. The circuit court reserved ruling on the motion for a continu-anee pending Patterson’s attorney’s interview of Sanders to determine if anything new or unexpected arose from the interview. There is no doubt that the State provided the NCIC material, nor is there any doubt that Patterson’s attorney personally interviewed Sanders on February 17, 2010. The next day, in the presence of the jury venire, the circuit court questioned the attorneys about their readiness to proceed. The assistant district attorney responded: “The State of Mississippi is ready for trial, your Honor.” The circuit judge asked: “And what says the defense?” Patterson’s attorney responded: “Your Honor, I would like to renew my motion for a continuance, but as we stated yesterday, we are ready to go.” The circuit court denied the motion for a continuance, and Patterson was tried and convicted.

ANALYSIS

¶ 7. Uniform Rule of Circuit and County Court 9.04(B)(2) provides that a Cl’s identity must only be revealed in discovery when the State proposes to call the Cl as a witness at trial or the Cl is an eyewitness to the offense. In this case, Patterson admits that he was in plea negotiations until February 11, 2010, and Patterson further admits that the State disclosed the name of the Cl prior to that date. Therefore, there simply was no discovery violation. There is no doubt that the State may not refuse to reveal discoverable information until the eve of trial if it had prior knowledge of the information so as to prejudice the defendant’s right to a fair trial. See, e.g., Densmore v. State, 27 So.3d 379, 383 (¶ 14) (Miss.2009); Fulks v. State, 18 So.3d 803, 805 (¶ 10) (Miss.2009). However, that did not occur in this case. Rather, the State not only provided the name of the Cl at least a week prior to the motion hearing and the Cl’s telephone number two or three days prior to trial, but it went even further and facilitated Patterson’s interview of the Cl at the prosecutor’s office.

¶ 8. Uniform Rule of Circuit and County-Court 9.04(1) provides that if anytime prior to the commencement of trial, a trial court learns a party has failed to comply with discovery, the trial court “may order such party to permit discovery of material and information not previously disclosed, grant a continuance, or enter such order as it deems just under the circumstances.” In this case, while there was no discovery violation, at the motion hearing it became clear that for reasons beyond the control of either Patterson or the State, Patterson’s attorney had been unable to interview the Cl. The circuit court noted that the State was making the Cl available for an interview and providing the NCIC material. The circuit court then properly reserved ruling on the motion for continuance to see if the interview would prove insufficient for Patterson’s attorney to prepare to meet the Cl’s testimony. Patterson does not point to any fact that he might have learned had he been given a continuance, and in fact, his attorney announced on the day of trial that he was “ready to go.”

¶ 9. Patterson contends, upon appeal, that the State failed to comply with the seminal case of Box v. State, 437 So.2d 19 (Miss.1983) which is now stated in Uniform Rule of Circuit and County Court 9.04(1). This rule requires that if during a trial the State attempts to introduce any information which was not timely disclosed to the defense, the defense must be granted a continuance in which to prepare for the non-disclosed evidence. Box, 437 So.2d at 23-24 (Robertson, J., specially concurring.) In this case, however, there was no discovery violation. Patterson had no right to know the Cl’s identity until after February 11, 2010, and he admits that the State had already disclosed the name of the Cl before that date.

¶ 10. Moreover, even under the progeny of Box, there is no hard and fast rule of how much time a defendant need be given to prepare to confront the evidence against him; rather, there must be a case-by-case determination governed by the unique facts of each case. “There will no doubt be cases where postponement of a day or two, or in some cases even an hour or two, will suffice.” Foster v. State, 484 So.2d 1009, 1011 (Miss.1986). The key inquiry is whether under the “unique facts” of that case the trial court allowed “a reasonable opportunity to prepare confront the State’s evidence at trial.” Reuben v. State, 517 So.2d 1383, 1386 (Miss.1987).

¶ 11. Nevertheless, even when the rules of discovery are satisfied, a defendant might still be entitled to a continuance in order to prepare for trial. Sanders v. State, 38 So.3d 639, 646-47 (¶24) (Miss.Ct.App.2010). While the decision to deny a motion for a continuance is given considerable discretion, the key inquiry is whether a defendant has been afforded a “reasonable opportunity” to confront the State’s evidence at trial. Id. at 646 (¶ 23). For there to be error, an appellate court must find that the denial of the continuance resulted in “manifest injustice.” Id.

¶ 12. In this case the record shows that the circuit court, as well as the State, acted to ensure that Patterson could confront the evidence against him. The circuit court ascertained that Patterson had over three week’s notice of when the trial would occur:

BY THE COURT: Okay, this case was — he was arraigned on January the 26th, 2010. This case was set for this term of Court. I don’t believe it was set for tomorrow. It was set for yesterday, wasn’t it?
BY THE ASSISTANT DISTRICT ATTORNEY: Yes, your Honor.

The following excerpt shows the circuit court considered the complexity of the case and the level of preparation necessary:

BY THE COURT: And it [the date of trial] has been moved two days from ... the 16th to the 18th. It has already been moved there. So it has been set for three weeks, so there has been adequate time to do these things on a case that ... the State has three witnesses: A lab tech, the confidential informant and I assume, a nare?”
BY THE ASSISTANT DISTRICT ATTORNEY: Yes, your Honor.

The circuit court determined that there was not a discovery violation and that Patterson would have an opportunity to investigate what the Cl’s testimony would be, stating:

BY THE COURT: But there is no Box violation here. I mean there is no discovery violation to even have a Box procedure. They have given you the name of the informant, which is what the rules require. In addition to that, they are going to produce him.
BY THE COURT: [Y]ou are entitled to know his name. They are going beyond what they have to do. They are going to produce him for you to talk to him, so we will just have to see how it works.

The circuit court reserved ruling on the motion for continuance to first determine if Patterson’s interview of the Cl produced any facts that necessitated further investigation in order to prepare fully for trial. The record reflects the following:

BY THE COURT: I’m going to reserve ruling until he has the opportunity [talk with the C.I. who] is going to be here at 11 o’clock.
BY THE ASSISTANT DISTRICT ATTORNEY: Yes, your Honor.
BY THE COURT: I’m going to reserve — that may produce some new stuff ... [I]f he talks to him, if he gives him information, and it may produce some new facts that may justify a continuance. On what I have got right now, I’m not going to grant it, but I’m going to give you the opportunity to talk to this person and see what that brings.

Then, only after having determined that Patterson’s interview of the Cl did not reveal any facts requiring further investigation, the circuit court denied the motion for a continuance as follows:

BY PATTERSON’S ATTORNEY: Your Honor, I would like to renew my motion for a continuance, but as we stated yesterday[,] we are ready to go.
BY THE COURT: Okay. I reserved my ruling on that. The things I reserved it for did not occur, so I overrule the motion.

The record shows that the circuit court correctly determined not only that there was no discovery violation but also that Patterson had every opportunity to prepare to meet the State’s case without any unfair surprise.

¶ 13. The real issue present in this case has little to do with discovery. Rather, the issue is whether the short time between when Patterson was allowed a meaningful opportunity to interview Sanders and the commencement of trial allowed Patterson a reasonable opportunity to prepare to cross-examine Sanders. To be clear, the record shows that Patterson’s attorney diligently and skillfully performed his duties. At the motion hearing on February 17, 2010, Patterson contended he had been unable to interview the Cl. It appears that Patterson’s attorney’s heavy trial schedule and lack of independent resources did not allow him to locate Sanders despite having been given his name. It is clear from the record that Patterson’s attorney telephoned Sanders on Tuesday evening prior to trial on Thursday, but Sanders declined to discuss what he would testify to at trial. At the conclusion of the motion hearing, the circuit court reserved its ruling on the motion for continuance, because the State was making the Cl available for interview later that day and providing all pertinent NCIS material that Patterson indicated he needed. The record reflects that the Cl testified that he had known Patterson personally prior to the sale.

¶ 14. At trial, Patterson cross-examined the Cl thoroughly, both as to his being a paid informant who made his living purchasing illegal drugs for the State earning $100 per buy, as well as to his prior felony drug conviction in 2000. Additionally, Patterson cross-examined Sanders as to whether his testimony was consistent both with a written statement he gave shortly after the drug transaction as well with what he had said when he was interviewed the day before trial. Patterson does not point to anything that even remotely suggests that the Cl testified to anything that had not been disclosed prior to trial, nor does Patterson point to any additional fact that either the State failed to disclose, or was later learned, that he could have used to impeach the Cl. Patterson did not claim any alibi, misidentification of him by the Cl, entrapment, not any other defense to the charge. He simply exercised his right to not testify and to not present evidence. There is nothing in the record that shows “manifest injustice” in this case.

¶ 15. Under the facts of this case, Patterson was given a reasonable opportunity to prepare to cross-examine the Cl. The circuit court did not err in denying Patterson’s motion for a continuance. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF CONVICTION OF SALE OF A SCHEDULE III CONTROLLED SUBSTANCE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SEVEN YEARS SUSPENDED, EIGHT YEARS TO SERVE, AND FIVE YEARS OF SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

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

ISHEE, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

MYERS, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Falanda WILSON, Appellant v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC. and Jane Doe, Appellees.
    No. 2010-CA-00683-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied May 15, 2012.
    Certiorari Denied July 26, 2012.

      Carlos Eugene Moore, Tangala Laniece Hollis, attorneys for appellant.
    John H. Dunbar, Sarah Katherine Em-bry, attorneys for appellees.
   ISHEE, J.,

for the Court:

¶ 1. Falanda Wilson slipped, fell, and was injured while visiting a patient at Baptist Memorial Hospital (BMH) in Oxford, Mississippi. BMH sought summary judgment contending that Wilson was a licensee, rather than an invitee, and that it did not owe her a duty of care to keep its premises reasonably safe. The trial court granted the motion. We hold that a hospital visitor is an invitee, and we reverse the trial court’s grant of summary judgment in favor of BMH.

STANDARD OF REVIEW

¶ 2. We review a trial court’s grant of summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001). The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the nonmoving party must be given the benefit of doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶5) (Miss.2005). “A fact is material if it ‘tends to resolve any of the issues properly raised by the parties.’ ” Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 398 (¶ 16) (Miss.2006) (citation omitted).

DISCUSSION

¶ 3. Wilson visited a friend at the hospital, escorting the patient’s minor son to visit with his mother. Wilson claims she slipped on a puddle of water as she was leaving her friend’s hospital room. Wilson testified that immediately after her fall, she overheard an attending nurse say the water must have been spilled when nurses were delivering it to patients. As an alternative theory of liability, Wilson contends the spill was within view of the nurses’ station and should reasonably have been discovered and cleaned up before her fall.

¶ 4. To recover for negligence, a plaintiff must prove each of the elements of a negligence claim, which are: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Duckworth v. Warren, 10 So.3d 433, 440 (¶ 23) (Miss.2009). Duty and breach of duty establish the negligence, while causation and damages are required to show that the plaintiff is entitled to recover for harm resulting from the negligent act. Fisher v. Deer, 942 So.2d 217, 219 (¶ 6) (Miss.Ct.App.2006).

¶ 5. The issues on appeal are what duty BMH owed to Wilson as a visitor of a patient at the hospital and whether Wilson offered sufficient evidence of a breach of duty to withstand summary judgment.

I. Duty

¶ 6. To determine the duty of care owed by an owner or occupier of land to entrants on the property, we classify the entrants based upon common-law distinctions between trespassers, licensees, and invitees. Little ex rel. Little v. Bell, 719 So.2d 757, 760 (¶ 14) (Miss.1998). A landowner owes a greater duty to an invitee than to a licensee or trespasser; for an invitee, the duty is to keep the premises reasonably safe and, when not reasonably safe, to warn where there is hidden danger or peril that is not plain and open. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992). Whereas, the landowner owes a duty only to refrain from willfully or wantonly injuring licensees and trespassers. Adams ex rel. Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097,1100 (Miss.1986).

¶ 7. When the facts are not in dispute, the classification of a plaintiff is a question of law for the court. Doe v. Jameson Inn, Inc., 56 So.3d 549, 554 (¶ 13) (Miss.2011). In the instant case, the question is whether a visitor of a patient at a hospital is classified as a licensee or an invitee.

¶ 8. Generally, an invitee is one who enters another’s premises in answer to the express or implied invitation of the owner or possessor for their mutual advantage; a licensee is one who enters upon another’s premises for his or her own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner or possessor; and a trespasser is one who enters upon another’s property without invitation, license, or other right. Little, 719 So.2d at 760 (¶ 15).

¶ 9. We are aware of one reported Mississippi appellate decision concerning the status of patients’ visitors at hospitals. In Biloxi Regional Medical Center v. David, 555 So.2d 53, 55-56 (Miss.1989), the Mississippi Supreme Court took it for granted that a hospital visitor was an invitee. The issue does not appear to have been contested by the parties in that case; thus, we are reluctant to rely on it as conclusive authority for the proposition. When there is no Mississippi authority that directly addresses a question, our courts have often looked to the law of other jurisdictions for guidance. See Conley v. State, 790 So.2d 773, 790 (¶ 59) (Miss.2001).

¶ 10. Wilson and the amicus curiae have provided us with a myriad of cases from other jurisdictions holding or implicitly accepting that hospital visitors enjoy the status of invitees. Our own independent review of the law confirms, as other courts have observed, that the rule is nearly universal that hospital visitors are invitees. See Ex Parte Wooten, 681 So.2d 149, 150-151 (Ala.1996) (listing decisions of other states); N. Broward Hosp. Dist. v. Adams, 143 So.2d 355, 356-57 (Fla.Dist.Ct.App.1962) (noting only one exception, which has since been abandoned when Colorado abolished the common-law entrant classifications); see also 40A Am.Jur.2d Hospitals & Asylums § 31 (2008) (stating without qualification that visitors of patients in a hospital are invitees). The United States Court of Appeals for the Fourth Circuit, applying North Carolina and Virginia law, has explained the rationale for this rule as follows:

It is a matter of common knowledge that all hospitals expect patients to have visitors, the number, duration[,] and frequency of their visits depend[ ] upon the severity of the patient’s illness. Certainly, near relatives, such as [the] plaintiff in this case, have an implied invitation to visit. Such visits are for the mutual advantage of the patient, the visitor[,] and the hospital. It is desirable from the standpoint of the hospital to permit, at the proper times and under proper conditions, visits to patients by relatives and friends. No one would patronize a hospital which did not permit relatives and friends to visit patients at proper times.

Hamlet v. Troxler, 235 F.2d 335, 337 (4th Cir.1956). Allowing patients to accept visitors is a part of the hospital’s business, and hospitals often provide amenities, gift and flower shops, and cafeterias intended for visitors’ use and the hospital’s profit. Bowins v. Euclid Gen. Hosp. Ass’n, 20 Ohio App.3d 29, 484 N.E.2d 203, 205 (1984).

¶ 11. On the other hand, BMH has not presented a single decision from another jurisdiction holding a hospital visitor to be a mere licensee. Instead, BMH focuses on what it asserts are analogous Mississippi decisions, but we find all of them distinguishable. Jameson Inn, 56 So.3d at 556 (¶ 20) concerned a “guest of a guest of a registered hotel guest” who had entered the hotel premises to use illegal drugs. Astleford v. Milner Enterprises, Inc., 233 So.2d 524 (Miss.1970) and Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646 (Miss.1988) involved personal visitors of the landowner’s employees. Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960) held that an invitee’s status changed to a licensee after he used the premises for purposes not included in his invitation. Hudson v. Courtesy Motors, Inc., 794 So.2d 999 (Miss.2001) concerned a meeting between two individuals at a third-party business. Bishop v. Stewart, 234 Miss. 409, 106 So.2d 899 (1958) involved a wife who was injured on property owned by her husband but occupied by a third party with his permission. Because the wife was there for the family business, she was not regarded as an invitee vis-a-vis the third-party occupier. Id. None of these cases support BMH’s contention that a hospital visitor is a licensee under Mississippi law.

¶ 12. BMH also argues that Wilson should be barred from arguing she is a “business” invitee because that contention is made for the first time on appeal. BMH contends Wilson hung her hat on the theory that she was a “public” invitee rather than an ordinary business invitee. While it is true Wilson did make this argument— in fact, it was her leading argument both at the trial court and on appeal — from the record it is clear that Wilson has always contended that she was both a business invitee and a public invitee. The trial court, in its order granting summary judgment, directly addressed both questions. Thus, the issue of whether Wilson was a business invitee was not raised for the first time on appeal.

¶ 13. We conclude that a visitor of a patient in a hospital is a business invitee under Mississippi law. The trial court erred in finding that Wilson was a licensee.

II. Breach of Duty

¶ 14.' The final issue raised on appeal is whether Wilson presented sufficient evidence to survive summary judgment on the issue of whether the hospital breached its standard of care. As Wilson was an invitee, BMH owed her a duty to exercise ordinary care to keep the premises reasonably safe and, when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Caruso, 598 So.2d at 773. In order for a plaintiff to recover in a slip- and-fall case, she must: “(1) show that some negligent act of the defendant caused [her] injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.” Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (¶ 8) (Miss.2000).

¶ 15. BMH points out that there is no evidence in the record as to the amount of time the floor had been wet and, consequently, no proof to impute constructive knowledge of the dangerous condition to the hospital. We agree. However, we impute knowledge to the owner/occupier where it created the dangerous condition. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127, 132 (¶ 17) (Miss.2007). In this case, Wilson testified that, after she fell, three nurses responded immediately. In fact, Wilson overheard one of the nurses say the water-must have been spilled while the nurses had been delivering water to the patients. This statement was not hearsay, as it is either a party admission, or it is admissible under the “excited utterance” hearsay exception. See M.R.E. 801(D)(2); 803(2). Consequently, we find sufficient evidence that an issue of genuine material fact exists of a breach of duty.

¶ 16. We conclude the trial court erred in granting BMH’s motion for summary judgment.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL AND RUSSELL, JJ, CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE OPINION. MYERS, J., NOT PARTICIPATING.

      . "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public, while a business visitor is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Hudson, 794 So.2d at 1003 (¶ II). We agree with the trial court that Wilson was not a public invitee, as a hospital is not open to the general public for visitation; visitation is rightly reserved to those desired by the patients and is subject to reasonable regulation by the hospital.


text:
    In the Matter of the ESTATE OF Samuel A. FARR, Deceased. Samuel A. Farr, Appellant v. Nancy Wirick, Appellee.
    No. 2010-CA-01438-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.
    Rehearing Dismissed July 17, 2012.
    John P. Fox, Houston, Mark N. Halbert, Tupelo, attorneys for appellant.

      Stephen T. Bailey, Tupelo, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a will contest. Nancy Wirick, who is the daughter of the testator, Samuel A. Farr, filed a petition to contest Farr’s last will and testament and accompanying codicil, alleging that they were void because they were not attested to by at least two witnesses. Additionally, Wirick sought a determination of Farr’s heirs. On April 21, 2010, the chancery court found that Wirick is Farr’s sole heir. On June 28, 2010, Wirick filed a motion for summary judgment, seeking a determination that the will and codicil were invalid. The chancery court granted Wirick’s motion.

¶ 2. Feeling aggrieved, Farr’s estate appeals and argues that the chancery court erred in granting summary judgment and in determining that Wirick is Farr’s sole heir at law.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On April 1, 2009, Farr executed his purported last will and testament. The will appointed Ramona Walls as executrix and devised all of his property to Wirick to be held in trust. Wirick would receive payments of $2,000 per month from the trust, including a cost-of-living adjustment as determined annually by the federal government.

¶ 5. The will was nonholographic and was signed by Farr. Roger McGrew served as an attesting witness. McGrew’s signature appears at the bottom of the first page of the will and at the end of the attestation clause. It also appears as the affiant of an “affidavit of witnesses” associated with the will. Carolyn A. Davis, a notary public, notarized McGrew’s signature on the “affidavit of witnesses.”

¶ 6. On April 23, 2009, Farr executed a codicil to his purported last will and testament. The codicil provided that in the event Wirick died and there were still funds remaining in the trust, those funds should be divided equally between Prospect Methodist Church and Prospect Methodist Church Cemetery Fund. John P. Fox served as an attesting witness. Fox’s signature appears at the conclusion of the codicil and at the end of the attestation clause. It also appears as the affiant of an “affidavit of witnesses” associated with the codicil. Carmen O. Booth, a notary public, notarized Fox’s signature on the “affidavit of witnesses.”

¶ 7. Farr died on December 29, 2009. On January 13, 2010, Walls filed a petition to probate Farr’s will. The same day, the chancery court admitted the will to probate and authorized the issuance of letters testamentary to Walls. On January 22, 2010, Wirick filed a petition to contest Farr’s will and codicil. Wirick asserted that neither document had been properly executed under Mississippi Code Annotated section 91-5-1 (Rev. 2004). Specifically, Wirick argued that both the will and codicil were invalid because only one witness had attested to each document.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Validity of Will

¶ 9. Farr’s estate contends that the chancery court erred in granting summary judgment in favor of Wirick and in finding that the will and codicil were invalid because they had not been properly executed. A chancery court’s decision to grant summary judgment is reviewed de novo. In re Estate of Laughter, 23 So.3d 1055, 1060 (¶ 17) (Miss.2009). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c).

¶ 10. Under section 91-5-1, valid execution of a nonholographic will or codicil requires the signatures of at least two witnesses. Farr’s estate argues that the notary public served as the second witness, and, therefore, both the will and codicil were properly executed. We disagree. The Mississippi Supreme Court has stated the following with regard to will contests:

The history of will contests in Mississippi supports the view that the requirements that there be two attesting witnesses to a will and, moreover, that it be attested by them in the presence of the testator, and that such attestation be evidenced by the affixation of their signatures to the document, are indispensable safeguards of the integrity of testamentary documents.

Batchelor v. Estate of Powers, 348 So.2d 776, 777 (Miss.1977) (emphasis added).

¶ 11. In this case, the attestation clause in both the will and the codicil contains two signature lines, which are labeled “Witnesses.” However, McGrew is the only witness who signed the attestation clause of the will, and Fox is the only witness who signed the attestation clause of the codicil.

¶ 12. At the hearing on the motion for summary judgment, Farr’s estate attempted to enter a “Certificate of Subscribing Witness” into evidence for both Davis and Booth. In the certificates, Davis certified that she witnessed Farr sign his will in the presence of McGrew, and Booth certified that she witnessed Farr sign his codicil in the presence of Fox. The chancery court allowed the certificates to be marked for identification purposes but excluded them from evidence because they were not filed timely under Rule 56(c) of the Mississippi Rules of Civil Procedure. Rule 56(c) requires that affidavits in opposition to a motion for summary judgment be served “prior to the day of the hearing.” M.R.C.P. 56(c). Farr’s estate did not present the affidavits until the day of the hearing; therefore, the chancery court properly excluded the affidavits from evidence under Rule 56(c).

¶ 13. There is nothing in the will or in the codicil to suggest that Davis and Booth were present when Farr signed the documents. While the certificates presented at the hearing aver that Davis and Booth were present, the chancery court properly excluded the certificates under Rule 56(c). Because only one witness affixed his signature to the attestation clause of the will and of the codicil, neither document was validly executed. As such, the chancery court did not err in granting summary judgment in favor of Wirick. This issue is without merit.

2. Determination of Heirs

¶ 14. The estate made no effort to show that Farr had any heir other than Wirick even though, in its answer to Wirick’s petition, it denied that Wirick is Farr’s sole heir. Wirick properly published a summons for Farr’s unknown heirs, and no one responded. Therefore, based on evidence presented, the chancery court did not err in finding that Wirick is Farr’s sole heir. This issue is without merit.

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

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

      . Section 91-5-1 provides:
      Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, heredit-aments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

      . At the outset, we note that Wirick contends in her brief that Farr’s estate and its executrix lack standing to proceed on appeal. However, Farr’s argument is misplaced. While it is true that only "interested parties” (i.e. those with a pecuniary interest in the estate) may initiate a will contest, our case law has never held that an estate or its executrix is without standing to defend a will in a will contest. See Hoskins v. Holmes County Cmty. Hosp., 135 Miss. 89, 101, 99 So. 570, 573 (1924) (holding that executor is not an interested party and may not initiate a will contest). Wirick initiated the will contest, not Farr’s estate, and we know of no authority that precludes the estate from participating in the litigation.


author: RUSSELL, J.,

text:
    Gregory FAIR, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00224-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.
    Rehearing Denied July 24, 2012.
    Gregory Fair, appellant, pro se.
    Office of The Attorney General, by Laura Hogan Tedder, Attorney for Appellee.

      Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Gregory Fair appeals the Coahoma County Circuit Court’s denial of his motion for post-conviction relief (PCR). He argues that the indictment charging him with sale of cocaine was defective because it failed to include a stated quantity of cocaine. Finding no error, we affirm the circuit court’s judgment denying Fair’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 30, 2007, Fair was indicted by a grand jury for sale of cocaine. The indictment reads as follows:

SECOND AND SUBSEQUENT MCA Section 41-29-147
SALE OF CONTROLLED SUBSTANCE MCA Section 41-29-139(a)(l) STATE OF MISSISSIPPI CIRCUIT COURT
COAHOMA COUNTY NO. 2007-0048 Prior to July Term, 2007
THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful citizens of said County and State aforesaid, duly elected, empaneled, sworn and charged to inquire in and for said County and State aforesaid, at the May 2007 Vacation Term of the Court aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths, present:
GREGORY FAIR A/K/A LIL GREG, late of Coahoma County, Mississippi, on or about July 10, 2006, in the County and State aforesaid, and within the jurisdiction of this Court, did unlawfully, wil-fully[,] and feloniously and without authority of law, sell, transfer or deliver to Antonio Word, a certain controlled substance, to wit: cocaine, a Schedule II controlled substance as listed in Section 41-29-115(A)(a)(4) of the Mississippi Code of 1972, Annotated, as amended, and the defendant is charged as a Second and Subsequent Offender as is set forth in the attachments to this indictment, which attachments are made a part hereof as though fully copied herein in words and figures at this point, contrary to the form of the statute in such cases made and provided against the peace and dignity of the State of Mississippi.
AFFIDAVIT: This indictment was concurred in by twelve (12) or more members of the Grand Jury, and at least fifteen (15) were present during all deliberations.

The indictment, which was filed on May 30, 2007, was signed by the foreman of the grand jury, the circuit clerk, the district attorney, and the clerk.

¶ 3. A jury found Fair guilty of sale of a controlled substance (cocaine), and he was sentenced to five years. Thereafter, Fair filed a PCR motion seeking an order vacating his conviction and sentence. Fair alleged the indictment was defective because it “failed to set out the quantity of the alleged controlled substance which Fair was charged with selling to or delivering to Antonio Word.” The circuit court entered an order denying Fair’s PCR motion, stating:

This matter comes before this Court pursuant to [Fair’s] motion for post-conviction collateral relief. After carefully considering said motion, this Court finds as follows:
On November 12, 2008, [Fair] went to trial on charges of sale of cocaine. [Fair] was subsequently found guilty and sentenced on November 25, 2008, to a term of five (5) years in the custody of the Mississippi Department of Corrections.
It appears that [Fair] did not file a direct appeal of his conviction. He has now filed this [m]otion for [p]ost-[c]on-viction [r]elief on the grounds that his conviction and sentence were in violation of the Constitution of the United States and the Constitution of Mississippi, since his indictment did not contain the name or amount of the controlled substance he was alleged to have sold.
After reviewing the indictment [Fair] provided as part of this [m]otion, the controlled substance he was convicted of selling is named on the indictment. The amount of cocaine he sold is not listed on the indictment. However, the law in Mississippi is clear than an indictment for the charge of sale of cocaine does not have to list the amount sold. The penalty for sale of cocaine is the same regardless of the amount that was sold. Therefore, the indictment charging [Fair] with sale of cocaine was proper[,] and [Fair’s] [constitutional rightfs] were not violated.
Accordingly, [Fair’s] motion is DENIED.

¶ 4. Aggrieved by the circuit court’s denial of his PCR motion, Fair appeals.

DISCUSSION

¶ 5. Denial of a PCR motion is proper “if it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the mov-ant is not entitled to any relief.” Harris v. State, 17 So.3d 1115, 1117 (¶ 4) (Miss.Ct.App.2009) (citing Miss.Code Ann. § 99-39-11(2) (Rev.2007)). “In reviewing a circuit court’s decision to dismiss a motion for post-conviction relief, we will not disturb the circuit court’s factual decisions unless they are clearly erroneous.” Id. (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). This Court reviews questions of law de novo. Id.

¶ 6. As previously noted, Fair argues that the indictment charging him with sale of cocaine was defective for failing to set out the amount of cocaine allegedly sold. Fair also argues that the indictment failed to identify what drug he allegedly sold. However, from a plain reading of this indictment, it clearly lists “cocaine” as the drug sold. This issue is without merit.

¶ 7. Mississippi Code Annotated section 41-29-139(a)(l) (Supp.2011), which criminalizes the sale of controlled substances, states that “it is unlawful for any person knowingly or intentionally: (l)[t]o sell, barter, transfer, manufacture, distribute, dispense!,] or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance[.]” Nothing within this statute requires that a quantity be listed in an indictment. Rather, in charging this crime, the indictment must contain “a plain, concise!,] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. Under Mississippi law, “the penalty for the sale of cocaine ... is the same regardless of the quantity sold.” Smith v. State, 973 So.2d 1003, 1007 (¶ 10) (Miss.Ct.App.2007); see also Miss.Code Ann. § 41-29-139(a)(1), (b)(1). Therefore, “[t]he amount of cocaine sold is ... not an essential element of the crime.” Smith, 973 So.2d at 1007 (¶ 10) (citing Williams v. State, 821 So.2d 883, 887 (¶ 16) (Miss.Ct.App.2002)). As such, an indictment is not defective for failing to list a quantity of cocaine in the context of a sale of cocaine charge. Id. at 1006-07 (¶ 10). In fact, Mississippi law is clear that a quantity or amount of cocaine is not required to be listed in the indictment for a charge of sale of cocaine. See Harris, 17 So.3d at 1117 (¶ 6) (noting that while a charge for possession of cocaine must include the weight of cocaine one allegedly possessed within the indictment, a charge of selling cocaine does not have to include an alleged weight); Edwards v. State, 916 So.2d 542, 545 (¶ 7) (Miss.Ct.App.2005) (holding that the indictment was not flawed for failure to include the weight of cocaine sold because weight is not an element of that crime); Waites v. State, 872 So.2d 758, 759 (¶ 7) (Miss.Ct.App.2004) (holding that “since there is no statute that requires a specific amount of cocaine be included in the indictment, Waites’s claim that his indictment was faulty is without merit”).

¶ 8. In the instant case, the indictment charged Fair with “unlawfully, wilfully[,] and feloniously and without authority of law, sell, transfer[,] or deliver to Antonio Word, a certain controlled substance, to wit: cocaine, a Schedule II controlled substance as listed in Section 41-29-115(A)(a)(4) of the Mississippi Code of 1972, Annotated as amended[.]” While no quantity of cocaine was listed in the indictment, we find that no such requirement exists under Mississippi law. Therefore, we affirm the circuit court’s denial of Fair’s PCR motion.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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