author: MAXWELL, J., RUSSELL, J., LEE, C.J.,

text:
    Mona CATES, Appellant/Cross-Appellee v. Elizabeth SWAIN, Appellee/Cross-Appellant.
    No. 2010-CA-01939-COA.
    Court of Appeals of Mississippi.
    April 17, 2012.
    Rehearing Denied Aug. 14, 2012.

      Jonathan S. Masters, Clarksdale, Robert M. Stephenson, attorneys for appellant.
    John Thomas Lamar Jr., David Mark Slocum Jr., Senatobia, attorneys for appel-lee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mona Cates and Elizabeth Swain were involved in an intimate relationship with one another and cohabited for over five years in three different states. After Swain moved out of Cates’s Tate County, Mississippi, home, Swain sued Cates seeking various equitable remedies.

¶ 2. We affirm the chancellor’s denial of Swain’s claim that, based on their living arrangement, Swain was entitled to an interest in Cates’s house through a constructive and/or resulting trust. But we hold the chancellor exceeded his discretion in finding Cates had been unjustly enriched by Swain’s financial contributions during their cohabitation. An action for unjust enrichment is based on an implied contract. And the Mississippi Supreme Court has refused to circumvent the Mississippi Legislature’s abolishment of common law marriage by extending implied contractual remedies to unmarried cohabitants. Similarly, this court is restrained from delving into policy issues of this nature and extending implied contractual remedies to unmarried cohabitants, whether opposite-sex or same-sex, when there is no express agreement for remuneration beyond cohabitation. We, therefore, reverse the $44,995 unjust-enrichment award and render judgment in Cates’s favor.

FACTS AND PROCEDURAL HISTORY

¶ 3. Cates is a commercial pilot, and Swain, until her 2005 retirement, was a meteorologist and oceanographer for the Navy. In 2000, while living in separate states, they met online through a website for people seeking same-sex partners. Swain stated in her profile that she was single. But Cates later learned Swain was married and her estranged husband lived in another state. At trial, Swain admitted her marital status entitled her husband to coverage under her medical insurance policy. By being married, Swain also benefit-ted by claiming a greater housing allowance from the Navy. Swain did not divorce her husband until after she retired and ended her relationship with Cates.

I. Florida Home

¶ 4. At the end of 2000, Swain transferred to Pensacola, Florida. Swain bought a house in Pensacola and titled it in her name solely, though she was required to list her husband on her mortgage. Cates provided $2,500 in earnest money. And Swain paid the mortgage, significantly paying down the principal. Cates lived with Swain and traveled for work. Both women made improvements to the home. They opened a joint checking account, but Swain testified only Cates made financial contributions. Cates also paid $11,000 to trade in Swain’s Toyota SUV for a Mercedes. They also purchased other vehicles jointly titled in both of their names.

¶ 5. When asked at trial why they set up joint accounts, Swain testified because “we trusted each other. We had a mutual relationship that we were investing together in.” After the September 11, 2001 terrorist attacks, Cates set up an E-trade investment account in both of their names as a joint tenancy with right of survivor-ship. Cates testified she was concerned as a commercial pilot that something might happen to her and wanted Swain to have access to the money.

¶ 6. In 2003, Swain transferred to Seattle, Washington. She sold the Florida home and received approximately $32,000 in equity.

II. Washington Home

¶ 7. Cates, who flew to Seattle for work, moved to Washington with Swain. Cates purchased a home in Washington for approximately $200,000. Swain gave Cates a check for $34,000 representing the equity from the Florida home plus additional money from their joint Florida account. Cates testified this was a loan repayment for the more than $34,000 Cates had given Swain during their time in Florida — an assertion the chancellor found unsupported. Cates purchased the house in her name only. Swain testified she did not want her name on the title because she was still married and “wasn’t going to take that chance.” Swain lived in the Washington home without paying rent or mortgage payments but testified she made various improvements to the house. After two years, Cates sold the Washington house for $300,000.

III. Mississippi Home

¶ 8. In 2005, the two returned to Cates’s native Mississippi where Cates purchased a home in Tate County for $350,000. While Cates involved Swain in selecting a home, Cates bought the house in her name only. But Swain provided a check for $5,000, with “closing costs” written in the memo line. Swain also paid $4,449 to carpet the home.

¶ 9. After moving to Mississippi, the women’s relationship deteriorated. Swain ultimately moved out of the Mississippi house in March 2006. Immediately after, Swain attempted to liquidate the E-trade account. Cates learned of the stock sale and directed E-trade to deposit the proceeds in her own bank account. When asked why she tried to withdraw money from the account, Swain testified it was “because I ended up with absolutely nothing financially from what I had invested, and so honestly, I was trying to get something back.”

IV. Lawsuit

¶ 10. In June 2006, Swain sued Cates in the Tate County Chancery Court. Swain alleged she and Cates “were cohabitants prior to and at the time of delivery of the [Mississippi home] deed” and they “were partners and were in several joint ventures together.” She also alleged they had “entered into an agreement by and between themselves that [Swain] would invest the proceeds from her sale of her real property in the state of Florida towards future purchases of real property in the states of both Washington and Mississippi in order to provide both [Swain] and [Cates] with a residence.” Swain requested the court declare a constructive and/or resulting trust exists in the Mississippi home and that Swain be reimbursed for her investments in both the Washington and Mississippi houses.

¶ 11. Cates moved to dismiss the complaint, arguing the requested relief “violates the Mississippi Constitution’s prohibition against homosexual marriage.” The chancellor denied the motion. He found, while the Mississippi Constitution only recognizes marriage between a man and woman, the issues before him concerned a constructive and/or resulting trust and unjust enrichment.

¶ 12. The Mississippi Supreme Court denied Cates’s request for an interlocutory appeal, and the case proceeded to trial. The chancellor found Cates and Swain were in a confidential relationship but Cates had not abused that confidence. Thus, he denied a constructive trust. The chancellor also held insufficient evidence of a resulting trust existed because there was no evidence title to the Florida, Washington, or Mississippi properties was to be held by Cates for Swain’s benefit. So he rejected Swain’s request that Cates be divested of a portion of her interest in the Mississippi home.

¶ 13. But the chancellor found Cates had been unjustly enriched. He found, based on their living arrangements in Florida and Washington, Swain was entitled to recoup her equity in the Florida home, which she had given to Cates. The chancellor awarded Swain $38,000, less the $2,500 Cates paid as earnest money on the Florida home. The chancellor also found “the payment of $5,000 for the closing of the Tate County, Mississippi, property [fell] into this same category” because this money was “clearly not an inter vivos” gift but was instead made with “some reasonable expectation of some return by repayment or otherwise.” The chancellor credited neither party for improvements they made to each other’s home because both enjoyed the use of the others’ properties for extended periods of time. The one exception was the $4,449 in carpeting in the Mississippi home because “Swain was able to reap the benefits of that contribution for only a very short period of time before leaving the residence with the full blessing and prodding of Cates only three months after its installation[.]” In total, the chancellor awarded Swain a judgment of $44,995 to be paid by Cates in cash.

ISSUES ON APPEAL

¶ 14. Cates appeals the judgment against her, arguing the $44,995 award is nothing more than “monetary relief from the dissolution of [the couple’s] five year lesbian relationship.” She claims the relief granted violates Mississippi’s public policy and asks that this court reverse the award and render judgment in her favor.

¶ 15. Swain cross-appeals and seeks de novo review of the chancellor’s denial of a constructive and/or resulting trust. She claims an equitable division of this trust entitles her to “a minimum sum of $76,755.56” plus attorney’s fees — which is equivalent to 22% interest in the Mississippi property. Alternatively, Swain argues the chancellor’s unjust enrichment award should be affirmed.

DISCUSSION

¶ 16. Cates and Swain take opposite approaches on the effect of their same-sex relationship and cohabitation on Swain’s equitable claims. Swain suggests the nature of their relationship is irrelevant, while Cates argues it precludes Swain from equitable recovery because Swain’s claims are marriage-based remedies in disguise.

I. Nature of Cates and Swain’s Relationship

¶ 17. Though Swain alleged her living arrangement with Cates was a “joint venture,” the chancellor found no business partnership existed. See Hults v. Tillman, 480 So.2d 1134, 1142 (Miss.1985) (“broadly defining] a joint venture as an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, efforts, skill and knowledge”); see also Miss.Code Ann. § 79-13-202(a) (Rev. 2009) (“[A] business for profit forms a partnership[.]”); Miss.Code Ann. § 79-13-202(c)(1) (Rev. 2009) (Common ownership of property “does not of itself establish a partnership^]”). We likewise find no evidence in the record to support Swain’s theory that the two entered a business enterprise for profit.

¶ 18. Both women admit their relationship was personal and intimate. During the course of their relationship the women cohabited, and both wrote large checks to the other, and improved each other’s property. They jointly titled some assets, such as vehicles and checking and investment accounts, while intentionally buying homes individually. In their various financial interactions, they never formalized any loans to each other or agreements to share an interest in property not jointly titled. And they did not enter into any contractual agreements concerning their property should they separate. Cf. Estate of Reaves v. Owen, 744 So.2d 799, 802 (¶ 11) (Miss.Ct.App.1999) (finding a contract between same-sex partners who were dissolving relationship to be valid and enforceable). In Swain’s own words, they simply “trusted each other.”

¶ 19. The transcript from Swain’s chancery action reads similarly to a divorce trial. Much emphasis was placed on how the couple met, who paid for what during the course of their relationship, and what happened, in the words of Swain’s attorney, “after their separation.” But this trial had a prominent distinction — Cates and Swain were not married. Nor could they have been lawfully married under Mississippi law. When they met and throughout their entire relationship, Swain was already married to a man in West Virginia. And even had she divorced sooner, Swain could not have entered into a marriage with Cates that would be recognized under Mississippi law. See Miss. Const, art. 14 § 263A; Miss.Code Ann. § 93-1-1(2) (Rev. 2004). With no contractual or marriage-based remedies available to her, Swain bases her claim on the equitable principles of implied trusts and unjust enrichment.

II. No Implied Contracts Between Unmarried Cohabitants

¶20. Mississippi does not enforce contracts implied from the relationship of unmarried cohabitants. In Davis v. Davis, 643 So.2d 931, 934-35 (Miss.1994), the Mississippi Supreme Court addressed a claim by unmarried cohabitant, Elvis Davis, that she was entitled to equitable distribution of property her boyfriend had acquired while they lived together. Relying on Estate of Alexander, 445 So.2d 836, 840 (Miss.1984), the supreme court acknowledged any rights of a cohabitant would have to be provided by the Legislature — and the Legislature had clearly abolished common law marriage rights in 1956. Davis, 643 So.2d at 934-35 (citing Miss.Code Ann. § 93-1-15(1) (1972)). In denying Elvis Davis equitable distribution, the supreme court reiterated its earlier position in Estate of Alexander:

We are of the opinion that public policy questions of such magnitude are best left to the legislative process, which is better equipped to resolve the questions which inevitably will arise as unmarried cohabitation becomes an established feature of our society. While the judicial branch is not without power to fashion remedies in this area, we are unwilling to extend equitable principles to the extent plaintiff would have us to do, since recovery based on principles of contracts implied in law essentially would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature.

Davis, 643 So.2d at 934-35 (quoting Estate of Alexander, 445 So.2d at 839) (emphasis added).

¶ 21. Prior to the supreme court’s 1984 decision in Estate of Alexander, Mississippi had not addressed the equitable rights of unmarried cohabitants, though the Court had previously considered the equitable rights of “putative wives” — women who had ceremonially married but did not, in fact, have a legally valid marriage. See Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951) and Taylor v. Taylor, 317 So.2d 422 (Miss.1975). In Estate of Alexander, the supreme acknowledged the “putative spouse” line of cases but found them “factually quite dissimilar and thus not controlling” where there “was not even any attempted legal ceremonial marriage but a mere ‘live-in’ relationship[.]” Estate of Alexander, 445 So.2d at 839. Our supreme court evaluated a variety of approaches from other states, including Georgia and Illinois, which rejected claims that unmarried cohabitants were entitled to equitable relief to recover for property accumulated during their cohabitation. The supreme court also closely examined, but declined to follow California’s approach, which directed, in the absence of an express contract, that its courts look to the cohabitants’ conduct to determine whether the conduct demonstrates an implied contract, partnership, joint venture, or other tacit understanding. Estate of Alexander, 445 So.2d at 838 (discussing Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, 110 (1976)). Ultimately, Mississippi opted for what it deemed “the logical view ... [as] stated by a Michigan court” — that public policy questions of this stature should be left to the legislative process, and the judicial branch should avoid fashioning implied contractual remedies that would essentially resurrect common-law marriage, which had been abolished by the Legislature. Id. at 839 (citing Carnes v. Sheldon, 109 Mich.App. 204, 311 N.W.2d 747, 753 (1981)).

¶ 22. Based on the principle established in Estate of Alexander and Davis, we find public policy questions concerning same-sex cohabitants’ rights, just as with opposite-sex cohabitants rights, “are best left to the legislative process.” Davis, 643 So.2d at 934. We note the Mississippi Legislature in 1997 declared no marriage rights exist in Mississippi between same-sex partners, even those with valid marriages in other jurisdictions. Miss.Code Ann. § 93-1-1(2). And in 2004, House Concurrent Resolution 56 proposed to amend Mississippi’s constitution by creating a new section on marriage. On November 2, 2004, Mississippi voters ratified Section 236A. Under this constitutional amendment:

Marriage may take place and may be valid under the laws of this state only between a man and a woman. A marriage in another state or foreign jurisdiction between persons of the same gender, regardless of when the marriage took place, may not be recognized in this state and is void and unenforceable under the laws of this state.

Miss. Const. art. 14, § 263A.

¶ 23. Because the issue of same-sex marriage has been addressed by the legislative process, we find we must yield to the supreme court’s admonition against judicially creating equitable remedies that undermine these policy decisions — particularly when this policy has been written into Mississippi’s constitution. Thus, we hold we cannot extend implied contractual remedies to unmarried cohabitants, whether opposite-sex or same sex — especially here, where the chancellor found no express agreement beyond mere cohabitation that would support Swain’s claim that she be repaid for financial contributions she made during their relationship. Furthermore, Swain was married to another man and could not validly marry Cates even in a jurisdiction that recognizes same-sex marriage. Therefore, the limited putative spouse doctrine is inapplicable.

¶ 24. While chancellors typically enjoy discretion in determining equitable remedies in non-domestic matters, the supreme court has held it is outside the chancellor’s discretion to fashion an equitable remedy for an unmarried cohabitant “based on principles of contracts implied in law.” Estate of Alexander, 445 So.2d at 839. But see Estate of Reaves, 744 So.2d at 802 (¶ 11) (finding Mississippi’s public policy against same-sex marriage does not prohibit same-sex partners from entering valid express contracts with each other).

¶ 25. “Unjust enrichment” is “modern designation for the doctrine of ‘quasi-contracts[.]’ ” Koval v. Koval, 576 So.2d 134, 137 (Miss.1991) (quoting Magnolia Fed. Savings & Loan v. Randal Craft Realty, 342 So.2d 1308, 1311 (Miss.1977)). “[T]he basis for an action for ‘unjust enrichment’ lies in a promise, which is implied in law, that one will pay to the person entitled thereto which in equity and good conscience is his.” Id. “It is an obligation created by law in the absence of any agreement; therefore, it is an implied in law contract.” 1704 21st Ave., Ltd. v. City of Gulfport, 988 So.2d 412, 416 (¶ 10) (Miss.Ct.App.2008) (citing Koval v. Koval, 576 So.2d 134, 137 (Miss.1991)) (emphasis added).

¶ 26. By holding Cates was unjustly enriched through her cohabitation with Swain, the chancellor essentially found an implied contract that Swain would be remunerated for her financial contributions to Cates. Estate of Alexander and Davis restrict such an implied contract arising between unmarried cohabitants. Swain testified to the financial benefits and obligations arising out of her marriage to her estranged husband. Thus, it was reasonable for her to understand similar rights did not arise from her relationship with Cates. As in Estate of Alexander, Swain’s financial contributions to the homes in which she cohabited, rent free, with Cates must be viewed as given gratuitously without expectation of repayment, absent evidence of an express agreement between the two. See Estate of Alexander, 445 So.2d at 840. In the instructive words of supreme court in Estate of Alexander, “[a] deed or contract would also have sufficed.” Id.; see Estate of Reaves, 744 So.2d at 802 (¶ 11).

¶ 27. The chancellor made no finding of any express agreement, but instead found Swain’s expectation of repayment was implied based on the women’s cohabitation arrangements. The supreme court has been explicit that cohabitation alone cannot form the basis of an equitable remedy between non-married eohabitants. Because we find the chancellor’s unjust enrichment remedy was outside the bounds of a chancery court’s equitable powers regarding such cohabitants, we must reverse the award of $44,995 and render judgment in Cates’s favor.

¶ 28. With respect to Chief Judge Lee’s dissent, we find he treads on policy issues that the supreme court has emphasized are “best left to the legislative process.” We note the dissent does not contest the majority’s holding that Mississippi law precludes fashioning an unjust enrichment award under these facts. Instead, the dissent would craft an alternate remedy based on the chancellor’s power to grant equitable division under the “putative spouse doctrine,” first expressed in Chrismond, 211 Miss. at 757, 52 So.2d at 629.

¶ 29. In addition to the supreme court’s stance against delving into this policy issue, we find the cases the dissent cites inapplicable. The supreme court has held the equity power in Chrismond does not extend to cohabitants, like Swain and Cates, who never attempted a valid marriage. Davis, 643 So.2d at 935-936; Estate of Alexander, 445 So.2d at 839. “Such a remedy is only available where ‘the couples had either been married or contended to have married.’” Cotton v. Cotton, 44 So.3d 371, 374 (¶ 6) (Miss.Ct.App.2010) (quoting Nichols v. Funderburk, 883 So.2d 554, 558 (¶ 11) (Miss.2004)). Here, both women testified they were never married in another state, nor did they contend to be married. And had they attempted to marry in Mississippi, they could not lawfully have done so. Therefore, the chancellor lacked authority to grant Swain an equitable distribution under the narrow putative-spouse doctrine. Id.

III. No Evidence Supporting an Implied Trust

¶ 30. We also affirm the chancellor’s holding that no implied trust arose in Swain’s favor. The existence of a constructive or resulting trust is a question of law, which we review de novo. Van Cleave v. Estate of Fairchild, 950 So.2d 1047, 1051 (¶ 12) (Miss.Ct.App.2007) (citing Allred v. Fairchild, 785 So.2d 1064, 1068 (¶ 7) (Miss.2001)). “Clear and convincing proof is necessary to establish a resulting or constructive trust.” Nichols v. Funderburk, 881 So.2d 266, 273 (¶ 29) (Miss.Ct.App.2003) (citing Allgood v. Allgood, 473 So.2d 416, 421 (Miss.1985)).

1. Constructive Trust

¶ 31. A constructive trust “is designed to prevent fraud, overreaching, or other wrongful act by which one person has obtained legal title to property rightfully belonging to another.” Simmons v. Simmons, 724 So.2d 1054, 1057 (¶ 7) (Miss.Ct.App.1998) (citing George Gleason Bogert, The Law of Trusts and Trustees § 451 (2d ed. rev. 1991)). It is “a means by which one who unfairly holds a property interest may be compelled to convey that interest to another to whom it justly belongs.” In re Estate of Hood, 955 So.2d 943, 949 (¶ 21) (Miss.Ct.App.2007) (citing In re Estate of Horrigan, 757 So.2d 165, 170 (¶ 25) (Miss.1999)).

¶32. “A constructive trust: ‘arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, to hold and enjoy.’” Id. (quoting Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (1963)). There are two relevant intertwined considerations. “It is the relationship [whether fiduciary, moral, social, domestic, or personal] plus the abuse of confidence that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.” Id. (quoting Thornhill v. Thornhill, 905 So.2d 747, 753 (¶ 18) (Miss.Ct.App.2004)).

¶ 33. The chancellor deemed the evidence insufficient to impose a constructive trust. Though he found Cates and Swain were in a confidential relationship, he found no abuse of that confidence by Cates. We too find no evidence, let alone clear and convincing evidence, that Cates abused her relationship with Swain to obtain title to the Washington or Mississippi homes. See Estate of Hood, 955 So.2d at 949 (¶ 22) (finding no constructive trust because, though the parties did not dispute a confidential relationship existed between a deceased homeowner and his neighbors, no abuse of confidence led to the homeowner conveying his home to this neighbors).

¶ 34. We have previously addressed constructive trusts in terms of a promise made with no intention to perform it. Nichols, 881 So.2d at 273 (¶ 29). In Nichols, a long-term, live-in girlfriend argued her boyfriend held his business and personal properties in constructive trust because “she worked and contributed to all of the businesses and the home....” Id. at 272 (¶ 28). But this court found the boyfriend had never promised his girlfriend to convey any interest in his businesses or personal properties in exchange for her efforts. Id. at 273 (¶ 30). Thus, she was “not now entitled to division of the property under this theory.” Id.

¶ 35. Swain argues she trusted Cates and their relationship, investing money and “sweat equity” in the Washington and Florida homes. But as in Nichols, there is no record evidence that Cates promised to convey Swain an interest in the Washington or Mississippi properties in exchange for her financial contributions and improvements. The record instead shows Swain invested in Cates’s properties based on their long-term personal relationship. And there is no evidence Cates abused that relationship. See In re Estate of Parker, 13 So.3d 877, 880 (¶ 8) (Miss.Ct.App.2009) (finding no proof of the existence of a constructive trust on live-in girlfriend’s home because no evidence of dominant influence by girlfriend over live-in boyfriend). Swain argues the abuse lay in Cates’s keeping the property after they broke up. But a constructive-trust analysis focuses on the acquisition of property and whether it was obtained through fraud or abuse of a confidential relationship. Simmons, 724 So.2d at 1057 (¶ 7).

¶ 36. Further, Cates testified Swain did not desire to own the properties because she was still married to her husband and “didn’t want to take that chance,” presumably that her husband might receive a portion of any interest she may have obtained. We find equity does not demand Swain receive an interest in property she intentionally did not acquire because of her estranged husband. We find no error in the chancellor’s denial of a constructive trust.

2. Resulting Trust

¶ 37. “[A] resulting trust arises in a transaction when one person is granted a legal title but is required to hold this title for the benefit of another.” In re Estates of Gates, 876 So.2d 1059, 1064 (¶ 17) (Miss.Ct.App.2004). “[Wlhere one buys an asset in the name of another, the asset will be deemed held by the record owner in a resulting trust for the benefit of the person actually advancing the purchase money.” Simmons, 724 So.2d at 1058 (¶ 10) (citing Brabham v. Brabham, 226 Miss. 165, 172, 84 So.2d 147, 151 (1955)).

¶ 38. The chancellor found insufficient evidence of a resulting trust because he “[could not] say that title to [the Florida, Washington, or Mississippi] properties was to be held by one for the benefit of the other.” Our de novo review leads us to the same conclusion. While Swain testified she did not want to title another home in her name because of her husband, the evidence is certainly not clear and convincing that Swain actually purchased the Washington or Mississippi home in Cates’s name. Thus, we also affirm the denial of a resulting trust.

¶ 39. THE JUDGMENT OF THE TATE COUNTY CHANCERY COURT IS AFFIRMED ON CROSS-APPEAL AND REVERSED AND RENDERED ON DIRECT APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE/CROSS-APPEL-LANT.

GRIFFIS, P.J., BARNES, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J.; ISHEE, J., JOINS IN PART. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY ISHEE, J.

RUSSELL, J.,

specially concurring:

¶ 40. I agree with the majority’s opinion based on the law as it exists in Mississippi and in no way suggest equitable distribution be applied to cohabitants. However, I write separately to note the inequitable result in such situations as exist in this case, albeit unintended.

¶ 41. Mississippi does not recognize or condone same-sex relationships. See Miss. Code Ann. § 98-1-1 (Rev. 2004). Further, our Legislature abolished common-law marriage in 1956. See Miss.Code Ann. § 93-1-15(1) (Rev. 2004). Thus, we also refuse to provide a remedy to cohabiting heterosexual partners who jointly accumulate property without the benefit of a valid marriage. See Davis v. Davis, 643 So.2d 931, 934-35 (Miss.1994); see also Jamie R. Ballard, Comment, Property Rights (or Lack Thereof) of Unmarried Cohabitants in Mississippi, 29 Miss. C. L. Rev. 613 (2010). But by refusing to divide property, one party benefits while the other receives nothing when both parties are equally “guilty” of participating in the relationship. This concept was noted by the Wisconsin Supreme Court:

[Allowing no relief at all to one party in a so-called “illicit” relationship effectively provides total relief to the other, by leaving that party owner of all the assets acquired through the efforts of both. Yet it cannot seriously be argued that the party retaining all the assets is less “guilty” than the other. Such a result is contrary to the principles of equity.

Watts v. Watts, 137 Wis.2d 506, 405 N.W.2d 303, 314 (1987). See also Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, 121 (1976) (noting that “to the extent that denial of relief ‘punishes’ one partner, it necessarily rewards the other by permitting [the party] to retain a disproportionate amount of the property. Concepts of ‘guilty’ thus cannot justify an unequal division of property between two equally ‘guilty’ persons.”). As a result, the party who has title to property can, in essence, use the relationship as a defense to prevent the other party, regardless of contributions, from receiving anything upon the dissolution of the relationship. In my view, such a result is inequitable. Cohabitants who want to ensure they receive something in return for their contributions are forced to reduce their personal relationship to an impersonal contract. But, as correctly stated by the majority, it is the duty of the Legislature — not the courts — to provide a remedy to unmarried cohabitants in the context of property disputes. Therefore, I concur with the majority.

IRVING, P.J., JOINS THIS OPINION. ISHEE, J., JOINS THIS OPINION IN PART.

LEE, C.J.,

dissenting:

¶ 42. With respect to the majority, and notwithstanding that there was not a valid marriage between Swain and Cates, I find it was within the chancellor’s discretion to apply the rules of equity and award Swain a share of the property accumulated by the joint efforts of the parties during their relationship. Thus, I would affirm the award of a judgment in favor of Swain.

¶ 43. Although Swain did not specifically request an equitable division of the couple’s jointly-accumulated assets, Swain did ask the chancellor for “any other awards ... deemfed] necessary and just.” “[I]t is axiomatic that the relief need not be limited in kind or amount by the demand but may include relief not requested in the complaint.” Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So.2d 67, 75 (¶ 19) (Miss.2003). I also note it is standard practice to affirm the decision of a lower court when the right result has been reached, even if for the wrong reason. Tedford v. Dempsey, 437 So.2d 410, 418 (Miss.1983). I believe the chancellor reached the right result.

¶ 44. I recognize the rule which recognizes marriage only as the joining of a man and a woman in conformity with state law. See Miss.Code Ann. § 93-1-1(2) (Rev. 2004). I do not purport to usurp legislative authority nor do I condone such action. However, I recognize that our law sanctions an equitable division of property accumulated by two persons as the result of their joint efforts. See Cotton v. Cotton, 44 So.3d 371, 374 (¶¶ 7-10) (Miss.Ct.App.2010); Wooldridge v. Wooldridge, 856 So.2d 446, 452 (¶ 17) (Miss.Ct.App.2003); see also Pickens v. Pickens, 490 So.2d 872, 875-76 (Miss.1986); Taylor v. Taylor, 317 So.2d 422, 423 (Miss.1975); Chrismond v. Chrismond, 211 Miss. 746, 757, 52 So.2d 624, 629 (1951). As the Mississippi Supreme Court stated in Pickens, “our law authorizes and sanctions an equitable division of property accumulated by two persons as a result of their joint efforts. This would be the case were a common[-]law business partnership breaking up.” Pickens, 490 So.2d at 875.

¶ 45. I am mindful of our standard of review: this Court will not disturb a chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Ward v. Ward, 825 So.2d 713, 715-16 (¶ 5) (Miss.Ct.App.2002). In this case, there was substantial evidence to uphold the chancellor’s decision. Over the course of the relationship, Swain and Cates shared homes, contributed money to these homes, made improvements to these homes, shared a joint checking account, owned vehicles together, and shared an investment account. I find Swain was a substantial contributor to the accumulation of assets with Cates such that she should receive an equitable share of those assets.

ISHEE, J„ JOINS THIS OPINION IN PART.

      . These are the figures from the chancellor’s final order, which Swain admits contains mathematical and scrivener’s errors.

      . See note 1.

      . Rehak v. Matthis, 239 Ga. 541, 238 S.E.2d 81, 82 (1977) (holding, because unmarried cohabitation constituted immoral consideration in an agreement to live together, the claimant was not entitled to her portion of purchase money interest in a house).

      . Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204, 1208 (1979) (holding unmarried cohabitant’s claim to property accumulated during cohabitation violated Illinois’s public policy disfavoring property rights for knowingly unmarried cohabitants).

      . Mississippi reaffirmed its adherence to Michigan's approach in 1994 in Davis. Davis, 643 So.2d at 934-35.

      . Laws 2004, Ch. 620.

      . Davis, 643 So.2d at 934.

      . Chrismond held "the equity powers of the court are sufficient to protect the rights of the

        putative wife, where the supposed marriage which she entered into in good faith turns out to be void, and ... she is entitled to an equitable division of the property accumulated by their joint efforts during the time they lived together as man and wife." Chrismond, 211 Miss. at 757, 52 So.2d at 629 (emphasis added).

      . The narrow exception to this rule is the situation where the parties were lawfully married, divorced, and subsequently cohabited with each other. In that situation, Mississippi courts have equitably divided property even though the parties were not lawfully married at the time of the property division. See Pickens v. Pickens, 490 So.2d 872, 876 (Miss.1986); Wooldridge v. Wooldridge, 856 So.2d 446, 452 (Miss.Ct.App.2003).


source: Caselaw Access Project

author: ISHEE, J., IRVING, P.J.,

license: Public Domain

text:
    Carla LAND; Joshua Land; Misty Moudy; Prentice J. Land; Jason D. Russell, Individually and as Administrator of the Estate of Richard D. Russell, Deceased, and Danny Russell, a Minor, as Wrongful Death Beneficiaries of Benjamin Dewayne Russell, Appellants v. ATTALA COUNTY, Mississippi, through the ATTALA COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2011-CA-01105-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2012.
    Rehearing Denied April 9, 2013.
    Certiorari Denied June 20, 2013.
    Crymes M. Pittman, Crymes G. Pittman, Jackson, Jonathan E. Sholtis, William R. Wheeler Jr., James R. Franks Jr., attorneys for appellants.
    George E. Abdo III, Michael J. Wolf, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In April 2009, Benjamin Russell was killed after experiencing an automobile accident in Attala County. The Attala County Fire Department responded to the accident. As the fire department vehicle arrived on the scene, it accidentally struck Russell’s body, which was lying in the road. Russell was later pronounced dead. Russell’s wrongful-death beneficiaries filed suit against Attala County through its Board of Supervisors. The Attala County Circuit Court later granted the county’s motion for summary judgment. The beneficiaries appeal. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On April 13, 2009, just after midnight, Russell was driving down Highway 43 South, a two-lane, unlit road near Mc-Adams, Mississippi, when he was involved in a one-vehicle automobile accident. Following the accident, Russell called his family to inform them of the accident. The record indicates Russell then collapsed in the middle of the road approximately forty feet from the wrecked vehicle.

¶ 3. Nearby neighbors heard the accident occur and mistakenly reported a two-vehicle accident to the Attala County authorities. The fire department responded to the call. Mark Fisher drove the fire department’s fire truck, with Nicolas Cox and Patrick Mitchell accompanying him. Fisher testified to traveling at speeds of around sixty-five miles per hour with his emergency lights and siren activated and the fire truck’s high-beam headlights on.

¶ 4. As the firemen neared the accident scene, they observed the headlights of Russell’s wrecked vehicle approximately a quarter of a mile to the right of the road. Fisher slowed the fire truck to begin looking for the second reported vehicle and any victims. Fisher testified that in his experience as an emergency responder, victims ejected from a vehicle during an accident are no more than twenty feet from a crash site. However, approximately forty feet from the crash site, Cox suddenly noticed Russell’s body in the road lying eight to ten feet directly in front of the fire truck. Fisher swerved the fire truck and initially believed that he had missed the body. Russell’s body was later taken to nearby facilities, and he was pronounced dead on arrival. An autopsy report showed Russell’s cause of death was accidental blunt force trauma to the head, chest, abdomen, and extremities.

¶ 5. The beneficiaries filed a wrongful-death suit against the county in the circuit court. Since the county is a governmental entity, the case fell under the Mississippi Tort Claims Act (MTCA). The county filed a motion for summary judgment claiming its actions did not rise to the level of reckless disregard necessary to surmount the governmental immunity provided to it under MTCA. The circuit court agreed and granted summary judgment. The beneficiaries now appeal on the ground that the circuit court erred in its determination that the county did not act in reckless disregard. Finding no error, we affirm.

DISCUSSION

¶ 6. We analyze a circuit court’s grant or dismissal of a motion for summary judgment under a de novo standard of review. Trustmark Nat’l Bank v. Meador, 81 So.3d 1112, 1116 (¶ 9) (Miss.2012) (citation omitted). A motion for summary judgment must be granted under Mississippi Rule of Civil Procedure 56(c) if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Here, the county asserted in its motion that summary judgment was proper because no material facts existed to eliminate the governmental immunity provided to the county by the MTCA.

¶ 7. The MTCA states the following:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury....

Miss.Code Ann. § 11-46-9(1)(c) (Rev. 2012). It is undisputed that Fisher was a governmental employee acting within the course and scope of his employment with the county at the time of the incident. He was engaged in the performance of activities related to fire protection when he struck Russell’s body. As such, the pivotal question is whether Fisher acted “in reckless disregard of the safety and well-being of’ Russell at the time in question.

¶ 8. The Mississippi Supreme Court has held that reckless disregard under the MTCA “embraces willful and wanton conduct which requires knowingly or intentionally doing a thing or wrongful act.” Rayner v. Pennington, 25 So.3d 305, 308-09 (¶ 11) (Miss.2010) (citation omitted). “Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Id. (citation omitted).

¶ 9. In the ease at hand, the record reflects that Fisher drove with the fire truck’s emergency lights and sirens on and with the truck’s high-beam headlights activated. Furthermore, deposition testimony from the firemen in the vehicle showed that Fisher began slowing down significantly when the men saw the headlights of Russell’s vehicle on the side of the road. Fisher testified he was “continually slowing down ... with continuing braking” upon seeing Russell’s vehicle, and was traveling between thirty-five and forty miles per hour at the time Fisher first saw Russell’s body approximately eight to ten feet in front of the fire truck. Fisher stated:

We seen the headlights, like I said, off to the right — ... and we — it’s not where you would expect to see headlights at. So we assumed that that’s where the accident was, so I started decreasing my speed and pulled up to the scene. And that’s when Cox had said, “There [a body] is.” And like I said, I pulled the vehicle into the eastbound lane and — to get around the body and then got back into the westbound lane and proceeded up a little bit further to see where possibly there may be another vehicle that was supposed to be involved in it.

With regard to his attempt to avoid hitting Russell’s body, Fisher said: “I was applying the brakes, and I, basically, went into a defensive drive.... I mean, I just know I pushed — hit the brakes as hard as I could and cut it to the left to try to avoid.”

¶ 10. When asked whether he thought he had actually hit the body, Fisher replied: “It’s possible. I mean, like I say, anything is possible, but, at that particular time, no, I believed I didn’t.” Moreover, Fisher testified that, in his experience, automobile-accident victims were usually only ejected an average of twenty feet from the crashed vehicle’s location. Specifically, Fisher stated:

[Bodies are] usually around the vehicle, close by the vehicle. I mean, they’re not normally standing — laying—sorry—in the road.... [I]t’s usually about — it won’t travel that far. In cases I’ve seen, it[ Jhasn’t been more than 20 feet.... I mean, usually, if they’re going to get ejected, they have to go either through a window, hit something, and it’s going to break their momentum. I mean, it’s not a straight shot.

As such, upon seeing Russell’s crashed vehicle in the distance away from the road, Fisher slowed the fire truck to begin looking for any victims and the second reported vehicle. But Fisher had no reason to believe Russell’s body would be lying in the middle of the road and at such a great distance from his vehicle.

¶ 11. Fisher acted in conformity with an emergency responder taking the necessary precautions in attending to an emergency scene. He was traveling between twenty and twenty-five miles per hour below the posted speed limit and slowing the fire truck by continually braking immediately prior to spotting Russell’s body. Furthermore, the position of Russell’s body in the middle of the road and at such a great distance from his vehicle could not have been anticipated by the firemen. Fisher practiced adequate evasive maneuvers in an attempt to avoid the body and did not believe he hit the body at the time. Fisher still cannot say with certainty whether or not he hit the body. We cannot find that Fisher acted recklessly, evincing “almost a willingness that harm should follow.” Rayner, 25 So.3d at 309 (¶ 11). Accordingly, we affirm the judgment of the circuit court.

¶ 12. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

GRIFFIS, P.J., BARNES, ROBERTS AND FAIR, JJ„ CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., CARLTON AND RUSSELL, JJ. MAXWELL, J., NOT PARTICIPATING.

IRVING, P.J.,

dissenting:

¶ 13. The circuit court, finding no genuine issue of material fact to be decided by a jury, granted summary judgment to At-tala County against the wrongful-death beneficiaries of Dewayne Russell, who was killed when a county fire truck ran over him as he lay on the pavement in the westbound lane of Highway 14, west of Kosciusko, Mississippi. Russell had survived a one-car accident and was waiting for rescue help to arrive.

¶ 14. In its motion for summary judgment, the County alleged that (1) it was immune from liability; (2) Russell was engaged in criminal activity at the time of the accident, thereby relieving Attala County of any liability for his death; and (3) it was exempt from liability because its fire department was responding to a call that was a discretionary function of county government. The circuit court found that the County was exempt from liability. It did not specify the basis for its finding. However, it appears that the circuit court found that Fisher, the driver of the fire truck that ran over Russell, did not act in reckless disregard of Russell’s safety when he drove the fire truck over Russell and killed him. The majority agrees. Because I think a genuine issue exists as to whether Fisher acted with reckless disregard of Russell’s safety, I dissent. I would reverse and remand this ease for further proceedings.

¶ 15. In support of its motion for summary judgment, the County presented the following documents: (1) the accident report of Russell’s accident; (2) the statement of Wilma Kitchens, who made the 911 call to report Russell’s accident; (3) the statement of Quincy Griffin, who heard Russell’s truck slide across some rocks and saw Russell walk across the highway with a cell phone; (4) the report of Fisher’s accident, resulting in Russell’s death; (5) the E-911 dispatcher report; (6) the deposition of Mark Fisher; (7) the autopsy report; and (8) the toxicology report.

¶ 16. In opposition to the motion for summary judgment, the wrongful-death beneficiaries presented without opposition, among other things, the investigative report of the accident as prepared by Master Sergeant Jimmie D. Thomas of the Mississippi Bureau of Investigation. In my judgment, that report creates a genuine issue as to whether Fisher acted with reckless disregard of Russell’s safety.

¶ 17. First and foremost, the most glaring evidence of Fisher’s reckless disregard of Russell’s safety was his failure to see Russell lying on the pavement. There is no extended hood on a fire truck, so the driver of a fire truck has absolutely nothing blocking his view of the road. In this case, another firefighter, who was a passenger in the truck, saw Russell and brought to Fisher’s attention that Russell was lying in the road. The fire truck’s high beam lights were on, yet Fisher did not see Russell until it was brought to his attention that Russell was lying on the pavement. Nothing obstructed Fisher’s view of the road. I quote extensively from that report:

On 12 April 2009 at 0920 hours, Trooper Philip Coffee, D27, contacted me, Master Sergeant Jimmie D. Thomas, to assist him with a fatal one-car motor vehicle collision on MS 14[,] west of Kosciusko. Preliminary investigation indicated at approximately 0115 hours a white 1998 Ford Explorer, Mississippi registration ATI416, was eastbound when it ran off the right shoulder of the highway, came back onto the pavement skidding sideways and crossing the highway, collided with a driveway embankment and two trees, and came to rest facing in a southeasterly direction. The driver, Benjamin Dewayne Russell, 18, of 8129 Attala Road 2247, Kosciusko, MS was found dead lying in the westbound land of MS 14 approximately forty feet south of the vehicle. (See accident [rjeconstructionist’s diagram.) Initially, Coffee thought Russell was ejected; however, he felt the profile of the vehicle’s direction of travel should have caused his body to be located north and east of its location. On-scene pictures taken by Trooper Coffee, show extreme trauma to Russell’s face and head. His head appeared to be crushed with an open wound on the left side of it with brain tissue extruding from it. I observed dual wheel tire marks on the highway going from the westbound land into the eastbound lane and back into the westbound lane. The right wheels[’] tire marks were aligned with the location of the body. There were several spots of brain tissue in close proximity of the body located in the westbound lane west of the body. Some of these were marked for accident reconstruction purposes. I contacted Lieutenant Jim Miller at this time and advised him that I believed this to be a hit-and-run rather than an ejection due to the location of Russell’s body, sustained injuries, body tissue and its location on the highway, and skid marks and their location in proximity of the body. Troop 13 Accident Reconstruction Officer, Staff Sergeant Brad Vincent, was also notified to reconstruct the accident. Vincent performed the reconstruction on 16 April 2009. (See Uniform Crash Report.)
I spoke with Wilma Kitchens and her son, Quincy Griffin, who live in a manufactured home approximately seventy-five yards northwest of the accident site, regarding the accident. Mrs. Kitchens said that at approximately 0120 hours, she heard the sound of “squalling tires and a thump.” Her son, Quincy, alerted her to the fact that a collision had occurred near his great-grandfather’s house. Mrs. Kitchens said that she looked out the window and saw a pickup truck off the road. She also stated that she could hear the dinging of the doorbell in the wrecked vehicle. Quincy said he heard an automobile slide across rocks at approximately 0115 hours. He stated that he looked out the window and saw the wrecked vehicle’s tail lights go from bright to dim multiple times. I asked if it looked similar to someone applying the brakes. He said that it did. He stated that he and his mother watched for about ten minutes before calling 911. During that time, he stated that he saw someone walking across the highway using a cell phone. I inquired as to how he knew he or she was using a cell phone. He stated that he could see the light from the cell phone while it was in his hand and not up to his ear. He stated that earlier he had seen the interior lights come on in the vehicle. Mrs. Kitchens added that she could hear the dinging of the vehicle’s doorbell after Quincy had seen the individual walking in the highway. (See Kitchens & Griffin statements.)
I went to the Attala County Fire Department Station 1 and talked to Chief Roy Williams about the incident. He discussed the incident and provided me with a written statement. Chief Williams stated he was the second unit on scene behind the rescue truck. He stated that he viewed the victim and met Fireman Mark Fisher between the body and the rescue truck. He said Fisher asked him if he was dead. Chief Williams replied that he was dead and that he (Fisher) should get the vehicle information. Williams also stated that he asked the firefighters if they ran over the victim. Both told Williams that they did not think they hit the victim. (See Williams’[s] statement.)
After interviewing Chief Williams, I spoke with probationary firefighter Patrick Mitchell. Mitchell stated that he saw the body in the roadway then the wrecked vehicle on the right. He stated that Nicholas shouted, “He’s in the road!’’ Mitchell stated the victim appeared to be lying face down in the highway. He stated that Nicholas called communications and said they were on scene. He said they had stopped in the westbound lane beyond the body and stayed there. Mitchell said that he did not get out of the vehicle at any time during the response. (See Mitchell’s Statement.) I inquired of the Chief as to why Mitchell did not get out of the vehicle. He stated that he did not want Mitchell viewing such a scene because it might scare him off. In an additional interview on 15 April 2009, Mitchell added that he was in the back passenger-side seat of the unit [,] and he thought they were going 60-65 miles per hour when he saw the body lying face down in the highway. Also, he stated that Fisher swerved so violently that he thought they were going to turn over[,\ and he had to hold on. Mitchell said whW they finished with the scene Fisher turned the rescue unit around and washed the highway off. They fueled up at the Kangaroo Store and went back to the fire station.
Afterwards, I interviewed the rescue unit driver, Mark Fisher. Fisher said they received the call after 0100 hours on 13 April 2009. They headed up MS 43 and onto MS 14 westbound. Fisher stated they saw the body, moved left into the eastbound lane, and then back into the westbound land stopping near where the pickup truck ran off the highway. Fisher stated he exited the Squad and walked back (eastbound) toward the body [,] meeting Chief Williams about halfway between the body and the Squad. He said he asked the Chief if the victim was dead. Chief Williams replied, “Yes.” Fisher stated that he then went back to his unit and backed up approximately ninety feet, turned on the scene lights, and gathered information from the wrecked vehicle. Fisher stated they remained at the position until finished with the scene. (He said the ambulance, upon arrival, staged between his rescue unit and the body.) I asked him if he ran over Russell. He stated that he swerved hard to the left and did not think that he ran over Russell. Further, he said that he felt no bump or anything indicating that he may have hit Russell [;] he (the rescue unit) was so close to [Russell’s] body that he could have hit Russell with his rear wheels.
⅝ ijs ⅜
On 15 April 2009, I requested a copy of the E-911 radio log and audio communication from 13 April 2009, 0000-0400 hours. Liz Perteet, E-911 Coordinator, made the copies for me. While listening to the radio transmissions, I noticed intensity in the transmission from Squad One Firefighter Nicholas Cox and Chief Roy Williams. (See E-911 Transcript, page 4, lines 82 thru 84.) It is evident from the radio communication that Squad 1 and FD1 arrived on the scene at approximately the same time with Attala County 9 close behind them. I questioned Nicholas Cox and Chief Williams regarding the transmission. Cox stated he knew Chief Williams was behind them[,] and he was trying to warn him to slow down. Williams stated he was trying to let everyone know to slowdown. Also noted was the fact that Cox called Chief Williams to “come to the Squad.”
I interviewed and obtained a written statement from Firefighter Nicholas A. Cox on 15 April 2009. Cox stated he saw brake lights HI mile ahead of them on MS II and thought that might be the location of the scene. Upon arrival in the area of the brake lights, he stated that he saw the patient lying in the road and told Fisher to get over. Additionally, he told Chief Williams via radio to “break it down” because he knew the Chief was behind them. He stated they went past the victim to where the victim’s tire tracks left the roadway and stopped. Cox stated he asked Fisher if he hit him. He said Fisher replied that he didn’t think so and afterwards said no he didn’t hit him. After exiting the rescue unit, he stated the Chief walked toward them and said the victim is deceased. Cox stated that they told Chief Williams that they came up on him so fast that they thought they hit him. He said Chief Williams asked them if they hit him. Cox stated that both he and Fisher said “no.” Cox said the Chief replied, “If both of you say no, then we will leave it at that.” Cox stated they were traveling about 55-60 miles per hour when they saw the victim. He said they saw the victim first, then the (victim’s) truck. Cox stated that they saw the victim 20-30 feet in front of them when Fisher swerved. After talking to Chief Williams, Cox told Fisher to back the rescue unit up, locating it approximately fifteen feet from the victim. Cox stated Chief Williams’[s] pickup was approximately ten feet east of the victim. Both, Cox and Fisher assisted EMS in looking for other victims. In addition, they held the sheet, to obscure public view, for D-27, Trooper Philip Coffee, and Coroner Sam Bell. Cox said he witnessed Coffee remove a substance of some kind from the victim’s right front pant pocket that appeared to be drugs.
On 15 April 2009, at 1689 hours, I spoke with the victim’s father, Richard Dewayne Russell, and his girlfriend, Lynn Christopher, regarding alleged phone calls the victim made to them. (See phone records.) According to a verbal and written statement, Christopher said that Ben called at 0111 hours and stated that he was on his way home from Holmes Community College. About ten to fifteen minutes later, Danny, Ben’s twelve-year-old brother, carried his phone to Christopher and said Ben was upset and wanted to talk to her. She said Ben was crying and stated that he had been in a wreck and could not feel his legs. Christopher stated that Ben told her he would be by the road. She said they left home, got gas at the Exxon station and proceeded to his location. She stated that Ben called again at 0141 and said that he could not feel his legs. She stated that she could hear the doorbell dinging in the truck during the time she was talking to him (on the phone). Christopher said, since she was driving, she gave the phone to Danny so he could continue to talk to Ben. Christopher said that Danny called Ben on his phone at 014-6 hours and Ben stated to Danny, “Get Lynn on the phone, I can’t breathe — help me!” (See Christopher statement.) Richard Russell, Ben’s father voluntarily surrendered his phone records and Danny’s phone for comparison. I obtained Benjamin Russell’s broken cell phone from Attala County Coroner Sam Bell. This phone was recovered from the roadway near his body. The phone was broken in three pieces. I also obtained copies, both audio and written, of Kosciusko E-911 Communications Dispatch radio transmissions for comparison to the phone records.

¶ 18. It is noteworthy that Cox called Chief Williams, who was traveling to the scene of the accident in close proximity behind the fire truck, and told him to come to Squad One (the fee truck). One is justified in wondering why it was so urgent that Cox and Fisher speak with Chief Williams as soon as he arrived on the scene. It also is noteworthy that according to Master Sergeant Thomas’s investigative report, Cox told Thomas that they [(Fisher, Cox, and Mitchell) ] came up on [.Russell ] so fast that they thought they hit him, but Cox told Chief Williams that they did not run over Russell. Upon hearing this, Chief Williams said, “If both of you say no, then we will leave it at that.” Later, Cox and Fisher would state that they did not think they had struck Russell.

¶ 19. In my view, the somewhat contradictory statements by Cox and Fisher regarding whether they had struck Russell; the fact that Fisher had an unobstructed, clear view of the highway ahead of him as they traveled to the scene of the accident; and the fact that they apparently had an urgent need to talk to Chief Williams immediately upon his arrival at the scene suggest that the question — whether Fisher had acted with reckless disregard of Russell’s safety — should be decided by a jury, not the circuit judge. I want to be clear; I am not insinuating that either Williams, Cox, or Fisher has acted improperly. But summary judgment should never be granted unless there is no genuine issue as to a material fact.

¶ 20. The circuit court correctly observed that Fisher’s speed in traveling to the scene is irrelevant because he was driving an emergency vehicle and was authorized to drive over the speed limit. See Miss.Code Ann. § 63-8-517 (Rev.2004). However, in doing so, he was still required to keep a proper lookout. The circuit court also appeared to assign great weight to Fisher’s deposition testimony that, based on his experience in responding to accidents, he did not expect to find a person who may have been ejected from a wrecked vehicle in the roadway. It is sufficient to say that the record contains no evidence that Wilma Kitchens mentioned anything about a person being ejected from a vehicle when she made the E-911 call, so what Fisher may not have expected to find in the roadway is irrelevant. However, it is relevant as to what he failed to see. It is inexplicable to me how one could be driving a fire truck down a highway with an unobstructed view of the road ahead and with lights on high beam but not see a person lying in the highway.

¶ 21. I am mindful of the high bar that the wrongful-death beneficiaries have to surmount at trial. It would not be enough to show that Fisher might have been guilty of simple negligence. However, at the summary judgment stage, the County was required to show that it was entitled to summary judgment because no genuine issue existed as to whether Fisher acted with reckless disregard of Russell’s safety. In my opinion, it failed to do so. For the reasons discussed, I dissent.

LEE, C.J., CARLTON AND RUSSELL, JJ„ JOIN THIS OPINION.


author: GRIFFIS, P.J., CARLTON, J.,

text:
    Bruce BRADLEY Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2010-KA-01480-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2013.
    Certiorari Denied March 21, 2013.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

MODIFIED OPINION ON MOTION FOR REHEARING

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

¶ 2. Bruce Bradley Sr. appeals his conviction for aggravated assault under Mississippi Code Annotated section 97-3-7(2) (Rev.2006). He claims that the circuit judge improperly denied his request for a mental evaluation to determine whether he was fit to stand trial. We find no error and affirm.

FACTS

¶ 3. Bradley attended the 2009 Roast and Boast, a local music and food festival held at the Lowndes County Fairgrounds. Drew Toler was also at the festival with a group of his coworkers and customers. Near the end of the evening, Toler and a couple of his friends went over to the stage to listen to the band.

¶ 4. Toler testified Bradley spun him around and accused him of stealing a beer from Bradley’s cooler. Toler claims he cooly responded that he had not stolen the beer. Then, Bradley punched Toler in the face while holding a beer can in his punching hand. Karen Smith and Keegan Hayes, two of Toler’s friends, corroborated Toler’s version of the incident.

¶ 5. Bradley testified Toler took a beer from Bradley’s cooler and left an empty can sitting on top of the cooler. When Bradley returned the empty can and asked Toler for his beer back, Toler attempted to stuff the empty can in Bradley’s shirt pocket. Bradley admitted he punched To-ler, but he insisted that there was no beer can in his hand when he hit Toler.

¶ 6. Dr. James Monroe, an emergency-room physician, testified he examined To-ler later that evening. Toler’s eye was severely swollen and bleeding. After conducting a CAT scan, he determined several bones around Toler’s eye were fractured. He referred Toler to a specialist, and Toler had surgery to repair those fractures.

¶ 7. Bradley was charged with aggravated assault. The case was initially set for trial on May 24, 2010, but was reassigned to a different circuit judge and continued until August 23, 2010. On that morning, Bradley’s attorney filed a petition to determine Bradley’s mental competency. The petition claimed that Bradley’s attorney had reasonable cause to believe Bradley might be so mentally incompetent he could not understand the proceedings against him or properly assist in his defense.

¶ 8. Bradley’s mother, Janice Gore, testified Bradley had been living with his girlfriend until about a week before trial, when he moved into a shed next to his grandmother’s house. Bradley’s mother said that dealing with him was like dealing with a child. She testified she took care of Bradley’s cooking, cleaning, and other household chores. But she said he could perform such tasks if he had a space to do so.

¶ 9. Bradley presented inadmissable evidence he was disabled due to mild mental retardation, obesity, sleep apnea, and hypertension. This evidence was an unspon-sored letter written by an attorney, who apparently had represented Bradley in proceedings to receive disability benefits. The letter noted Dr. James R. Lane determined Bradley had a full-scale IQ of 58, a verbal IQ of 63, and a performance IQ of 58. Dr. Lane found that Bradley was not able to maintain concentration or attention. The letter states Bradley received social promotions until the eleventh grade, and Bradley was fired from most of his jobs because he could not stay awake.

¶ 10. Wyatt Mills, the probation officer who conducted Bradley’s pre-sentence report, testified Bradley was able to communicate with him effectively. Bradley understood and answered the questions posed by Mills. Mills testified one of the questions he asked was whether Bradley had any physical or mental handicaps, and Bradley did not report any. The pre-sentence report showed that Bradley had no history of alcohol or drug abuse. Additionally, Bradley had been employed as both a truck driver and laborer.

¶ 11. Upon hearing this evidence, the circuit judge concluded that there was no indication that Bradley suffered from a mental defect that would cause him to be unable to understand that nature and consequences of the trial. There was no indication that he would not be able to assist in his defense. Therefore, the circuit judge denied the petition for a determination of mental competency.

¶ 12. Bradley proceeded to trial, and the jury found him guilty of aggravated assault. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with ten years to serve and ten years suspended. Bradley was further sentenced to five years of post-release supervision.

STANDARD OF REVIEW

¶ 13. Constitutional due process requires that a person accused of a crime may only be tried if he is legally competent. Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980). Uniform Rule of Circuit and County Court 9.06 requires a trial court to order a defendant to undergo a mental examination if, upon “its own motion or upon motion of an attorney, [the trial court] has reasonable ground to believe that the defendant is incompetent to stand trial[.]” The determination of whether a trial court has a “reasonable ground” to suspect incompetency is addressed to the discretion of the trial judge. Harden v. State, 59 So.3d 594, 601 (¶ 14) (Miss.2011).

¶ 14. The standard of review for an appellate court to determine if there was an abuse of discretion is whether “the trial judge received information which, objectively considered, should reasonably have raised a doubt about the defendant’s competence and alerted [the judge] to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.” Goff v. State, 14 So.3d 625, 644 (¶ 66) (Miss.2009) (quoting Conner v. State, 632 So.2d 1239, 1248 (Miss.1993)(overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss.1999)).

ANALYSIS

¶ 15. In this case, the circuit judge heard testimony showing Bradley had lived in the community, had worked at least part-time, and could take care of his basic needs. The circuit, court heard testimony that Bradley answered questions in his pre-sentence investigation that included whether he suffered any mental defect, and nothing indicated he was not competent to assist in his own defense or understand the nature of the proceedings and charges brought against him. The circuit judge characterized the evidence introduced to support the petition for a determination of Bradley’s mental capacity as “a letter ... from an attorney who I think kind of specialized in bankruptcy, for one thing, and also represent[ed] people before the Social Security Administration.”

¶ 16. The circuit judge also noted, “I don’t even have copies of these tests.” So, at the time the circuit judge was called upon to determine whether or not to order the competency evaluation, which counsel had not sought until the very day of trial, the only information he had before him was Bradley’s mother’s testimony that he functioned in society, but with difficulty, and an unsponsored letter that referenced intelligence scores from an unknown test.

¶ 17. While there is no precise statement of what quantum of evidence necessitates a trial judge to order a mental evaluation, the United States Supreme Court has explained “evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required.” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); see also Staten v. State, 989 So.2d 938, 946 (¶¶ 18-19) (Miss.Ct.App.2008). The record shows that when Bradley’s attorney moved for a competency hearing, the circuit judge had information that supported either granting or denying the motion. But, the circuit judge found, on balance, more information supported denying the motion.

¶ 18. Our review is limited to abuse of discretion. Harden, 59 So.3d at 601 (¶ 14). Mills testified Bradley was able to communicate effectively and did not report any mental disability when Mills asked if he had any such disability. Given the limited information the circuit judge had before him when he ruled on the motion for a competency evaluation, we do not find, he abused his discretion in denying it.

¶ 19. However, Uniform Rule of Circuit and County Court 9.06 provides a trial judge’s duty to order a competency evaluation extends into the trial itself, and if it becomes apparent during trial that a defendant may be incompetent, then an examination should be ordered. In this case, Bradley’s own testimony at trial showed the circuit judge was correct in determining Bradley was competent to aid his own defense and understand the nature of the charge against him. Bradley testified he had lived in Lowndes County for thirty-six years and fathered two children.

¶ 20. Bradley testified he purchased a ease of beer and put it in his cooler prior to attending the Roast and Boast. When he got to the Roast and Boast, he put his cooler at his “family’s booth.” Bradley testified he only struck the victim after the victim stole a beer from his cooler and provoked him by trying to place an empty beer can in his shirt pocket and laughing at him. Bradley referred to the incident at issue as “just a fight.”

¶ 21. On cross-examination, Bradley reiterated he only struck the victim with his fist, and denied using any “blunt object,” such as a “beer bottle,” to inflict the injuries to the victim’s eye socket. Further, Bradley was steadfast in claiming that the victim struck him in the eye with a fist, and he suffered a cut and black eye. The record shows Bradley understood the questions posed by his own attorney as well as the prosecutor and answered them fully and logically.

¶22. Bradley’s counsel asserts Bradley’s incompetence is shown by Bradley’s failure to disclose the name of a witness who Bradley testified was standing near his cooler at the Roast and Boast and who could have testified in support of Bradley’s contention that he was not the aggressor. Further, Bradley’s counsel argues Bradley did not disclose to him the name of an emergency medical technician (EMT) who treated injuries Bradley contended the victim inflicted upon him.

¶23. However, on cross-examination, the prosecutor called into question Bradley’s veracity by asking him why he had not disclosed these names. Bradley answered simply that he chose not to do so. This non-disclosure did not necessarily show incompetence. Rather, the cross-examination implied Bradley had invented fictional witnesses and testified falsely about what had occurred. The circuit judge is best suited to judge the demeanor of witnesses. Thus, nothing in the record shows the circuit court abused its discretion when it did not order a competency hearing. Therefore, there cannot be any error.

¶24. We find Bradley failed to show there was any reasonable ground to conclude he was not competent to stand trial, and the trial court did not abuse its discretion in denying the petition to determine competency. Thus, Bradley’s assignment of error is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE, TEN YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 26. I respectfully dissent. I submit this dissent due to the following constitutional concerns in this case: (1) the violation of procedural due process by the denial of Bradley’s request for access to the State’s procedures for a psychiatric examination upon raising a reasonable question of his competency to stand trial, and (2) Bradley and his counsel presented sufficient evidence to satisfy his burden of proof to raise a reasonable question as to his legal competency to stand trial, and his ability to understand the proceedings and rationally assist in making his defense.

I. Constitutional Right to Not Be Tried While Legally Incompetent and Procedural Due Process

¶ 27. To satisfy constitutional procedural-due-process obligations, this case should be remanded with directions for the trial court to order a mental examination in accordance with Uniform Rule of Circuit and County Court 9.06, since the overwhelming weight of the evidence in the record before the trial court shows Bradley raised reasonable grounds to question his competence to stand trial. The Mississippi Supreme Court in McGinnis v. State, 241 Miss. 888, 891, 133 So.2d 399, 401 (1961), previously addressed this issue in holding that compliance with due process required that, before trial, an inquiry must be made into the question of whether the defendant’s mental condition makes it impossible for him to conduct a rational defense. See also Miss. Code Ann. § 99-13-11 (Rev.2007); Medina v. California, 505 U.S. 437, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992); Patton v. State, 34 So.3d 563, 571-72 (¶¶ 24-25) (Miss.2010) (supreme court requires enforcement with judicial rules promulgated by supreme court pursuant to its constitutional authority); Sanders v. State, 9 So.3d 1132, 1136 (¶¶ 14-16) (Miss.2009) (competency hearing required if sufficient doubt raised about defendant’s competency).

¶ 28. In reviewing the denial by the trial court of Bradley’s request for access to a pretrial mental examination of his legal competency, we must recognize the demands of procedural due process as explained by the United States Supreme Court in Medina, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353, in regards to state criminal proceedings. The Supreme Court explained there that constitutional procedural due process required a state to comply with its own procedures set forth in its own criminal laws to ensure fairness in state court proceedings. Id. at 450-51, 112 S.Ct. 2572. The Medina Court recognized that criminal defendants possess a constitutional right to not be tried while legally incompetent. Id. at 449, 112 S.Ct. 2572. In order to comply with procedural due process, states must provide a defendant with access to the state’s procedures for making a competency evaluation upon presentation of reasonable grounds to question the defendant’s competency. See id. The Supreme Court explained that states must comply with their obligation to provide a defendant access to procedures, as defined by the particular state, for evaluating competency, even though the defendant bears the burden of proving a lack of legal competency after undergoing a mental evaluation. See id. State statutes requiring a mental evaluation by a medical expert reflect legislative deliberation in enacting laws to regulate the subject of expert evidence in determining legal competency in criminal trials. State statutes requiring mental evaluations upon a sufficient showing provide the court with expert medical evidence from an impartial expert witness with no interest in the proceeding and no allegiance to either side of the controversy.

¶ 29. The rules promulgated by the Mississippi Supreme Court, as set forth in the Uniform Rules of Circuit and County Court, like Medina, require compliance with judicial rules and applicable state and federal criminal laws to ensure fairness in the proceedings. The supreme court in Patton specifically addressed enforcement of judicial rules, such as Rule 9.06, acknowledging that “the bench and bar” were entitled to rely on such enforcement by the judiciary. Patton, 34 So.3d at 572 (¶ 25). In Patton, the court acknowledged its previous precedent set forth in Sanders, 9 So.3d at 1136-39 (¶¶ 14-26), where the supreme court held that a trial court must conduct a competency hearing on a defendant’s motion, or sua sponte, if there is sufficient doubt about the defendant’s competency. See Patton, 34 So.3d at 571 (¶ 24). The supreme court further stated that trial courts possess a duty to comply with the judicial rules promulgated by the Mississippi Supreme Court using its constitutional powers. Id. at 572 (¶¶ 25-26).

¶ 30. This case addresses the failure of the trial court to grant the defense’s request for a mental examination by a psychiatrist in accordance with Rule 9.06. Jurisprudence reflects that the supreme court distinguishes between the mental examination and the on-the-record competency hearing. The mental examination provides the court with expert medical evidence to assist the court in determining the defendant’s competency to stand trial. In Sanders, 9 So.3d at 1136 (¶¶ 15-16), the trial court granted the defense’s motion for a mental examination. However, upon conclusion of the mental examination, the trial court failed to provide a definitive on-the-record finding of competence, and the trial court held no competency hearing on the record. Therefore, the supreme court reversed and remanded for a new trial. Both Rule 9.06 and section 99-13-11 require a mental examination when the defendant’s competence is reasonably in question. Once the trial court receives evidence from any source raising a reasonable ground to believe the defendant lacks competence to stand trial, then the court is required to order a mental examination. URCCC 9.06; Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

¶31. In McGinnis, 241 Miss. at 892, 133 So.2d at 402, the Mississippi Supreme Court found that the affidavit of the defendant’s attorneys sufficiently established a prima facie showing since the defendant’s attorneys stated in the affidavit that the defendant was incapable of conferring with his attorneys or making a rational defense. The attestation of Bradley’s counsel in this case, like the attorneys’ affidavit in McGinnis, established a prima facie showing that Bradley’s counsel had reasonable cause to question Bradley’s legal competence to stand trial, particularly in light of the additional evidence regarding Bradley’s disability.records, his full-scale IQ of 58, and the testimony of Gore as to her son’s lack of mental capacity.

¶ 32. In sum, our precedent establishes that constitutional procedural due process requires that the State provide the defendant access to the procedures for conducting a mental examination by a medical professional as set forth in Rule 9.06 upon presentation of reasonable grounds. Neither Rule 9.06, as promulgated by the Mississippi Supreme Court, nor section 99-13-11, allows the trial court to forego state-defined procedures for conducting a mental examination upon a showing of reasonable grounds to question the defendant’s competency. In light of the overwhelming evidence presented, significantly including the petition’s attestation by Bradley’s attorneys, I submit that the trial court erred in denying Bradley a mental examination finding that Bradley failed to show reasonable grounds to question his competency. Moreover, the trial court’s denial of the mental examination violated the demands of constitutional procedural due process to ensure fairness in the proceedings by failing to follow state procedures for the mental evaluation of the defendant by a medical expert to aid the court in determining the defendant’s legal competence to stand trial when reasonably in question. Martin v. State, 871 So.2d 693, 697 (¶ 17) (Miss.2004) (key consideration is whether trial court possessed reasonable grounds).

¶ 33. The standard for competence to stand trial is whether the defendant possesses “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and possesses a “rational as well as factual understanding of the proceedings against him.” Martin, 871 So.2d at 697-98 (¶ 17) (quoting Dusky, 362 U.S. at 402, 80 S.Ct. 788).

¶ 34. In Howard v. State, 701 So.2d 274, 280 (Miss.1997) (abrogated on other grounds) (citations omitted), the supreme court explained that the four-part test for competency to stand trial mandates that a defendant is one:

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

¶ 35. Rule 9.06 further establishes that:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with [section] 99-13-11 of the Mississippi Code Annotated[.]
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial.

¶ 36. “[T]o warrant a mental evaluation, the trial court must find from the evidence that there is a probability, not a mere possibility, that the defendant is incapable of making a rational defense.” Staten v. State, 989 So.2d 938, 946 (¶ 18) (Miss.Ct.App.2008) (citing Richardson v. State, 767 So.2d 195, 203 (¶ 41) (Miss.2000)). An appellate court “will affirm the trial court’s finding that the evidence does not show a probability that the defendant is capable of making a rational defense unless the decision is against the overwhelming weight of the evidence.” Id. (footnote added). In this case, a review of the record shows that the trial court decision was against the overwhelming weight of the evidence. This dissent now addresses the overwhelming evidence raising reasonable grounds to question Bradley’s legal competence sufficient to warrant a mental examination in accordance with section 99-13-11 and Rule 9.06.

II. Appellant Presented Sufficient Evidence to Raise Reasonable Question as to his Legal Competence to Stand Trial

¶ 37. In this case, the record reflects that on August 23, 2010, the day of trial, Bradley’s counsel filed a petition to determine Bradley’s mental competency. The petition alleged that Bradley was mentally retarded and lacked legal competency. Like the affidavit of counsel in McGinnis, 241 Miss. at 892, 133 So.2d at 402, Bradley’s counsel provided in the petition that he possessed reasonable cause to question Bradley’s competency to stand trial. The supreme court in McGinnis determined that the affidavit of defense counsel established a prima facie showing sufficient to raise a reasonable question as to the defendant’s legal competence. Id.

¶ 38. Additionally, Bradley’s counsel submitted a letter from R. Gawyn Mitchell, a disability appeals lawyer, which contained a summary of Bradley’s disability record reflecting that Bradley displayed mild retardation with a full-scale IQ of 58, and suffered from sleep apnea, obesity, and hypertension. The letter reflected Bradley possessed second-grade-level arithmetic skills.

¶ 39. Janice Gore, Bradley's mother, also testified regarding Bradley’s legal competence. Gore testified that Bradley depended upon her for shelter, food, and medical support. Gore further testified as to Bradley’s childlike mind, and she stated her belief that Bradley was incapable of working with an attorney to defend himself. Gore explained that Bradley lacked the ability to distinguish when people are telling the truth or doing things that are not in his best interest. She testified that she talked to Bradley about the upcoming trial. Gore explained in her testimony that she did not think Bradley understood the severity of the trial and the potential jail sentence.

¶ 40. The trial court also heard testimony from Mills, Bradley’s prior probation officer, who prepared a pre-sentence investigation report. After hearing testimony from all of the witnesses, the trial court found Bradley competent to stand trial, and the court proceeded with the trial without granting the mental examination by a psychiatrist or psychologist.

¶ 41. The majority cites Harden v. State, 59 So.3d 594 (Miss.2011), to support its finding of no abuse of discretion in the trial court’s denial of Bradley’s request for a mental examination. However, the facts in Harden relative to legal mental competence differ from the facts of the instant case. In Harden, the defense counsel filed no motion for a mental evaluation until after the trial court had rejected Harden’s guilty plea. Id. at 602-03 (¶¶ 17-18). The standard for legal competence is the same for the entry of a guilty plea as that required to stand trial. Dillon v. State, 75 So.3d 1045, 1051 (¶ 18) (Miss.Ct.App.2010). In contrast to the case before us, in Harden, the defense counsel filed no affidavit attesting to any concern of competence, and competence only arose as an issue after rejection of Harden’s plea by the court. Harden, 59 So.3d at 602 (¶ 17).

¶ 42. During Harden’s plea colloquy, Harden claimed he lacked the ability to understand some of the terminology or concepts in the plea petition, but the trial court found Harden only illustrated difficulty understanding issues unfavorable to him. Id. at 602-03 (¶ 18). The trial court also held that Harden failed to provide the court any evidence of his mental state other than his in-court comments and tape-recorded confession. Id. at 603 (1Í18).

¶ 43. In contrast to the Harden case, Bradley’s counsel stated in the petition for a mental examination filed below that he possessed reasonable cause to question Bradley’s competence to stand trial. As stated, the trial court heard further testimony from Bradley’s mother regarding Bradley’s inability to distinguish truth or understand the nature of the proceedings, as well as Bradley’s childlike behavior. The record reflects more than sufficient reasonable grounds to question Bradley’s legal competence based upon the following: the attestation of Bradley’s counsel in the petition to the court for a mental examination; the summary of Bradley’s disability record showing a full-scale IQ of 58; and the testimony of Bradley’s mother attesting to Bradley’s lack of mental competency impacting his ability to understand the nature of the proceedings.

¶ 44. The court in Harden employed no new or unfamiliar standard of review in its analysis. The Harden court relied upon Rule 9.06. Harden, 59 So.3d at 601 (¶ 14). The Harden decision provided that:

[o]n review, the pertinent question is whether the trial judge received information which, objectively considered, should reasonably have raised a doubt about [the] defendant’s competence and alerted [the judge] to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.

Id. (citations and quotation marks omitted). The Harden court cited the same authority used in this dissent: Lokos, 625 F.2d at 1261.

¶ 45. Based upon the foregoing, I respectfully submit that the record reflects sufficient evidence was presented to the trial judge objectively raising a reasonable question as to Bradley’s competency to stand trial; thus, the trial judge’s denial of the defense’s request for a mental evaluation was against the overwhelming weight of the evidence. To determine legal competency, the trial judge possesses a duty, pursuant to Rule 9.06, to order the mental examination. Therefore, I respectfully dissent from the opinion of the majority.

        . See Emanuel v. State, 412 So.2d 1187, 1188-89 (Miss.1982)(The supreme court announced the procedure to be utilized where there is a serious question about an accused’s sanity or competency to stand trial. The trial court heard medical testimony from two psychiatrists and one psychologist, all finding the defendant legally competent. The trial court found the defendant failed to meet his burden and submitted the issue to the jury during trial); Richardson v. State, 767 So.2d 195, 203 (¶ 41) (Miss.2000) (acknowledging that procedures set forth in Emanuel had been approved by the U.S. Supreme Court, citing Evans v. State, 725 So.2d 613, 660 (Miss.1997)).

      . The Court in Medina acknowledged a significant difference between a claim of legal incompetency and a claim of not guilty by reason of insanity.

      . See Tarrants v. State, 236 So.2d 360, 364 (Miss.1970).

      . Sanders, 9 So.3d at 1136 (¶¶ 14-16), 1139 (¶ 26) (reversed and remanded for a new trial where trial court ordered mental examination, but upon completion, trial court failed to make an on-the-record finding of competency); Coleman v. State, - So.3d -, - - (¶¶ 12-13) (Miss.Ct.App.2012)(mental examination ordered by trial court conducted by two psychologists and a psychiatrist; on appeal, no error found in the trial court’s denial of the defense's request for a full competency hearing where trial court provided on-the-record finding of competence supported by the mental-examination conclusions).

      . See McGinnis v. State, 241 Miss. 883, 893, 133 So.2d 399, 402 (1961).

      . Patton, 34 So.3d at 572 (¶ 25).

      . See URCCC 9.06; Miss.Code Ann. § 99-13-11. Both Rule 9.06 and section 99-13-11 require a mental examination when the defendant's competence is reasonably in question.

      . Rule 9.06 provides a trial court "shall” order a psychiatric evaluation if the court has reasonable grounds to believe the defendant is incompetent to stand trial. Section 99-13-11 provides the circuit court may order a mental examination by a competent psychiatrist or psychologist when "the mental condition of a person indicted for a felony is in question.”

      .Section 99-13-11 provides:
      In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or judge, may order such person to submit to a mental examination by a competent psychiatrist or psychologist selected by the court to determine his ability to make a defense; provided, however, any cost or expense in connection with such mental examination shall be paid by the county in which such criminal action is pending.

      . Rule 9.06 now requires a competency hearing when a court orders a mental evaluation. However, prior to the supreme court promulgating this rule, the order of a mental evaluation did not automatically trigger a mandatory competency hearing. In Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980), the United States Court of Appeals for the Fifth Circuit suggested the following test for reviewing a decision to forego a competency hearing:
      Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about [the] defendant's competenc[y] and alerted him to the possibility that the defendant could neither understand the proceedings[,] appreciate their significance, nor rationally aid his attorney in his defense?

      . The case presently before us concerns whether the trial court erred in denying the defense’s request for a mental exam by the identified medical expert. This case differs from cases where the trial court indeed ordered a mental examination and later denied a request for a competency hearing in court, when the mental examination reflected no basis to question legal competence.

      . The record also shows that on the morning of trial, the senior judge in that district asked the trial judge to handle this case.