author: RANDOLPH, Presiding Justice,

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION and Mississippi Transportation Commission v. Presley Y. NOSEF Individually and on Behalf of All Wrongful Death Beneficiaries of A.J. COWART.
    No. 2012-IA-00280-SCT.
    Supreme Court of Mississippi.
    April 4, 2013.

      Andrew M.W. Westerfield, attorney for appellee.
    Jefferson Allen, attorney for appellants.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Before the Court is the interlocutory appeal of the Mississippi Department of Transportation, et al. (“MDOT”) of the Coahoma County Circuit Court’s denial of MDOT’s motion for summary judgment in a wrongful-death action filed by the wrongful-death beneficiaries of A.J. Co-wart (“Nosef’).

¶ 2. In August 2007, Cowart pulled his 2004 Buick LeSabre onto the shoulder of Highway No. 1 in Coahoma County. He drove into an unmarked culvert, and his car flipped over. Cowart was taken to the hospital, became paralyzed five days later, and died in January 2008.

¶ 3. Nosef filed this action against MDOT, claiming that MDOT’s failure to place warning signs around a highway culvert, as required by Mississippi Code Section 65-21-1, resulted in an automobile accident that caused Cowart’s death. MDOT moved for summary judgment on the basis that it was immune from liability under the Mississippi Tort Claims Act, because subsequently enacted statutes su-percede Section 65-21-1 and provide that the placement or nonplacement of traffic devices is discretionary. The circuit court denied MDOT’s motion, finding that Section 65-21-1 imposes a ministerial duty to place warning signs around highway culverts, and that Section 65-21-1 has not been abrogated or repealed. We agree and affirm the Coahoma County Circuit Court’s denial of summary judgment.

ISSUE

¶ 4. Whether the trial court erred by finding that MDOT is not immune from liability under the Mississippi Tort Claims Act, because a Mississippi statute imposes a ministerial duty to place warning posts around highway culverts, and subsequent statutes do not render that duty discretionary.

DISCUSSION

¶ 5. “The standard of review for the grant or denial of a motion for summary judgment is de novo.” Ladnier v. Hester, 98 So.3d 1025, 1027-28 (Miss.2012) (citation omitted).

¶ 6. MDOT claims that it is immune from liability under the Mississippi Torts Claim Act (“MTCA”) for claims based on its failure to place warning posts around the highway culvert. The MTCA provides that:

[a] governmental entity ... shall not be liable for any claim ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused....

Miss.Code Ann. § ll-46-9(l)(d) (Rev.2002) (emphasis added). We have explained that:

A duty or an activity is discretionary if “it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” A ministerial function is one “positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.”

Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 72 (Miss.2012) (emphasis added) (citations omitted). Thus, MDOT is immune under the MTCA if its duty to place warnings around the highway culvert is discretionary — i.e., “it is not imposed by law and depends upon the judgment or choice of [MDOT.]”

¶ 7. Whether the duty to place warnings around highway culverts is ministerial or discretionary hinges on which statute controls the placement of such warnings. Section 65-21-1 provides that:

All culverts hereafter built, rebuilt, or placed in any public road in this state shall be not less than the full width of the crown of the roadway, and shall have guide or warning posts on either side. All bridges hereafter built, rebuilt, or placed in any public road of this state shall be built the full width of the crown of the roadway where the same is sixteen feet wide or less, and on roads having a greater width than sixteen feet the bridges shall be not less than sixteen feet wide; and all bridges hereafter built or rebuilt shall be built with banisters on either side. This section shall not apply to temporary bridges and culverts on detours; and all public highways in this state within the area of, or contingent to, any national reforestation project, which have been or may be taken over, constructed, or reconstructed by this department of the national government, may have bridges or culverts the width of said highways, but not less than twelve feet.

Miss.Code Ann. § 65-21-1 (Rev.2012) (emphasis added). The requirement that “[a]ll culverts ... shall have guide or warning posts” gives MDOT no choice or judgment regarding whether to place warning signs around a highway culvert; it imposes a ministerial duty. Miss.Code Ann. § 65-21-1 (emphasis added); see Barr v. Hancock County, 950 So.2d 254, 258 (Miss.Ct.App.2007) (“the placement of a warning sign at the culvert would be considered a ministerial function, as set forth in Mississippi Code Annotated Section 65-21-1”); Mohundro v. Alcorn County, 675 So.2d 848, 854 (Miss.1996) (“[t]he minimum requirements of the construction of culverts is specified in Miss. Code Ann. § 65-21-1 leaving no room for discretion in meeting the minimum standards set out there”).

¶ 8. MDOT does not dispute that the language of Section 65-21-1 requires warning posts to be placed around highway culverts. Rather, MDOT claims that Section 65-21-1 has been abrogated by Sections 63-8-301 and 63-3-303, which were enacted after Section 65-21-1 and impose only a discretionary duty to place and maintain traffic-control devices. Section 63-3-303 provides that:

The commissioner of public safety and the state highway commission shall place and maintain such traffic-control devices conforming to its manual and specifications, upon all state and county highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.

Miss.Code Ann. § 63-3-303 (Rev.2004) (emphasis added). The language “as it shall deem necessary” makes whether to place warning devices dependent upon the judgment or choice of the Mississippi Transportation Commission — a discretionary function. Miss.Code Ann. § 63-3-303 (emphasis added). Thus, Section 65-21-1 imposes a specific ministerial duty to place warning posts around highway culverts, while the later-enacted Section 63-3-303 imposes a general, discretionary duty to place traffic-control devices on highways.

¶9. As Sections 63-3-301 and 63-3-303 include no language suggesting abrogation or repeal of Section 65-21-1, we hold that Section 65-21-1 — narrowly, precisely, and specifically requiring warning posts around culverts — remains in effect as an exception to the general rule of Section 63-3-303 that MDOT has discretion over the placement of traffic devices. Miss.Code Ann. §§ 63-3-301, 63-3-303. We have provided that:

where a general statute, if standing alone, would include the same subject matter as a special statute, the special statute will ordinarily be regarded as a qualification of the general statute.

Townes v. Rusty Ellis Builder, Inc., 98 So.3d 1046, 1052 (Miss.2012) (quoting McCullen v. State ex rel. Alexander, 217 Miss. 256, 63 So.2d 856, 859 (1953)). The United States Supreme Court similarly has explained that:

[i]t is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.”

Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992-93, 48 L.Ed.2d 540 (1976) (citation omitted). Accordingly, we hold that Section 65-21-1 controls the specific issue of guide and warning posts around highway culverts, and Section 63-3-303 controls the discretionary placement of traffic devices that are not the subject of a specific statutory mandate. Thus, MDOT had a ministerial duty to place warning posts around the highway culvert at issue, and is not immune from liability under the MTCA for claims based on its failure to perform that duty.

CONCLUSION

¶ 10. MDOT is not immune from liability for claims based on its failure to perform the ministerial duty of placing warning posts around highway culverts. The Coahoma County Circuit Court properly denied MDOT’s motion for summary judgment.

¶11. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . The unofficial headings composed by the publisher for Section 65-21-1 are: "Highways, Bridges and Ferries” (Title 65); “Bridges: General Provisions” (Chapter 21); and “Width of bridges and culverts” (Section 1). 14 Mississippi Code 1972 xii, 1, 480 (Lexis Law Publishing 2012).

      . The unofficial headings composed by the publisher for Section 63-3-303 are: “Motor Vehicles and Traffic Regulations” (Title 63); "Traffic Regulations and Rules of the Road” (Chapter 3); and "Placing and maintaining of traffic-control devices upon state and county highways; placement of devices upon such highways by local authorities” (Section 303). 13A Mississippi Code 1972 xii, 331, 422 (Lexis Law Publishing 2012).

      . Mississippi Code Section 63-3-301 reads as follows:
      The commissioner of public safety shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system then current as approved by the American Association of State Highway Officials.
      Miss.Code Ann. § 63-3-301 (Rev.2004).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Gilda H. DAVIS and Joseph Davis Jr., Appellants v. BILOXI PUBLIC SCHOOL DISTRICT, Biloxi Public School Board, Board of Trustees, Dr. Paul A. Tisdale, Superintendent, Biloxi Public School District, Dr. Robert W. Bowles, Deputy Superintendent, Biloxi Public School District, Dr. Larry Drawdy, Biloxi Public School District, Lawyer Gerald Blessey, Biloxi Public School District, Bonnie Granger, Controller/Director of Business Management, Susan Brand, Principal, Beauvoir Elementary School, Biloxi Public School District, Individually, Appellees.
    No. 2010-CP-00338-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Dismissed March 13, 2013.

      Joseph Davis Jr., appellant, pro se.
    Gilda H. Davis, appellant, pro se.
    Silas W. McCharen, Jackson, Edward F. Donovan, Biloxi, Matthew Toxey Vitart, Jackson, attorneys for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Gilda H. Davis and Joseph Davis Jr. appeal from the Harrison County Circuit Court’s judgment affirming the dismissal of their complaint. Finding no error in the circuit court’s order dismissing the Davises’ claims as barred under the statute of limitations, we affirm.

FACTS

¶2. On September 4, 2003, the Biloxi Public School District (School District) terminated Joseph from his position as a teacher’s aide based on his “repeated acts of unprofessional and disrespectful conduct.” The School District complied with Joseph’s request to have the Board of Trustees (Board) conduct a hearing to determine whether his termination should be upheld. After conducting a hearing, the Board upheld the School District’s decision to terminate Joseph’s employment.

¶ 3. In January 2004, Joseph filed a complaint in the Harrison County Circuit Court, which the circuit judge subsequently dismissed after finding that Joseph was not entitled to judicial review because he was an at-will employee. Joseph appealed, and this Court affirmed the decision of the circuit court dismissing Joseph’s complaint. Davis v. Biloxi Pub. Sch. Dist., 937 So.2d 459 (Miss.Ct.App.2005) (Davis I). This Court clarified that Joseph, as a teacher’s aide, was not an employee enti-tied to the due-process protections of the Mississippi’s Education Employment Procedures Law of 2001, Mississippi Code Annotated section 37-9-113 (Rev.2007), and that none of his constitutional rights were violated because the School District terminated him for “repeated acts of unprofessional and disrespectful conduct.” Davis I, 937 So.2d at 461 (¶ 3). Joseph’s petition for certiorari was denied by the Mississippi Supreme Court and the United States Supreme Court, respectively.

¶ 4. Joseph filed a second suit in Harrison County Circuit Court in February 28, 2007, asserting the same allegations against the same defendants as the first suit. On November 16, 2007, the circuit judge dismissed Joseph’s complaint, holding that the claims raised were essentially the same legal claims which were raised by Joseph in his first legal action and finding that the claims asserted which were not otherwise barred by collateral estoppel and/or res judicata were barred by the statute of limitations. This Court again affirmed the dismissal, holding: “under the doctrine of collateral estoppel, Davis is precluded from relitigating in a second action issues already decided in the prior actionf;]” res judicata applied; and “the circuit court did not err in dismissing Davis’s remaining claims as barred under the statute of limitations.” Davis v. Biloxi Pub. Sch. Dist., 43 So.3d 1135, 1137-38 (¶¶ 6-10) (Miss.Ct.App.2009) (Davis II).

¶ 5. On April 29, 2004, the School District notified Joseph’s wife, Gilda, a physical education teacher’s aid, that the School District would not renew its employment contract with her for the following school year. On May 26, 2004, Gilda claimed that she received injuries to her side, back, and legs while on the premises of Beauvoir Elementary School in Biloxi, Mississippi. Gilda stated that while she was in the school gymnasium, her supervisor, Coach Jim Taylor, instructed Gilda to open the door under the stage, pull out the rolling carts containing two rows of metal folding chairs, and then set up the chairs in the gym. While removing the rolling carts, Gilda claimed that she slipped, fell, and held on to the cart as it rolled over her legs, injuring her side, legs, and back.

¶ 6. Both Gilda and Joseph filed suit in the Harrison County County Court on May 30, 2007, alleging wrongful termination and age discrimination. On April 15, 2008, the School District filed for dismissal or in the alternative for summary judgment, claiming that the Davises’ claims were barred by the three-year statute of limitations pursuant to section 15-1-49 (Rev.2009), and by the one-year statute of limitations pursuant to the Mississippi Tort Claims Act section 11 — 46—1 (Supp. 2010). The School District also asserted that Gilda’s claims were barred by the exclusive remedy provision of the Mississippi Workers’ Compensation Act. The School District moved to dismiss any claims asserted by Joseph based on res judicata. The county court issued a judgment of dismissal, finding that Gilda’s claims were barred by the applicable statutes of limitation. The county court also held that Joseph’s claims were barred by collateral estoppel, res judicata, and the applicable statute of limitations, and sanctioned Joseph in the amount of $2,000 for filing a frivolous lawsuit.

¶ 7. The Davises subsequently appealed to the Harrison County Circuit Court. The circuit court affirmed the county court’s dismissal of the appeal, finding that the Davises’ claims were barred by the applicable statutes of limitation and that Joseph’s claims were barred by res judica-ta and collateral estoppel. The circuit court noted that Gilda claimed for the first time on appeal that: she was injured on the job; she was prevented from drawing her unemployment compensation due to this injury; and she never received any workers’ compensation. The circuit court held that this issue was never pled in Gilda’s complaint; thus, it was not properly before the circuit court on appeal. The circuit court also found that “as to [Gilda’s] new claim that she was terminated due to her May 26, [2004] accident, this is clearly not supported in the record as the [April 29, 2004] non-renewal letter predates the accident by nearly a month.” The circuit court continued to state that any on-the-job injury would be subject to the Mississippi Workers’ Compensation Act.

¶ 8. The Davises now appeal, arguing that the circuit court erred in dismissing Gilda’s claims as barred by the statute of limitations. Gilda claims that she received her injuries on May 26, 2004, was terminated on May 31, 2004, and filed her complaint on May 25, 2007. She submits that the county court clerk did not stamp her complaint as filed until May 30, 2007.

STANDARD OF REVIEW

¶ 9. This Court applies a de novo standard when reviewing a circuit court’s grant or denial of a motion to dismiss. Farmer v. State of Miss. Dep’t of Pub. Safety, 907 So.2d 981, 984 (¶ 8) (Miss.Ct.App.2005).

DISCUSSION

¶ 10. On appeal, the Davises appear to form their argument solely around Gilda’s causes of action. Gilda asserts that she received injuries while on the job, and she also argues that the circuit court erred in dismissing her claim that she was unlawfully terminated by the School District’s non-renewal of her contract as barred under the applicable statute of limitations.

Worker’s Compensation Claim

¶ 11. In her appeal from county court to circuit court, Gilda seeks relief for injuries she sustained on May 26, 2004, and claims that she never received worker’s compensation for her injury. However, as noted in the circuit court’s judgment, Gilda failed to raise this issue in her original complaint filed in the Harrison County County Court. On appeal to this Court, Gilda’s brief asserts that she was injured on the job, but it does not appear to raise any error regarding the circuit court’s dismissal of this claim. Pursuant to the Mississippi Rules of Appellate Procedure 28(a)(l)(6), the argument in an appellant’s brief must contain “the contentions of appellant with respect to the issues presented, and the reasons for those contentions, ■with citations to the authorities, statutes, and parts of the record relied on.” Additionally, although Gilda cites an assortment of case law, none of the cases relate to her worker’s compensation claim. This Court is not required to address any issue on appeal that is not supported by reasons for the contentions and authority. Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶4) (Miss.Ct.App.2005).

¶ 12. However, we note that Gilda states that she was acting in the course and scope of her employment when she received her injuries on May 26, 2004, and point out that such claim falls under the Mississippi Worker’s Compensation Act. See Miss.Code Ann. §§ 71-3-9 (Rev.2000) (“The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee-”) and 71-3-35(1) (Rev.2000) (“Regardless of whether notice was received, if no payment of compensation ... is made and no application for benefits filed with the [Commission within two years from the date of the injury ..., the right to compensation therefor shall be barred.”). Gilda claims she was injured in 2004, but she failed to make an application for benefits within two years from the date of her injury, as required under the Act. In his order of dismissal, the circuit judge noted that: “Any workers’ compensation claims had to be filed with the Mississippi Workers’ Compensation Commission 'by April 29, 2006. Any remaining claims had to be filed by April 29, 2007. [Gilda] filed nothing until May 30, 2007. All applicable statutes of limitation had expired prior to the filing of her complaint in this matter.” Therefore, any right to compensation is barred.

¶ 13. We also find no error in the circuit court’s dismissal of Gilda’s worker’s compensation claim as not being properly before the circuit court, since Gilda failed to raise the claim in her complaint filed in county court and, thus, raised the issue for the first time on appeal to the circuit court. See Estate of Stevens v. Wetzel, 762 So.2d 293, 295 (¶ 11) (Miss.2000) (pleadings must provide sufficient notice of the claim to the opposing party). See also M.R.C.P. 8.

Wrongful Termination

¶ 14. Gilda argues that the School District violated 42 U.S.C. § 1983 (2006) by willfully depriving Gilda of her constitutional and civil rights. Gilda argues that the statute of limitations for this wrongful-termination claim began to run on May 31, 2004, the day that she claims that the School District terminated her employment.

¶ 15. The Mississippi Supreme Court has held that a state’s personal-injury statute of limitations should be applied to all section 1983 claims. Bankston v. Pass Rd. Tire Ctr., Inc., 611 So.2d 998, 1003-04 (Miss.1992). Therefore, Mississippi’s general three-year statute of limitations, section 15-1-49 (Rev.2003), is applicable to Gilda’s 1983 claims. Id. Miss. Code Ann. 15-1-49 states that:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

¶ 16. In Chardon v. Fernandez, 454 U.S. 6, 7-8, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), the United States Supreme Court established that a section 1983 cause of action accrues when the plaintiff receives notice of termination, not when the employment actually terminates. Thus, Gilda’s alleged section 1983 and constitutional rights claims began to run on April 29, 2004, when she admittedly received the non-renewal notice from the School District. Gilda waited to file her suit until May 30, 2007, thirty-one days after the expiration of the statute of limitations for the instant action.

¶ 17. Gilda also alleges various Mississippi state-law tort claims against the School District. See Miss.Code Ann. § 11-46-11(1) (Supp.2010) (School districts are included as governmental entities under this statute.). These claims are controlled by the Mississippi Tort Claims Act (MTCA), which provides that “all actions brought under the provisions of this chapter shall be commenced within one year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after....” See Black v. Ansah, 876 So.2d 395, 397 (¶¶7-10) (Miss.Ct.App.2003) (applying section 11-46-11(3) (Rev.2002) in a wrongful-termination action). The School District points out that Gilda failed to comply with the ninety-day notice provision required by section 11-46-11(1). The record reflects that Gilda filed her complaint over two years after the MTCA statute of limitations had expired; therefore, we find no error in the circuit court’s dismissal of Gilda’s state-law tort claims.

Damages and Double Costs

¶ 18. The School Board submits that under Mississippi Rule of Appellate Procedure 38, it is entitled to damages and double costs as a result of defending the Davises’ frivolous suit and appeal. Under Rule 38, this Court may assess sanctions where an appeal is found to be frivolous. The question this presents is “whether a reasonable person would have any hope for success.” Hards v. Hards, 988 So.2d 376, 380 (¶ 16) (Miss.2008). This Court evaluates Rule 38 frivolity by reference to Mississippi Rule of Civil Procedure 11. Asanov v. Hunt, 914 So.2d 769, 774 (¶ 25) (Miss.Ct.App.2005).

¶ 19. The record reflects that the county judge found Joseph’s claims to be frivolous and imposed an initial award of sanction upon Joseph in the amount of $2,000. However, the county judge later amended this amount to $5,085.36 after determining that the initial amount was imposed before the School District was provided an opportunity to introduce evidence as to the amount of attorney’s fees incurred in the defense of Joseph’s claims and before Joseph was provided an opportunity to argue against the justification of the sanctions award. The county court’s final judgment on sanctions explained that the court found sanctions to be appropriate, and the court found that the School District had provided documentary evidence to establish that the sum awarded was fairly equal to the amount of money the School District had expended for the defense of Joseph’s claims. The county court did not impose monetary sanctions upon Gilda.

¶ 20. Upon review, we find that the county court and circuit court properly informed Gilda in proficient, written opinions that her claims were barred by the statute of limitations; thus, we find her fully aware that she had no “hope for success” on appeal. Id. We note that our supreme court has established that pro se parties are held to the same rules regarding procedure and substantive law as represented parties; thus, we impose double costs of this appeal against Gilda as the most appropriate sanction pursuant to Rule 38. See Tubwell v. Grant, 760 So.2d 687, 690 (¶ 14) (Miss.2000) (Supreme court’s past experiences with pro se party allowed the court “to presume that he possessed the knowledge to determine the difference between a frivolous lawsuit and one deserving merit[.]”); Ivy v. Merchant, 666 So.2d 445, 450-51 (Miss.1995); Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987).

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. DOUBLE COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT GILDA DAVIS.

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

      . Davis v. Biloxi Pub. Sch. Dist., 937 So.2d 450 (Miss.2006); Davis v. Biloxi Pub. Sch. Dist., 549 U.S. 1224, 127 S.Ct. 1289, 167 L.Ed.2d 107 (2007).

      . Although Joseph is listed as a plaintiff7ap-pellant in the style of this case, we note that the appellants' brief only addresses assignments of error as to Gilda’s claims. After reviewing the transcript from the motion hearing in county court on July 2, 2008, it appears to this Court that Joseph, who possesses no license to practice law, added himself as a plaintiff in order to act as his wife’s counsel. The brief fails to allege any assignment of error as to the circuit court’s dismissal of Joseph's claims as barred by res ju-dicata, collateral estoppel, and the statute of limitations. However, we note that Gilda’s allegations in the present appeal mirror many of the allegations made by Joseph in his prior lawsuits against the School District. The county court and circuit court judgments both reflect that they found the instant action to constitute Joseph’s third attempt to litigate his claims against the School District. We note that all of the claims raised by Joseph in the current complaint were raised or should have been raised in Davis I and II. In both of those prior cases, this Court resolved all questions regarding his termination and the manner in which he was terminated. As a result, we acknowledge that any subsequent attempt by Joseph to relitigate any claims or issues previously litigated in Davis I or Davis II are indeed barred by the doctrines of res judicata and collateral estoppel; furthermore, they are barred by the statute of limitations.


author: FAIR, J.,

text:
    SKYHAWKE TECHNOLOGIES, LLC, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY and Shawn Gillis, Appellees.
    No. 2011-CC-00595-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Oct. 30, 2012.
    Certiorari Dismissed April 4, 2013.

      Dennis L. Horn, Shirley Payne, Madison, attorneys for appellant.
    Albert B. White, Leanne F. Brady, attorneys for appellees.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. SkyHawke Technologies, LLC appeals the Madison County Circuit Court’s judgment affirming the decision of the Mississippi Department of Employment Security (MDES) to award unemployment benefits to Shawn Gillis. Finding no abuse of discretion, we affirm.

FACTS

¶ 2. Gillis was employed by SkyHawke for six years as a sales representative. While at the office, his co-worker, Alice Moreland, called him an obscene name. Gillis responded that evening by sending Moreland several vulgar text messages and leaving her crude voicemails. When she did not respond, Gillis said “game on.” The next day or so, Gillis approached Moreland at her cubicle brandishing his phone and asking if she had received his messages. Moreland reported this behavior to SkyHawke claiming she felt scared and uncomfortable. Two days later, Gillis was terminated for sending text messages “of a sexual nature” to Moreland.

¶ 3. The behavior for which Gillis was terminated took place over about a week. On June 23 the events described above took place, and on July 1 he became unemployed. Testimony and argument of counsel reflect one other contact, outside of the workplace, when Gillis and Moreland watched a movie and drank “a couple of beers” together at her house at sometime in the past.

¶ 4. Gillis was initially denied unemployment benefits because he was terminated for sexual harassment. He appealed the MDES Examiner’s decision to an administrative law judge (ALJ) who reversed the examiner’s denial of benefits. SkyHawke then appealed to the MDES Board of Review, which affirmed the ALJ’s decision. Next, SkyHawke appealed to the Madison County Circuit Court, which also affirmed the award of benefits.

¶ 5. Feeling aggrieved, SkyHawke now appeals asserting that the circuit court erred by (1) requiring a finding of fraud, (2) failing to deem the employee handbook admissible and sustaining the ALJ’s inadmissibility finding, and (3) sustaining the ALJ’s finding that Gillis’s termination was not for misconduct.

ANALYSIS

¶ 6. The standard of review in cases where this Court examines the circuit court’s judgment to affirm the Board of Review’s decision is abuse of discretion. Miss. Dep’t of Employment Sec. v. Clark, 13 So.3d 866, 870 (¶ 8) (Miss.Ct.App.2009) (quoting Howell v. Miss. Employment Sec. Comm’n, 906 So.2d 766, 769 (¶ 7) (Miss.Ct.App.2004)). Further, an agency’s findings should not be disturbed unless the order is: (1) not supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) violates the claimant’s constitutional rights. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994).

¶ 7. The facts, as determined by the Board, were supported by substantial evidence and were not arbitrary or capricious. After hearing testimony from Gillis, Moreland, and a human resources supervisor, the ALJ determined that Gillis was terminated for violating SkyHawke’s rule against the use of foul language, which was not enforced consistently. The ALJ also determined that this incident was an isolated act of poor judgment and did not constitute misconduct. The Board affirmed these findings. This Court reviews only the legal conclusions drawn by the Board of Review.

1.Fraud

¶ 8. SkyHawke argues that the circuit court applied an incorrect standard of review in this matter by stating: “The court having reviewed the entire record does not find any evidence of fraud and further finds the findings of the Board of Review as to the facts are supported by the evidence.” This assignment of error is without merit. Mississippi Code Annotated section 71-5-531 (Supp.2011) states: “In any judicial proceedings under this section, the findings of the [Bjoard of [R]e-view as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive.... ” The circuit court, following the statutory direction, ruled that it did “not find any evidence of fraud” and that “the facts [were] supported by evidence.” The court did not act improperly by reviewing the record for fraud, did not im-permissibly require that SkyHawke prove fraud to succeed in its appeal, and did not err by couching its findings in the language of the statute.

2. Employee Handbook

¶ 9. SkyHawke’s second argument seems to be that had the employee handbook been admitted into evidence, the ALJ would have found that Gillis was terminated for sexual harassment, justifying a denial of unemployment benefits. As a practical matter, an ALJ must have some discretion to control the presentation of evidence. And while the rules of evidence are relaxed in administrative settings, ideas of fundamental fairness should still prevail.' Mississippi Rule of Evidence 103(a) states: “[E]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.... ” There is no evidence of SkyHawke providing a copy of the proposed manual or portions thereof.

¶ 10. SkyHawke argues that it was error for the ALJ to exclude the employee handbook at the hearing, but has pointed to no substantial right that has been affected by this exclusion. SkyHawke’s speculation about what the ALJ might have found is not sufficient. The ALJ allowed testimony on the company’s sexual harassment policy curing any possible prejudice from exclusion of the handbook itself. We cannot find that exclusion of the employee handbook affected a substantial right of SkyHawke.

3. Disqualifying Misconduct

¶ 11. Mississippi Code Annotated section 71-5-513(A)(l)(b) (Supp.2011) provides that individuals are disqualified from receiving unemployment benefits if discharged for misconduct connected with work. The Mississippi Supreme Court has defined misconduct as:

[CJonduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term.

Wheeler v. Arriola, 408 So.2d 1881, 1383 (Miss.1982) (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)). It is the employer’s burden to prove such misconduct by clear and convincing evidence. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). Further, “ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered ‘misconduct’ within the meaning of the statute.” Wheeler, 408 So.2d at 1383.

¶ 12. To be guilty of misconduct for violating a rule (such as a policy against the use of foul language), it must be shown that the employee knew or should have known of the rule, that the rule was reasonably related to the job, and that the rule is fairly and consistently enforced. Miss. Employment Security Commission Administrative Manual Part V, ¶ 1720.

¶ 13. SkyHawke argues that Gil-lis’s sexually offensive remarks should be characterized as misconduct and urges this Court to follow the ruling in Captain v. Mississippi Employment Security Commission, 817 So.2d 634 (Miss.Ct.App.2002). In Captain, an employee was terminated after receiving two formal warnings for sending at least thirty-two pages of inappropriate email through the business server. Id. at 635-37 (¶¶ 2-16). This Court held that the employee knew of the rule against such conduct, that the rule was reasonable, and that it was consistently applied. Id. at 638 (¶ 25).

¶ 14. The instant case is easily distinguished from Captain because Gillis testified that he was unaware of any policy against the use of foul language, and foul language was often used by many employees without repercussion. Further, the record shows that this policy was not consistently enforced, as it was Moreland’s use of an obscenity that precipitated Gil-lis’s remarks. SkyHawke has made no showing of an evil design or Gillis’ intentional and substantial disregard for its interests. Gillis testified that he was using his personal phone after work to contact Moreland and stand up for himself. It was not an abuse of discretion for the Board to conclude that Gillis’s conduct was an isolated incident of poor judgement and not misconduct.

¶ 15. Finally, SkyHawke’s contention that it has been placed in the impossible position of being forced to choose between liability for sexual harassment or liability for unemployment benefits is untenable. SkyHawke cites to Jones v. B.L. Development Corp., 940 So.2d 961 (Miss.Ct.App.2006), to support this proposition, but the facts of this case are quite different. In Jones, an employer was held liable for negligent infliction of emotional distress under an agency theory after a supervisor engaged in a persistent course of inappropriate touching, sexual propositions, and vulgar language over a period of nine months. In this case the language used and the manner of its use certainly were not directed to establishing or furthering any sexual relationship. The instant facts simply do not rise to that level of infamy.

¶ 16. The findings of the Board of Review were supported by substantial evidence and should not be disturbed. We find no abuse of discretion in the circuit court’s standard of review, the ALJ’s exclusion of the employee handbook, or the determination that Gillis’s remarks were not misconduct. The order of the Circuit Court is affirmed.

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

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


author: MAXWELL, J,

text:
    Patricia McKINNEY, Appellant v. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER and Mississippi State Agencies’ Workers’ Compensation Trust, Appellees.
    No. 2011-WC-01172-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.
    Patricia McKinney, appellant, pro se.

      Blake Anthony Tyler, Jackson, attorney for appellees.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J,

for the Court:

¶ 1. Patricia McKinney appeals the dismissal of her workers’ compensation claim as time-barred under the two-year statute of limitations. She argues that while her claim was filed two years and thirteen days after her alleged injury, her employer’s Form B-52 Notice of Controversion tolled the limitations period, saving her claim. But a Form B-52 Notice of Contr-oversion filed by an employer or carrier does not constitute an application for benefits and does not toll the statute of limitations. Thus, we find her compensation claim is time-barred. And because she failed to establish a valid reason to toll application of the time-bar, we find her tardy claim was properly dismissed. We affirm.

Facts and Procedural History

¶ 2. On February 5, 2008, McKinney, an employee of the University of Mississippi Medical Center (UMMC), allegedly injured herself while pulling charts at work. UMMC filed a Form B-52 Notice of Controversion with the Mississippi Workers’ Compensation Commission (Commission) on February 20, 2008, disputing McKinney’s injury. That same day, UMMC sent a letter to McKinney advising her it had denied her request for benefits.

¶ 3. On February 18, 2010, two years and thirteen days after her alleged injury, McKinney filed a petition to controvert with the Commission. The parties stipulated that neither UMMC nor its carrier had paid McKinney any injury-based compensation benefits. UMMC moved to dismiss McKinney’s claim, arguing it was time-barred under the two-year statute of limitations. ' McKinney responded, insisting the limitations period had been tolled by UMMC filing its notice of controversion. An administrative judge dismissed McKinney’s claim based on the two year statute of limitations, and the Commission affirmed the dismissal. McKinney now appeals pro se.

Discussion

¶ 4. We must decide whether the two-year statute of limitations in Mississippi Code Annotated section 71-3-35(1) (Rev. 2011) bars McKinney’s claim for workers’ compensation benefits. The applicability of a statute of limitations is a question of law, which we review de novo. Nicholson v. Int’l Paper Co., 51 So.3d 995, 998 (¶ 10) (Miss.Ct.App.2010) (citing Jordan v. Pace Head Start, 852 So.2d 28, 30 (¶ 4) (Miss.Ct.App.2002)).

A. Statute of Limitations Under Section 71-3-35(1)

¶ 5. A workers’ compensation claimant must file for benefits within two years of the alleged injury or the claim is time-barred, unless the employer has paid disability compensation to the claimant. Under section 71-3-35(1): “Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the [Cjommission within two years from the date of the injury or death, the right to compensation therefor shall be barred.”

¶ 6. While McKinney admittedly failed to file her petition to controvert within the two-year limitations period, she argues the Form B-52 Notice of Controversion filed by UMMC was sufficient to toll the statute of limitations.

B. Tolling the Limitations Period in Section 71-3-35(1)

¶ 7. We have previously held that an employer’s filing of a Form B-52 Notice of Controversion does not toll the two-year statute of limitations. See Tupelo Pub. Sch. Dist. v. Parker, 912 So.2d 1070, 1072 (¶ 8) (Miss.Ct.App.2005). In Parker, the claimant filed her petition to controvert approximately two years and five months after the date of her alleged injury. Id. at 1071 (¶ 3). And the administrative judge dismissed her claim as time-barred under section 71-3-35(1). Parker, 912 So.2d at 1071 (¶ 5). On appeal, the claimant argued the Form B-52 Notice of Controversion filed by her employer was sufficient to toll the two-year statute of limitations. Id. at 1072 (¶ 8). We disagreed and affirmed the dismissal, noting that “a Form B-52 is one filed by the employer or carrier. It is not an ‘application for benefits’ as specified by the two[-]year statute of limitations.” Id. Rather, “an ‘application for benefits’ as referenced in [section 71-3-35(1) ] means a petition to controvert, or some variation of a petition or motion, filed with the Workers’ Compensation Commission by the claimant, not the employer or carrier.” Parker, 912 So.2d at 1071 (¶ 8). Under Procedural Rule 2 of the Mississippi Workers’ Compensation Commission, “a cause will be controverted by the employee’s filing with the Mississippi Workers’ Compensation Commission a properly executed workers’ compensation form B-5, 11.” Parker, 912 So.2d at 1071 (¶ 8). But a Form B-52 Notice of Controversion filed by the employer and carrier “does not constitute an ‘application for benefits’ and thus does not toll the statute of limitations under [section 71-3-35(1) ].” Id.

¶8. Like the claimant in Parker, McKinney had two years from the date of her alleged injury to file a petition to controvert with the Commission. She failed to do so. And it is of no legal consequence that she filed her petition within two years of UMMC filing its Form B-52 Notice of Controversion. Unless we find UMMC should be estopped from raising the statute of limitations as a defense, her compensation claim is time-barred.

C. Estoppel

¶ 9. Though she did not expressly mention “estoppel” before the administrative judge or in her appellate brief, McKinney did suggest that her claim was untimely because UMMC had misled her into believing it would pay for her medical expenses. So we briefly address whether this doctrine applies to McKinney’s tardy filing.

¶ 10. “An employer may be es-topped from asserting the statute of limitations as a bar to a claim for benefits where the evidence shows that the employer intended to mislead the claimant, and the employee reasonably relied on such statements or actions.” Baker v. IGA Super Valu Food Store, 990 So.2d 254, 261 (¶ 23) (Miss.Ct.App.2008) (citing Brock v. Hankins Lumber Co., 786 So.2d 1064, 1067 (¶ 11) (Miss.Ct.App.2000); Holbrook ex rel. Holbrook v. Albright Mobile Homes, Inc., 703 So.2d 842, 844 (117) (Miss.1997)). But the employee must present some “evidence of inequitable behavior by the employer.” Baker, 990 So.2d at 261 (¶ 23) (citing McCrary v. City of Biloxi, 757 So.2d 978, 982 (¶ 18) (Miss.2000)).

¶ 11. In McKinney’s written appeal to the Commission, she did not cite inequitable behavior by UMMC as the cause of her untimely claim. Rather, she contended her attorney did not file her claim because her social security attorney had “advised [her] not to do so.” UMMC promptly filed its B-52 Notice of Controversion with the Commission fifteen days after the injury, and we find no record evidence to suggest UMMC engaged in any inequitable behavior. Having identified no misleading or inequitable behavior on UMMC’s part, we find the Commission properly denied McKinney’s claim for benefits as untimely.

¶ 12. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J.,

text:
    Keith CASSIDY a/k/a Keith Lamont Caston a/k/a Keith L. Cassidy, Appellant v. STATE of Mississippi, Appellee Keith Cassidy a/k/a Keith Lamont Caston a/k/a Keith L. Cassidy, Appellant v. State of Mississippi, Appellee.
    Nos. 2010-KA-01273-COA, 2011-CA-01815-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.

      William R. Labarre, George T. Holmes, Jackson, Virginia Lynn Watkins, Alison Oliver Kelly, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Keith Cassidy was convicted in the Hinds County Circuit Court of one count of possession of cocaine. He was sentenced as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev.2009). He had been convicted in 1996 of sale of cocaine. Prior to sentencing, Cassidy filed a motion in the trial court to expunge his 1996 conviction. Cassidy was then sentenced as a subsequent drug offender to thirty-two years in the Mississippi Department of Corrections (MDOC), with ten years suspended and five years of supervised probation. After sentencing, Cassidy’s motion to expunge was denied. Cassidy now appeals arguing (1) the trial court erred by denying his motion to expunge his 1996 possession-of-cocaine conviction; (2) the trial court erred by failing to postpone sentencing until a ruling was made on the motion to expunge; (3) the State failed to prove Cassidy’s prior convictions for the purpose of enhanced sentencing; and (4) the trial court erred by refusing to allow certain evidence to impeach a witness for the State. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cassidy was indicted in the .trial court for Counts I, II, and III, sale of cocaine; Count IV, possession of cocaine with intent to distribute within 1,500 feet of a building or outbuilding that is all or part of a public elementary school; Count V, possession of a weapon by a felon; Count VI, bribery of a witness; and Count VII, tampering with a witness. The indictment also charged Cassidy as a subsequent drug offender due to his March 1996 conviction for possession of cocaine. During the course of the trial, the State decided against proceeding with Counts VI and VII because the subject of those counts, Virginia Shoemake, revealed evidence that called her previous testimony into question. The trial court then entered a directed verdict on those two counts. At the close of the trial, a directed verdict was also entered for Count V based on the State’s failure to present any evidence that Cassidy was a convicted felon.

¶ 3. After deliberations, the jury was unable to reach an agreement for Counts I, II, and III, and a mistrial was declared on those counts. For Count IV, the jury found Cassidy not guilty of possession of cocaine with intent to sell within 1,500 feet of an elementary school. However, it found him guilty of possession of cocaine in violation of Mississippi Code Annotated section 41-29-139(c)(l)(C) (Rev.2009).

¶ 4. During the sentencing hearing, the defense counsel requested the postponement of sentencing due to a pending motion to expunge Cassidy’s 1996 possession-of-cocaine conviction. The State sought to sentence Cassidy as a subsequent drug offender under Mississippi Code Annotated section 41-29-147; thus, the defense counsel wanted to postpone sentencing so that Cassidy could escape the subsequent drug offender enhancement. The State argued that even if the 1996 conviction was expunged, Cassidy had a 2001 possession-of-marijuana conviction that would nonetheless qualify him as a subsequent drug offender. The trial judge denied the defense counsel’s request.

¶ 5. Cassidy was then sentenced to serve thirty-two years in the custody of the MDOC, with ten years suspended and five years of supervised probation. His sentence was enhanced based on his status as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 due to his 1996 conviction for possession of cocaine. Although Cassidy moved to have his 1996 conviction expunged, the trial court denied his motion on November 4, 2011.

¶ 6. On appeal Cassidy argues (1) the trial court erred by denying his motion to expunge his 1996 possession-of-eocaine conviction; (2) the trial court erred by failing to postpone sentencing until a ruling was made on the motion to expunge; (3) the State failed prove Cassidy’s prior convictions for the purpose of enhanced sentencing; and (4) the trial court erred by refusing to allow certain impeachment evidence.

DISCUSSION

I. Motion to Expunge

¶ 7. When Cassidy pleaded guilty to possession of cocaine in 1993, he was placed on two years of supervised probation and ordered to pay a $200 fine. However, the trial court withheld acceptance of Cassidy’s guilty plea, adjudication of guilt, and imposition of the sentence pursuant to Mississippi Code Annotated section 41-29-150(d)(1) (Supp.2012). In January 1995, the State filed a petition to accept the guilty plea and sentence the defendant. The State alleged that Cassidy had violated his supervised probation because he had failed to report, to pay supervision fees, and to avoid injurious and vicious habits. In March 1996, the trial court entered an order finding Cassidy guilty and sentenced him to eighteen months, with twelve months suspended, in the custody of the MDOC.

¶ 8. In March 2010, Cassidy filed a motion to expunge his 1996 conviction. The trial court denied the motion to expunge in November 2011. The trial court stated the “motion was untimely filed, after-the-fact, in an attempt to change the ... [subsequent [ojffender sentencing status of the [d]efendant[.]”

¶ 9. Mississippi Code Annotated section 41-29-150(d)(2) is the statute section under which Cassidy requested expungement. That section of the statute was recently amended in 2010. Cassidy argues the trial court applied the recently amended section of the statute instead of the statute as it stood during the time of his conviction. He asserts that this constitutes an unconstitutional ex post facto application of the law.

¶ 10. Mississippi Code Annotated section 41-29-150(d)(2) (Supp.2012) applies after the charges have been dismissed. Mississippi Code Annotated section 41-29-150(d)(1) controls the dismissal of the charges. It states in part: “If during the period of his probation such person does not violate any of the conditions of probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him.” Miss.Code Ann. § 41-29-150(d)(l). However, “[ujpon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided.” Id.

¶ 11. Here, Cassidy’s charges were never dismissed; therefore, section 41-29-150(d)(2) does not apply. He violated his probation by failing to report to his probation officer, failing to pay his supervision fees, and failing to avoid injurious and vicious habits. The trial court then adjudicated his guilt and sentenced him to a period of incarceration in the custody of the MDOC. Hence, while Cassidy argues the trial court applied the wrong version of section 41-29-150(d)(2), that section does not apply because the charges were never dismissed. Accordingly, this issue is without merit.

II. Denial of Request for Postponement of Sentencing

¶ 12. “This Court réviews a circuit court’s grant or denial of a motion for [a] continuance under an abuse-of-discretion standard and will only reverse ‘when manifest injustice appears to have resulted from the decision to deny the continuance.’ ” Hilliard v. State, 42 So.3d 653, 655 (¶ 7) (Miss.Ct.App.2010) (citations omitted). Cassidy argues the trial court erred by denying his request to postpone his sentencing until the resolution of his motion to expunge. He asserts that the expungement would relieve him of his status as a subsequent drug offender. The State claims the issue is waived because Cassidy never raised the issue in his motion for a new trial. However, even if the issue is not procedurally barred, the State argues there was no manifest injustice resulting from the trial court’s denial of his request for postponement.

¶ 13. “Issues raised for the first time on appeal are procedurally barred from review as they have not first been addressed by the trial court.” Griffin v. State, 824 So.2d 632, 635 (¶ 7) (Miss.Ct.App.2002). Cassidy never raised the issue in his motion for a new trial; thus, the issue is procedurally barred. Procedural bar notwithstanding, we will address the issue on the merits.

¶ 14. As noted above, Cassidy’s motion to expunge was ultimately denied. Therefore, even if a continuance was granted, the outcome would have remained the same. Furthermore, Cassidy could have sought relief in the trial court through resentencing had his motion to expunge been granted. Finally, Cassidy’s possession-of-marijuana conviction was sufficient to subject him to enhanced sentencing even if his possession-of-coeaine conviction had been expunged. Accordingly, there was no manifest injustice that resulted from the denial of his request for a continuance. This issue is without merit.

III. State’s Failure to Prove Cassi-dy’s Prior Convictions

¶ 15. Cassidy argues the State failed to prove the existence of his prior convictions through documentary proof for the purpose of enhanced sentencing. The State concedes it did not submit an authenticated copy of any document to demonstrate the existence of the 1996 conviction. However, the State argues the defense counsel’s admission that Cas-sidy was convicted of possession of cocaine is sufficient proof for the purposes of enhanced sentencing.

¶ 16. This Court has previously found that “[ajdmissions to prior criminal convictions are sufficient to permit a finding of habitual status.” Sanders v. State, 786 So.2d 1078, 1082 (¶ 14) (Miss.Ct.App.2001). Likewise, we find this reasoning applies to sentencing as a subsequent drug offender. During the sentencing hearing, the trial judge asked defense counsel: “[Y]ou would agree that [Cassidy] was indeed convicted of [possession of cocaine], correct?” Defense counsel replied: “Yes, Your Honor.... ” Thus, defense counsel readily admitted that Cassidy was previously convicted of possession of cocaine. This admission to the 1996 criminal conviction constitutes sufficient proof to sentence Cassidy as a subsequent drug offender. This issue is without merit.

IV. Refusal to Allow Impeachment Testimony

¶ 17. Cassidy argues the trial court erred by refusing to allow the defense counsel to impeach a witness for the State based on her alleged prostitution and three felony arrests. We review the admission or exclusion of evidence under an abuse-of-discretion standard. Williams v. State, 54 So.3d 212, 213 (¶ 5) (Miss.2011) (citation omitted). “The trial court’s decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. (citation omitted).

¶ 18. Jessica Wilson was the State’s key witness in this case. She was a confidential informant for the Mississippi Bureau of Narcotics (MBN). Wilson testified at trial that on April 13, 2009, she met with a MBN agent to arrange for her to make a drug purchase. After being outfitted with audio and video recording devices and provided with money, Wilson purchased cocaine from Cassidy. She purchased cocaine from Cassidy again on April 14, 2009, and April 15, 2009. Wilson admitted during her testimony that she had been addicted to cocaine, convicted for selling cocaine, and enrolled in a rehabilitation center several times.

¶ 19. Kenneth Blanford, an agent with the MBN, testified during a proffer outside of the presence of the jury. He acknowledged that Wilson had been arrested for one count of auto theft during the summer of 2009, and two counts of criminal mischief in February 2010. Agent Blan-ford also testified that Wilson began working with the MBN after officers discovered her attempting to engage in prostitution. However, according to Agent Blanford, Wilson was never charged with anything, and “she has not worked any charges off for the [MBN] in this time period.” He also testified that Wilson entered Whitfield State Hospital in June 2009.

¶ 20. The defense counsel sought to have Wilson’s arrests and alleged prostitution presented before the jury. However, the trial court ruled the information was inadmissible pursuant to Mississippi Rules of Evidence 408 and 609. The trial court found “the probative value of the introduction of such evidence would not be outweighed by the prejudicial value.”

¶ 21. Cassidy asserts the trial court abused its discretion by refusing to permit the defense counsel to cross-examine Wilson about her alleged prostitution and three felony arrests. He claims the trial court violated his right to fully confront Wilson. Cassidy further argues the alleged prostitution and felony arrests affect the credibility and bias of Wilson; thus, the jury should have been allowed to hear the information.

¶ 22. Mississippi Rule of Evidence 609(a) permits admission of a witness’s prior convictions if “punishable by death or imprisonment in excess of one year[.]” Thus, charges brought against the witness must have resulted in a conviction in order to be admissible under Rule 609(a). See Fuller v. State, 910 So.2d 674, 679 (¶ 13) (Miss.Ct.App.2005). Because Wilson’s charges had not resulted in a conviction, they were properly excluded by the trial court.

1128. Furthermore, the introduction of the charges should not have been permitted in order to establish favorable treatment or bias. Wilson made the purchases as a confidential informant in April 2009. She was arrested during the summer of 2009 and again in February 2010. Thus, the two arrests could not be used to show bias or favorable treatment because both arrests occurred after the date in which she purchased the cocaine from Cassidy as a confidential informant. Hence, there was no correlation between the arrests and her purchases of cocaine from Cassidy.

¶ 24. With regard to the alleged prostitution, we find the trial court should have allowed the defense counsel to cross-examine Wilson regarding any favorable treatment she may have received. In Suan v. State, 511 So.2d 144, 146 (Miss.1987), the Mississippi Supreme Court reversed and remanded the case for a new trial where the defense counsel was not permitted to cross-examine the State’s key witness regarding criminal activity in which he was involved but never actually prosecuted. The defense counsel wanted to show that the witness received leniency in exchange for his testimony against the defendant. Id. at 146. The supreme court stated: “Evidence that a material witness has received favored treatment at the hands of law enforcement authorities, particularly where that -witness is himself subject to prosecution, is probative of the witnesses] interest or bias and may be developed through cross-examination or otherwise presented to the jury.” Id. at 147-48 (citations omitted). Here, as in Suan, the trial court should have permitted the defense counsel to cross-examine Wilson regarding any leniency she may have received with regard to her purchase of the drugs or her testimony. Although the trial court should have permitted the defense counsel to question Wilson regarding her alleged prostitution, we nonetheless find the error harmless.

¶ 25. When determining if an error was harmless, we must consider “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Moffett v. State, 49 So.3d 1073, 1099 (¶ 85) (Miss.2010) (quoting Brown v. State, 995 So.2d 698, 704 (¶ 25) (Miss.2008)). Cassidy was ultimately acquitted on the sale-of-eocaine charge. The only charge he was convicted of, possession of cocaine, was based on evidence obtained during a search of his home. Therefore, it is clear that the trial court’s failure to permit the defense counsel to cross-examine Wilson regarding her alleged prostitution did not contribute to the one charge for which Cassidy was convicted. This issue is without merit.

¶ 26. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE AS A SUBSEQUENT DRUG OFFENDER OF THIRTY-TWO YEARS, WITH TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS AND FAIR, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.


author: BARNES, J.,

text:
    Alberto Munoz SANTOS a/k/a Alberto Santos Munoz, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00010-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.

      M.A. Bass Jr., George T. Holmes, Jackson, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. Alberto Munoz Santos was convicted of sexual battery of a mentally deficient person and sentenced to twenty-two years, with eighteen years to be served in the custody of the Mississippi Department of Corrections (MDOC), and four years suspended. He appeals his conviction and sentence, and finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of February 19, 2011, Santos was visiting the home of an acquaintance, Timothy Carroll. Also at the home was Timothy’s girlfriend (now fiancee), Carol Thornton,- and her seventeen-year-old son, “Michael.” The four were watching television in the master bedroom; Santos and Timothy were consuming beer. After a few hours, Timothy closed his eyes, pretending to sleep so that Santos would leave. Thornton asked Michael to escort Santos to the door. It became unusually quiet afterwards; so Timothy went to check on Michael in his bedroom. When he walked in, he saw Michael and Santos with their pants down around their knees. The two quickly pulled their pants up. Timothy, who was shocked, just told Santos to leave. Timothy called his mother to ask advice, and she told him to contact the police. He then told Thornton what had happened and called the police. Michael was taken to the hospital, where a rape kit was performed. There were traces of semen on his pants, and the DNA matched Santos.

¶ 3. Santos was indicted for sexual battery under Mississippi Code Annotated section 97-3-95(l)(b) (Rev.2006), which states: “A person is guilty of sexual bat--tery if he or she engages in sexual penetration with .... [a] mentally defective, mentally incapacitated or physically helpless person[.]” Santos was convicted in a jury trial and sentenced to twenty-two years in the custody of MDOC, with eighteen years to be served in custody and four years suspended. Finding there was sufficient evidence to support the verdict, we affirm.

DISCUSSION

Whether the circuit court erred in denying Santos’s motion for a directed verdict and motion for a new trial.

¶ 4. Although Santos argues that the State failed to prove an important element of the offense, that “[Michael] was mentally incapacitated [or] physically helpless,” his actual argument is that testimony by Michael’s teacher “failed to provide sufficient proof that [Michael] was ‘incapable of knowing the nature and quality of his conduct.’ ” Thus, Santos’s claim is that there was not sufficient evidence that Michael was “mentally deficient” under subsection (b), as there was no evidence that Michael was under the influence of an intoxicant or physically incapable of giving consent.

¶ 5. Santos was convicted of sexual battery of a mentally deficient person under section 97 — 3—95(l)(b). Mississippi Code Annotated section 97 — 3—97(b)—(d) (Rev. 2006) provides the definitions for these terms:

(b) A “mentally defective person” is one who suffers from a mental disease, defect or condition which renders that person temporarily or permanently incapable of knowing the nature and quality of his or her conduct.
(c) A “mentally incapacitated person” is one rendered incapable of knowing or controlling his or her conduct, or incapable of resisting an act due to the influence of any drug, narcotic, anesthetic, or other substance administered to that person without his or her consent.
(d) A “physically helpless person” is one who is unconscious or one who for any other reason is physically incapable of communicating an unwillingness to engage in an act.

¶ 6. As this Court has consistently stated:

A motion for a directed verdict and a motion for a judgment notwithstanding the verdict (JNOV) challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). 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.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). All evidence will be reviewed in the light most favorable to the State, and all credible evidence consistent with the defendant’s guilt will be accepted as true. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “Reversal can only occur when evidence of one or more of the elements of the charged offense is such that ‘reasonable and fair minded jurors could only find the accused not guilty.’ ” Stewart v. State, 909 So.2d 52, 56 (¶ 16) (Miss.2005).
In contrast, a motion for a new trial challenges the weight of the evidence. Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007) (citing Sheffield v. State, 749 So.2d 123, 127 (¶ 16) (Miss.1999)). The reviewing court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be “weighed in the light most favorable to the verdict.” Id. “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” Moore v. State, 859 So.2d 379, 385 (¶26) (Miss.2003) (quoting McNeal v. State, 617 So.2d 999, 1009 (Miss.1993)).

Collins v. State, 97 So.3d 1247, 1250 (¶¶ 10-11) (Miss.Ct.App.2012) (footnote omitted). Viewing the evidence presented in the light most favorable to the State, we find there was sufficient evidence to establish all the elements of the offense. Further, we find that the verdict was not against the overwhelming weight of the evidence.

¶ 7. Shakia Robinson, Michael’s special-education teacher and former mental-health therapist, testified:

At the school currently, he is one of SCD students, which is the significantly cognitively disabled student. He’s also, as his label for special education], is EMR, educably mentally retarded. His IQ testing is below 70, which is-he has a 61 with his IQ testing.
Well, with his IQ, he’s unable to function with regular education] students. His ability is like the kindergarten through third grade level with his level of functioning. As far as his social skills and daily living skills, he’s not really with his regular age group as a regular student[.]

Yet Santos states that Michael’s testimony at trial showed that he was able to understood what happened to him. When asked what Santos had done to him, Michael stated that Santos “stuck his d* *k in my butt.” He also testified that he had asked his parents to call the police, although this testimony was not supported by other evidence. Santos contends that “Timothy’s testimony shows that [Michael] wanted to avoid being caught with Santos, showing that he was not mentally defective, but rather that he understood that there was something inappropriate and wrong about what happened.”

¶ 8. Santos is correct that there are no Mississippi cases on point addressing this specific issue. To support his claim, Santos cites Mathis v. State, 682 So.2d 175 (Fla.Dist.Ct.App.1996), a case from Florida wherein the statutory definition of a “mentally defective” person is almost identical to Mississippi’s. In Mathis, the district appellate court held:

[N]o direct evidence whatsoever was offered on the issue of whether, on the date of the alleged sexual battery, the alleged victim was suffering from “a mental disease or defect which rendered her temporarily or permanently incapable of appraising the nature of her conduct.” On appeal, the [S]tate argues that a reasonable juror might infer, from the alleged victim’s IQ and “mental and developmental age” some fifteen months before the date of the alleged sexual battery, that the alleged victim was “mentally defective” on the date of the alleged sexual battery. We disagree. No evidence was offered as to the correlation, if any, between IQ and “mental and developmental age,” and the ability to understand “the nature” of one’s “conduct.” Children having a chronological age younger than the alleged victim’s “mental and developmental age” have been found to possess a sufficient understanding of the difference between the truth and a lie, and the moral obligation to relate the former rather than the latter, so as to be competent to testify in court. In fact, in this case, the trial court concluded, we believe correctly, that the alleged victim was competent to testify.
On this issue, our standard of review is whether, viewing all of the evidence and inferences fairly to be drawn therefrom in a light most favorable to the [S]tate, a reasonable jury might have found that the alleged victim was “mentally defective,” as that term is defined in section 794.011(l)(b), on the date of the alleged sexual battery. The relevant focus is on the legal sufficiency, rather than the weight, of the evidence. Applying this standard of review, we conclude that the evidence presented was legally insufficient to permit a reasonable jury to find that the alleged victim was “mentally defective” on the date of the alleged sexual battery.

Mathis, 682 So.2d at 180-81 (internal citations omitted). However, subsequent Florida cases have discussed and distinguished the district court’s findings in Mathis. In Bowman v. State, 760 So.2d 1053, 1055 (Fla.Dist.Ct.App.2000), the district court stated:

We do not see a problem, as the Mathis court may have, with a victim being found able to understand the moral obligation to testify truthfully, and still being mentally defective under the statutory definition. It is not unusual for a child who is actually or mentally five years old to sufficiently understand the moral obligation to tell the truth so as to be competent to testify. Telling the truth is a basic value of our society which is drummed into the heads of children as soon as they are able to reason. The fact that such a child is competent to testify, however, is not inconsistent "with being mentally defective under section 794.011(l)(b), Florida Statutes. Unlike telling the truth, the inappropriateness of the type of sexual activity occurring in Mathis or this case is not necessarily something which is normally discussed with a person who is mentally only five years old.

“As long as there is competent and substantial evidence from which the jury may conclude the victim is mentally deficient, such that she or he is incapable of ‘consent,’ the matter is a question to be resolved by the jury.” Hudson v. State, 939 So.2d 146, 148 (Fla.Dist.Ct.App.2006).

¶ 9. More recently, in State v. Dudley, 64 So.3d 746, 751-52 (Fla.Dist.Ct.App.2011), the Florida district court discussed the finding in Mathis, stating:

[W]e find the analysis in Mathis troubling in that it suggests an unreasonably narrow reading of the term “mentally deficient.” In short, Mathis equates “mental deficiency” with “legal insanity,” and further suggests that anyone with a sufficient mental capacity to competently testify in court cannot be found “mentally deficient.”
“Mentally deficient” cannot reasonably be read to mean a total lack of mental capacity, as the trial judge in our case seems to have concluded based upon language in Mathis [.] “Deficient” means “lacking in some quality” or “not up to a normal standard.” Merriam-Webster Dictionary (2011), http://www.merriam-webster.com/dictionary/deficient. It does not mean “devoid of’ or “totally lacking.” Similarly, the statutory definition of “mentally deficient,” that is, “incapable of appraising the nature of his or her conduct,” connotes significantly diminished judgment, but not a complete and total lack of mental awareness.
Accordingly, to the extent that Mathis can be read as equating “mental deficiency” with competence to testify, or to mean a total or complete lack of mental capacity or understanding, we disagree and conflict with Mathis.

The Supreme Court of Florida has granted review of the Dudley decision, which has not yet been completed. See Dudley v. State, 90 So.3d 271, 2012 WL 2848103 (Fla.2012).

¶ 10. In People v. Cox, 268 Mich.App. 440, 709 N.W.2d 152 (Mich.Ct.App.2006), the Michigan appellate court considered a case similar to the one before us. The defendant, Jeffrey Cox, was convicted of “engaging in anal and oral sex with a seventeen-year-old, mentally incapable victim.” Id. at 155-56. On appeal, Cox argued that there was insufficient evidence that the victim was mentally incapable. Id. at 156. However, there was testimony by a caseworker, a psychologist, and the victim’s counselor, that the victim was “impressionable” and “an easy child to manipulate.” Id. at 156-57. The psychologist said that although the victim “was aware of his conduct, he could not appreciate the social or moral significance of his acts relating to the homosexual encounter with [the] defendant and was incapable of making an informed decision about sexual involvement.” Id. at 157. The counselor had “a significant history of treating the victim” and testified that the victim could be “talked into doing things or following another’s lead and that he allows his personal rights to be violated to gain acceptance.” Id. The appellate court concluded that there was sufficient evidence that “the victim suffered from a mental disease or defect that rendered him incapable of appraising the nature of his conduct.” Id.

¶ 11. We agree that Michael did appear to understand that he engaged in a sexual act and that he had some appreciation that what was happening was wrong. But as the State noted, “even small children, who cannot possibly comprehend the gravity of sexual abuse will hide the conduct from parents.” Furthermore, as in Cox, Michael’s counselor and teacher, Robinson, said that although Michael was a good kid and knew right from wrong, he was the type of child who “kind of goes along with what’s going on.” She specifically noted that the other students would tease him, but he was often unaware that they were making fun of him. Rather, she said he just thought “that he’s part of the crowd.” Timothy also testified that Michael was “easily intimidated or scared.” Michael testified that he was afraid of Santos; yet he also contradictorily stated that Santos was his friend.

¶ 12. Thus, we find there was sufficient evidence presented at the trial from which a jury could find beyond a reasonable doubt that Michael suffered from a mental deficiency. Moreover, the testimony sufficiently showed that Michael’s mental age was that of a young child. Robinson said that Michael functioned at a grade-school level. At the trial, Michael was confused about the court’s instruction to “swear to tell the truth,” testifying that it meant a person should “honor the judge.” When asked if he knew what happens when you do not tell the truth, Michael responded that you get “struck” by God. Michael’s “word choices and phraseology throughout the testimony reflect the mental ability of a young child.” See Dudley, 64 So.3d at 748.

¶ 13. Accordingly, we affirm the judgment of the circuit court.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-TWO YEARS, WITH EIGHTEEN YEARS TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FOUR YEARS TO BE SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J„ NOT PARTICIPATING.

      . A fictitious name is being used to protect the identity of the victim of sexual assault.

      . Compare Fla. Stat. § 794.011(b) (Rev.2002) (“ ‘Mentally defective’ means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.”) with Miss. Code Ann. § 97-3-97(b) ("A 'mentally defective person' is one who suffers from a mental disease, defect or condition which renders that person temporarily or permanently incapable of knowing the nature and quality of his or her conduct.”).


author: LEE, C.J.,

text:
    Amber Leigh CRABB, Appellant v. Jessie Joe BOWDEN, Appellee.
    No. 2011-CA-01012-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.

      John A. Ferrell, Booneville, attorney for appellant.
    Christopher Paul Palmer, Brandon, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Amber Leigh Crabb and Jessie Joe Bowden had a relationship that resulted in a daughter, Lilyana, who was born on July 23, 2009, while Jessie was deployed in Iraq. Upon returning from Iraq in March 2010, Jessie sought custody of Lilyana, and he was granted custody by the Alcorn County Chancery Court on May 27, 2011. Jessie was determined to be the biological father of Lilyana. As a result, her name was legally changed from Lilyana Joleigh Crabb to Lilyana Joleigh Bowden. Additionally, Jessie was given physical custody of Lilyana, and Amber was granted visitation and ordered to pay $100 in monthly child support.

¶ 2. Amber appeals, arguing the chancellor erroneously applied the Albright factors to the facts of the case.

STANDARD OF REVIEW

¶ 3. This Court will not disturb a chancellor’s findings “unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002). However, “[a] chancellor’s conclusions of law are reviewed de novo.” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009).

DISCUSSION

¶4. Amber argues that the chancellor misapplied the Albright factors to the facts of the case, specifically that certain factors should not have been weighed in Jessie’s favor and that certain factors considered neutral should have favored her.

¶ 5. In child-custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In Albright, the Mississippi Supreme Court designated factors to determine the “best interest” of a child in a custody case. Id. These factors include:

[1] the age[,] ... health, and sex of the child;
[2] a determination of the parent that has had the continuity of care pri- or to the separation;
[3] which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care;
[4] the employment of the parent and responsibilities of that employment;
[5] the physical and mental health and age of the parents;
[6] the emotional ties of the parent and child;
[7] the moral fitness of the parents;
[8] the home, school, and community record of the child;
[9] the preference of the child at the age sufficient to express a preference by law;
[10] stability of home environment and employment of each parent; and
[11] other factors relevant to the parent-child relationship.

Id. at 1005.

¶ 6. The chancellor found the following factors favored Jessie: the age, health, and sex of the child; parenting skills; physical and mental health and age of the parents; moral fitness of the parents; and stability of the home environment and employment. The chancellor found that Amber was the best suited parent in regards to continuity of care.

¶ 7. The chancellor found the following factors favored neither parent: employment and responsibilities of that employment; emotional ties of parent and child; home, school, and community record of the child; and other factors. Since Lilyana was not of a sufficient age to express a preference, the chancellor found that factor inapplicable.

¶ 8. Neither party contests the findings of the chancellor regarding continuity of care; home, school, and community record of the child; preference of the child; and other factors. Therefore, these factors will not be addressed.

I. Age, Health, and Sex of the Child

¶ 9. As to the age, health, and sex of the child, the chancellor focused on the health of Lilyana. The chancellor noted that Lilyana’s medical problems arose from lack of proper care, finding that Amber “failed to provide consistent proper care for the infant child in tending to her diaper[s], safety, and clothing.”

¶ 10. Two health issues the chancellor addressed were Lilyana’s diaper rash and her respiratory problems. According to the testimony and evidence presented, Lil-yana had persistent and severe diaper rash, which lead to a staph infection for which she was hospitalized. Although Amber testified that the diaper rash was a result of Lilyana’s sensitive skin, Jessie stated when he treated Lilyana’s diaper rash while she was in his custody, the rash began to heal. Ben Crabb, Amber’s ex-husband with whom she lived for a period of time, testified that on one occasion Lil-yana was left in her car seat for multiple hours with her diaper and clothes soaked with urine.

¶ 11. Also, Lilyana suffered from seasonal allergies and had been admitted to the hospital for bronchitis. Amber testified that she lived with her mother and that her mother smokes cigarettes but not around the children. Jessie’s wife, Nicole, testified that Lilyana smells of cigarette smoke almost every time she comes to their house. The chancellor noted that Jessie did not have “cigarette use at his residence.”

¶ 12. Amber contends that the chancellor erred by failing to consider that Lilyana was a child of tender years and failed to address her age in its consideration of this factor. Under Mississippi Code Annotated section 93-5-24(7) (Rev. 2004), awarding either legal or physical custody to the mother is no longer presumed to be in the child’s best interest. Although the tender-years doctrine was “significantly weaken[ed]” by section 93-5-24(7), “there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss.Ct.App.2002).

¶ 13. The chancellor did, in fact, address Lilyana’s age, noting that at the time, she was twenty-two months old. And the chancellor specifically stated that “Jessie Joe [had] demonstrated the ability to properly care for the needs of a small child on a consistent basis.... ” The chancellor was not manifestly wrong in finding this factor favored of Jessie.

II. Parenting Skills and Willingness and Capacity to Provide Primary Child Care

¶ 14. The chancellor found this factor favored Jessie, stating Amber’s slow response in attending to Lilyana’s medical needs and Amber’s poor choices had “exposed [Lilyana] to unfavorable circumstances.”

¶ 15. Besides Lilyana, Amber has four other children, all boys, from her previous marriage to Ben. At the time of trial, Amber did not have custody of the boys.

¶ 16. Testimony was given that Amber used profanity when speaking to both Lil-yana and her four boys; that she was violent with the children, including slapping them; that she was inattentive, allowing them to play with gasoline or with charcoal and a lighter; that she disregarded Lilyana’s safety by placing the car seat in the front seat of the car rather than in the back seat where it belonged; and that she did not know how Lilyana had burned her leg. Lilyana’s condition worried Jessie’s mother so much that she contacted the Mississippi Department of Human Services.

¶ 17. From the record, it is clear the chancellor was not manifestly wrong in determining this factor in favor of Jessie.

III.The Employment of the Parents and Responsibilities of that Employment

¶ 18. The chancellor found that both parties were employed full-time and would need help in caring for Lilyana. Therefore, this factor favored neither party-

¶ 19. Jessie testified at trial that he was employed with the National Guard and reported three days a week and two weekends a year. Amber testified that she was not employed at the time of trial, although she had interviewed for a position prior to trial. No evidence was presented that either party was employed full-time. Jessie’s position with the National Guard was part-time, and Amber was unemployed.

¶ 20. While the chancellor erred in applying this factor, she clearly did not err in her application of the remaining factors. “[E]ven though we find clear error in the chancellor’s finding on this one particular factor, we do not find that this particular error tainted the chancellor’s analysis and application as a whole.” Parker v. South, 913 So.2d 339, 350 (¶44) (Miss.Ct.App.2005). Therefore, the chancellor’s error on this issue was harmless.

IV. Physical and Mental Health and Age of the Parents

¶ 21. After finding that both parties were in good physical health, the chancellor found this factor favored Jessie, because unlike Amber, Jessie had no mental-health issues.

¶ 22. Amber contends that the chancellor erred in finding this factor favored Jessie, arguing that no testimony was given that her mental-health issues inhibited her ability to raise Lilyana. Helen Rider, an employee at Region IV Timber Hills Mental Health Center, testified that Amber had been diagnosed with bi-polar disorder in 2004; however, she had not examined Amber after 2007. She testified that as of 2007, Amber was fit to raise Lilyana.

¶ 23. The chancellor heard evidence of Amber’s mental-health issues and the limitations that those issues may or may not have presented. “Mississippi’s chancellors are charged with weighing the evidence presented.... ” Keough v. Keough, 742 So.2d 781, 782 (¶5) (Miss.Ct.App.1999). Here, the chancellor was within her discretion to weigh that evidence and determine the factor favored Jessie.

V. Emotional Ties of Each Parent and the Child

¶24. The chancellor found that both parties loved the child, and, therefore, this factor was neutral. Amber argues that the chancellor again failed to take into consideration the tender-years doctrine and the age of the child, and was erroneous in her determination that this factor was neutral.

¶ 25. Numerous witnesses testified about how both parties loved the child and spent time with her. There is nothing in the record to show that the chancellor was clearly erroneous in finding this factor to be neutral.

VI. Moral Fitness of the Parents

¶ 26. Before finding this factor favored Jessie, the chancellor stated that while both parties had made poor choices in the past, “Amber’s poor decision-making [continued] following the birth of the child.... ” Amber asserts that the chancellor should have found this factor to be neutral because nothing in the record showed that these moral issues adversely affected Lilyana. However, copious amounts of testimony and exhibits were submitted at trial regarding Amber’s moral fitness.

¶ 27. Amber testified that she was in a relationship with Chris Dickerson, that he has had a drug problem, and that she and Lilyana had spent the night at his home. Amber also testified that she had been in a relationship with Randall Stewart, a registered sex offender. Amber stated that she had allowed her four boys to be near Stewart and thought that his sex-offender status was not relevant, because the statutory rape was “consensual” and a “condom was used.”

¶28. The chancellor specifically noted the photograph Amber had posted on her Facebook page, showing her drinking from a forty-ounce bottle of beer while in a vehicle. When questioned about it, Amber laughed and admitted that the photograph would not “look right” to other people. Besides the photo of Amber drinking, several other photographs that had been posted on her Facebook page were also admitted into evidence. One photograph was of Amber and two of her four boys; underneath the photograph, she wrote that one of her boys was “a bitch in the mornings like his mama. Haha!” Another photograph depicted Lilyana with a candy ring pop in her mouth instead of a pacifier.

¶ 29. From the evidence presented, it is clear that the chancellor was not manifestly wrong in his finding that this factor favored Jessie.

VII. Stability of the Home Environment and Employment of Each Parent

¶ 30. The chancellor found this factor favored Jessie, focusing on the numerous locations Amber had resided and her frequent change in jobs. Amber concedes that she had lived in multiple locations and had frequently changed jobs; however, she maintains that there was no evidence of detriment to the child.

¶ 31. Although at the time of trial Amber rented an unfurnished mobile home in Corinth, Mississippi, to show “stability,” she actually lived with her mother in Tennessee. Amber testified that prior to living with her mother, she had lived in several locations, including with her ex-husband Ben, her father, and Darlene Steward. She also testified that she had stayed with Jessie’s family and a boyfriend for a period of time.

¶ 32. Jessie, on the other hand, had moved only once since Amber’s birth. At the time of trial, Jessie lived with his wife Nicole and her two daughters from a previous marriage. There is nothing in the record to show that the chancellor was manifestly wrong in finding this factor favored Jessie.

¶ 33. The Mississippi Supreme Court has stated, “While the Albright factors are extremely helpful in navigating what is usually a labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical formula. Determining custody of a child is not an exact science.” Lee v. Lee, 798 So.2d 1284, 1288(1115) (Miss.2001). As stated above, the polestar consideration in custody cases is the best interest of the child. Albright, 437 So.2d at 1005. Here, the chancellor found that it was in Lilyana’s best interest to be in Jessie’s custody. Nothing in the record shows that the chancellor was manifestly wrong in applying the Albright factors or in determining the best interest of the child. Therefore, we affirm.

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

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. JAMES, J., NOT PARTICIPATING.