author: GRIFFIS, P.J.,

text:
    In the Matter of the ESTATE OF Lorraine H. THOMAS, Deceased: Ernest Thomas, Jr. and Linda Thomas, Appellants v. Richard Glenn Thomas, Appellee.
    No. 2011-CA-01730-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2013.

      Barry Bridgforth, Kimberly Pine Turner, attorney for appellants.
    Todd A. Coker, Flowood, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This appeal contests the validity of the last will and testament of Lorraine H. Thomas. Richard Glenn Thomas was the proponent of the will and filed a petition to probate the will. Ernest Thomas Jr. and Linda Thomas were the contestants of the will. The chancellor dismissed the will contest filed by Ernest and Linda and declared the will to be valid. In this appeal, Ernest and Linda argue that the chancellor erred when she found both that the will was valid and that the will was not the product of undue influence.

FACTS

¶ 2. On January 15, 1997, at the age of seventy-three, Lorraine died as a result of injuries sustained from a ear accident. She was survived by three adult children: Glenn, Ernest, and Linda.

¶ 3. Lorraine lived most of her life in Yazoo City, Mississippi, under the primary care of Ernest. In January 1993, Lorraine moved to Freeport, Florida. In Florida, Lorraine was under the primary care of Glenn, but she lived with various caretakers.

¶ 4. Lorraine suffered from chronic alcoholism, cirrhosis of the liver, irregular heartbeats, depression, seizures, and Graves Disease. Lorraine required care from Glenn and other caregivers, as she did with Ernest, to cook and clean for her, take her to doctor’s appointments, and administer her medication.

¶ 5. On August 29, 1993, Lorraine purportedly executed her will. At the suggestion of Glenn, Lorraine consulted with Bea Roper to draft her will. Although Roper was a stranger to Lorraine, Glenn knew Roper and admitted they were friends through his work at Sears. Roper was not an attorney and was not paid to prepare the will. Glenn was present when Lorraine and Roper met to discuss the will, which took place in a large room where Glenn was on one side and Lorraine and Roper were on the other side.

¶ 6. Roper drafted a will for Lorraine, which appears to be a form will. It contains several blanks that were to be filled in. For example, at the top of the will, it states “Last Will and Testament of _” “Lorraine H. Thomas” is handwritten in the blank. At the trial, Glenn identified this as his handwriting. In original form, the second and third paragraphs read:

SECOND
I give, devise and bequeath all of my property, whether the same be real or personal, or mixed, of which I die seized or possessed, or to which I may be entitled at my death, and wheresoever the same may be situated, including, without limitation, all property acquired by me after the execution of this will to my children, _ _ in equal shares, [to] share and share alike, provided they survive me, per stirpes. To my son _I give and devise one dollar ($1.00) in legal tender, this sum and no more, along with my love and prayers.
THIRD
I hereby nominate and appoint my son, _, personal [representative of my estate, to serve without bond of any kind. Should he be unable or unwilling to serve [or] to continue to serve in that capacity, then I appoint _to serve without bond of any kind.

¶ 7. The will included handwritten names in each of these blanks. The handwriting was Glenn’s, not Lorraine’s. In the second paragraph, the names “Glenn Thomas” and “Linda Thomas” were written in the first two blanks. A line was drawn through the third blank. Thus, the will purports to leave all of Lorraine’s property to Glenn and Linda. In the blank that disinherited her son, the name “Ernest Thomas Jr.” was written in the blank. In the third paragraph, the name “Glenn Thomas” was written in the blank to appoint him the personal representative, and the name “Linda Thomas” was written to name her the successor representative. As a result, the purported will left Lorraine’s estate to Glenn and Linda, to share equally, and disinherited Ernest. Lorraine did not initial either paragraph where these blanks were filled in by Glenn. Glenn testified that he wrote in the names as Lorraine requested.

¶ 8. Roper was not involved in the execution of the will. Instead, Glenn and his daughter drove Lorraine to City Drugs, a pharmacy in Niceville, Florida, where she executed the will. Glenn testified that they went to City Drugs because a sign in the window indicated that a notary public was available inside. Glenn accompanied Lorraine inside. There, Doug Livingston and Karen Evans signed the will as subscribing witnesses. Livingston and Evans also signed an affidavit that stated Lorraine was of sound and disposing mind at the time the will was executed. Glenn testified that the will was signed on a Sunday, August 29, 1993, but did not testify as to why the will was signed on a Sunday.

¶ 9. Although Glenn testified that Livingston was believed to be a notary public, a notary seal does not appear upon the will. Glenn testified that he paid Livingston a notary fee and that he believed that Livingston notarized the will. Glenn also testified that Livingston asked to see Lorraine’s identification and reviewed the will before it was executed on the pharmacy counter at the back of the store.

¶ 10. Lorraine signed the will in the blank just below the execution clause, which stated “IN WITNESS WHEREOF, I have hereunto set my hand and placed my initials in the margins of the preceding two pages, in the presence of two (2) witnesses, and declare this instrument to be my Last Will and Testament....” However, Lorraine’s initials do not appear anywhere on the first two pages of the will. Glenn could not provide an explanation as to the absence of Lorraine’s initials from the first two pages of the will.

¶ 11. While Lorraine lived in Florida, due to her poor physical health, Glenn was solely responsible for handling her finances and real estate interests. Glenn also made all of the medical decisions for Lorraine and provided her transportation.

¶ 12. In fact, on December 30, 1992, before she moved to Florida, Lorraine executed a power of attorney in favor of Glenn. On the authority of the poweh of attorney, Glenn closed all of Lorraine’s Mississippi accounts with the exception of one account at the Bank of Yazoo City. Lorraine’s social security checks were mailed to Glenn’s residence in Florida and deposited into Glenn’s personal checking account. Glenn used monthly income from Lorraine’s rental property, which was directly deposited into her checking account at the Bank of Yazoo City. Glenn paid all of Lorraine’s bills, signed all checks written on her account, and paid all of her debts. When Lorraine moved to Florida, she had significant debt. By the time she died, however, Glenn had paid all of her creditors and left a balance of $2,000 in account at the Bank of Yazoo City.

PROCEDURAL HISTORY

¶ 13. On February 19, 1997, after Lorraine’s death, Glenn admitted her will to probate in the Circuit Court of Walton County, Florida. The will was admitted as part of a wrongful-death lawsuit that had been filed in connection with Lorraine’s car accident. There was no further action or pleadings filed after the petition was filed and letters of administration were issued.

¶ 14. On July 25, 1997, Glenn filed a petition for probate of Lorraine’s will and for letters testamentary in the Chancery Court of Yazoo County, Mississippi. On July 30, 1997, the chancellor entered an order that admitted the will to probate and granted letters testamentary. Beginning September 17; 1997, the notice to creditors was published in The Yazoo Herald for three consecutive weeks.

¶ 15. On November 6, 1997, Ernest and Linda filed a petition to contest the validity of the will, which included a claim' of undue influence.

¶ 16. On December 18,1997, Glenn filed a $16,000 claim against the estate. Glenn’s claim did not include any supporting documentation or invoices to verify his claim.

¶ 17. On December 31, 1997, BankPlus filed a claim for $25,000 against the estate. BankPlus’s claim was based on a promissory note and deed of trust that had been executed by Glenn and Lorraine. The loan proceeds were used as a down payment on a house in Florida for Glenn.

¶ 18. Ernest and Linda filed an objection to the payment of the probated claims. They alleged that the claims were untimely filed. The chancellor entered an order that acknowledged the voluntary withdrawal of BankPlus’s claim and disallowed Glenn’s claim.

¶ 19. On May 27, 1999, Ernest and Linda filed a motion to remove Glenn as the executor. Ernest and Linda cited Glenn’s failure to file an annual accounting and inventory of the estate, and his attempt to lease real property of the estate without authorization from the court. Glenn then filed an annual accounting on July 29,1999. Ernest and Linda amended their motion and alleged that Glenn spent estate funds without approval from the court in violation of his fiduciary duty owed to the estate. By order dated October 11, 1999, the chancellor denied the motion to remove Glenn as executor.

¶ 20. On October 21, 1999, Ernest and Linda filed another motion to remove Glenn as the executor. Ernest and Linda cited Glenn’s failure once again to file an annual accounting and inventory, and his attempt to encumber real property of the estate without the court’s authority. By order dated November 16, 1999, the chancellor removed Glenn as executor. By order dated August 11, 2000, Ernest was appointed as executor of the estate.

¶ 21. A hearing was held on October 26, 2010, and May 31, 2011. On October 14, 2011, the chancellor issued an “Opinion and Order on Will Contest,” where she found Lorraine’s will to be valid and dismissed the will contest action. It is from this judgment that Ernest and Linda now appeal.

STANDARD OF REVIEW

¶ 22. “A [chancellor's findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard.” In re Estate of Grantham,, 609 So.2d 1220, 1223 (Miss.1992) (citations omitted). Reversal is not warranted by this Court if the chancellor’s findings are supported by substantial credible evidence. In re Estate of Grubbs, 753 So.2d 1043, 1046 (¶ 7) (Miss.2000) (citations omitted).

ANALYSIS

I. Whether the chancellor erred when she found the will was valid, pursuant to Mississippi Code Annotated section 91-5-1.

¶ 23. Ernest and Linda argue that Lorraine’s will was not valid, under Mississippi Code Annotated section 91-5-1 (Rev. 2004), because the will required that Lorraine affix her initials in the margins of the first two pages of the four-page will. They argue that, since Lorraine’s initials do not appear on the first two pages, the will is not valid.

¶ 24. Section 91-5-1 provides:

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

¶ 25. Ernest and Linda argue that the will established the requirements for Lorraine’s proper execution of the will, where it states:

IN WITNESS WHEREOF, I have hereunto set my hand and placed my initials in the margins of the preceding two pages, in the presence of two (2) witnesses, and declare this instrument to be my Last Will and Testament on this the 29th day of August, 1993.

This provision clearly states that Lorraine signed the will and “placed my initials in the margins of the preceding two pages.” Despite this language, Lorraine’s initials do not appear on the first two pages of the will.

¶ 26. Glenn admitted that the first two pages of the will did not contain Lorraine’s initials or her handwriting. In fact, the first two pages only contained Glenn’s handwriting. While Glenn testified that he completed the will based on Lorraine’s instructions, there was no testimony from a disinterested third party or any evidence to corroborate his assertion. After Lorraine executed the will, Glenn took possession of the will and placed it in his safe-deposit box. Lorraine did not have access to that safe-deposit box.

¶ 27. Ernest and Linda argue that Lorraine’s signature did not comply with the statutory formalities and the express terms of the will. They also contend that it can be inferred from the evidence that the only explanation for the absence of Lorraine’s initials from the first two pages of the will was that those pages were not the first two pages attached to the will when Lorraine signed it.

¶ 28. In In re Estate of Taylor, 755 So.2d 1284, 1287 (¶ 12) (Miss.Ct.App.2000) (citations omitted), this Court held:

It is well settled law in Mississippi that in a will contest the proponents of the will have the burden of persuasion on all issues requisite to the validity of a will, e.g., due execution and testamentary capacity. Showing that the will was properly probated makes out the proponent’s prima facie case. At this point, the burden of production shifts to the contestants. The contestants must present evidence to support their contention that the will is not valid. If the contestants present no evidence, the proponent’s pri-ma facie case stands, and the will will be found to be valid. Furthermore, the contestants may raise other issues, such as undue influence, but like the other grounds for invalidity, if the contestants do not present evidence to support the contention, the will may not be found invalid.

¶29. Ernest and Linda argue that the evidence presented at trial by Glenn failed to meet his burden to establish the validity of the signatures on the will. They argue that what constitutes a sufficient signature to a will depends largely on the circumstances of each particular case. Here, the will itself specified the places where the signature, and marginal initials, should have been affixed to evidence Lorraine’s intent.

As a general rule of law, courts tend to sustain a testamentary document as having been legally executed if it is possible to do so consistent with statutory requirements. Ordinarily, substantial compliance with statutory formalities in the execution of a will is sufficient, in the absence of a suggestion of fraud, deception, undue influence or mental incapacity-

In re Estate of Giles, 228 So.2d 594, 596 (Miss.1969) (citation omitted).

¶ 30. For a non-holographic will to be validly executed, it must “be signed by the ... testatrix.... Moreover, if not wholly written and subscribed by ... herself, it shall be attested by two (2) or more credible witnesses in the presence of the ... testatrix.” Miss.Code Ann. § 91-5-1. There was evidence that Lorraine’s will was signed by her and was attested by two credible witnesses in their presence. Thus, there is evidence to support the chancellor’s decision that the will was properly executed, under Mississippi Code Annotated section 91-5-1.

¶ 31. The argument that Lorraine’s signature did not comply with the express terms of the will is a logical argument. The will clearly says that Lorraine “set my hand and placed my initials in the margins of the preceding two pages.” The will shows where she “set [her] hand” but does not show where she placed her initials on the first two pages. We recognize that the fact that the execution clause in the will states that it must also be initialed is important and may be sufficient to invalidate the will. However, Ernest and Linda have not cited any authority that requires this result.

¶ 32. Because there was evidence that Lorraine actually signed the will in the presence of two attesting witnesses, the chancellor did not err in finding the will to be validly executed. Accordingly, we find no merit to this issue.

II. Whether the chancellor erred in failing to find that the Last Will and Testament of Lorraine H. Thomas was the product of undue influence.

A. The chancellor applied an incorrect legal standard in requiring proof of wrongdoing, in addition to a confidential relationship and suspicious circumstances, before finding the presumption of undue influence.

B. The chancellor erred in finding that Richard Glenn Thomas, proponent of, and beneficiary under the Last Will and Testament of Lorraine H. Thomas, had overcome the presumption of undue influence by clear and convincing evidence.

¶ 33. In this issue, Ernest and Lorraine make two related arguments. First, they argue the chancellor was correct to find a confidential relationship between Lorraine and Glenn. However, they contend that the chancellor applied an incorrect legal standard, because she did not shift the burden of proof to Glenn and refused to acknowledge the presumption of undue influence absent actual proof of wrongdoing. Second, they argue that the chancellor erred when she found that Glenn overcame the presumption of undue influence. They claim that Glenn presented insufficient evidence to overcome the presumption of undue influence. They ask this Court to reverse and render the judgment of the chancellor and to find the will to be invalid.

¶ 34. In Noblin v. Burgess, 54 So.3d 282, 288-89 (¶¶ 17-20) (Miss.Ct.App.2010), Judge Maxwell offered a succinct statement of Mississippi law on undue influence:

A. Presumption of Undue Influence
In Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), our supreme court crafted the confidential relationship doctrine applicable to -wills contested on the basis of undue influence. The Croft court held a presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will. A confidential relationship is present where “one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust.”
B. Overcoming the Presumption of Undue Influence
Croft also established that once the required showing is made to raise the presumption of undue influence, the burden shifts to the proponents to rebut the presumption by clear and convincing evidence.
In order to overcome the presumption of undue influence, the proponents must show by clear and convincing evidence: (1) the beneficiary acted in good faith; (2) the testator had “full knowledge and deliberation” in executing the will; and (3) the testator exhibited- “independent consent and action.” Factors to be considered in assessing the beneficiary’s good faith include:
(1) who initiated the procurement of the will;
(2) where the testator executed the will and who was present at the execution;
(3) what consideration was paid and who paid it; and
(4) whether the execution was done in secrecy or openly.
Factors to be assessed in determining the testator’s knowledge and deliberation in executing the will include:
(1) whether the testator was aware of his total assets and their worth;
(2) whether the testator understood who his “natural inheritors” were;
(3) whether the testator understood how his action would legally affect prior wills;
(4) whether the testator knew non-relative beneficiaries would be included; and
(5) whether the testator knew who controlled his finances and the method used:
(a) how dependent the testator is on persons handling his finances; and
(b) how susceptible the testator is to be influenced by any such persons.
Regarding the testator’s “independent consent and action,” unlike the other two prongs, there is no express list of factors. The supreme court has in the past required a showing that the testator acted on “advice of a competent person disconnected from the beneficiary and devoted wholly to the testator’s interest.” Murray v. Laird, 446 So.2d 575, 578 (Miss.1984). Though still a relevant consideration, this requirement has been absolved by more recent precedent, which has instead required “a showing of the grantor’s ‘independent consent and action’ based on all of the surrounding facts and circumstances.” Vega v. Estate of Mullen, 583 So.2d 1259, 1264 (Miss.1991).

(Internal citations omitted).

A. Confidential Relationship— Presumption of Undue Influence

¶ 35. Here, the chancellor found that the presumption of undue influence arose as a result of the relationship between Lorraine and Glenn, and Glenn’s active participation in the procurement and execution of the will. The chancellor concluded:

After reviewing the factors set forth in the Estate of Dabney, the Court finds there is a confidential relationship between Lorraine and Glenn.
Although this court has found that there is a confidential relationship between Lorraine and Glenn, such a finding does not automatically give rise to a presumption of undue influence. Something more is required in the context of a will contest, such as active participation by the beneficiary in the procurement, preparation or execution of the will or mental infirmity of the testator. Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959). In other words, there must be some showing that the beneficiary abused the relationship either by asserting dominance over the testator or by substituting her intent for that of the testator. Id.
Ernest and Linda produced evidence showing Glenn actively participated in the procurement and preparation of the Will, but no proof of wrongdoing. Glenn admitted he carried Lorraine to the home of Bea Roper. He asked Ms. Roper to assist his mother in drafting a will. Glenn stayed in the room while Bea Roper and Lorraine prepared the will. However, Glenn said it was a large room[;] he was on the other side, and did not hear them conversation. Also, Glenn admitted that he filled in the four (4) blanks in paragraph two (2) of the Will in question following Lorraine’s instructions.
The contestants offered absolutely no showing of any abuse of the relationship between Glenn and Lorraine. Further, there was no showing that Glenn substituted his will for that of Lorraine. When arriving in Florida, Lorraine’s life was in disarray. She did not have available funds to retain a lawyer. The action of Glenn in transporting Lorraine to the home of Ms. Roper appeared to have been one step in an effort by Glenn to assist his mother with getting her affairs in order. The second step was the preparation and execution of a partition deed, and the third was the surrogacy designation.... There was not one shred of evidence demonstrating that Glenn did nothing [sic] but follow the directions of Lorraine.
Based on the foregoing, the Court finds that there was active participation on the part of Glenn in the procurement and, preparation of the Last Will and Testament of Lorraine Thomas. The Court further finds there was no abuse of the relationship between Glenn and Lorraine. With limited resources and no assistance from his siblings, Glenn did the best he could to care for his mother. Additionally, in caring for Lorraine, his mother, Glenn did not assert dominance over her, nor did he substitute his intent for that of hers. On the contrary, the [W]ill in question appeared to be an orderly disposition of Lorraine’s estate. In the Will, she conveyed all of her real and personal property to Glenn and Linda knowing that she was preparing to convey her interest in her husband’s business and city lots to Ernest as a[n] inter vivos gift. Further, her medical providers required her to designate a surrogate, like in the Will. Glenn was named the primary surrogate and Linda, the secondary. There is no allegation that either the deed or the designation of surrogates [was] invalid. They were all done around the same time, and [were] consistent with the disposition Lorraine made in the Will. Also, the testimony revealed that Glenn followed the directions of Lorraine in acquiring medical and physical care for her. Glenn adamantly stated that he only carried out his mother’s instructions in all that he did regarding her affairs. This allegation was not refuted.
As [a] result of the said finding, ... Ernest and Linda have failed to meet their burden of showing [there] was an abuse of a confidential relationship.

(Emphasis added).

¶ 36. The chancellor’s finding seems to be incorrect. “[A] presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will.” Noblin, 54 So.3d at 288 (¶ 17). The chancellor made the following three findings:

After reviewing the factors set forth in the Estate of Dabney, the Court finds there is a confidential relationship between Lorraine and Glenn.
Although this court has found that there is a confidential relationship between Lorraine and Glenn, such a finding does not automatically give rise to a presumption of undue influence. Something more is required in the context of a will contest, such as active participation by the beneficiary in the procurement, preparation or execution of the will or mental infirmity of the testator. Croft v. Alder ....
Based on the foregoing, the Court finds that there was active participation on the part of Glenn in the procurement and preparation of the Last Will and Testament of Lorraine Thomas.

¶ 87. At this point, the burden of proof shifted to Glenn as the proponent of the will. “Croft ... established that once the required showing is made to raise the presumption of -undue influence, the burden shifts to the proponents to rebut the presumption by clear and convincing evidence.” Noblin, 54 So.3d at 288 (¶ 18). As soon as the chancellor found the existence of a confidential relationship, the law raised a presumption that Glenn exercised undue influence over Lorraine and required Glenn disprove undue influence by clear and convincing evidence.

¶ 38. Said differently, the supreme court has held that after the confidential relationship is determined to exist:

[W]e must decide whether there was adequate proof of undue influence. Given the finding that a confidential relationship does exist between the beneficiary and the testatrix and that the beneficiary has been actively concerned in some way with the preparation or execution of the will, the law raises a presumption that the beneficiary exercised undue influence over the testatrix, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence. Croft v. Alder, 237 Miss. 713, 115 So.2d 683, 686 (1959). In the event that the proponents of the will do not meet this burden, the will must be held invalid.

In re Estate of Dabney, 740 So.2d 915, 920-21 (¶ 19) (Miss.1999) (citations omitted).

¶ 39. The chancellor’s opinion and order does not state whether she in fact considered the burden of proof to shift to Glenn. Instead, in the next sentence, the chancellor concluded that “[t]he Court ■further finds there was no abuse of the relationship between Glenn and Lorraine.” This indicates that the chancellor applied an incorrect legal standard because she failed to follow Croft, Estate of Dabney, and Noblin. The chancellor erred when she found a confidential relationship but did not shift the burden of proof to the proponent and beneficiary of the will.

¶ 40. The chancellor also held:

As [a] result of the said finding, ... Ernest and Linda have failed to meet their burden of showing [there] was an abuse of a confidential relationship.
Howeverif this court had found to the contrary, Glenn would have to show by clear and convincing evidence that the subject will was not the product of undue influence. In order to overcome a presumption of undue influence arising from a confidential relationship, the proponents of a will must show by clear and convincing evidence: (1) the beneficiary acted in good faith; (2) the testator had full knowledge and deliberation in executing the will; and (3) the testator exhibited independent consent and action.
Factors to be considered in assessing a beneficiary’s good faith, in order to overcome the presumption of undue influence in the creation of [the] will arising from a confidential relationship, include: (1) who initiated the procurement of the will; (2) where the testator executed the will and who was present at the execution; (3) what consideration was paid and who paid it, and (4) whether the execution was done in secrecy or openly. Noblin v. Burgess, 54 So.3d 282 (Miss.Ct.App.2010).

(Citation omitted). The chancellor concluded that “Ernest and Linda have failed to meet their burden of showing [that there] was an abuse of a confidential relationship.” The chancellor also stated “if this court had found to the contrary” and concluded that Glenn would then have to show that he overcame the presumption of undue influence. The chancellor then provided her analysis of the factors. At the end, she concluded that the “Court find's that Glenn has met his burden of proof by showing by clear and convincing evidence that the subject Will was not the product of undue influence.”

¶ 41. The chancellor’s opinion applied the incorrect legal standard, and then as an alternative finding, the chancellor applied the correct legal standard. Hence, we will review the chancellor’s finding as if she had used the proper legal standard.

B. Overcoming the Presumption of Undue Influence

¶ 42. To overcome the presumption of undue influence, Glenn “must show by clear and convincing evidence: (1) the beneficiary acted in good faith; (2) the testator had ‘full knowledge and deliberation’ in executing the will; and (3) the testator exhibited ‘independent consent and action.’ ” Noblin, 54 So.3d at 288 (¶19).

¶ 43. Our review of these factors reveals an absence of any independent evidence to corroborate Glenn’s testimony. In In re Will of Fankboner, 638 So.2d 493, 495 (Miss.1994), the supreme court held:

To determine if Jones acted in good faith when she procured the September 13, 1989[ ] will, the identity of the initiating party, who sought the preparation of Fankboner’s will, must be determined. In making this determination, it is significant that Fankboner told two totally disinterested witnesses that he wanted to change his will. In Vega v. Estate of Mullen, then Presiding Justice Hawkins stated:
In those cases where you admittedly have a confidential relations transfer from a dependent to a dominant party, it seems to me that the ultimate test should be something on the order of the following: Excluding the testimony of the grantee, those acting in the grantee’s behalf (such as the attorney), and any others who could have a direct or indirect interest in upholding the transfer (such as grantee’s family), is there any other substantial evidence, either from the circumstances, or from a totally disinterested witness from which the court can conclude that the transfer instrument represented the true,-un-tampered, genuine interest of the grantor ? If the answer to this question is yes, then it becomes a question of fact whether or not there was undue influence. If the answer is no, then as a matter of law the transfer is voidable.

Vega v. Estate of Mullen, 583 So.2d 1259, 1275 (Miss.1991) (Hawkins, P.J., dissenting).

(Emphasis added).

¶ 44. We examine the chancellor’s review of the ápplieable factors to determine if there was substantial evidence to support the conclusion that Glenn disproved undue influence by clear and convincing evidence. See In re Will of Fankboner, 638 So.2d at 496 (citation omitted).

1. Whether Glenn, as the beneficiary, acted in good faith.

¶ 45. The court must consider whether Glenn acted in good faith. The factors to consider include: “(1) who initiated the procurement of the will; (2) where the testator executed the will and who was present at the execution; (3) what consideration was paid and who paid it; and (4) whether the execution was done in secrecy or openly.” Noblin, 54 So.3d at 288 (¶ 19).

a. Who initiated the procurement of the will?

¶ 46. The chancellor found:

According to Glenn, he mentioned to his mother, Lorraine, about the making of a will after the death of a man they both knew. His mother did not address that issue at that time. At some subsequent time, Lorraine brought the subject up about the will. [Glenn] sought the assistance of Bea Roper to assist his mother, Lorraine, in the drafting of her Will. Although Glenn first mentioned the need for a will and carried Lorraine to Bea Roper for her assistance, it appears that Glenn was following the direction of Lorraine in assisting her with the procurement of her Will.

¶ 47. The most significant finding by the chancellor was that “it appears that Glenn was following the direction of Lorraine in assisting her with the procurement of her Will.” Roper prepared the will, but it was not complete. The will included several blanks in very important provisions, which were later completed by Glenn. Based on the principle in In re Will of Fankboner, there is simply no independent evidence that would corroborate the chancellor’s finding that Glenn was simply following Lorraine’s directions. There was certainly not clear and convincing evidence that would support this finding.

¶ 48. Further, it is undisputed that Glenn played a significant role in the preparation and execution of Lorraine’s will. Lorraine consulted with Roper at Glenn’s suggestion. Lorraine had no independent relationship with Roper. Roper was not an attorney. Instead, she was Glenn’s friend and coworker. Lorraine did not pay Roper any consideration for her services in drafting the will. Instead, Roper drafted the will as a favor to Glenn. Glenn drove Lorraine to the meeting with Roper to have the will drafted. Glenn remained in the room as Lorraine and Roper discussed the specifics of the will for about fifteen to twenty minutes.

¶ 49. On page three of the will, it states “IN WITNESS WHEREOF, I have hereunto set my hand and placed my initials in the margins of the preceding two pages, in the presence of two (2) witnesses and declare this instrument to be my Last Will and Testament.” Despite the existence of this language, Lorraine’s initials do not appear anywhere upon the first two pages of the purported will. Glenn had no explanation for the absence of Lorraine’s initials from the first two pages of the will, despite Lorraine’s experience as a legal secretary for fifteen years. Instead, Glenn stated that it was Lorraine’s significant legal experience that explained her failure to ever consult with a lawyer about the drafting of a will.

¶ 50. Indeed, the evidence does not appear to support the chancellor’s finding. Glenn was substantially involved in the procurement of the will. Certainly, the evidence does not support a finding that Glenn acted in good faith in the initiation of the procurement of the will.

b. Where did the testator execute the will?

¶ 51. The chancellor found that “Lorraine executed the will in a drug store in Florida on August 29, 1993. The execution took place in a public place open for all to see.” Glenn accompanied Lorraine inside City Drugs to execute the will. City Drugs was chosen by Glenn because it had a notary sign. Glenn testified that he paid Livingston, whom he believed to be a notary public, a notary fee for the execution of the will, even though no notary seal was on the will.

¶ 52. The evidence does not support the chancellor’s conclusion. Glenn chose the place where the will would be executed and paid the costs of execution.

c. What consideration was paid and who paid it?

¶ 53. The chancellor found that “Bea Roper, a non-attorney, drafted the will. No compensation was paid.” Roper was not an attorney. She was Glenn’s friend and coworker. More importantly, Lorraine did not pay Roper any consideratión for her services in drafting the will. Instead, Roper drafted the will as a favor to Glenn. Roper was not paid compensation for drafting the will; instead, her motivation for providing this service was based on her friendship with Glenn.

d. Whether the execution was done in secrecy or openly?

¶ 54. The chancellor found: “According to Livingston, the [w]ill was executed at the pharmacy counter in the drug store. Any person in the drugstore could have observed her executing the will in question.” The will was apparently executed in a public place. However, Glenn then retained the original will and kept it in a safe-deposit box, which Lorraine could not access. Ernest and Linda claimed that they did not know of the will or about its procurement and execution until one month after Glenn initiated a wrongful-death action in Florida after Lorraine’s death.

¶ 55. Considering each of these factors, there is no evidence that would support the chancellor’s finding of Glenn’s good faith. Instead, based on the evidence presented, we conclude that Glenn was involved in the procurement of the will and the evidence would weigh against Glenn acting in good faith.

2. Whether Lorraine had fall knowledge and deliberation in executing the will in question.

¶ 56. Factors to be considered in determining the testator’s knowledge and deliberation in the execution of the will include (1) whether the testator was aware of her total assets and their worth; (2) whether the testator understood who her “natural inheritors” were; (3) whether the testator understood how her action would legally affect prior wills; (4) whether the testator knew non-relative beneficiaries would be included; and (5) whether the testator knew who controlled her finances and the method used, including consideration of (a) how dependent the testator is on person(s) handling her finances, and (b) how susceptible the testator is to be influenced by any such person(s). Noblin, 54 So.3d at 288 (¶ 19).

a. Whether Lorraine was aware of her total assets and their worth.

¶ 57. The chancellor found: “A partition deed was executed by Lorraine approximately 25 days after the preparing of the Will. The said deed was executed by Lorraine and her children. The partition deed conveyed to Ernest his parcels of land in severalty, while Lorraine, Linda, and Glenn continued to hold their title jointly.”

¶ 58. Yet, the chancellor made no finding whether Lorraine was aware of her total assets and their worth. To the contrary, there was evidence that Glenn arranged for Lorraine’s mail to be forwarded to his residential address. Glenn received all of Lorraine’s bills and bank statements. Glenn also received Lorraine’s social-security checks, which were deposited into Glenn’s personal checking account. The monthly rental income received by Lorraine by direct deposit into her checking account, maintained at the Bank of Yazoo City, was used by Glenn. Because Glenn had control over all monies received by or available to Lorraine, Glenn assumed responsibility for the payment of all of her bills and signed all checks written on her Bank of Yazoo City checking account. Glenn handled all of Lorraine’s real estate interests. The evidence established that Glenn handled all of Lorraine’s financial affairs.

¶ 59. Before she moved to Florida, Lorraine had several accounts in Mississippi. Glenn, based on the authority of the power of attorney, closed all Mississippi accounts except for the checking account maintained at the Bank of Yazoo City. Glenn also removed the contents of Lorraine’s safe-deposit box. At Glenn’s request and initiative, Lorraine also executed a Florida power of attorney on the same date and under the same circumstances as the will.

¶ 60. Lorraine also executed a promissory note in favor of BankPlus, in the principal amount of $25,000. The note was secured by a deed of trust on Lorainne’s Yazoo City home. Glenn’s deposition testimony established that the loan proceeds were used by him as a down payment on his town home in Florida.

¶ 61. As to the partition deed, Ernest and Linda respond that, unlike the drafting and execution of the will, the partition deed was a joint effort of Ernest, Glenn, and Linda, all of whom were informed, knowledgeable, and in agreement.- In addition, Lorraine’s husband and the father of Ernest, Linda, and Glenn, died intestate on October 5, 1991. His estate was comprised of real property located on Grand Avenue in Yazoo City and West Broadway in Yazoo City, and approximately 175 acres of farmland located in Yazoo County. Because of the intestate estate, Lorraine, Ernest, Linda, and Glenn were to be coten-ants, each to hold an undivided interest in each asset of their father’s estate. To avoid any ownership interest with his brother, Ernest asked his mother and his siblings to consider and execute a partition deed so that he would not be a cotenant of Glenn, thereby protecting whatever asset he ultimately held from his father’s estate against the action or inaction of Glenn. Also, in exchange for the property located on West Broadway, Ernest conveyed his interest in the Grand Avenue property and the 175 acres of farmland to Linda, Glenn, and Lorraine. Glenn testified that Ernest represented, and it was the understanding of Glenn, Linda, and Lorraine, that the property acquired by Ernest from his father’s estate by virtue of the partition deed was the only property Ernest was to take from either his father’s estate or his mother’s estate. Ernest disputed this testimony and testified that the partition deed only pertained to that property he was to take from his father’s estate. Ernest did not agree, by virtue of the partition deed, to voluntarily relinquish any interest he was to have in Lorraine’s estate.

¶ 62. The evidence presented does not support the chancellor’s findings. There was no evidence that would support the conclusion that Lorraine was aware of her total assets and their worth.

b. Whether Lorraine understood who her “natural inheritors” were.

¶ 63. The chancellor found:

All the evidence indicated that Lorraine understood that her children were her natural inheritors. She willed her interest in land she owned jointly to the two (2) children who held the title with her. She planned to give the child she disinherited what he wanted inter vivos. Lorraine executed a partition deed to carry this plan out twenty-five (25) days after she executed the Will in question.

¶ 64. There was no evidence to support the chancellor’s finding on this issue. There was no independent evidence that indicated Lorraine understood who her natural inheritors were. All of the evidence indicated that Lorraine was in poor physical health. In fact, Lorraine died as a result of injuries sustained in an automobile accident. Lorraine suffered from chronic alcoholism throughout her life, having been hospitalized on at least two occasions for treatment for alcohol addiction. When she moved to Florida, Lorraine was prescribed and was taking the medication Librium, which provided for the short-term relief of symptoms related to alcohol withdrawal. Lorraine also suffered from cirrhosis of the liver, Graves Disease, atrial fibrillation, and seizures; she was prescribed Dilantin to treat the latter condition. Lorraine also was in treatment for depression, for which she was prescribed Zoloft, and remained under the continuous care of a psychologist while she lived in Florida.

¶ 65. Lorraine was unable to care for herself. Indeed, Glenn testified that Lorraine “couldn’t take care of herself.” As a result, Glenn took care of Lorraine’s business. When she arrived in Florida, Lorraine spent one night in Glenn’s home. She resided, instead, in at least four different foster homes that Glenn located through the Okaloosa Council on Aging.

¶ 66. There was simply no evidence, other than from Glenn, to support the conclusion that Lorraine understood who her “natural inheritors” were,

c.Whether Lorraine understood how her action legally affected prior wills.

¶ 67. The chancellor found:

Although Lorraine only made one (l)[W]ill, she and her children executed the aforementioned partition deed. The Will was executed August 29,1993[,] and the partition deed was executed on September 24,1998. The land and property conveyed to Ernest, via said partition deed, was where the business of his deceased father was located. In exchange, Ernest conveyed his interest in the remaining real property to Lorraine, Glenn, and Linda. The result of this conveyance gave Ernest his inheritance outright, while[ ] Glenn and Linda continued to own their property jointly with their mother, Lorraine. This deed appears to have been a second step in the estate planning of Lorraine whereby she gave to her estranged son[] his inheritance[ ] by an inter vivos gift. As stated above, this partition deed was executed only 25 days after the Will in question. Ernest and Linda did not allege the deed was the subject of undue influence or that Lorraine lacked mental capacity to execute the same. Therefore, the Court is of the opinion that Lorraine understood very clearly how her [W]ill affected the disposition of her estate.

¶ 68. The chancellor placed great weight on the partition deed. Having reviewed the testimony about the partition deed, we do not find that the execution of the partition deed indicates that Lorraine “understood very clearly how her will affected the disposition of her estate.” However, we recognize that there was slight evidence to support the chancellor’s conclusion as to this factor.

d.Whether Lorraine knew non-relative beneficiaries would be included.

¶ 69. The chancellor found: “Lorraine made no conveyances to non-relative beneficiaries.” Hence, the chancellor found no evidence under this factor to establish that Lorraine had full knowledge and deliberation in executing the will.

e.Whether Lorraine knew who controlled her finances and the method used, including consideration of (a) how dependent the testator was on the person handling her finances, and (b) how susceptible Lorraine was to be influenced by that person.

¶ 70. The chancellor found:

Lorraine was aware that Glenn had control over her finances. She gave him that control by executing, not one (1), but two (2) powers-of-attorney, which, among other things, authorized Glenn to manage Lorraine’s financial affairs.
Glenn paid all of Lorraine’s expenses from the funds that were under his control. The evidence reflected that all his actions were in the best interest of Lorraine. When Lorraine came under his care, she was in debt. By the time of her death, she was financially stable and appeared to have been adequately taken care of.
According to the testimony, when Lorraine came to live in Florida .under Glenn’s control, she had debt in excess of $20,000.00. She was unable to work and living on Social Security Benefits and rental income. Lorraine was abusing alcohol, and in and out of rehabilitation facilities. Glenn took control of her finances, found caregivers for her, and provided adequate medical services. Lorraine became debt free because of Glenn’s handling of her affairs, and she died a reasonably healthy woman, a victim of an automobile accident, not cirrhosis of the liver, alcoholism, Graves Disease, or any other aliment she complained of during her lifetime.
Based on the foregoing, this Court finds that Lorraine had full knowledge and deliberation in executing the will in question.

¶ 71. The chancellor’s findings seem to support Ernest and Linda rather than Glenn. Lorraine signed two powers of attorney in favor of Glenn. She knew he had the authority to handle her property. Yet there was no independent evidence that indicated Lorraine was aware of the methods Glenn used in controlling her finances. It is important to note that Glenn arranged for Lorraine to execute a $25,000 promissory note, secured by a deed of trust to her Yazoo City home, which Glenn used as a down payment for his Florida home. BankPlus’s claim against the estate was not allowed by the chancellor. Apparently, the evidence supported a finding that Lorraine knew who controlled her finances, but there was not evidence to support a finding that she knew the method used in controlling her finances. The evidence indicted that Lorraine was totally dependent on Glenn to handle her finances, and that she was susceptible to be influenced by him.

¶ 72. We find that there was not clear and convincing evidence that Lorraine had full knowledge and deliberation in executing the will in question.

3. Whether Lorraine exhibited “independent consent and action.”

¶ 73. The final factor, overcoming the presumption of undue influence, required Glenn to prove by clear and convincing evidence that Lorraine exhibited “independent consent and action.” In Noblin, the Court held:

Regarding the testator’s “independent consent and action,” unlike the other two prongs, there is no express list of factors. The supreme court has in the past required a showing that the testator acted on “advice of a competent person, disconnected from the beneficiary and devoted wholly to the testator’s interest.” Murray v. Laird, 446 So.2d 575, 578 (Miss.1984). Though still a relevant consideration, this requirement has been absolved by more recent precedent, which has instead required “a showing of the grantor’s ‘independent consent and action’ based on all of the surrounding facts and circumstances.” Vega v. Estate of Mullen, 583 So.2d 1259, 1264 (Miss.1991).

Noblin, 54 So.3d at 288-89 (¶ 20). We will analyze these factors as the chancellor did.

a.Did Lorraine seek the advice of a competent person?

¶ 74. The chancellor found:

There was no evidence that Lorraine sought the advice of a competent person. However, the evidence did show that Lorraine was in her own right, fairly educated, and not a stranger to the legal profession. Prior to her retirement, Lorraine was employed as a legal secretary for about three (3) years, and a deputy circuit clerk for about eleven (11) or twelve (12) years.
According to the testimony, Lorraine was employed as a legal secretary for Attorney Wiley Barbour. This Court is aware that a substantial portion of Mr. Barbour’s practice involves chancery work, including the opening and closing of probate estates, and the preparation of wills. As a legal secretary, Lorraine’s duties would have included typing wills, estate documents, and attending to other matters related to wills and estates. Therefore, this Court finds that although Lorraine did not seek advise, she was knowledgeable of estate matters, having worked in the profession for several years.

¶75. The findings under this factor contradict the chancellor’s other findings. There was simply no evidence to indicate that Lorraine sought the advice of a competent person. Thus, there was no evidence under this prong to exhibit independent consent and action.

b.Did Lorraine seek the advice of a person disconnected from the beneficiary?

¶ 76. The chancellor found:

The evidence did not show whether Lorraine sought a person disconnected from the beneficiary when she decided to make her Will. However, the testimony revealed that Glenn did mention to Lorraine the need for a will. Lorraine did not make the will at the time Glenn suggested. Rather, she took some time alone to ponder her need for a will. Thus, disconnecting herself from Glenn, until she could make a decision as to whether she wanted to make a will.
Therefore, this Court finds that Lorraine disconnected herself from Glenn to make a decision as to whether she desired to make a will.

¶ 77. Once again, the findings under this factor contradict the chancellor’s other findings. There was simply no evidence to indicate that Lorraine sought advice from a person disconnected from Glenn,

c.Devotion to Lorraine’s Interest

¶ 78. The chancellor found:

As stated earlier, Lorraine disconnected herself from Glenn as she pondered the idea of making a will. No person is more devoted to Lorraine’s interest than Lorraine herself. Lorraine made up her mind as to the disposition she desired to make of her property at her death. She conveyed this plan to Bea Roper, without any input from Glenn. The testimony revealed that although Glenn was in the room as the Will was being prepared, he did not take part in the conversation between Bea Roper and Lorraine. As a matter of fact, Glenn testified that he was on the opposite side of the room, and he could not hear what they were saying. He further stated he suffers from hearing loss, which was evident throughout these proceedings.
Furthermore, the subscribing witnesses stated in their affidavits that Lorraine was of sound and disposing mind at the time she executed the Will in question. Livingston, one of the subscribing witness[es], testified that Lorraine advised him she was aware of the contents of her [W]ill, and she appeared not [to] be under any duress when she executed the [W]ill in question.
Therefore, this Court finds that Lorraine exercised independent consent in the preparation and execution of her Will.

¶ 79. The evidence does not support this finding. There was no evidence that Lorraine exhibited independent consent and action. The evidence was, however, clear that Lorraine did not seek independent legal advice or counsel from any person not connected with Glenn. In fact, the will was drafted by a friend of Glenn’s at his suggestion. Glenn drove Lorraine to the meeting with Roper to draft the will and was present at that meeting. Glenn then “filled in” the blanks in the will. He also took Lorraine to get the will executed. He chose where the will would be executed, and it was executed on a Sunday. The only conclusion the evidence allows is that Glenn’s active participation in the execution of the will precludes a finding that Lorraine exercised the independent consent and action necessary to rebut a presumption of undue influence.

C. Conclusion

¶ 80. Based on the foregoing, we find that the chancellor’s findings of fact were not supported by substantial credible evidence. Further, the chancellor’s findings were manifestly wrong and clearly erroneous. In addition, we find that the chancellor applied an erroneous legal standard by not shifting the burden of proof immediately upon finding a confidential relationship. We find that Glenn failed to overcome the presumption of undue influence by disproving undue influence by clear and convincing evidence. See Croft v. Alder, 115 So.2d at 686.

¶ 81. Therefore, we reverse and render judgment in favor of Ernest and Linda and find the last will and testament of Lorraine to be invalid. This case is remanded to the Chancery Court of Yazoo County for the administration of Lorraine’s estate in the absence of a will.

¶ 82. THE JUDGMENT OF THE CHANCERY COURT OF YAZOO COUNTY IS REVERSED; JUDGMENT IS RENDERED IN FAVOR OF THE APPELLANTS; AND THIS CASE IS REMANDED TO THE CHANCERY COURT FOR ADMINISTRATION OF THE ESTATE IN THE ABSENCE OF A WILL, CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR. LEE, C.J., CONCURS IN RESULT ONLY. IRVING, P.J., BARNES AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Jermil CLARK a/k/a Jermail Clark, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00459-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.

      W. Daniel Hinchcliff, George T. Holmes, Jackson, Bentley E. Conner, Flora, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   CARLTON, J.,

for the Court:

¶ 1. On October 6, 2011, a Madison County grand jury indicted Clark for kidnapping and aggravated domestic violence. After a trial held on March 12, 2011, a jury found Clark guilty of aggravated domestic violence by strangulation but acquitted Clark of the kidnapping charge. The trial judge sentenced Clark as a habitual offender to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), to run consecutively to a previous sentence. Clark now appeals his sentence and conviction. Finding no error, we affirm.

FACTS

¶ 2. On June 18, 2011, Tremekia Sims arrived home to the apartment she shared with her sister at the Canton Garden Apartments in Canton, Mississippi. Sims’s boyfriend, Clark, was waiting at the apartment, and upon Sims’s arrival, Clark expressed anger that Sims had been out all night. Sims testified that Clark “ran up and caught [her] around the waist and around the neck” and ordered her to open the door to the apartment before he broke her neck. Clark threw Sims into the apartment and threatened that “if [he] wanted to do something to [her], [he could] easily get [her].” Sims testified that the two began to argue. Sims stated that after she answered a phone call from a girlfriend, the argument escalated into a fight. Sims explained that Clark thought that based on Sims’s phone conversation, she was cheating on him.

¶ 3. On the following Monday, June 20, 2011, Sims told Clark that she was going to work, and she dropped him off at his mother’s house. Instead of going to work, Sims went to her cousin’s house because she did not want to go to work with bruises on .her. Sims explained that she received the bruises after Clark hit her and pushed her into a wall. Sims also testified that after leaving her cousin’s house on Monday, she went to the hospital to receive treatment for pain in her ribs resulting from Clark hitting her.

¶ 4. Sims’s friend put her in touch with Virginia Parker of the Canton Victims’ Assistance Program. Parker contacted Sims after the 2011 incident and took photographs of Sims to document the bruises on her arms and face. Parker and Sims both testified that Clark previously abused Sims in 2011. At trial, Parker also identified three color photographs of the prior injuries received by Sims in 2010. These photographs were admitted into evidence without objection.

¶ 5. After interviewing Sims, Parker contacted Kim Henderson, a children’s sexual abuse investigator for the Madison County Sheriffs Department, about her conversation with Sims. Investigator Henderson met with Sims and photographed her recent injuries. Sims testified that she told Investigator Henderson that “[Clark] jumped on me for the weekend.” Investigator Henderson provided testimony recounting the details of her conversation with Sims, wherein Sims told Investigator Henderson that Clark had written a suicide note trying to convince Sims to come home. Sims told Investigator Henderson that as she put her key in the door of the apartment, Clark approached her from behind, put one hand around her neck and the other hand over her mouth, and pushed her into the apartment.

¶ 6. Investigator Henderson filled out an affidavit for Clark’s arrest, and she and another deputy picked him up. Clark admitted to Investigator Henderson that he and Sims had been arguing and that “he may have caused the bruises or scratches to her neck by trying to defend himself.”

¶ 7. At a trial held March 12, 2012, the jury heard testimony from Sims, Investigator Henderson, and Parker. Sims informed the jury that Clark had previously served jail time for domestic assault, stemming from abuse in their relationship. The transcript shows that with regard to the kidnapping charge, Sims began testifying to a different version of events than what her statement to police officers reflected. At trial, Sims explained that she did not want to go forward with the kidnapping charges against Clark — only the domestic-violence charge — and she refuted her previous statements to police officers that Clark had forcefully refused to let her leave the apartment during the weekend of June 18. Sims instead stated that she could have left whenever she wanted, but she never attempted to leave. The court, observing that it appeared Sims did not “want her recollection refreshed” granted the State’s request to treat Sims as a hostile witness.

¶ 8. At the close of the State’s case-in-chief, Clark moved for a directed verdict. The trial court denied the motion. Clark chose not to testify, and the defense rested without calling any witnesses. The jury returned a verdict acquitting Clark of the kidnapping charge, but finding him guilty of aggravated domestic violence. The trial court sentenced Clark as a habitual offender to serve twenty years in the custody of the MDOC. Clark filed a motion for a new trial or a judgment notwithstanding the verdict, which the trial court denied. On appeal, Clark asserts the following issues: Whether sufficient evidence was presented at trial to support the verdict and whether evidence of a prior domestic-assault charge was properly admitted at trial.

STANDARD OF REVIEW

¶ 9. The standard of review for motions for a directed verdict and a JNOV is abuse of discretion. Smith v. State, 925 So.2d 825, 830 (¶ 10) (Miss.2006) (citing Brown v. State, 907 So.2d 336, 339 (¶8) (Miss.2005)). In considering whether the evidence is sufficient, the court must determine whether a reasonable, fair-minded juror could find that the accused committed the offense charged beyond a reasonable doubt, and that every element of the offense existed given the evidence presented. Brown, 907 So.2d at 339 (¶ 8) (citation omitted). If the evidence fails to meet this test, then it is insufficient to support a conviction. Carr v. State, 208 So.2d 886, 889 (Miss.1968). However, where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47 (¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001)).

¶ 10. We also review the admission or exclusion of evidence under an abuse-of-discretion standard of review. Jones v. State, 904 So.2d 149, 152 (¶ 7) (Miss.2005).

DISCUSSION

I. Sufficiency of Evidence

¶ 11. Clark argues that the evidence presented at trial was insufficient to support the guilty verdict. Clark submits that Sims, the victim, testified that Clark only put his hand over her throat and mouth momentarily, and that Clark did not strangle her. Clark also asserts that Investigator Henderson’s testimony describing Sims’s statement, in which she claimed that Clark beat her, constitutes inadmissa-ble hearsay evidence, and thus could not lawfully be considered as substantive evidence in support of his aggravated-domestic-violence conviction.

¶ 12. “A motion for a directed verdict challenges the sufficiency of the evidence.” McMillan v. State, 6 So.3d 444, 446 (¶ 8) (Miss.Ct.App.2009) (citing Bush v. State, 895 So.2d 886, 843 (¶ 16) (Miss.2005)). In Bush, the Mississippi Supreme Court expressed that “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 Bush, 895 So.2d at 843 (¶ 16)). If any rational trier of fact, when viewing the evidence in the light most favorable to the State, could have found that the essential elements of the crime existed beyond a reasonable doubt, this Court “will affirm the denial of a motion for a directed verdict.” Id. “If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient.” Id.

¶ 13. Mississippi Code Annotated section 97 — 3—7(4)(a)(iii) (Supp.2012) provides: “A person is guilty of aggravated domestic violence who .... [strangles, or attempts to strangle ..., a person who has a current or former dating relationship with the defendant....” The statute defines “strangle” as “restrict[ing] the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means.” See Miss.Code Ann. § 97-3-7(5)(a) (Supp.2012) (emphasis added).

¶ 14. Clark claims that at trial, Sims denied that Clark ever restricted the flow of oxygen or blood into her body by intentionally applying pressure on her neck or throat, nor did he ever restrict the flow of oxygen or blood by blocking her nose or mouth. However, a review of the record shows that Sims indeed testified at trial that Clark held his arm around her neck and his hand over her mouth, albeit momentarily. The statutory elements, stated above, are also satisfied for this offense by proof that Clark intentionally blocked the nose and mouth of Sims. The trial court also admitted into evidence Sims’s June 21 statement to Investigator Henderson. This statement by Sims reflected that on June 18, 2011, Clark ran up to Sims and “had one hand around [her] mouth and his arm around [her neck] .... and said open the door bitch before I break your neck in.” The statement was signed by both Investigator Henderson and Sims. Investigator Henderson provided testimony detailing her interview with Sims, confirming that she saw bruises on Sims, and Investigator Henderson testified that based on Sims’s statement and the visible bruises, she arrested Clark. Investigator Henderson also testified that Sims specifically told her that Clark “approached her from behind, [put] his hand around her neck[,] ... and then he put his other hand over her mouth and pushe[d] her into the apartment.”

¶ 15. Upon review, the record reflects no objection by the defense to the admission into evidence of Sims’s statement inculpating Clark as the perpetrator and cause of the bruises. This Court recognizes that the failure to make a contemporaneous. objection waives the issue on direct appeal. Wells v. State, 698 So.2d 497, 514 (Miss.1997). Additionally, Mississippi Rule of Evidence 103(a)(1) provides that

[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....

¶ 16. Here, the record reflects no contemporaneous objection by Clark’s counsel; thus, the issue is procedurally barred. See Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). We recognize that “[t]he defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment [of error] on appeal.” Id. Such error exists where it affects substantial rights of the defendant. Grubb v. State, 584 So.2d 786, 789 (Miss. 1991). The plain-error doctrine includes the review of errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Upon review, we find no plain error in the admission of Sims’s pretrial statement to investigators into evidence, since Sims also testified at trial regarding the same altercation with Clark.

¶ 17. In denying the defense’s motion for a directed verdict, the trial court quoted the definition of strangle found in section 97-3-7 and held as follows: “[T]here is testimony that [Clark] put his hand over [Sims’s] mouth and had his arm around her neck, and I believe that’s sufficient considering the evidence in the light most favorable to the State, which is the standard.” Upon review of the record, and in recognizing that “all evidence supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit of all favorable inferences that can be reasonably drawn from the evidence,” we concur with the trial court’s determination that based on the evidence presented, a reasonable and fair-minded juror could have found Clark guilty of aggravated domestic violence by either strangulation or attempted strangulation pursuant to section 97-3-7. See Cortez v. State, 876 So.2d 1026, 1030 (¶ 11) (Miss.Ct.App.2003) (citing Nelson v. State, 839 So.2d 584, 586 (¶3) (Miss.Ct.App.2003)). The record contains sufficient evidence to support the verdict finding that Clark “intentionally block[ed] the nose or mouth of [Sims] by any means.” Miss.Code Ann. § 97-3-7(5)(a).

II. Admission of Evidence

¶ 18. Clark next argues that the trial court erred in admitting into evidence testimony describing a prior incident of aggravated domestic violence and abuse by Clark. Clark submits that admitting the prior domestic-assault charge from June 25, 2010, was highly prejudicial to the defense. Clark cites to Mississippi Rule of Evidence 404(b) and claims that the State improperly used the prior charge to show character and that Clark acted in conformity with such character.

¶ 19. We review the admission or exclusion of evidence under an abuse-of-discretion standard of review. Jones, 904 So.2d at 152 (¶ 7). The admissibility of evidence of other crimes, wrongs, or acts is controlled by Mississippi Rule of Evidence 404(b). Under Rule 404(b), evidence of prior bad acts is generally inadmissible as character evidence or to show a defendant acted in conformity therewith. However, Rule 404(b) provides that evidence of prior bad acts “may ... be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Additionally, if admissible for a proper purpose, then evidence of prior bad acts “must pass through the filter of Rule 403 of the Mississippi Rules of Evidence.” Wilson v. State, 956 So.2d 1044, 1047 (¶ 9) (Miss.Ct.App.2007). Rule 403 instructs that if the prejudicial effect of the evidence substantially outweighs the probative value, then the evidence should be excluded. See M.R.E. 403. With respect to the admission of the disputed evidence, the record shows the State submitted three photographs depicting the prior abuse of Sims by Clark on June 25, 2010.

¶ 20. Following the pretrial hearing dealing with the matter of prior domestic abuse, the trial judge determined this evidence was admissible, providing the following Rule 403 ruling and findings:

I believe doing the balancing test under [Rule] 403, considering the admissibility under [Rule] 404(b), I believe that evidence of that assault is admissible under 404(b) to show opportunity, intent, absence of mistake, and I also believe that the evidence of that incident — the probative value is not substantially outweighed by the danger of unfair prejudice to the defendant or confusion of the issues or misleading the jury. So for that reason, the State will be allowed to get into the June 25, 2010 incident relative to [Sims] in this case.

¶ 21. A review of the record reveals that the trial court found the evidence admissible for permissible purposes — to show opportunity, intent, and absence of mistake — and then properly filtered this evidence through the Rule 403 balancing test in determining that the probative value was not substantially outweighed by any prejudice. See Wilson v. State, 83 So.3d 421, 437-38 (¶¶ 42-44) (Miss.Ct.App.2011). The trial court also provided limiting instructions to the jury for the admission of the prior bad act. The trial court allowed the State to submit only three photographs documenting the June 25 abuse into evidence; The evidence in the record supports the trial judge’s findings under Rule 403 in admitting the evidence of Clark’s prior bad acts as relevant to proper purposes of showing motive, opportunity, intent, and absence of mistake, and the record reflects no abuse of discretion in the admission of this evidence. See Wilson, 83 So.3d at 437-38 (¶¶ 42-44). Accordingly, we affirm the judgment of the trial court.

¶ 22. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO A SENTENCE PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ„ CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Sims also testified at trial relating the facts of the June 25 abuse to the jury, referring to it as "our first incident.” Sims stated that after the June 25 incident, she and Clark broke up, but they rekindled their romance six months later.


author: FAIR, J.,

text:
    Alan ROSS a/k/a Alan Wayne Ross, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01770-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.
    See also, 802 So.2d 171, 922 So.2d 847.
    Christopher Tyler Kent, attorney for appellant.
    Office of the Attorney General by Lysa L. Blount, attorney for appellee.

      Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Alan Ross is before this Court for the third time. This appearance, like his first two, relates to a 1997 conviction and twenty-year sentence for sale of cocaine. For the third time, we affirm the trial court’s decision to deny him relief.

FACTS

¶ 2. In December 1998, Ross pled guilty to sale of crack cocaine and received a sentence of twenty years, with twelve to serve and the remaining eight suspended, but with five of the eight under post-release supervision.

¶ 3. He filed for post-conviction relief six months later, asserting ineffectiveness of trial counsel. This Court affirmed the denial of that petition in 2001.

¶ 4. In May 2002, Ross achieved trusty status and began receiving ten days’ additional credit for every thirty days he served on his twelve-year incarceration. When the “trusty-time credit” statute was amended to provide for thirty days’ credit for thirty days of trusty time, he claimed entitlement to the increase. Ross’s increase was denied, and he filed for post-conviction relief, ultimately receiving his second opinion from this Court in 2006. The amended statute, however, excluded those convicted of drug trafficking, and this Court denied Ross the extra twenty days’ credit he sought. The Court held, however, that he would continue to earn the ten-day trusty-time credit.

¶ 5. By the spring of 2008, Ross had “flat timed” the twelve-year incarceration provision of his sentence due to credit for time spent in jail prior to his conviction and trusty-time credit he had earned. In accord with the sentence, Ross was released and placed under post-release supervision. He started to work in construction and received, according to his later testimony, a contractor’s license.

¶ 6. In early November 2009, he was charged with receiving stolen property, and shortly thereafter, the Mississippi Department of Corrections (MDOC) initiated revocation proceedings. Ross waived his right to notice and/or a waiting period prior to a hearing, along with his right to a preliminary hearing. On June 14, 2010, after a hearing before the Circuit Court of Pontotoc County, his post-release supervision was revoked, and he was returned to the custody of the MDOC to serve the remaining six years and three months of the eight-year suspended portion of his sentence. Ross then filed his third petition, and on October 17, 2011, the trial court denied his petition. Ross has presented the identical issues before this Court, which are set out below. The trial judge affirmed his prior revocation, basing his ruling solely on Ross’s failure to pay costs of court, a $750 fine, and twenty months worth of post-release supervision fees at $25 per month.

ISSUES

¶ 7. Ross asserts two grounds for reversal: (1) revocation of his probation was unconstitutional because, even though the primary reason for the revocation was his failure to pay his fine and court costs, the trial court failed to inquire as to his ability to pay the fine and costs; and (2) the trial judge revoked his probation on the basis that he was simply arrested and charged with a crime. Ross argues that the State did not present evidence that he had, in fact, committed the crime for which he was charged.

STANDARD OF REVIEW

¶ 8. “In reviewing a trial court’s decision to deny a [petition] for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

1. Failure to Pay Fine, Fees, and Costs

¶ 9. Ross alleges that the court improperly revoked his probation solely based on his failure to pay his fine, without inquiring into the reasons for his failure to pay. The trial court ordered revocation for Ross’s failure to make payments on his fine and supervision fees. At the hearing, Ross admitted that he was behind in his payments — $238 in court costs, $750 in fines, and $500 in supervision fees. He also admitted that he could have paid those sums, but assumed that he could pay what he owed at any time during his supervised probation. Ross had more than three years of supervised probation to complete when he was arrested and his probation was revoked. He also asserts inability to pay.

¶ 10, The United States Supreme Court has stated:

[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment.

Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (emphasis added).

¶ 11. If the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacks the resources to pay. The United States Supreme Court has recognized the difference between an indigent defendant’s inability to pay and a defendant’s refusal to pay, explaining that “nothing in our decision today precludes imprisonment for willful refusal to pay a fine or court costs.” Williams v. Illinois, 399 U.S. 235, 242 n. 19, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). Likewise in Tate v. Short, 401 U.S. 395, 400, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the Court “emphasize[d] that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.” As explained m Bearden,

This distinction, based on the reasons for non-payment, is of critical importance here. If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or bomw money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.

Bearden, 461 U.S. at 668-69, 103 S.Ct. 2064 (emphasis added and internal citation omitted).

¶ 12. Ross heavily relies on Bearden to make his argument that his probation revocation is unconstitutional. However, Bearden is readily distinguishable from this case. The trial court in Bearden sentenced the defendant to imprisonment simply because he could not pay the fine, without considering the reasons for his inability to pay. In other words, the court automatically turned a fine into a prison sentence and provided no alternative for the indigent defendant.

¶ 13. The present case is, however, more analogous to our Court’s decision in Baldtuin v. State, 891 So.2d 274, 277 (¶ 9) (Miss.Ct.App.2004). This Court held that the trial court did not abuse its discretion by revoking probation for wire fraud based on the defendant’s failure to make restitution payments. Id. The defendant alleged, as in this case, that the court failed to make sufficient inquiry as to the defendant’s ability to pay. Id. at (¶ 6). The defendant never testified at his revocation hearing that he was indigent, but in fact stated that his former employer was going to rehire him. Id. at (¶ 8). Additionally, the defendant offered to have his wages garnished, and offered to have his tax refunds applied to restitution. Id.

¶ 14. The present case turns on whether Ross made “sufficient bona fide efforts” to make his payments. There was evidence in the record from which an ability to pay might have been inferred. Like the defendant in Baldwin, Ross did not testify that he was indigent. Rather, he stated that if he could be released, he would not have a problem making his payments. He also stated that he was a construction worker and had his construction license.

¶ 15. Mississippi Code Annotated section 99-19-20 (Rev.2012) states:

(1) When any court sentences a defendant to pay a fine, the court may order (a) that'the fine be paid immediately, or (b) that the fine be paid in installments to the clerk of said court or to the judge, if there be no clerk, or (c) that payment of the fine be a condition of probation, or (d) that the defendant be required to work on public property for public benefit under the direction of the sheriff for a specific number of hours, or (e) any combination of the above.

¶ 16. Here, the sentencing order is unclear as to when the payments/fines/fees were due. The records shows that there was no installment plan set up. Therefore, pursuant to section 99-19-20, Ross had to pay a fine immediately, or the fine was a condition of probation. Or the trial court could have required both. See Miss.Code Ann. § 99-19-20. The language in the sentencing order seems to indicate that the payments were due immediately, and the trial court so held at the revocation hearing. While Ross could not be held responsible for making payments while incarcerated, upon his release he became gainfully employed and, as he admitted, was making enough money to pay the costs and fines levied against him, and could pay, as well, the meager sum of $25 per month toward costs of his supervision, as he was ordered to do.

2. Arrest as Cause for Revocation

¶ 17. Ross also submits that the trial court revoked his probation because of his arrest for receiving stolen goods. At the time of the hearing, he had merely been arrested on those charges, which were shortly thereafter modified to accessory after the fact to receiving stolen goods. The court was advised the charges would be brought before a grand jury in the near future. He was later indicted, tried, and found not guilty by a jury.

¶ 18. Ross also points out that the fact that he was arrested does not mean he committed the alleged probation violations. However, probation may be revoked based “upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” Metcalf v. State, 904 So.2d 1222, 1225 (¶ 10) (Miss.Ct.App.2004) (citing Wallace v. State, 607 So.2d 1184, 1189-90 (Miss.1992)). At the hearing, the State presented evidence, including an investigative report from the officers who arrested Ross for receiving stolen property.

¶ 19. Had the trial judge affirmed revocation of Ross’s probation on these grounds, as asserted by Ross, a thorough discussion of the law on the burden of proof and the weight of evidence necessary for revocation based on unadjudicated charges, particularly in the context of later acquittal of those charges, would be necessary.

¶20. However, the trial court, in its order denying the post-conviction-relief petition filed by Ross, specifically denied relief solely on the basis of Ross’s failure to pay and declined to rule on or discuss this second issue, stating:

The Court will not address the Flowood charges since the failure to pay violation is dispositive. The Court conducted a revocation hearing to determine whether the Petitioner’s post-release supervision should be revoked. The Petitioner admitted that he was delinquent $500.00 in MDOC supervision fees and $988.00 in court costs. As such, the Court was correct in revoking the [p]ost-[r]elease [supervision and imposing the suspended sentence.

¶ 21. For the same reasons, this Court declines to address the second assignment of error submitted by Ross.

¶ 22. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PONTO-TOC COUNTY.

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

      . Ross v. State, 802 So.2d 171, 173 (¶ 1) (Miss.Ct.App.2001).

      . Ross v. Epps, 922 So.2d 847, 849 (¶ 6) (Miss.Ct.App.2006).

      .During the pendency of this appeal, Ross was granted parole and has since been released from the custody of the MDOC.


author: ROBERTS, J.,

text:
    Bernadine COTTON, Appellant v. FRED’S STORES OF TENNESSEE, INC., Appellee.
    No. 2012-CA-01016-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.

      Yancy B. Burns, Jackson, attorney for appellant.
    John Ernest Wade Jr., Lane Williamson Staines, Jackson, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On January 12, 2009, Bernadine Cotton filed a complaint in the Hinds County Circuit Court against Fred’s Dollar Store Inc., Fred’s Stores of Tennessee Inc., XYZ Corporation, and John Doe, individually (collectively Fred’s), alleging injuries from a slip and fall in a Fred’s store in Hinds County. On February 16, 2010, Fred’s filed a motion for summary judgment, and the circuit court granted that motion on June 23, 2010. Aggrieved by the circuit court’s grant of summary judgment, Cotton filed the present appeal asking this Court to determine if Fred’s had constructive knowledge of the existence of a hazardous condition on the floor yet failed to warn of or remedy that condition. Finding that no genuine issue of material fact exists, we affirm the circuit court’s grant of summary judgment in favor of Fred’s.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 14, 2006, Cotton was shopping at a Fred’s store in Clinton, Mississippi, when she allegedly slipped and fell. According to Cotton’s deposition, the cause of her fall was a “black liquid substance” that looked like “dirty water” corning from underneath a cooler and spreading down the store aisle. She also explained that the liquid “was like it was drying out, ... [and] it would run but it would turn black[.]” Almost three years later, Cotton filed a complaint in the circuit court alleging that Fred’s was negligent for failing to “maintain the premises in a reasonably safe condition, ... [ and failing] to warn of this unsafe condition[.]” Additionally, she claimed that Fred’s failed to properly train and supervise its employees to ensure that the premises were maintained in a reasonably safe condition.

¶ 3. On February 16, 2010, Fred’s filed its motion for summary judgment. In its motion, Fred’s argued that Cotton had failed to prove that it caused the allegedly hazardous condition, that it had actual knowledge of the allegedly hazardous condition and failed to warn about or remedy the condition, or that it had constructive knowledge of the allegedly hazardous condition. Cotton filed her response opposing the motion for summary judgment. The circuit court ultimately granted the motion on June 23, 2010. In granting the motion, the circuit court found that Cotton had “failed to bring forth any evidence that creates a genuine issue of material fact as to the alleged negligence of Fred’s.” According to the circuit court, in Cotton’s response to the motion for summary judgment, she “simply speculates that the ‘hazardous substance’ could have been a leaking cooler or leaking roof, and speculation as to what may have happened does not suffice as evidence of negligence.”

¶ 4. Cotton filed the current appeal on October 21, 2011. Her sole argument on appeal is: “Whether the [circuit court] ... erred in granting the [m]otion for [s]um-mary [j]udgment ... despite the fact that Fred’s had constructive notice of a hazardous condition on its premises yet failed to correct and/or warn of the same.”

ANALYSIS

¶ 5. The standard of review this Court utilizes when reviewing a circuit court’s grant or denial of a motion for summary judgment is de novo and views the evidence in a light most favorable to the non-moving party. Karpinsky v. American Nat’l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (citation omitted). In its recent decision in Karpinsky, the Mississippi Supreme Court clarified the summary-judgment standard. According to the supreme court, “[s]ummary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact[.]” Id. at (¶ 10). It further explained that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law.” Id. at (¶ 11) (citation omitted). Further, “[t]he movant bears the burden of production, if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶ 11) (citations omitted). Specifically, in premises liability cases, “Mississippi law further requires that when a dangerous condition exists that was ‘created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.’ ” Id. at (¶ 12) (quoting Miller v. R.B. Wall Oil Co., 970 So.2d 127, 132 (¶ 17) (Miss.2007). The supreme court again clarified that “while [defendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of her claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at (¶ 13).

¶ 6. Both parties agree that Cotton’s status at the time she allegedly fell was that of a business invitee. In a premises-liability case, the plaintiff must establish one of the following: that the premises owner caused or created a hazardous condition, that the premises owner had actual knowledge of the hazardous condition but failed to warn or remedy the condition, or that the hazardous condition existed long enough to impute constructive knowledge to the premises owner. Downs v. Choo, 656 So.2d 84, 86 (Miss.1995) (citations omitted). Constructive knowledge may be imputed by showing the length of time the hazardous condition existed prior to the fall. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986).

¶ 7. In Jacox v. Circus Circus Mississippi, Inc., 908 So.2d 181, 184 (¶ 6) (Miss.Ct.App.2005), this Court reiterated the well-settled principle that “bare allegations cannot defeat a motion for summary judgment.” Willie Jacox was injured in a casino bathroom when his toilet overflowed and he slipped on the water that had been spilled on the floor. Id. at 183 (¶ 2). This Court affirmed the circuit court’s grant of the casino’s motion for summary judgment because Jacox had failed to prove that the casino had constructive knowledge of any dangerous condition in the bathroom. Id. at 185 (¶ 9). In constructive-knowledge cases, a plaintiff opposing summary judgment “must produce admissible evidence of the length of time that the hazard existed!,] and the court will indulge no presumptions to compensate for any deficiencies in the plaintiffs evidence as to the time period.” Id. at 185 (¶ 8) (citation omitted).

¶ 8. Cotton contends that she put forth sufficient evidence in her deposition to show that Fred’s had constructive knowledge of the spill. Some statements she made during her deposition were inconsistent with other statements she made in her deposition, arguments she made in opposition to summary judgment, and arguments she makes on appeal. To demonstrate Fred’s constructive knowledge of the spill, she argues that the spill had been on the floor so long ■ that it was dirty because other customers had tracked dirt and debris though the spill; however, her sworn testimony from her deposition was that the substance was already dirty or black as it leaked out from under the cooler. Next, she stated in her deposition that the substance was coming from underneath the cooler and was spreading down the aisle. But she also stated that it had already dried in certain parts, leaving behind a black residue. The latter statement would support a finding that the spill had been there for a longer period of time; whereas, the former- statement supports a finding that the spill was ongoing and much more recent. Her own inconsistent statements about the incident, particularly the length of time the hazardous condition had been present, do not support a finding that the summary-judgment motion should have been denied.

¶ 9. Further, Ollie Smith, Fred’s store manager at the time of the alleged incident, stated in his deposition that he had never personally seen any liquid come from underneath the cooler, nor did any of his employees or other customers report an issue with the cooler on that day or any other day. His affidavit also states that it is the practice of Fred’s employees to continually inspect the aisles for potential hazards. Hubert Maxie, the assistant manager at Fred’s, was also deposed, and he stated that he had never seen the cooler leak. But he elaborated that the roof in that area of the store leaked when it was raining heavily. However, no evidence was presented that it was raining heavily any day immediately before the incident or on the day of the incident.

¶ 10. We find the evidence submitted by Cotton to be insufficient to create a genuine issue of material fact. Just like in Jacox, Cotton did not provide any consistent evidence that Fred’s had constructive knowledge of the hazardous condition before the incident occurred. Specifically, she failed to show that the dirty water near the cooler had been there a sufficient length of time as to impute constructive knowledge of its existence to Fred’s. As explained above, the evidence she submitted as to the length of time the substance could have been on the floor was inconsistent. She claims that the substance was coming from underneath the cooler, yet she presented no specific evidence that Fred’s had knowledge there had been a problem with this cooler leaking before or after the incident. She also claims that the source of the substance could have been from the roof leak, but she again fails to provide any evidence that it was raining any day immediately before or on the day of the incident. Finding that there is no genuine issue of material fact, we affirm that circuit court’s grant of summary judgment.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Her complaint was later amended to remove Fred’s Dollar Store as a party since it does not exist as an entity.