author: CARLTON, J.,

text:
    Joyce A. BANKS, Appellant v. BRINKER MISSISSIPPI, INC., Appellee.
    No. 2013-CA-00521-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2014.

      Jennifer Lyn Miller Bermel, attorney for appellant.
    Robert F. Stacy Jr., Catherine Ashburn Hester, Oxford, attorneys for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Joyce Banks filed suit against Brinker Mississippi Inc., as the owner and operator of a Chili’s restaurant in Southa-ven, Mississippi, alleging that Chili’s breached its duty to keep its premises in a reasonably safe condition after Banks suffered injuries from falling in a hole in the Chili’s parking lot. The DeSoto County Circuit Court granted Brinker’s motion for summary judgment. Banks now appeals from that judgment. Finding no error, we affirm.

FACTS

¶ 2. On February 17, 2012, Banks filed a complaint in the Desoto County Circuit Court alleging negligence against Chili’s, among other defendants. Banks claims that on February 20, 2009, she was injured when she stepped in a hole and fell while in the parking lot of Chili’s. Banks alleged that she was a business invitee and that Brinker, the owner and operator of the Chili’s, was negligent for failing to maintain the parking lot in a safe condition; failing to warn her of the condition; and failing to conduct a reasonable inspection of the parking lot.

¶ 3. Banks alleges that on February 20, 2009, the day of her injury, she traveled from her home in Germantown, Tennessee, to Tunica, Mississippi, to visit a friend. Banks and her acquaintances then traveled to Southaven to see a movie. They decided to eat before going to the movie, and Banks suggested that they eat at the International House of Pancakes (IHOP). The Chili’s restaurant was located next to IHOP, and each restaurant had a separate parking lot. Banks admitted that she parked in the Chili’s parking lot, although she did not intend to patronize Chili’s. Banks stated that at the time they arrived in the parking lot, she believed she was parking in the IHOP parking lot. Banks claimed that she fell in the parking lot while walking to her car after eating at IHOP and suffered a fractured patella.

¶ 4. On October 5, 2012, Brinker filed a motion for summary judgment on the grounds that since Banks did not intent to patronize Chili’s when she parked on Brinker’s property, she failed to constitute a business invitee, and therefore Brinker only owed her the duty accorded a licensee. Brinker also claimed that Banks failed to provide evidence that the alleged condition of the parking lot constituted willful and wanton conduct. On February 22, 2013, the trial court heard Brinker’s motion for summary judgment and Banks’s ore tenus motion for a continuance. On February 25, 2013, the trial court entered its order denying Banks’s motion for a continuance and granting Brinker’s motion for summary judgment. The trial court found that Banks was, at best, a licensee and that no genuine issue of material fact existed to show that Brink-er violated its duty not to willfully and wantonly injure Banks.

¶ 5. Banks now appeals, arguing that the trial court erred in granting Brinker’s motion for summary judgment.

STANDARD OF REVIEW ¶ 6. This Court applies a de novo standard of review to a trial court’s grant of summary judgment. The evidence must be viewed in the light most favorable to the nonmoving party. Russell v. Orr, 700 So.2d 619, 622 (¶ 8) (Miss.1997). In Galloway v. Travelers Insurance Co., 515 So.2d 678, 684 (Miss.1987), the supreme court explained that

[w]hen a party opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial[ ] fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to [a] judgment as a matter of law.

See M.R.C.P. 56(c) (A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law.). “The appellate court does not try issues on a Rule 56 motion; it only determines whether there are issues to be tried.” Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995). “The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense.... [T]he existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Simmons v. Thompson Mach, of Miss. Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss. 1985)).

DISCUSSION

¶ 7. Banks argues that the trial court erred when it granted Brinker’s motion for summary judgment. Banks asserts that a disputed issue of material fact exists as to whether Banks constituted an invitee or licensee of Brinker’s property. Brinker moved for summary judgment on the grounds that Banks failed to constitute a business invitee because Banks did not intend to patronize Chili’s when she parked on Brinker’s property, and therefore Brinker owed her only the duty accorded a licensee. Banks argues that Brinker received an economic advantage by her presence on its property and that Brinker invited members of the public to use its parking lot and patronize neighboring businesses.

¶ 8. To recover for negligence, a plaintiff must prove each of the elements of a negligence claim: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Todd v. First Baptist Church of West Point, 993 So.2d 827, 829 (¶ 10) (Miss. 2008). In Daulton v. Miller, 815 So.2d 1237, 1239 (¶ 6) (Miss.Ct.App.2001), this Court explained that “[t]he starting place for a negligence suit ... is to identify the nature of any rights the injured party had to be on the property where the injury occurred.” The Daulton court cited Little ex rel. Little v. Bell, 719 So.2d 757, 760 (¶ 15) (Miss.1998), wherein the supreme court defined the following statuses:

1) An invitee is a person who enters the property of another in response to an express or implied invitation of the owner or occupant for the mutual advantage or benefit of the parties involved.
2) A licensee is a person entering another’s property for his own benefit or pleasure. 3) Finally, a trespasser enters premises “without license, invitation or other right.”

Daulton, 815 So.2d at 1239 (¶ 6). (internal citation omitted).

¶ 9. Once the injured party’s status has been identified, the landowner’s duty to the injured party must next be determined. Id. at (¶ 7). We have recognized that “[a]n invitee is owed the highest duty. The landowner must provide property that is ‘reasonably safe[,] and when not reasonably safe [the landowner must] warn only where there is hidden danger or peril that is not plain and open view.’ ” Id. (citations omitted). However, “a licensee or trespasser is owed only the duty to have the landowner ‘refrain from willfully or wantonly injuring him.’ ” Id.

¶ 10. The next step is to determine whether the landowner or business operator breached its duty. Leffler v. Sharp, 891 So.2d 152, 156 (¶ 10) (Miss.2004). We recognize that the determination of a plaintiffs status can be a jury question, “but where the facts are not in dispute the classification becomes a question of law for the trial judge.” Id. (citations omitted).

¶ 11. Banks argues that she constituted a business invitee, and she claims that the economic advantage realized by Brinker as a result of the close proximity of Chili’s to other businesses is evidenced through Banks’s deposition testimony. In her deposition testimony, Banks explained that she and her friends had no intention of going out to eat that night, but instead intended to go to a movie. Banks stated that the movie she and her friends planned to see was sold out, so they decided to go eat somewhere. They saw the sign for IHOP and decided to eat there. Banks asserts the restaurants’ close proximity to one another, as well as their close proximity to the movie theater, is the only reason that she and her friends decided to go out to eat that night; thus, she argues, it is logical to conclude that Brinker enjoyed Banks’s presence on its property as a potential for profit.

¶ 12. Banks further asserts that Brink-er failed to produce any affidavit or testimony suggesting that Brinker realized no economic advantage by Banks or other members of the public parking in its parking lot and patronizing neighboring restaurants. Banks claims that in support of its motion to dismiss, Brinker simply relies on Banks’s own testimony that she did not intend to patronize Chili’s. Banks asserts that she believed she was welcome to park in the Chili’s restaurant, though she did not realize she crossed between property lines when traveling from her car to the IHOP.

¶ 13. Brinker argues that Chili’s did not receive any actual or potential economic benefit from Banks and her acquaintances unknowingly parking in the Chili’s parking lot with the intention of eating at another restaurant; thus, Banks constituted a licensee. Brinker asserts that Banks admitted she had no intention of going to the Chili’s restaurant, and Brinker points out that Banks may have taken up a parking place that could have been used by an actual Chili’s customer.

¶ 14. In the present case, the trial court found:
[DJespite Banks’s unsupported argument that she was an invitee of the Chili’s restaurant on the day of the incident, there are no genuine issues of material fact as to the status of Banks. Pursuant to Marlon Investment Co. v. Conner, [246 Miss. 343] 149 So.2d 312[, 315] (Miss.1963), Banks was at best a licensee. She admitted she had no intention of going in the Chili’s restaurant and never did so. The court also finds that pursuant to the law regarding premises liability and the duty owed to a licensee, not to willfully or wantonly injure such person, Banks cannot prove Brinker violated this duty. See Holmes v. Campbell Properties, Inc., 47 So.3d 721, 724-25 [ (¶¶ 11-14) ] [ (Miss.Ct.App. 2010) ]. The court also disagrees with Banks’s unsupported argument that she falls into the exception from Hoffman v. Planters Gin Co. Inc., 358 So.2d 1008[, 1012] (Miss.1978), as she has set forth no actual proof of any affirmative or active negligence in the operation or control by Brinker of the Chili’s restaurant and parking lot.

¶ 15. The trial court then granted summary judgment in favor of Brinker. As the party opposing the motion for summary judgment, Banks may not rest upon her allegations or denials in the pleadings, but must set forth specific facts showing that there are indeed genuine issues for trial. See M.R.C.P. 56(e). The record reflects that Chili’s derived no benefit from Banks’s use of its parking lot. Banks failed to present evidence to show the existence of a dispute of material fact to support her claims that she constituted an invitee or that Chili’s committed any negligence. See Hudson v. Courtesy Motors Inc., 794 So.2d 999,1004 (¶ 16) (Miss.2001).

¶ 16. Our review of the record further reflects no evidence presented by Banks to show that the condition of the Chili’s parking lot was the result of conscious disregard of a serious danger, or of knowing or intentional conduct. Accordingly, we End no error in the trial court’s order granting summary judgment after Ending that no genuine issue of material fact existed.

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

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

      . On April 10, 2012, Banks non-suited claims against certain defendants who possessed no legal interest in the property where she fell, and simultaneously filed an amended complaint to substitute Brinker as the proper defendant.

      . The supreme court has recognized two classes of invitees: public invitees and business invitees. Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 763 (Miss. 1989) (citing Restatement (Second) of Torts, § 332 (1965)). A public invitee is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. Id. A business visitor, however, is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Id.

      . As stated, to constitute an invitee, a person must enter the property of another "for the mutual advantage or benefit of the parties involved.” Daulton, 815 So.2d at 1239 (¶ 6).


source: Caselaw Access Project

license: Public Domain

text:
    Tyrone K. THORNTON and Annie Thornton, Appellants v. BIG M TRANSPORTATION COMPANY, Appellee.
    No. 2013-CA-00988-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2014.

      Carlos Eugene Moore, Tangala Laniece Hollis, Grenada, attorneys for appellants.
    Nicholas E. Bragorgos, attorney for ap-pellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Tyrone and Annie Thornton appeal the Panola County Circuit Court’s grant of summary judgment in favor of Big M Transportation Company. The Thorntons argue that the circuit court erred in granting Big M Transportation’s summary-judgment motion for the following reasons: (1) the motion for summary judgment was untimely filed; (2) the motion for summary judgment failed to comply with Rule 4.03 of the Uniform Rules of Circuit and County Court; and (3) genuine issues of material fact still exist. Finding no error in the circuit court’s grant of summary judgment, we affirm.

FACTS

¶ 2. On May 6, 2009, while driving from Wisconsin to Alabama, Tyrone collided with a tractor-trailer rig parked in the middle of the highway between Batesville, Mississippi, and Oxford, Mississippi. According to the evidence in the record, the collision occurred between 3:30 a.m. and 3:55 a.m. The rig parked in the middle of the highway, Unit 279, belonged to Big M Transportation. Ricardo Virges, an employee of Big M Transportation at the time of the accident, testified that he parked Unit 279 at Big M Transportation’s headquarters in Hickory Flat, Mississippi, during the early morning hours of May 6, 2009. Virges further testified that, after dropping off Unit 279, he drove about two and a half hours to Bruce, Mississippi, to spend the night at an apartment he shared with Keena Owens Virges.

¶ 3. For her part, Keena testified that she awoke around 2 a.m. to several missed phone calls from Virges and to Virges banging on her apartment door. Keena let Virges into the apartment, and the couple went to sleep. When Keena woke up at 5 a.m. to get ready for nursing school, she testified that Virges was still asleep.

¶ 4. Following the collision involving Unit 279, Big M Transportation retrieved data from a satellite tracking device installed on the rig. Consistent with Virg-es’s deposition testimony, the satellite-tracking records indicated that Virges dropped off Unit 279 around 12:43 a.m. on May 6, 2009. The records further indicated that the rig later exited Big M Transportation’s parking lot at 1:38 a.m.

¶ 5. When Tommy Johnson, Big M Transportation’s safety director, arrived at work on May 6, 2009, he contacted the Benton County Sheriffs Department to report that Unit 279 had been stolen. According to Johnson’s affidavit, when Unit 279 left Big M Transportation’s premises at 1:38 a.m. the morning of the collision, the rig was not authorized to do so and was not “on or about the business of Big M [Transportation].” Tyrone also provided deposition testimony regarding the accident. When asked whether he had any idea “if there was anybody there [at the crash site] with [Unit 279],” Tyrone answered that he did not see anyone, including a driver, around the rig.

¶ 6. Tyrone and his wife, Annie, filed a negligence suit against Big M Transportation and John Doe in Panola County Circuit Court. The circuit court judge entered an agreed order, which established November 1, 2010, as the deadline for filing all motions other than motions in limine. After the November 1, 2010 deadline passed, the Thorntons filed a second complaint on December 28, 2010, against Virges alone, alleging that Virges was the driver designated in their first complaint as “John Doe.” The circuit court later allowed the Thorntons’ two complaints to be consolidated.

¶ 7. Following a status conference on July 27, 2011, the circuit court entered an order that established July 29, 2011, as the new deadline for filing additional motions, including any motion by the Thorntons to amend their complaint. On August 4, 2011, several days after the deadline set by the circuit court judge, the Thorntons filed a motion to amend their complaint. The Thorntons sought to add a second John Doe and Mississippi Farm Bureau Casualty Insurance Company as defendants and to add causes of action for negligent security, general negligence, and negligence per se.

¶ 8. On August 15, 2011, the circuit court granted the Thorntons’ motions to amend their complaint and to substitute Virges for one of the “John Does.” During the status conference held on August 15, 2011, the Thorntons’ attorney stated that there would be additional discovery and motions for summary judgment after the complaint was amended. At the status conference held on August 30, 2011, the circuit court judge informed the parties that he would let them “handle the case until discovery was complete or until there was additional need for the [c]ourt’s involvement.”

¶ 9. On November 29, 2011, Farm Bureau filed a motion for summary judgment, which the circuit court granted. On March 26, 2012, Virges filed a motion for summary judgment, and on May 7, 2012, Virges filed an amended motion for summary judgment. The circuit court entered an order on October 19, 2012, granting summary judgment in favor of Virges. Big M Transportation then filed its motion for summary judgment on December 5, 2012, and its memorandum of authorities on January 28, 2013. The circuit court granted summary judgment in favor of Big M Transportation on May 17, 2013. Aggrieved by the circuit court’s grant of summary judgment to Big M Transportation, the Thorntons appeal to this Court.

STANDARD OF REVIEW

¶ 10. We review a circuit court’s grant or denial of summary judgment de novo. Sribling v. Rushing’s, Inc., 115 So.3d 103, 104 (¶ 5) (Miss.Ct.App.2013). “This Court views the evidence in the light most favorable to the nonmovant.” Id. (citation omitted). “To survive summary judgment, the non-moving party must offer significant probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation and internal quotation marks omitted). Furthermore, where the moving party has provided support for his motion for summary judgment, the “adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Mississippi Rule of Civil Procedure 56, must set forth specific facts showing that there is a genuine issue for trial.” Id. at (¶ 6) (citing M.R.C.P. 56(e)). Where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[,]” summary judgment is proper. M.R.C.P. 56(c).

DISCUSSION

I. The motion for summary judgment was untimely filed.

¶ 11. In their first assignment of error, the Thorntons argue that the circuit court erred in granting summary judgment because Big M Transportation’s motion was untimely filed and failed to comply with the deadlines set by the circuit court. With regard to this issue, however, the Thorntons fail to cite any relevant caselaw that would support their argument, and as the Mississippi Supreme Court has held, the “[fjailure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Bell v. State, 879 So.2d 423, 434 (¶ 28) (Miss.2004) (citations omitted).

¶ 12. The procedural bar notwithstanding, this Court finds that the Thorntons’ claim lacks substantive merit. The Thorn-tons assert that Big M Transportation’s motion for summary judgment, which was filed on December 3, 2012, was more than a year after the July 29, 2011 deadline set by the circuit court. However, in addressing the Thorntons’ assertions that the motion for summary judgment was untimely, the circuit court judge noted that the Thorntons also filed their amended complaint several days after the July 29, 2011 deadline and that they failed to object to Virges’s motion for summary judgment, which was also filed after the deadline.

¶ 13. In his order granting Big M Transportation’s summary-judgment motion, the circuit court judge noted that he gave the parties no additional deadlines after the Thorntons filed their amended complaint on August 4, 2011. Instead, the circuit court judge told the parties that he would let them “handle the case until discovery was complete or until there was additional need for the [cjourt’s involvement.” The circuit court judge also noted that at the status conference held on August 15, 2011, the Thorntons’ attorney “actually stated there would be discovery and motions for summary judgment after the complaint was amended.” Based on the record, the circuit court judge therefore found:

[I]t would be disingenuous for an amended complaint to be allowed to be filed[,] adding additional claims and parties, but no motions be allowed after such amended complaint. According to the record, it was contemplated by the parties that such motions would be filed. Therefore, the [cjourt finds that the motion [for summary judgment] is not untimely.

¶ 14. Based on the facts in the record, we find that Big M Transportation’s motion for summary judgment was not untimely filed. As noted by the circuit court’s order, despite the motions deadline set by the circuit court, the Thorntons filed their amended complaint after the deadline passed. In addition, the Thorntons’ attorney specifically stated that additional discovery and motions for summary judgment would be filed after the Thorntons’ complaint was amended. The record also reflects that the Thorntons failed to object to Virges’s summary-judgment motion even though it was also filed after the deadline. In light of these facts, we agree with the circuit court’s determination that Big M Transportation’s summary-judgment motion was not untimely filed. Accordingly, this assignment of error lacks merit.

II. The motion for summary judgment failed to comply with Rule 4.03 of the Uniform Rules of Circuit and County Court.

¶ 15. The Thorntons also argue that the circuit court erred in granting summary judgment because Big M Transportation’s motion failed to comply with the requirements of Rule 4.03. In pertinent part, Rule 4.03(2) provides:

In circuit court a memorandum of authorities in support of any motion to dismiss or for summary judgment shall be mailed to the judge presiding over the action at the time that the motion is filed- Movants for summary judg-
ment shall file with the clerk as a part of the motion an itemization of the facts relied upon and not genuinely disputed and the respondent shall indicate either agreement or specific reasons for disagreement that such facts are undisputed and material.

¶ 16. As reflected in the record, Big M Transportation filed its motion for summary judgment on December 5, 2012, but did not file its memorandum of authorities at the same time. Instead, Big M Transportation filed its memorandum of authorities over a month later on January 28, 2013. In his order granting summary judgment to Big M Transportation, the circuit court judge found that, although not filed in strict compliance with Rule 4.03, Big M Transportation’s memorandum of authorities was filed over three months before the hearing on the summary-judgment motion. The record also establishes that the Thorntons possessed the opportunity to respond to the memorandum of authorities and that they did, in fact, file a response on February 11, 2013. Therefore, in the interests of justice and judicial economy, the circuit court denied the Thorntons’ motion to strike the memorandum of authorities.

¶ 17. Other than Rule 4.03, the Thorn-tons cite no authority in support of their claim that the failure to simultaneously file the memorandum of authorities should prove fatal to Big M Transportation’s request for summary judgment. In reviewing applicable easelaw, we find that, in Braddock Law Firm, PLLC v. Becnel, 949 So.2d 38, 46-47 (¶¶ 29-31) (Miss.Ct.App. 2006), this Court held that the chancellor possessed the discretion to look past the defendants’ failure to technically comply with Rule 4.03(2) where the purposes of the rule were still satisfied.

¶ 18. After reviewing the record in this case, we find that Big M Transportation’s summary-judgment motion failed to strictly comply with Rule 4.03(2)’s requirements. Despite this failure, however, the record reflects that the purposes of Rule 403 were still fulfilled. See Braddock Law Firm, 949 So.2d at 46-47 (¶¶ 29-31). The delay in filing did not “unfairly sandbag” the circuit court with “unadvertised factual issues” or force the circuit court judge to “ferret” through the record to discern the materially disputed facts. See Estate of Jackson v. Miss. Life Ins. Co., 755 So.2d 15, 22 (¶ 28) (Miss.Ct.App.1999).

¶ 19. In addition, as the circuit court judge noted in his order, Big M Transportation filed its memorandum of authorities more than three months before the hearing on its motion for summary judgment. Therefore, even with the filing delay, the Thorntons possessed ample time prior to the hearing to reply to Big M Transportation’s memorandum. Furthermore, because Big M Transportation had already filed its summary-judgment motion, the Thorntons were not unfairly surprised by the subsequent filing of the memorandum of authorities.

¶ 20. Because the failure to strictly comply with Rule 4.03(2) resulted in no unfair prejudice to the Thorntons or contravention of the purposes of Rule 4.03, we agree with the circuit court judge that the interests of justice and judicial economy were best served by considering Big M Transportation’s memorandum of authorities. As a result, we find no reversible error in the circuit court’s decision to grant summary judgment in favor of Big M Transportation. See Faul v. Perlman, 104 So.3d 148, 157 (¶ 31) (Miss.Ct.App. 2012) (discussing the application of the harmless-error rule to violations of a procedural rule’s mandatory requirements). As a result, this argument lacks merit.

III. Genuine issues of material fact still exist.

¶ 21. In their final assignment of error, the Thorntons assert that the circuit court erred in granting Big M Transportation’s motion for summary judgment because genuine issues of material fact still exist.

a. A genuine issue of material fact remains as to whether Big M Transportation’s rig was stolen by an unknown and unauthorized third party.

¶ 22. The Thorntons contend that, due to Virges’s unaccounted whereabouts between 3 a.m. and 5 a.m. the morning of the accident, a genuine issue of material fact exists as to whether Unit 279 was stolen or was negligently left in the highway by Virges. As previously stated, this Court applies a de novo standard of review and views the evidence in the light most favorable to the Thorntons, the party opposing the summary-judgment motion. See Striding, 115 So.3d at 104 (¶ 5). “To survive summary judgment, [however,] the [Thorntons] must offer significant probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation and internal quotation marks omitted).

¶ 23. After reviewing the record, we find that no genuine issue of material fact exists regarding this issue. The record reflects that Big M Transportation presented evidence that Virges was in Bruce at the time of the collision and that an unknown and unauthorized third party stole Unit 279. The data from Unit 279’s tracking device indicated that Virges parked the rig at Big M Transportation’s headquarters at 12:43 a.m. but that the rig again exited the parking lot at 1:38 a.m. This information corroborated Virges’s deposition testimony that he dropped off the rig in the early morning hours on May 6, 2009.

¶ 24. Virges further testified that, after dropping off the rig, he drove about two and a half hours to Bruce, where he spent the rest of the night at Keena’s apartment. Keena further corroborated this version of events, testifying that she awoke around 2 а.m. to Virges banging on her apartment door. Keena testified that she let Virges inside the apartment and that the couple went to sleep. When Keena awoke around 5 a.m., Virges was still beside her in bed. As the record reflects, the Thorntons failed to present any evidence demonstrating the existence of a triable issue of fact regarding Virges’s account of his whereabouts in the early morning hours of May б, 2009. See Stribling, 115 So.3d at 104 (¶5).

¶ 25. In addition to the testimony provided by Virges and Keena, Big M Transportation presented the affidavit of its safety director, Johnson. When Johnson arrived at work the morning of the collision and noticed Unit 279’s absence, he contacted law enforcement to report the rig as stolen. According to Johnson’s affidavit, Unit 279 was not authorized to leave Big M Transportation’s lot at 1:38 a.m. Johnson further stated that the rig exited the lot without the permission, knowledge, or consent of Big M Transportation and was therefore not “on or about” Big M Transportation’s business when the collision occurred. As additional evidence in support of its summary-judgment motion, Big M Transportation presented the offense report Johnson filed with the sheriffs department.

¶ 26. Because Big M Transportation provided support for its summary-judgment motion, the Thorntons were precluded from resting upon mere allegations or denials of Big M Transportation’s pleadings and were required to present specific facts to demonstrate that a genuine issue of material fact existed. See Stribling, 115 So.3d at 104 (¶ 6). As the record reflects, however, the Thorntons failed to satisfy this burden. According to Tyrone’s deposition testimony, he saw no one else at the crash site. Thus, other than their bare allegations, the Thorntons fail to offer any specific evidence or facts to show that Virges or another Big M Transportation employee negligently left Unit 279 parked in the highway. Because the Thorntons fail to offer any significant probative evidence as to whether Unit 279 was stolen by an unauthorized third party, we find that this issue lacks merit,

b. A genuine issue of material fact remains as to whether Big M Transportation’s negligent security put in motion the events leading to the collision.

¶ 27. As an alternative argument, the Thorntons assert that a genuine issue of material fact exists as to whether Big M Transportation’s negligent security put in motion the events resulting in both the collision and Tyrone’s injuries. In his order granting summary judgment to Big M Transportation, the circuit court judge addressed this argument. Even giving the Thorntons the benefit of the doubt that negligent security set events in motion, the circuit court determined that no genuine issue of material fact existed. The circuit court judge found that the Thorntons failed to establish proximate cause, a necessary element of their claim, since the intervening act of a thief superseded any negligence by Big M Transportation.

¶28. “It is well established that recovery in a negligence action requires proof by a preponderance of the evidence of the conventional tort elements: duty, breach of duty, proximate causation, and injury (i.e., damages).” Perez v. Univ. of Miss. Med. Ctr., 75 So.3d 609, 611 (¶ 12) (Miss.Ct.App.2011) (citation and internal quotation marks omitted). Our caselaw also provides the following:

To survive summary judgment, the plaintiff must rebut the defendant’s claim that no genuine issue of material fact exists by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of the injury.

Id. at (¶ 13) (citation and internal quotation marks omitted).

¶ 29. With regard to proximate cause, this Court has stated:

Proximate cause is a concept which is more accurately defined by reference to the distinct concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability. Cause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred. Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.

Davis v. Christian Bhd. Homes of Jackson, Miss. Inc., 957 So.2d 390, 404 (¶32) (Miss.Ct.App.2007) (internal citations and quotation marks omitted).

¶ 30. Our supreme court has held that “a person is not liable where the original negligence only furnished the condition or occasion from which the injuries were received, but it did not put in motion the negligence and wrongful agency that caused the injury.” Mitchell Crane Sens., Inc. v. Page, 126 So.3d 29, 32 (¶ 13) (Miss.2013) (citation and internal quotation marks omitted). Mississippi caselaw also clearly provides that a thiefs actions can serve as an intervening and superseding cause.

¶ 31. For example, in Southern Heritage Insurance Co. v. C.E. Frazier Construction Co., 809 So.2d 668, 672 (¶ 10) (Miss.2002), the supreme court held that, “[w]here a thief acts unlawfully and steals [a] vehicle, the thiefs negligent and unlawful driving of the vehicle after the theft constitutes an intervening act which supersedes the liability of the negligent owner of the vehicle.” However, our precedent also provides that foreseeability is vital when determining whether a criminal act is a superseding intervening cause. Williams ex rel. Raymond v. Wal-Mart Stores E., L.P., 99 So.3d 112, 117-18 (¶19) (Miss. 2012). Our supreme court “repeatedly has stated that[,] generally, criminal acts can be intervening causes which break the causal connection with the defendant’s negligent act, if the criminal act is not within the realm of reasonable foreseeability.” Id. at 118 (¶ 19) (citations and internal quotation marks omitted).

¶ 32. We recognize on appeal that, like the circuit court judge, this Court views the evidence in the record in the light most favorable to the Thorntons. See Stribling, 115 So.3d at 104 (¶ 5). Even if, as the Thorntons claim, Big M Transportation was negligent in providing security for its rig, we find no error in the circuit court’s determination that the Thorntons failed to prove that Big M Transportation’s negligence proximately caused the collision and Tyrone’s injuries.

¶ 33. The record instead reflects that the actions of an unauthorized and unknown third party, who stole and negligently drove Unit 279, fell outside the realm of reasonable foreseeability. The record contains no evidence to indicate that a similar incident had previously occurred or that Big M Transportation should have possessed any indication that one of its rigs would be stolen and negligently driven the morning of May 6, 2009. The record also reflects that, other than their bare assertions, the Thorntons offered no evidence to contradict Big M Transportation’s proof that Unit 279 was stolen and was unauthorized to be in the middle of the highway at the time of the collision.

¶ 34. Upon review, we find that the third party’s act of stealing Big M Transportation’s rig constituted “a criminal act, beyond mere negligence.” Williams ex rel. Raymond, 99 So.3d at 120 (¶ 29). Furthermore, nothing in the record indicates that, at the time of the theft, Big M Transportation had reason to believe that such criminal activity would occur. Because the theft and negligent driving of Unit 279 fell outside the realm of reasonable foreseeability, any negligence by Big M Transportation failed to constitute a proximate cause of the collision and Tyrone’s resulting injuries. Instead, we find that the unknown and unauthorized third party’s criminal actions amounted to an intervening cause that superseded Big M Transportation’s liability. As a result, we find no error in the grant of summary judgment to Big M Transportation. This argument lacks merit.

¶ 35. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Tyrone testified that the wreck occurred sometime after 3:30 a.m. on May 6, 2009, and the Mississippi Highway Patrol's accident report indicated that the accident was reported at 3:55 a.m. on May 6, 2009.

      . Virges and Keena were dating at the time of the accident, but since that time, they have gotten married.

      . See also Faul v. Perlman, 104 So.3d 148, 153 (¶ 13) (Miss.Ct.App.2012) (finding “the circuit court’s failure to follow the mandatory requirements of Rules 56 and 4.03 [to be] harmless error” where no material factual dispute existed and there was no evidence that the party abandoned her summary-judgment motion); Otts v. Lynn, 955 So.2d 934, 942-43 (¶¶ 33-35) (Miss.Ct.App.2007) (finding no merit to the appellant's claim that the appellee’s summary-judgment motion failed to comply with the mandatory requirements of Rule 4.03); Estate of Jackson v. Miss. Life Ins. Co., 755 So.2d 15, 22-23 (¶¶ 27-33) (Miss.Ct.App. 1999) (finding that, where the purposes of Rule 4.03 were still satisfied, the party’s failure to strictly comply with the rule did not constitute a procedural waiver of the contested facts).

      . See also Estate of Jackson, 755 So.2d at 22 (¶ 28) (stating that the purposes of a rule similar to Rule 4.03 included the following: "laying out the material facts in dispute clearly for a district court that is swamped with an overwhelming number of civil and criminal dispositive motions”; avoiding "the recurrent problem of ferreting through the record”; and avoiding "the specter of district judges being unfairly sandbagged by unadvertised factual issues” (citations omitted)).

      . See generally Davis v. Christian Bhd. Homes of Jackson, Miss. Inc., 957 So.2d 390, 404 (¶ 32) (Miss.Ct.App.2007) (discussing the concepts of proximate cause, cause in fact, and foreseeability).

      . See S. Heritage Ins. Co. v. C.E. Frazier Constr. Co., 809 So.2d 668, 671-72 (¶ 10) (Miss.2002); Permenter v. Milner Chevrolet Co., 229 Miss. 385, 404, 91 So.2d 243, 252 (1956); Harrington v. L & B Wood, Inc., 883 So.2d 591, 594 (¶ 13) (Miss.Ct.App.2004).

      . See S. Heritage Ins. Co., 809 So.2d at 671-72 (¶ 10); Fermenter, 229 Miss, at 404, 91 So.2d at 252; Harrington, 883 So.2d at 594 (¶ 13).


author: MAXWELL, J.,

text:
    Patrick DUKE, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00612-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2014.

      Tommy Wayne Defer, Water Valley, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury convicted Patrick Duke of aggravated assault after he shot Howard Taper. On appeal, Duke challenges the sufficiency and weight of the evidence. As he sees it, the jury got it wrong by not buying his version that he shot Taper in self-defense. But weight and credibility issues are for jurors to decide, not appellate judges. And here, the jury sifted through the conflicting testimony and resolved it against Duke.

¶ 2. Upon review, we find the evidence — which included Duke’s admission that he shot Taper after going to the park to confront him — was sufficient to support that he committed a nonjustified aggravated assault and the verdict was not against the weight of the evidence. We thus affirm Duke’s conviction and sentence.

Background Facts and Procedural History

¶ 3. On Saturday, October 29, 2011, Duke, who was twenty-five years old, shot his sixty-three-year-old neighbor, Taper, in the back of the knee with a 9mm pistol. Afterwards, Taper was hospitalized for thirteen days and had plates and pins surgically implanted in his knee. One day after the shooting, Duke voluntarily turned himself in to police. Duke also surrendered his 9mm pistol and the two guns he took from Taper’s truck after he shot him.

¶ 4. At trial, Duke claimed he shot Taper in self-defense. Other witnesses, including Taper, also testified about the shooting and events leading up to it. The jury resolved the evidence against Duke and returned a guilty verdict on the sole aggravated-assault charge. The judge sentenced Duke to fifteen years’ imprisonment, with ten years to serve and five years suspended. After an unsuccessful motion for a judgment notwithstanding the verdict or a new trial, Duke appealed.

Trial Testimony

A. The Events Leading to the Shooting

¶ 5. While the evidence is conflicting, both Taper and Duke claimed that shortly before the shooting, the two encountered each other at a stop sign in Lambert, Mississippi. Taper claims he saw Duke standing next to his white Ford Crown Victoria. Taper stopped his truck near Duke, hoping for an apology for some pri- or rift between the two. But when Duke saw Taper, he cursed at him and sped off.

¶ 6. Duke remembered the encounter quite differently. He testified that he and a friend, Andrew Butts, had their sights on barbequing when they saw Taper at a stop sign. Duke remembered Taper approaching him to talk about an earlier run-in between the two. But Duke told Taper he did not want to talk. At this point, Taper, who Duke claims was drunk, threatened to kill Duke and pulled a shotgun on him. After the threat, Duke sped off. Duke’s friend, Butts, gave similar testimony about the stop-sign encounter.

¶ 7. At trial, Taper denied threatening to kill Duke and denied pulling a shotgun on him. But he did admit that he had called Duke’s mom and asked her to talk to Duke because he had been beating people up and was worried something might happen to him.

B. The Shooting

1. Taper’s and Clyde’s Versions

¶ 8. After the stop-sign incident, Duke dropped Butts off and changed vehicles from his Crown Victoria to his black Tahoe. Duke then took to the streets, driving around in what he described as an “enraged” state because Taper had pulled a gun on him.

¶ 9. Meanwhile, Taper and his friend, Clyde Wilborn, stopped off at “the park”— a picnic-type area in Taper’s neighborhood where people gathered to drink and play horseshoes, cards, and dominos. Taper was sitting on a park bench when someone walked up behind him. He then heard Duke yell “where your gun at?” Duke then drew a pistol, and when Taper tried to stand, Duke shot him in the knee. Taper fell and Duke began whipping Taper in the face with his pistol, knocking out one of Taper’s teeth. Duke then went to Taper’s truck and took a shotgun and pistol from it before fleeing.

¶ 10. Taper’s friend Wilborn’s testimony differed some. He claimed that when Duke pulled up at the park, Taper headed for his truck. But Duke caught the older man and the two began fighting. Wilborn maintained that when he saw Duke pull a pistol, he and a few others ran. Though Wilborn claimed he did not see the shooter, he heard a lone gunshot and saw Taper on the ground with a bullet in his knee. Wilborn then watched Duke take two guns from Taper’s truck. Wilborn helped Taper up and drove him to the hospital.

2. Duke’s Version

¶ 11. As one might expect, Duke’s story also differs. While Taper claimed he made some stops before heading to the park— first to eat a sandwich and then to get a haircut — Duke testified he got to the park about five to eight minutes after the stop-sign encounter. But the timing aside, Duke admitted he was mad, and the reason he stopped at the park was to confront Taper, knowing the two would fight.

¶ 12. When he got to the park, Duke pulled his Tahoe next to Taper’s truck, then walked towards Taper. Duke taunted, “you can’t get your gun now, can you[, Taper]?” After these words, Taper allegedly hit Duke in the face with a bottle and the two started brawling. Duke explained that as they were fighting, Taper was “steady running” towards his truck. Duke told Taper not to head for the truck because he knew Taper had a gun in it. Duke testified that when Taper was in arm’s reach of his truck, Duke shot Taper in the knee. Duke denied pistol-whipping Taper after he shot him.

¶ 13. After the shooting, Duke took Taper’s guns from Taper’s truck and left. Duke recalled that one of Taper’s guns was “cocked and ready to shoot.” The next day, Duke turned himself in and brought Taper’s two guns and his 9mm pistol with him to the police station. Duke had a swollen lip from the fight.

Discussion

I. Sufficiency of the Evidence

¶ 14. Duke’s first challenge is to the sufficiency of the evidence. He suggests there were too many critical contradictions to support the conviction.

¶ 15. When assessing the legal sufficiency of evidence, “we consider all evidence in the light most favorable to the State.” Grossley v. State, 127 So.3d 1143, 1147 (¶ 10) (Miss.Ct.App.2013) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). “Credible evidence consistent with guilt must be accepted as true.” Id. (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). We give the State the “benefit of all favorable inferences reasonably drawn from the evidence.” Id. (citing Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss. Ct.App.2009)). The central question “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Bush, 895 So.2d at 843 (¶ 16)).

A. Aggravated Assault

¶ 16. Generally, to prove aggravated assault, in the manner charged here, the State has to prove two elements — that the defendant (1) attempted to cause or purposely or knowingly caused bodily injury to another (2) with a deadly weapon. See Miss.Code. Ann. § 97-3-7(2)(a)(ii) (Supp.2013). But because Duke asked for and was granted a self-defense instruction, the State had the additional burden of disproving self-defense beyond a reasonable doubt. Crook v. State, 105 So.3d 353, 360 (IT 19) (Miss.Ct.App.2012). In other words, there was a third required element — that the shooting was “not in necessary self-defense.”

¶ 17. Our review shows the jury was properly instructed on these three elements, and there was proof offered on each element. While Duke argues discrepancies in the evidence made it untrustworthy, “weighing the credibility of witnesses is the exclusive province of the jury.” Renfro v. State, 118 So.3d 560, 564 (¶ 14) (Miss.2013). And in the case of multiple witnesses, it is also the jury’s call as to which of the witnesses to believe. Id.

¶ 18. To support his claim, Duke highlights some conflicts in testimony. For example, he points to Clyde’s testimony that Taper was drunk and had been swigging Calvert whiskey from the bottle, which Taper denied. And he also mentions Taper’s denial that he had threatened Duke earlier with a shotgun, when Duke and Butts testified he had. Though these are no doubt testimonial conflicts, appellate courts typically “do not reverse criminal cases where there is a straight issue of fact, or a conflict in the faets[.]” Hales v. State, 933 So.2d 962, 968-69 (¶ 24) (Miss.2006). Conflicts like these are the very purpose for which juries are empaneled — to pass upon questions of disputed fact. Id.

¶ 19. Still, these discrepancies aside, the fact remains that after his run-in with Taper at the stop sign — whether a gun was pulled or not — Duke could have simply let it go or called the police. But he did not. Instead, he admitted he went home, changed vehicles, then drove around town in an “enraged” state before going to the park armed with a pistol, intent on confronting Taper. Then he ended up shooting Taper. This much is not in dispute.

B. Self-Defense

¶ 20. While Duke understandably hoped the jury would buy his version that Taper was running for a gun so the shooting was justified, the jury rejected his defense. Perhaps the jurors believed Taper’s version that Duke shot him without provocation. Or maybe the jury felt Duke was not in imminent danger, or simply used more force than necessary to repel his older adversary. Any of these possible findings would be objectively reasonable based on the evidence — particularly when viewed in the light most favorable to the State. But we need not speculate about the jurors’ specific reasoning, since we are satisfied there was sufficient evidence to support a nonjustified aggravated-assault conviction.

II. Weight of the Evidence

¶ 21. Duke next challenges the weight of the evidence. His argument mirrors his attack on the sufficiency of the evidence— contradictions in witness testimony.

¶ 22. When considering challenges to the weight of the evidence, “we view the evidence in the light most favorable to the verdict[.]” Grossley, 127 So.3d at 1149 (¶ 19) (citing Bush, 895 So.2d at 844 (¶ 18)). To disturb a verdict on this ground, we would have to find it was contrary to the overwhelming weight of the evidence and an unconscionable injustice. Id. Our review requires we accept all evidence consistent with the defendant’s guilt as true “together with any reasonable inferences that may be drawn from the evidence.” Crook, 105 So.3d at 364 (¶33) (quoting Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005)). “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” Id. (quoting Moore v. State, 859 So.2d 379, 385 (¶ 26) (Miss.2003)).

¶ 23. Again, we agree there were some inconsistencies in witness testimony, but these conflicts are simply not enough to warrant a new trial. Grossley, 127 So.3d at 1149 (¶ 20). Since the weight of the evidence is challenged, we must view the evidence in the light most favorable to the verdict. And considering Duke’s admission that he was driving around “enraged” before going to the park to confront and fight Taper, and Taper’s testimony that he did not provoke the shooting, we cannot say the weight of the evidence heavily preponderates against the verdict. The conflicting evidence Duke mentions was for the jury to decide as it saw fit, and the jurors decided the conflicts against Duke. Because the inferences the jury made were not unreasonable, and the verdict is not unconscionable, we affirm the conviction and sentence.

¶ 24. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIF-

TEEN YEARS, WITH FIVE YEARS SUSPENDED AND TEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

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

      . Duke also argues his attorney was ineffective for not communicating a plea offer to him. But he provides no evidence a plea offer was ever made. We thus dismiss Duke’s ineffective-assistance claim without prejudice. He may pursue this claim in a post-conviction relief action if he so chooses. See Read v. State, 430 So.2d 832, 837 (Miss. 1983) (where the record cannot support an ineffective-assistance-of-counsel claim on direct appeal, relief should be denied, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief).

      . The jury was properly instructed on self-defense. Instruction C-l 1 read:
      The [c]ourt instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to [Duke] must either be actual, present and urgent, or he must have reasonable grounds to believe that [Taper] intended to do him some great bodily harm, and in addition to this he must have reasonable grounds to believe that there is imminent danger of such act being accomplished. It is for the juiy to determine the reasonableness of the grounds on which the defendant acts.
      The jury was also given Instruction C-12: [0]ne who claims self-defense to his actions may not use excessive force to repel the attack, but may only use such force as is reasonably necessary under the circumstances. If you find from the evidence, beyond a reasonable doubt, that [Duke] caused bodily injury to [Taper] by shooting him and that said shooting was a use of more force than was reasonably necessary under the circumstances of this case, then the defense of self-defense would not apply to this case.

      . There is some question about whether Duke was even entitled to claim self-defense. "To make assault justifiable on grounds of self-defense, danger to the defendant must be either actual, present and urgent, or defendant must have reasonable grounds to apprehend design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be imminent danger of such design being accomplished.” Anderson v. State, 571 So.2d 961, 963 (Miss.1990). But "if a person provokes a difficulty, arming himself in advance, and intending, if necessaty, to use his weapon and overcome his adversary, he becomes the aggressor and deprives himself of the right of self-defense." Id. (emphasis added); see also Griffin v. State, 495 So.2d 1352, 1354 (Miss. 1986) (citing Cooley v. State, 391 So.2d 614, 617 (Miss.1980)) ("[0]ne who leaves an altercation, arms himself, and returns with the intent to and does use his weapon on the other party cannot claim self-defense.”).


author: BARNES, J„

text:
    Terrell U. WILLIAMS a/k/a Terrell Undra Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00257-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2014.
    Rehearing En Banc Denied Nov. 18, 2014.

      Terrell U. Williams, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J„

for the Court:

¶ 1. Terrell Williams, appearing pro se, appeals the Hinds County Circuit Court’s denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In August 2010, a Hinds County grand jury indicted Williams for the statutory rape of his fifteen-year-old stepdaughter, E.G., in violation of Mississippi Code Annotated section 97 — B—65(l)(a) (Rev. 2006). Williams entered a plea of guilty, admitting that between August 1, 2009, and August 1, 2010, he “had sexual intercourse with E.G.” During the plea hearing, Williams admitted to having sex with and impregnating E.G. in Hinds County, Mississippi. The circuit court sentenced him to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years suspended, ten years to serve, and five years of post-release supervision. Williams was also ordered to register as a sex offender and to have no contact with the victim, her family, or any child under sixteen without adult supervision.

¶ 3. In April 2012, Williams filed a PCR motion challenging the circuit court’s jurisdiction, and alleging the existence of evidence not previously presented that would require vacation of his conviction and sentence. In May 2012, Williams filed a motion to amend his PCR motion with an additional argument challenging the sufficiency of his indictment. In June 2012, Williams filed a motion to recuse the circuit court judge, questioning her impartiality, which was never ruled upon. The circuit court, finding Williams’s PCR claims without merit, denied his PCR motion. Williams now appeals that decision, arguing: (1) the circuit court erred in denying his motion to quash his indictment; (2) the circuit court did not have jurisdiction over his criminal charge; and (3) the circuit court erred in dismissing his PCR motion without an evidentiary hearing.

STANDARD OF REVIEW

¶ 4. In reviewing the denial of a PCR motion, the appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Presley v. State, 48 So.3d 526, 528-29 (¶ 10) (Miss.2010) (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Questions of law, however, are reviewed de novo. Id. at 529 (¶ 10).

ANALYSIS

1. Indictment

¶ 5. Williams argues his indictment is invalid, vague, and ambiguous because it fails to identify the exact day(s) when Williams engaged in sexual intercourse with his stepdaughter, the “type” of sexual intercourse, and the number of times the sexual intercourse occurred. Williams made these same arguments prior to his guilty plea in a motion to quash his indictment, which was denied. On appeal, Williams argues the circuit court erred in denying his motion to quash the allegedly defective indictment prior to his guilty plea.

¶ 6. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 918 (¶ 61) (Miss.2004)). The ultimate test for the validity of an indictment is whether the defendant was prejudiced in preparing his defense. Medina v. State, 688 So.2d 727, 730 (Miss.1996) (citing Griffin v. State, 540 So.2d 17, 21 (Miss.1989)). Indictments must include the “date and, if applicable, the time at which the offense was alleged to have been committed.” URCCC 7.06(5). However, in cases involving sexual abuse of a child, a specific date is not required “so long as the defendant is ‘fully and fairly advised of the charge against him.’ ” Baker v. State, 930 So.2d 399, 405-06 (¶ 12) (Miss.Ct.App.2005) (quoting Bakes v. State, 665 So.2d 852, 860 (Miss.1995)). Additionally, when a defendant enters a guilty plea, he waives all nonjurisdictional rights and defects. There are only two exceptions in which a plea does not waive a defect: where the indictment fails to charge the necessary elements of a crime, and where the trial court lacks subject-matter jurisdiction. Id. at 404-05 (¶ 9) (citing Banana v. State, 635 So.2d 851, 853 (Miss.1994)).

¶ 7. Williams’s indictment for statutory rape states:

THE STATE OF MISSISSIPPI Circuit Court FIRST DISTRICT, HINDS COUNTY May Term, AD., 2010 First Judicial District of Hinds County

[O]n[,] about[,] and between the 1st day of August 2009 and the 1st day of August 2010, in the county aforesaid and within the jurisdiction of this Court, the said defendant being a male human being above the age of seventeen (17) years, whose date of birth is July 29, 1972, did willfully, unlawfully, and felo-niously have sexual intercourse with E.G., a fifteen year old female child whose date of birth is July 24, 1994, at a time when said Terrell Williams was more than thirty-six (36) months older than E.G., and was not E.G.’s legal spouse, all occurring within the jurisdiction of this court and in violation of Section 97-3-65(1)(a), Mississippi Code Annotated (1972, as amended).

¶ 8. A reading of the indictment shows that Rule 7.06 was satisfied. The necessary elements of statutory rape were stated; the “type” of sexual intercourse and number of times it occurred are not elements of the crime. Moreover, the indictment’s one-year time span is adequate; exact dates of the sexual intercourse are not necessary in cases involving sexual abuse of a child. See Baker, 980 So.2d at 405-06 (¶ 12). In Baker, this Court found the broad time span of an indictment for sexual battery “on or about from 2000 thru June 22, 2002,” was not improper. Id. at 404-05 (¶¶ 8, 10). On appeal, Steven Baker made the same argument as Williams— that his indictment provided insufficient information about his crime for him to make an adequate defense or protect himself from being subject to another trial on the same crime. Id. at 404 (¶ 8). This Court rejected that argument because the time frame in an indictment alleging sexual abuse of a child was a nonjurisdictional defect waived by Baker’s failure to raise the issue in a timely manner. Id. at 405 (¶ 10). Also, the time frame of the abuse was not a necessary element of the offense. Id. at 407 (¶ 15).

¶ 9. Additionally, in this case, any alleged deficiencies in the indictment were nonjurisdictional, and were waived when Williams voluntarily and knowingly entered a guilty plea. Williams was “fully and fairly” apprised of the charges against him. Accordingly, the circuit court did not ei’r in denying his motion to quash his indictment.

2. Jurisdiction

¶ 10. Williams argues that the Hinds County Circuit Court did not have jurisdiction over his criminal charge for statutory rape because the sexual intercourse occurred in Georgia, not Mississippi. He states he moved to Georgia in September 2009. He claims that medical tests performed on his stepdaughter prove she became pregnant in Georgia, not Mississippi, while she was visiting him during spring break. He attached a hotel receipt, dated March 16, 2010, in support of his claim. Medical records show E.G. had an abortion on May 14, 2010, when she was approximately ten weeks pregnant.

¶ 11. Mississippi’s circuit courts have general jurisdiction “to hear and determine all prosecutions in the name of the state for treason, felonies, crimes, and misdemeanors .... ” Miss.Code Ann. § 9-7-81 (Rev. 2002). “[A] circuit court obtains ‘subject matter jurisdiction over the subject of a particular offense’ when ‘an indictment charging the essential elements of a crime is served on a defendant.’” Chapell v. State, 107 So.3d 1003, 1006 (¶ 9) (Miss.Ct.App.2012) (quoting Neal v. State, 936 So.2d 463, 466 (¶ 7) (Miss.Ct.App.2006)).

1112. The Hinds County Circuit Court served Williams with a one-count indictment for the statutory rape of his stepdaughter in Hinds County, Mississippi. At the plea hearing, Williams admitted to having sex with her and impregnating her in Hinds County. The court had jurisdiction to accept his plea and impose his sentence. Trial courts are entitled to rely on a defendant’s statements during a guilty-plea hearing, which may contradict assertions made in a PCR motion. Conner v. State, 80 So.3d 876, 878 (¶ 6) (Miss.Ct. App.2012) (citing Tolliver v. State, 802 So.2d 125, 127-28 (¶ 11) (Miss.Ct.App.2001)).

¶ 13. To support his claim, Williams cites Lewis v. State, 798 So.2d 635, 637 (¶ 10) (Miss.Ct.App.2001), where this Court found an evidentiary hearing should have been held to determine if venue was appropriate, because the defendant made a remark at his plea hearing that one of the offenses occurred in another state. The circuit court failed to address the remark and continued with charging the defendant with the offense. Id.

¶ 14. Williams did argue at his motions hearing in August 2011 that medical tests showed the sexual intercourse that impregnated E.G. occurred in Georgia. However, he never reasserted this claim at his plea hearing, and voluntarily pleaded guilty to the crime having occurred in Hinds County. This argument is without merit.

¶ 15. Williams also makes several other arguments regarding his conviction and the sufficiency of the evidence. A guilty plea waives the right to a trial and the right to have the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). Williams’s arguments are waived by virtue of his guilty plea.

3. Evidentiary Hearing

¶ 16. Williams argues the circuit court improperly dismissed his PCR motion without an evidentiary hearing.

¶ 17. “Under Section 99-39-11(2) of the Mississippi Code [ (Supp.2013) ], a trial court may summarily dismiss a petition for PCR, without having held an evi-dentiary hearing, when it is clear that the petitioner is not entitled to relief....” State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). “[Dismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. at 924 (¶ 11) (quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

¶ 18. Because Williams’s claims clearly lack merit, the circuit court properly denied his PCR motion without an evidentia-ry hearing.

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

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

      . To protect the minor victim’s identity, initials have been substituted for her name.

      . On May 14, 2010, E.G. was found to be nine weeks and five days pregnant. She had an abortion, and the remains were sent to a lab for biological testing, which showed Williams to be the father.

      . In Williams's initial brief, he listed as error that the circuit court failed to rule on his motion for recusal. However, he did not develop the issue in the body of his brief, instead substituting the issue regarding the evidentiary hearing. He received permission from this Court to amend his brief, where he substituted the evidentiary-hearing issue for the recusal issue in the issues statement. We find the recusal issue procedurally barred. See Jordan v. State, 995 So.2d 94, 103 (¶ 14) (Miss.2008) (citing Pierre v. State, 607 So.2d 43, 48 (Miss.1992)) ("If an appellant fails to support [his] allegation of error with argument or authority, [the appellate court] need not consider the issue.”).

      . Mississippi Code Annotated section 97-3-65(1 )(a) states that the crime of statutory rape occurs when: "(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who: (i) Is at least fourteen (14) but under sixteen (16) years of age; (ii) Is thirty-six (36) or more months younger than the person: and (iii) Is not the person's spouse[.]”

      . See also Gordon v. State, 977 So.2d 420, 423, 430 (¶¶ 4, 29) (Miss.Ct.App.2008) (On direct appeal, an indictment stating the defendant was charged with four counts of “capital rape,” "occurring between January 2002 and November 2003,” was not invalid.).