author: WALLER, Chief Justice, for the Court: KING, Justice,

text:
    In Interest of R.J.M.B., a minor: Cirila Baltazar Cruz v. Jackson County Department of Human Services.
    No. 2010-CA-01119-SCT.
    Supreme Court of Mississippi.
    May 23, 2013.

      Monica Ramirez, Michelle R. Lapointe, Vanessa Judith Carroll, Amanda Jane Proctor, William R. Wright, Jackson, attorneys for appellant.
    Courtney A. Schloemer, M. Earl Scales, Jackson, Kurt Steven Saul, Jr., attorneys for appellee.
   WALLER, Chief Justice, for the Court:

¶ 1. After being separated from her newborn infant for more than a year, Cirila Baltazar Cruz received an award of full legal and physical custody of her child from the Youth Court of Jackson County. The youth court further ordered that its proceedings and records remain confidential and that those present at the final hearing refrain from speaking to the media about the case. We find that the youth court did not abuse its discretion in ordering that the youth-court records remain confidential; however, the youth court failed to apply the proper legal standard when it issued the gag order. Therefore, we affirm in part and reverse and render in part.

FACTS

¶ 2. Cirila Baltazar Cruz is from Oaxaca, Mexico. Her native language is Chatino. The Chatino language predates European arrival in the New World and is spoken by less than 40,000 people in the world. Other than Chatino, Cruz speaks a very limited amount of Spanish and almost no English.

¶ 3. On November 16, 2008, Cruz gave birth to Baby Doe at Singing River Hospital in Pascagoula, Mississippi. During her hospital stay, Cruz tried to communicate with medical personnel through a Spanish interpreter. The interpreter understood Cruz to have said several alarming things. She purportedly said that her husband had abandoned her; that she was living with an Asian woman and the Asian woman’s sixteen-year-old daughter; that she was having sex in exchange for rent; and that she might put her newborn child up for adoption. Cruz’s statements, it turned out, had been misinterpreted. Nevertheless, based on this information, the hospital contacted the Jackson County Department of Human Services (JCDHS).

¶ 4. A JCDHS social worker and an interpreter contacted Cruz at the hospital. During their interview with her, they understood Cruz to reiterate what she had told hospital personnel. Following this interview, the JCDHS social worker filed a minor’s complaint report. On November 18, 2008, the Youth Court of Jackson County ordered that Baby Doe be taken into the custody of JCDHS.

¶ 5. Cruz did not regain physical custody of Baby Doe until one year later, on November 19, 2009. She did not receive full legal and physical custody until March 5, 2010.

¶ 6. At the final hearing, the youth court stated that it wanted its final order to reflect that the proceedings were to remain confidential. The court added that it did not want anyone present at the hearing to talk to the press about the matter. Cruz, at that point, reserved her objection to any continuation of confidentiality.

¶ 7. Weeks later, on March 23, 2010, the youth court entered an order of confidentiality. The order stated, in pertinent part, that:

ON THIS THE 19th DAY OF February, 2010 THIS MATTER comes before the Court Ex mero motu and the Court finds that [Baby Doe] is under the jurisdiction of this Court and that venue is proper; and further upon considering the nature of the proceedings, the welfare, safety and best interest of [Baby Doe], that there is no legitimate interest in allowing public access to these proceedings and that this Youth Court ease and all proceedings heard herein shall remain confidential pursuant to U.R.Y.C.P. 5(b) and Miss.Code Ann. 43-21-261, and further this Court Orders that no one in the hearing this date shall disclose information concerning this case to the Media.

Cruz responded by filing a motion to alter or amend the judgment under Rule 59(e) of the Mississippi Rules of Civil Procedure. She requested that the order of confidentiality be set aside: She wanted to be able to discuss the case publicly and to share documents and transcripts from the proceedings. The youth court denied her motion. The court said that none of the parties had objected to the confidentiality order and found that it was not in Baby Doe’s best interest to set aside that order absent some reason under Section 43-21-261 of the Mississippi Code.

¶ 8. Cruz now requests that this Court vacate the confidentiality order.

DISCUSSION

¶9. To succeed on a Rule 59(e) motion, the movant must show: “(i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229, 233 (Miss.2004) (citing Bang v. Pittman, 749 So.2d 47, 52-53 (Miss.1999), overruled on other grounds by Cross Creek Prod. v. Scafidi, 911 So.2d 958, 960 (Miss.2005)). A trial court’s denial of a Rule 59(e) motion is reviewed under an abuse-of-discretion standard. Roberts, 882 So.2d at 233 (citing Bang, 749 So.2d at 52).

¶ 10. The youth court’s confidentiality order had two effects. First, it required that Doe’s youth-court records remain confidential. Second, it prohibited those present at the final hearing from speaking to the media about the case. Cruz argues that she either waived record confidentiality, or that it is now moot. Further, she contends that the order’s speech restriction violated her First Amendment rights.

I. Record confidentiality neither has been waived, nor is it moot.

A. Youth-court records are confidential under Mississippi law.

¶ 11. Youth-court records include the general docket, papers, pleadings, social records, the minute book, proceedings, evidence, and any information obtained by the youth court from the Administrative Office of Courts. Miss.Code Ann. § 43-21-251 (l)(a)-(f) (Rev.2009). These records “and the contents thereof shall be kept confidential and shall not be disclosed except as provided in Section 43-21-261.” Miss.Code Ann. § 43-21-251(2) (Rev.2009).

¶ 12. Section 43-21-261 governs the disclosure of youth-court records. Miss. Code Ann. § 43-21-261 (Rev.2009). This statute provides that “[r]ecords involving children shall not be disclosed, ... except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure.” Miss.Code Ann. § 43-21-261(1) (Rev.2009). Orders for disclosure, furthermore, must be “limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court.” Id.

¶ 13. Even when the youth court determines that disclosure is warranted, the information can be provided only to certain persons or agencies. Miss.Code Ann. § 43-21-261(l)(a)-(g) (Rev.2009). The minor, the minor’s parents, and the parents’ attorney also have the right to copy and/or inspect youth-court records. Miss.Code Ann. § 43 — 21—261(3)—(4) (Rev.2009). Once disclosed, the person or agency must keep the records confidential unless the youth court’s order allows otherwise. Miss.Code Ann. § 43-21-261(2) (Rev.2009).

¶ 14. None of Section 43-21-261’s exceptions apply here. Essentially then, the youth court’s order that Baby Doe’s youth-court records remain confidential was redundant. Her records would have remained confidential regardless, unless the youth court had ordered otherwise.

B. Cruz has not waived record confidentiality.

¶ 15. Cruz argues that the confidentiality of youth-court records may be waived and asserts two reasons why a waiver is proper here. First, Cruz asserts that she, as Baby Doe’s parent, has the constitutional right to direct the upbringing of her daughter. This includes, she argues, the right to waive record confidentiality if she determines that such a waiver is in her daughter’s best interest. Second, Cruz contends that she waived record confidentiality by filing a civil suit in federal district court over JCDHS’s handling of the custody matter.

1. Cruz does not have a parental right to expressly waive the confidentiality of Baby Doe’s youth-court records.

¶ 16. Cruz argues that she has a parental right to waive the confidentiality of Baby Doe’s youth-court records. Yet, the cases she cites as support — Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) — are unpersuasive. In Pierce, the United States Supreme Court held that an Oregon law requiring children ages eight to ten to attend public schools “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Pierce, 268 U.S. at 529, 534-35, 45 S.Ct. 571. In Meyer, the Court struck down a Nebraska law requiring every subject to be taught in English and forbidding the teaching of any language except English before the eighth grade. Meyer, 262 U.S. at 400, 43 S.Ct. 625. While Pierce and Meyer affirm parents’ rights to direct and control the upbringing and education of their children, neither supports that this right includes a right to waive the confidentiality of their child’s youth-court records.

¶ 17. Cruz cannot waive the confidentiality of Baby Doe’s youth-court records just because she is Doe’s parent and wishes to do so. Under Section 43-21-261(1), a youth court can disclose youth-court records only if it determines that “disclosure is required for the best interests of the child, the public safety or the functioning of the youth court....” Miss. Code Ann. § 43-21-261(1) (Rev.2009). Anyone seeking disclosure under Section 43-21-261(1), including a parent, must prove one of these conditions. Parental status alone is not sufficient.

2. Cruz did not waive confidentiality by filing a related civil suit.

¶ 18. Cruz also argues that confidentiality has been waived as a result of pending civil litigation in federal district court. On December 30, 2010, the United States District Court for the Southern District of Mississippi ordered that Cruz’s complaint be unsealed. It did so “[i]n light of the presumption that court filings should be publicly available ... and [Cruz’s] willingness to waive the confidentiality provisions of Miss.Code Ann. § 43-21-261.... ” The district court further ordered that any future filings containing information from Baby Doe’s youth-court proceedings and any records from the Mississippi Department of Human Services be part of the public record.

¶ 19. Cruz points to this Court’s decision in Daniels by Glass v. Wal-Mart Stores, Inc., 634 So.2d 88 (Miss.1993), as support that record confidentiality is lifted whenever a related civil action is filed. In that case, Daniels, a minor, filed suit against Walmart, alleging that one of its security guards had slandered, assaulted, and battered him. Daniels, 634 So.2d at 89-90. Daniels’s scuffle with the security guard caused him to be adjudicated a delinquent in youth court. Id. at 91. The youth court released its delinquency order to the circuit court, which enabled Wal-mart to introduce evidence from Daniel’s youth-court proceedings at trial. Id. at 91-93. This Court held that the youth court had authority to release the delinquency order and that it had not erred in allowing evidence from Daniels’s delinquency proceedings to be released for the civil trial. Id. at 91-93. The Court explained that “[t]he right of ‘confidentiality’ on behalf of the child is a ‘qualified’ and not an ‘absolute’ privilege.” Id. at 93 (quoting Ex Parte State Farm Fire & Cas. Co., 529 So.2d 975, 977 (Ala.1988)). By initiating a slander suit, Daniels had “lifted the veil of confidentiality.” Daniels, 634 So.2d at 93. Since truth is a defense to slander, Daniels could not have filed suit and expected to present an incomplete picture of the “Walmart incident” to the court. Id.

¶ 20. We hold that Daniels does not support the proposition that record confidentiality is waived completely whenever a related civil suit is filed. “Daniels stands only for the narrow proposition that a juvenile adjudication is admissible on the issue of character where that trait is at issue, such as, for example, in a slander suit.” Sample v. State, 643 So.2d 524, 528 n. 1 (Miss.1994). The youth-court order in Daniels specifically authorized the release of the delinquency adjudication to the circuit court to allow Walmart to present a complete picture of the incident to the jury, subject to the court’s discretion. Daniels, 634 So.2d at 91. The disclosure in Daniels, therefore, was limited for the purposes of the related civil litigation. Id. Though Cruz effectively has waived record confidentiality for the purposes of the related civil litigation, as the defendant did in Daniels, we find that the waiver does not extend beyond that scope. Any documents that are not made part of the record in Cruz’s federal civil suit will remain confidential under Mississippi law.

C. Record confidentiality is not moot.

¶ 21. Cruz argues that record confidentiality is practically moot now, because many youth-court records are now publicly available through the numerous filings in the federal case.

¶ 22. This Court has stated that it will not consider an issue that “has become moot or academic, or if an event has occurred which makes a determination of it unnecessary, or renders it impossible for an appellate court to grant effectual relief.” Orgill Bros. & Co. v. Roddy, 227 Miss. 291, 298, 86 So.2d 37, 39 (1956) (citation omitted).

¶ 23. Although the unsealing of Cruz’s complaint in federal court resulted in a limited release of confidential documents, record confidentiality as to most of the other records is still in force. In fact, record confidentiality still applies to 328 of the 354 youth-court documents, and three of the five youth-court exhibits. Many of the documents that remain sealed are substantive in nature, such as MDHS’s various child/adult abuse/neglect intake forms, Reports of Suspected Abused/Neglected Child, MDHS Current Status Reports from November 2009 to February 2010, MDHS reports to the youth court from February 2010, transcripts of hearings in November 2009 and February 2010, and a Guardian Ad Litem report, as well as the parties’ various motions and legal memo-randa filed in youth court. Discovery is not complete, however. The federal-litigation process still can serve as a protective filter if the need arises. For example, once unsealed, the federal court in its discretion may reseal certain records or portions thereof.

¶ 24. We decline to hold that record confidentiality is now moot. If record confidentiality were deemed moot, Cruz conceivably could publish and disseminate the youth-court records as she wishes. Under the current circumstances, Section 43-21-261 still has the effect of limiting the pub-lie’s ability to view, copy, or otherwise disseminate the youth-court records for any other reason.

¶ 25. In sum, we find that record confidentiality has not been waived and is not moot. Cruz cannot expressly waive record confidentiality just because she is a parent, and she did not waive such confidentiality by filing a related suit in federal court. The federal court still could determine that certain youth-court records should be sealed or resealed. The majority of the youth court’s record remains confidential. Therefore, the youth court did not abuse its discretion by ordering that the youth-court records remain sealed.

II. The youth court did not conduct a proper inquiry concerning the First Amendment implications of the gag order.

¶ 26. Cruz argues that, due to the unsealing of the federal litigation, the only part of the youth court’s order that remains intact is the speech restriction. She contends that the speech restriction was an unconstitutional, prior restraint on free speech in violation of the First Amendment to the United States Constitution. She asserts that the State has not shown any compelling governmental interest to justify the restriction and that, even if it has, the restriction was not narrowly tailored or the least restrictive means of protecting such interest. Cruz insists that the State’s only two possible interests are: (1) to prevent the disclosure of embarrassing revelations about government misconduct or (2) to protect the government’s own perception of what is in Baby Doe’s best interest. Constitutional challenges are issues of law and are reviewed de novo. Deeds v. State, 27 So.3d 1135, 1141 (Miss.2009) (citing Thoms v. Thoms, 928 So.2d 852, 855 (Miss.2006)).

¶ 27. The State argues that we should not entertain Cruz’s First Amendment arguments; to do so, it argues, would allow Cruz to challenge improperly the constitutionality of a Mississippi statute and a rule of court. We must first note that Cruz is not challenging the constitutionality of any statute or rule. Rather, she is challenging the constitutionality of that portion of the youth court’s order that prevented her and other hearing participants from speaking to the media. Alternatively, the State argues that First Amendment rights are not absolute but must be balanced against other interests. The other interests here are the need to protect the integrity of youth-court proceedings and Baby Doe’s rights to privacy and due process.

¶ 28. The First Amendment to the United States Constitution states that “Congress shall make no law ... abridging the freedom of speech.... ” U.S. Const. amend. I. Freedom of speech “is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556, 96 S.Ct. 2791, 2801, 49 L.Ed.2d 683 (1976) (quoting Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931)). First Amendment freedoms are not absolute, however; they must be “ ‘applied in light of the special characteristics of the [relevant] environment.’ ” U.S. v. Brown, 218 F.3d 415, 424 (5th Cir.2000) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)). Thus, even though ‘“litigants do not ‘surrender their First Amendment rights at the courthouse door,’ those rights may be subordinated to other interests that arise in the context of ... trials.’ ” Brown, 218 F.3d at 424 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 2207-08 n. 18, 81 L.Ed.2d 17 (1984)).

¶ 29. Gag orders — “order[s] directing parties, attorneys, witnesses, or journalists to refrain from publicly discussing the facts of a case” — resemble prior restraints on speech. Brown, 218 F.3d at 424 (citing In re Dow Jones, 842 F.2d 603, 609 (2d Cir.1988)). A prior restraint occurs when government suppresses speech based on its content before the speech is uttered. In re G. & A. Books, Inc., 770 F.2d 288, 296 (2d Cir.1985); see also Lawson v. Murray, 515 U.S. 1110, 1113, 115 S.Ct. 2264, 132 L.Ed.2d 269 (1995) (Scalia, J., concurring) (stating that “[a]ll speech-restricting injunctions are prior restraints in the literal sense of “ ‘administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur ....”’”) (citations omitted). Generally, there is a “ ‘heavy presumption’ ” against the constitutionality of prior restraints on speech. Nebraska Press Ass’n, 427 U.S. at 558, 96 S.Ct. 2791 (citing Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968)). See also, Id. at 559, 96 S.Ct. 2791 (finding that prior restraints on speech are “the most serious and the least tolerable infringement on First Amendment rights.”)). Thus, the State must show that the speech it seeks to restrict poses a threat to an important government interest. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054, 111 S.Ct. 2720, 2734, 115 L.Ed.2d 888 (1991).

¶ 30. Typically, such restraints are directed at the press and are upheld “only if the government can establish that ‘the ae-tivity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest.’ ” Brown, 218 F.3d at 425 (quoting Levine v. United States District Court, 764 F.2d 590, 595 (9th Cir.1985)). Further, the government must “establish that the order has been narrowly drawn and is the least restrictive means available.” Brown, 218 F.3d at 425 (citing Levine, 764 F.2d at 595). However, courts apply different standards when reviewing gag orders directed at trial participants. The United States Courts of Appeals for the Sixth, Seventh, and Ninth Circuits have applied some form of the “clear-and-present-danger” test articulated above. Brown, 218 F.3d at 427 (citing United States v. Ford, 830 F.2d 596, 600-02 (6th Cir.1987); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir.1975), cert. denied sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); Levine, 764 F.2d at 596). But the Fourth, Fifth, and Tenth Circuits have adopted a less stringent standard; those courts have held that a trial court may restrain extrajudicial comments by trial participants if the comments present a “reasonable” or “substantial” likelihood of prejudicing a fair trial. Brown, 218 F.3d at 427-28 (citing In re Russell, 726 F.2d 1007,1010 (4th Cir.1984); United States v. Tijerina, 412 F.2d 661, 666-67 (10th Cir.1969)).

¶ 31. In Gentile v. State Bar of Nevada, a majority of the Supreme Court stated that its prior precedent “‘rather plainly indicate[d] that the speech of lawyers representing clients in pending eases may be regulated under a less demanding standard than that established for regulation of the press....’” Brown, 218 F.3d at 426 (quoting Gentile, 111 S.Ct. at 2744). Thus, the Court “found that demonstrating a ‘substantial likelihood of material prejudice’ from an attorney’s extrajudicial comments, ... as opposed to a ‘clear and present danger,’ was constitutionally sufficient to justify prescribing [sic] attorney comments of that type.” Brown, 218 F.3d at 426 (citing Gentile, 111 S.Ct. at 2745). Yet, the Gentile Court approved only Nebraska’s “substantial likelihood” standard as applied to gag orders directed at attorneys; the Court did not articulate a standard for evaluating gag orders directed at attorney and nonattorney trial participants. Brown, 218 F.3d at 426.

¶ 32. In Brown, the United States Court of Appeals for the Fifth Circuit considered the constitutionality of a lower court’s gag order that essentially prohibited the attorneys, parties, and witnesses from discussing the case with the media. Brown, 218 F.3d at 418, 423. The court adopted an approach less stringent than the clear-and-present-danger test for two reasons. Id. at 427. First, it noted that the cases that had endorsed some form of the clear-and-present-danger test all had predated the Supreme Court’s decision in Gentile. Id. Second, it explained that the clear-and-present-danger standard was aimed at “protecting the unique role of the press as the public’s ‘eyes and ears’ into the criminal justice system ....”; those concerns are not as acute, however, when the restriction is directed at trial participants. Id. (citations omitted). The Fifth Circuit thus stated the applicable standard as follows:

[W]e conclude that in light of Gentile, clear and present danger cannot be the appropriate standard by which we evaluate gag orders imposed on trial participants. Instead, the standard must require a lesser showing of potential prejudice. If the district court determines that there is a substantial likelihood (or perhaps even merely a reasonable likelihood, a matter we do not reach) that extrajudicial commentary by trial participants will undermine a fair trial, then it may impose a gag order on the participants, as long as the order is also narrowly tailored and the least restrictive means available. This standard applies to both lawyers and parties, at least where the court’s overriding interest is in preserving a fair trial and the potential prejudice caused by extrajudicial commentary does not significantly depend on the status of the speaker as a lawyer or party.

Brown, 218 F.3d at 428 (emphasis added).

¶ 33. The Fifth Circuit’s reasoning for adopting the less stringent substantial-likelihood-of-harm test in Brown is not helpful in this particular case. The governmental interest at stake in Brown, maintaining integrity and fairness in judicial proceedings, is not implicated here. Baby Doe’s youth-court proceeding has concluded, so there is no threat that the trial’s integrity could be tainted by extrajudicial communication.

¶ 34. As such, the substantial-likelihood-of-harm test from Brown imper-missibly burdens Cruz’s right to free speech in this case, and the clear-and-present-danger test applies. Indeed, other states have applied similar tests when reviewing gag orders imposed on youth-court participants. See, e.g., In re T.T., 18 Neb. App. 176, 779 N.W.2d 602, 614-621 (2009) (applying “imminence and magnitude of danger” test on review of a youth-court gag order); State ex rel L.M., 37 P.3d 1188, 1193-96 (Utah App.2001) (vacating youth-court gag order from concluded proceeding after finding the youth court failed to identify the “imminence and magnitude of the danger” caused by disclosure); In re J.S., 267 Ill.App.3d 145, 204 Ill.Dec. 30, 640 N.E.2d 1379, 1382 (1994) (holding that a prior restraint on speech, to be valid, must be necessary to “obviate a ‘serious and imminent’ threat of impending harm”). This test is better suited to weigh the alleged governmental interests at stake against a right that serves as “the core of the First Amendment”: Cruz’s and her daughter’s right to speak out about alleged government misconduct. See Butterworth v. Smith, 494 U.S. 624, 632, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990). For a restraint on such speech to prevail, the State must present a need to further “a state interest of the highest order.” Id. To overcome the presumption of invalidity, the trial court must determine: “(1) whether publication would result in damage to a ‘near sacred right,’ (2) whether the prior restraint would be effective and (3) whether less extreme measures were available.” Jeffries v. State, 724 So.2d 897, 899 (Miss.1998) (quoting Matter of Providence Journal, 820 F.2d 1342 (1st Cir.1986)) (citations omitted).

¶35. The State argues that the governmental interest at stake in this case is the protection of Baby Doe’s privacy. Yet, we find no reason why allowing Cruz to speak publicly about the youth-court proceeding would negatively affect Baby Doe. In fact, the State’s interest in protecting the confidentiality of this youth-court proceeding seems to have been significantly diminished, if not negated, by the fact that Cruz was exonerated of any wrongdoing, and her parental rights were restored. Finally, this case does not implicate weighty issues such as abuse or neglect that would necessitate confidentiality of proceedings. Even so, the court must weigh the State’s alleged interests against the participants’ rights to free speech. Cf. In re A Minor, 149 Ill.2d 247, 172 Ill.Dec. 382, 595 N.E.2d 1052, 1056 (1992) (holding that, in a case involving minor victims of sexual abuse by a parent, the State has an interest in the nondisclosure of the victims’ identities, and the victims have a compelling interest against the invasion of their privacy, but these interests must still be weighed against “the need for free and unfettered expression.”)

¶ 36. Nothing in the record shows that the youth court engaged in any type of analysis to determine the propriety of its gag order. The youth court announced this restriction on its own accord, with no offering of evidence from the parties. In addition, the youth court neither pointed to any compelling interest that would be protected through the imposition of the gag order nor found that such a restriction was narrowly tailored to protect that interest. The youth court did mention “the nature of these proceedings, the welfare, safety and the best interest of the child,” but the court neglected to share the basis of its findings. Finally, the court failed to weigh any relevant competing interests against the participants’ First Amendment rights.

¶ 37. Though the youth court failed to consider any balancing test before imposing the gag order, we find that there exists no imminent danger to a compelling interest of such magnitude that the restraint on the parties’ speech would be warranted. As mentioned above, the State cannot assert a right to protect the fairness of judicial proceedings, since Baby Doe’s youthc-ourt proceeding has concluded. On the other hand, Cruz’s fundamental right to publicly criticize government action should be restrained only under compelling circumstances. In addition, Baby Doe’s privacy interests can be furthered by continued record confidentiality as well as the filter provided by the federal court during Cruz’s ongoing litigation. Therefore, we reverse the portion of the youth court’s order that prohibited the hearing participants from speaking to the media. Because we find no compelling reason to keep the gag order in place, we render judgment on this issue in favor of Cruz.

CONCLUSION

¶ 38. We find that the youth court did not abuse its discretion in ordering that its records remain confidential. However, the trial court erred in issuing the gag order because no compelling state interest exists in this case that could justify its imposition. Therefore, we affirm in part, and reverse in part and render judgment regarding the gag order in favor of Cruz.

¶ 39. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.

KING, Justice,

concurring in part and dissenting in part:

¶ 40. I agree with the majority’s holding that the gag order entered by the Jackson County Youth Court was improper and that portion of the decision should be reversed and rendered. However, I disagree with the portion of the majority opinion which holds that the Jackson County Youth Court did not abuse its discretion in ordering that the youth-court record remain confidential.

¶ 41. The youth court is a special court tasked with the responsibility of protecting and nurturing those minors who come within its jurisdiction. See Miss.Code Ann. § 43-21-103 (Rev.2009). Included within that nurturing and protection is maintaining the confidentially of youth-court records to prevent injury which might accrue to the minor from public dissemination of potentially damaging information. As such, it is presumed that the best interest of the minor is served by maintaining confidentially of the record. However, it must be noted that the presumption is not absolute. Daniels by Glass v. Wal-Mart Stores, Inc., 634 So.2d 88, 93 (Miss.1993) (finding “[t]he right of ‘confidentiality' on behalf of the child is a ‘qualified’ and not an ‘absolute’ privilege”).

¶42. The majority attempts to distinguish Daniels from the present case. In Daniels, a minor was accused of shoplifting and was apprehended by the store’s security guard. Daniels, 634 So.2d at 90. Based on this incident, the youth court adjudicated the minor as a delinquent. Id. at 91. Initially, the record was marked as confidential. The minor later sued Wal-mart, alleging that its security guards had slandered, assaulted, and battered him. Id. at 89. In light of this lawsuit, the youth court released the minor’s delinquency order to the circuit court, which Walmart was able to introduce in its defense. Id. at 91. The minor challenged the youth court’s actions. Id. On appeal, the Court held that disclosure of the youth-court record was proper under the exceptions in Mississippi Code Section 43-21-261. The statute provides, in part, that: “Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court....” Miss.Code. Ann. § 43-21-261 (Rev.2009). The Court further stated that:

The veil of confidentiality given youth court proceedings can be lifted, thereby allowing evidence from the proceedings to be introduced in a civil trial when the plaintiff youth court offender initiates a suit stemming from the same incident.

Daniels, 634 So.2d at 90.

¶ 43. Here, Cruz has filed a civil action in federal court, alleging that she and Baby Doe have had their civil rights purposefully violated by persons acting under the authority of the State of Mississippi, and that evidence of these violations is contained in the Jackson County Youth Court records. The same principle announced in Daniels applies to Cruz’s case. By filing a lawsuit for slander arising from the Walmart incident, the minor in Daniels called his character into question, necessitating the court to lift the confidentiality of his youth-court record. The majority states that:

The youth-court order in Daniels specifically authorized the release of the delinquency adjudication to the circuit court to allow Walmart to present a complete picture of the incident to the jury, subject to the court’s discretion. The disclosure in Daniels, therefore, was limited for the purposes of the related civil litigation.

Maj. Op. at 20 (citations omitted).

¶ 44. In the present case, Cruz, on behalf of Baby Doe, has accused several state actors of misconduct regarding their investigation and handling of Baby Doe’s youth-court case. Like Daniels, a lift on confidentiality in the youth-court case is necessary for Cruz and Baby Doe to pursue their federal-court action, expose any wrongdoing, and present a complete picture of the incident in federal court. I do not suggest that confidentiality is waived any time a party files a civil suit; it should be a case-by-case analysis. Where the best interest of the minor is served by allowing dissemination of the information in the youth-court record, I would find that the failure to do so is an abuse of discretion.

¶45. No information has been identified in the youth-court record which would be potentially injurious to the minor child. The charges against Cruz regarding abuse and neglect have been dropped. The only issue remaining is whether Cruz and Baby Doe are victims of government misconduct. Thus, disclosure could be injurious to DHS, the hospital, and other persons accused of misconduct (and there are several). Confidentially of youth-court records is intended to protect the interest of the minor child involved. Confidentiality of youth-court records is not intended to shield state actors from civil actions which allege violations of a youth-court party’s civil rights.

¶ 46. Because it appears that the sole reason for maintaining the confidentiality of the Jackson County Youth Court record is to make unavailable evidence calling into question action taken against Cruz and Baby Doe, I would hold that the youth court abused its discretion by maintaining the confidentiality of the record.

DICKINSON, P.J., KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . A fictitious name is used to protect the minor’s identity.

      . Cruz v. Miss. Dep't of Human Servs., 3:10-cv-00446-HTW-FKB (S. Dist. Miss, filed August 12, 2010)).

      . The federal litigation, Cruz v. Mississippi Department of Human Services, 3:10-cv-00446-HTW-FKB (S.D. Miss, filed August 12, 2010), was still in pretrial posture as of May 3, 2013. See Notice of Telephonic Status Conference before Magistrate Judge F. Keith Ball, May 3, 2013, ECF No. 208 (the most recent filing in federal court on PACER).

      . Black's Law Dictionary 543 (abr. 7th ed.2000).


source: Caselaw Access Project

author: PIERCE, Justice, for the Court:

license: Public Domain

text:
    Verina CHILDS a/k/a Verina M. Childs a/k/a Verina Marie Childs v. STATE of Mississippi.
    No. 2011-KA-01556-SCT.
    Supreme Court of Mississippi.
    May 23, 2013.

      David Neil McCarty, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, Scott Stuart, attorneys for appel-lee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   PIERCE, Justice, for the Court:

¶ 1. Verina Childs (“Verina”) was convicted of murdering her husband, Douglas Childs (“Doug”), on August 4, 2011, following a four-day jury trial. She was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). After her conviction, Veri-na filed a motion for a new trial, which was denied. Verina now appeals from the judgment of the Circuit Court of Oktib-beha County, Mississippi.

¶2. On appeal, Verina argues three issues:

I. The State violated Childs’s due-process rights by destroying evidence in violation of state law.
II. Childs was denied her fundamental right to alternative theories of defense.
III. The State failed to prove deliberate-design murder.

Because we find that the trial court did not err in its conviction of Verina, we affirm on all three issues.

STATEMENT OF THE FACTS

¶ 3. Verina and Doug Childs were members of a hunting club in Oktibbeha County, Mississippi. On November 22, 2009, just after daybreak, Danny Fly, a local hunter, noticed Doug Childs’s body lying in the edge of the woods. Fly had seen Doug’s truck earlier that morning but had heard no gunshot prior to finding the body. Doug had received a single gunshot wound to the left side of his upper back. The projectile was fired by a Marlin 30/30 (“30/30”) hunting rifle that belonged to Verina.

¶ 4. Verina and Doug had left home just before daybreak to go hunting. Verina was carrying her 30/30, and shortly after arriving in the woods, she and Doug separated. Verina later told the investigator that she had a stomach ache, so she sent Doug a text stating that she was going back to the house. After using the restroom at home, she unloaded her rifle, removed her hunting clothes, and sent Doug a text stating that she was going to clean around the house. Shortly thereafter, Tina Reed pounded on the door and asked Verina to come with her. They went to the shooting scene and saw Doug’s body-lying on the ground.

¶ 5. Deputy Commander Mahyar Ne-tadj, following Verina’s consent to search, collected the rifle and several pieces of clothing from the house. Verina told Ne-tadj that she had never fired the rifle but had unloaded it because she did not like to keep loaded guns in the house. However, the other guns in the house all were loaded. Lying next to the 80/30 was a gun-cleaning kit.

¶ 6. The only witness for Verina’s casein-chief was her son, Jonathan Coker. Verina did not testify and elected to remain silent.

DISCUSSION

I. The State violated Childs’s due-process rights by destroying evidence in violation of state law.

¶ 7. Verina argues that her due-process rights were violated when the State allegedly destroyed fingerprint and DNA evidence on the Marlin 30/30. She argues that Mississippi Code Section 99-49-1 requires the State to preserve exculpatory evidence. Section 99-49-1, the Preservation Law, requires that any evidence in a murder, manslaughter, or felony sexual-assault case in the possession of the State on July 1, 2009, shall be preserved by the State consistent with legislative intent. Miss.Code Ann. 99-49-1(4) (Supp.2012).

¶ 8. The State argues that none of Veri-na’s due-process rights were violated, because no evidence was destroyed in violation of state law. The State alleges that the Preservation Law focuses on biological evidence that has been found to exist and identified, not speculative biological evidence that has yet to be collected or come into being. At trial, Investigator Brett Watson testified as to why the 30/30 had not been tested for fingerprints. He stated that, at the time they started to investigate, he had believed Doug’s death was murder. Accordingly, if Verina had not killed her husband, a murderer was at large. He said he had to make a choice between ballistic testing, which eventually destroyed the fingerprints on the rifle, and fingerprint examination. When the ballistics report came back from the crime lab, the slug taken from Doug’s body matched the 30/30 Verina had carried that day.

¶ 9. The 30/30 was the rifle Verina admitted to carrying that day as well as the rifle that was found laying on their bed after Doug’s body was found on the hunting ground. A fingerprint test of the gun would have revealed Verina’s fingerprints, as she already had admitted owning and carrying the rifle that morning. No evidence was presented that the rifle was ever out of Verina’s possession from the time Verina left the house to go hunting until the investigators seized the rifle.

¶ 10. Childs claims that the destruction of any DNA or fingerprint evidence that possibly could have been found on the gun amounts to a due-process violation. When such a claim is made due to destruction of evidence, we apply a three-prong test to determine whether the destruction does, in fact, abridge the defendant’s due-process rights. Murray v. State, 849 So.2d 1281, 1285-86 (Miss.2003). For the defendant to be successful, she must show all three of the following: (1) the evidence must be apparently exculpatory, (2) there must be no comparable evidence available to the defendant, and (3) law enforcement’s destruction of the evidence must have been in bad faith. Id.See also California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

¶ 11. As to the first prong, we do not find that the possible evidence lost was apparently exculpatory. In State v. McGrone, 798 So.2d 519 (Miss.2001), this Court identified an example of what type of evidence would be of an apparent exculpatory nature. McGrone was shot in the leg by a police officer before he was apprehended and wanted to procure the pants he was wearing at the time to show that he was, in fact, attempting to flee when he was shot by the officer. McGrone, 798 So.2d at 521. The McGrone Court deemed the pants to be apparently exculpatory. Id. at 523. In the case sub judi-ce, it is actually not known whether such evidence was present on the gun at all. Its very existence is nothing more than a hypothetical, and we have held that such speculation that such evidence would aid the defense is not sufficient to satisfy the first prong. Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (“... [T]he mere possibility the evidence might aid the defense does not satisfy the constitutional materiality standard”) (quoting United States v. Binker, 795 F.2d 1218, 1230 (5th Cir.1986)). Accordingly, we find that Childs has failed to prove the first prong of the test.

II. Childs was denied her fundamental right to alternative theories of defense.

¶ 12. Verina argues that she was entitled to a jury instruction that the shooting of her husband Doug could have been an accident. Because the trial court refused to allow this, Verina alleges that the verdict must be reversed and the case remanded for a new trial. In reviewing the trial court’s grant or denial of jury instructions, this Court considers jury instructions “as a whole ‘to determine if the jury was properly instructed,’ giving abuse-of-discretion deference to the trial judge’s decision.” Clayton v. State, 106 So.3d 802, 804 (Miss.2012) (citing Flowers v. State, 51 So.3d 911, 912 (Miss.2010)).

¶ 13. Jury Instruction D-9, which was refused, read:

The Court instructs the jury that “accidental death” and “murder” are mutually-exclusive terms. An accidental death cannot be the result of a deliberate design to kill. Likewise, a deliberate design to kill cannot produce an accidental death.
Therefore, if, after reviewing the evidence as a whole, you find that Douglas Childs could have died as the result of an unintentional hunting accident— whether caused by the Defendant or by any known or unknown party — you must return a verdict of NOT GUILTY.

The State objected to this instruction because, it argued, no evidence had been presented that this was an accident. No one had testified that he or she accidentally had discharged a firearm; no testimony was presented regarding an accident; and this Court has held that there must be a basis in the evidence before an instruction on accidental death may be given. Montana v. State, 822 So.2d 954, 962-63 (Miss. 2002). Further, the State argues that this specific instruction presumes facts not in evidence.

¶ 14. In response, Verina argues that the whole case lacked evidence and that there was no evidence as to whether or not an accidental shooting occurred.

¶ 15. We find that the trial court did not abuse its discretion in denying a jury instruction based on the fact that there was no evidence to support an accident.

III. The State failed to prove deliberate-design murder.

¶ 16. Verina argues that the elements of deliberate-design murder were not met and could not have been met in this circumstantial-evidence case. Deliberate-design murder involves three elements: the defendant killed the victim without authority of law and with deliberate design to effect his death. See Miss. Code Ann. 97-3-19 (Rev.2006); Parker v. State, 30 So.3d 1222, 1231 (Miss.2010). This Court has held that “[i]n circumstantial-evidence cases, the state is required to prove the accused’s guilt not only beyond a reasonable doubt, but to the exclusion of every other hypothesis consistent with innocence.” Thomas v. State, 42 So.3d 528, 539 (Miss.2010). Verina argues that there is not enough evidence to meet the standard for deliberate-design murder, since the only evidence is circumstantial. Further, Verina argues, the State never proved that the shooting was anything more than an accident.

¶ 17. The State argues that “deliberate design, as a matter of law, may be inferred through the intentional use of any instrument which based on its manner of use, is calculated to produce death or serious bodily injury.” Wilson v. State, 936 So.2d 357, 364 (Miss.2006) citing Jones v. State, 710 So.2d 870, 877 (Miss.1998). Thus, the State asserts that the use of a high-powered rifle was sufficient to supply the necessary ingredient of deliberate design.

¶ 18. We agree. The jury, as the fact-finder, convicted Verina of deliberate-design murder. Because circumstantial evidence alone is enough and allowable, we find no merit in this assertion of error.

CONCLUSION

¶ 19. We find no error in the trial court’s conviction of Verina Childs. Her due-process rights were not violated; she offered no evidence to support an accident theory for jury instructions; and the State proved deliberate-design murder, albeit by circumstantial evidence. Accordingly, we affirm the conviction and sentence of the Oktibbeha County Circuit Court.

¶ 20. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER AND COLEMAN, JJ., CONCUR. KING, J., CONCURS IN RESULT ONLY.


author: RUSSELL, J., MAXWELL, J.,

text:
    Carl PATTERSON, Jr., Appellant v. T.L. WALLACE CONSTRUCTION, INC. and Turtle Creek Development, Inc., Appellees.
    No. 2010-CA-01812-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.
    Rehearing denied Sept. 18, 2012.

      Andrew Lampros, Audry Regnal Black-ledge, Hattiesburg, Matthew A. Cathey, attorneys for appellant.
    Walter William Dukes, Gulfport, Roger C. Riddick, Bradley Smith Kelly, Ridge-land, attorneys for appellees.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Carl Patterson appeals from the Circuit Court of Marion County which granted summary judgment to T.L. Wallace Construction, Inc. (TLW) and Turtle Creek Development,. Inc. (Turtle Creek) (collectively, the Appellees). Patterson argues that the circuit court erred by granting summary judgment to the Appellees because genuine issues of material fact exist. We agree. Therefore, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 18, 2006, around 8:30 p.m., Patterson was injured in a single motorcycle accident near Cross Creek Parkway in Hattiesburg, Mississippi. Patterson alleged he lost control of his motorcycle due to debris in the roadway. He claimed the debris was located where a dirt “haul road” intersected with the paved road surface of Cross Creek Parkway, which caused him to crash and receive severe injuries.

¶ 8. On November 18, 2006, Patterson was riding his motorcycle. Patterson had been riding motorcycles for a couple of years. Matt Sorrels was riding his motorcycle nearby from the University of Southern Mississippi to the west parking lot of Turtle Creek Mall. Sorrels testified that he was traveling approximately 25 miles per hour and saw the debris from about 40 to 50 feet away. According to Sorrels’ testimony, Patterson was 20 feet behind him when the accident occurred. Patterson testified that he was traveling less than 35 miles per hour. According to Patterson, the accident was unavoidable. Sorrels had just gone over the site and saw Patterson’s accident.

¶ 4. As a result of the accident, Patterson sustained personal injuries, including the amputation of his right leg through the knee and a broken scaphoid bone in his wrist, which required surgery.

¶ 5. Patterson filed suit against TLW and Turtle Creek. Each filed a separate motion for summary judgment. Patterson filed a response to each motion. The court granted both motions for summary judgment without hearing oral argument.

¶ 6. The land on each side of Cross Creek Parkway where the accident occurred was owned by Turtle Creek.

¶ 7. TLW was working in the area prior to the accident and had worked on the west side of Cross Creek Parkway prior to the accident. There was testimony that TLW employees were in the area on November 8, 9,18 and 17. TLW Superintendent Billy Joe Clark cleaned out the drain inlets so that water could drain properly due to significant rainfall on November 14 and 15, 2006. However, TLW contends it was not near the scene of the accident and did not work near there until November 20, 2006. The purpose of the project by TLW was to bring the haul road up from a retention pond on the west side of Cross Creek Parkway and continue it across Cross Creek Parkway to the land on the east side. On the east side of the road, a Kohl’s center was to be built.

¶ 8. On November 9, TLW was rolling wet dirt on the haul road, setting it into wind rows so that it could be dried and set back down. On November 13, TLW backed a trailer carrying a tractor onto the east side of Cross Creek Parkway. The tractor was then unloaded and departed to the north. On November 17, TLW using a lowboy, moved a trackhoe onto the west side of Cross Creek Parkway. Prior to November 18, TLW also moved other equipment to the site, including a D-6 bulldozer, a John Deere tractor and a box blade that fits behind it, a 330 trackhoe, and possibly a 740 off-road truck.

STANDARD OF REVIEW

¶ 9. An appellate court reviews a trial court grant of summary judgment de novo. Spann v. Shuqualak Lumber Co., 990 So.2d 186, 189 (¶ 6) (Miss.2008) (citing Callicutt v. Prof'l Servs. of Potts Camp, Inc., 974 So.2d 216, 219 (¶ 9) (Miss.2007)). “In evaluating a grant of summary judgment, this Court reviews all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, admissions, and affidavits.” Id. (citing M.R.C.P. 56(c)). “The evidence must be viewed in the light most favorable to the [nonmov-ing] party.” Id. (citing Simpson v. Boyd, 880 So.2d 1047, 1050 (¶11) (Miss.2004)). “The existence of a genuine issue of material fact will preclude summary judgment.” Id. (citing Massey v. Tingle, 867 So.2d 235, 238 (¶ 6) (Miss.2004)). “A fact is material if it ‘tends to resolve any of the issues properly raised by the parties.’ ” Id. (citation omitted). “The motion ‘should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim.’ ” Id. (citation omitted).

DISCUSSION

¶ 10. Patterson argues that there exist numerous issues of disputed material fact by which a jury could reasonably find that the Appellees committed acts of negligence that caused Patterson’s injuries. Specifically, Patterson contends that there is evidence that Turtle Creek and TLW created a hazardous condition that caused Patterson’s accident and resulting injuries.

¶ 11. In his order granting summary judgment, the judge found that there was “[n]ot one scintilla of evidence” against TLW. However, the order fails to take into consideration the evidence that TLW employees were in the area on November 8, 9, 13 and 17; that TLW had other equipment in the area; and that there was no evidence that anyone else could be responsible for the debris in the roadway. The Appellees do not dispute that there was debris in the roadway — only that they were not responsible.

¶ 12. Both Patterson and Sorrels testified that there was debris in the roadway. Neither could testify as to the source of this debris. Neither of the Appellees could testify as to an alternate source of the accumulation in the roadway that led to Patterson’s wreck and injuries. There was evidence that the wreck occurred at the location of the work site. Neither Appellee provided any testimony or evidence to the contrary. A reasonable jury could infer that the Appellees, either or both, failed in their responsibilities and duties. Thus, summary judgment was inappropriate.

¶ 13. According to deposition testimony, it was TLWs general practice to clean up dirt that had gotten from a project onto a roadway by sweeping the road with a brace broom and a hand broom twice a day, but it is unresolved whether TLW cleaned up at the Cross Creek Parkway site before the accident.

¶ 14. Admittedly, there is no direct proof of how the debris came to be on the roadway. Still, the court was in error to grant summary judgment and preclude a jury from finding that the Appellees could have deposited the debris on the site and/or had a duty to warn Patterson of the danger. There is no evidence that anyone other than the Appellees did any work on the site at any time material to this cause of action. It is uncontested that prior to the incident TLW began work on a project on a haul road on the land west of Cross Creek Parkway. There was a genuine issue of material fact as to whether TLW or the Appellees created the hazard and failed to warn of the hazard. As such, the court erred by granting summary judgment.

¶ 15. It is well settled that, although the proof may be only circumstantial, “when the ease turns on circumstantial evidence it should rarely be taken from the jury.” Davis v. Flippen, 260 So.2d 847, 848 (Miss.1972) (citing Cameron v. Hootsell, 229 Miss. 80, 85, 90 So.2d 195, 197 (1956)).

¶ 16. In Kurn v. Fondren, 189 Miss. 739, 198 So. 727 (1940), Gulf, M & N.R. Co. v. Sumrall, 142 Miss. 56, 107 So. 281 (1926), and Illinois Cent. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773 (1915), which all involved circumstantial evidence that a fire’s origin was sparks from a locomotive engine, the Mississippi Supreme Court held the defendant railroad’s negligence was an issue for the jury. In Sumrall, the railroad company argued that “where circumstantial evidence alone is relied on, it must exclude every other probable cause of the injury complained of than the one upon which recovery is based.” Sumrall, 107 So. at 281. In each case, the supreme court decided that the evidence presented an issue of fact to be decided by the jury and affirmed judgments in favor of the injured party. See also Folsom v. III. Cent. R.R. Co., 116 Miss. 561, 77 So. 604 (1918).

¶ 17. In this case, summary judgment should not have been granted because there were unanswered material questions. Particularly unanswered were the questions concerning who deposited the debris and whether TLW or the Appellees owed Patterson a duty to warn Patterson of debris in the road or a duty to keep the road clear of debris resulting from their work in the area.

¶ 18. By its own admission, TLW took no safety measures between the time it began work on the project until the time of Patterson’s crash. At the haul-road site, TLW never cleaned up anything in the roadway before the incident. Also, TLW’s safety operations director did not perform a safety inspection before the incident, yet the same director performed a safety inspection after the incident and after the project was underway. These are questions of material facts that should have been presented to a jury.

¶ 19. Since TLW or the Appellees knew or should have known that an artificial condition created by them involved an unreasonable risk of physical harm, they had a duty to make the area safe or warn of the condition. In Miller v. Coast Electric Power Association, 797 So.2d 314, 317 (¶ 11) (Miss.Ct.App.2001), this Court stated:

In Tadjer v. Montgome'ry County, 61 Md.App. 492, 487 A.2d 658 (1985), ... [the] court turned to an older case, Hussey v. Ryan, 64 Md. 426, 2 A. 729 (1885) [ (1886) ], and the Restatement (Second) of Torts Section 386 in deciding that the creator of a dangerous condition has some duty to people who may encounter the condition if the condition created involves an unreasonable risk of harm. The Tadjer court also cited Merrick v. Murphy, 83 Misc.2d 39, 371 N.Y.S.2d 97 (1975), which held that when a dangerous condition is created on land, “ownership is immaterial.” As stated by the court in Tadjer, “If the defendants knew or should have known that the artificial condition created by them involved an unreasonable risk of physical harm to others, then they have a duty to make safe or warn of the dangerous condition.” Tadjer, 487 A.2d at 662.

In Miller, this Court concluded that the power company — since it was not the owner of the property — had no duty to backfill a hole in the ground or maintain the premises, but it had a duty “to make safe or warn,” which was breached. See Miller, 797 So.2d at 316-17 (¶¶7, 12). See also Restatement (Second) of Torts § 328B (1999).

¶ 20. “Summary judgment is not a substitute for trial where disputed factual issues exist.” Carpenter v. Nobile, 620 So.2d 961, 965 (Miss.1993) (citing Smith v. H.C. Bailey Cos., 477 So.2d 224, 234 (Miss. 1985)). “Before summary judgment is granted, it must be determined whether reasonable jurors could differ on the factual questions in issue.” Id. (citing Sanford v. Federated Guar. Ins. Co., 522 So.2d 214, 217 (Miss.1988)). We express no opinion as to whether the appellant will ultimately be successful in proving his case to the jury; we simply find only that there are disputed factual issues which preclude a grant of summary judgment. Patterson should be allowed to present his case to the jury as to whether the Appellees are liable for his injury. As such, we reverse the grants of summary judgment to the Appellees and remand for a trial on the merits.

¶ 21. THE JUDGMENTS OF THE CIRCUIT COURT OF MARION COUNTY ARE REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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

MAXWELL, J.,

dissenting:

¶ 22. The majority holds material factual disputes exist because it is unclear from the record who deposited the debris in the roadway. But it was not Turtle Creek or TLW’s burden, as the defendants, to provide evidence that someone else was responsible for the debris in the roadway. Rather, to survive summary judgment, Patterson had the burden, as the plaintiff, to provide sufficient probative evidence that either Turtle Creek or TLW was responsible for the dangerous condition on Cross Creek Parkway. Because I agree with the trial judge that Patterson did not present sufficient evidence to establish either Turtle Creek or TLW was negligent, I dissent. I would affirm the trial judge’s grant of summary judgment in favor of Turtle Creek and TLW.

¶23. “Summary judgment must be granted when the nonmoving party ‘fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.’ ” Chevis v. Miss. Farm Bureau Mut. Ins. Co., 76 So.3d 187, 190 (¶ 7) (Miss.Ct.App.2011) (quoting Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009)). In his negligence claims against both Turtle Creek and TLW, Patterson had the burden to “prove by a preponderance of the evidence each element of negligence: duty, breach of duty, proximate causation and injury.” McIntosh v. Victoria Corp., 877 So.2d 519, 522 (¶9) (Miss.Ct.App.2004) (quoting K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 981 (¶ 14) (Miss.1999)).

¶ 24. Because the “basis of liability is negligence and not injury,” Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966), it was not enough for Patterson to prove an accident occurred “in the area” where TLW was working on Turtle Creek’s property to establish a negligence claim against these defendants. Majority Opinion, at (¶ 11). “Duty and breach of duty are essential to finding negligence and must be demonstrated first.” Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (¶ 42) (Miss.1999) (citation omitted). And I agree with the trial judge that Patterson failed to establish either defendant owed him a duty.

¶ 25. TLW was an independent contractor for Turtle Creek. Thus, Turtle Creek could not be vicarious liable for TLW’s negligence. See Chisolm v. Miss. Dep’t of Transp., 942 So.2d 136, 144 (¶ 17) (Miss. 2006). Patterson had the burden to establish an independent negligence claim against Turtle Creek. As the owner of land adjacent to Cross Creek Parkway, a public roadway, Turtle Creek “[was] not subject to liability for physical harm caused to travelers upon the highway ... by [its] failure to exercise reasonable care (a) to maintain the highway ... in safe condition for their use, or (b) to warn them of dangerous conditions” it did not create but did know about. Martin v. Flanagan, 818 So.2d 1124, 1128 (¶ 17) (Miss.2002) (citing Restatement (Second) of Torts § 349). Thus, Patterson’s evidence that a dangerous condition existed on the parkway next to Turtle Creek’s property was insufficient to impose a duty on Turtle Creek to keep the parkway free of debris or warn motorists of the debris, even if Turtle Creek knew about it. See id.

¶26. Similarly, Patters on failed to establish TLW owed him a duty. Patterson alleged TLW had a duty to warn him of the dangerous condition on Cross Creek Parkway, a public road. But this duty only arose if TLW created or exacerbated the dangerous condition — the debris on the parkway. See Higginbotham v. Hill Bros. Constr. Co., Inc., 962 So.2d 46, 61 (¶ 42) (Miss.Ct.App.2006). Thus, to establish a duty to warn, Patterson had the burden to present sufficient evidence TLW was responsible for the debris being on the parkway on November 18.

¶ 27. The fact that “there was no evidence that anyone else could be responsible for debris in the roadway,” Majority Opinion, at (¶ 11), is not a reason to reverse summary judgment. This is not a case where Patterson can rely on the narrow doctrine of res ipsa loquitur to prove duty and breach because neither Turtle Creek nor TLW had exclusive control of Cross Creek Parkway. See Read v. S. Pine Elec. Power Ass’n, 515 So.2d 916, 919-20 (Miss.1987) (listing the three elements of res ipsa loquitor, the first being “the instrumentality causing the damage must be under the exclusive control of the defendant”). I find the majority, by relying on the lack of evidence that someone else caused the debris to be on the parkway, inappropriately shifts the burden of proof to TLW to show someone else created the hazardous condition. The question is not whether TLW or Turtle Creek can indisputably prove someone else was the cause of the debris. Instead, the question is whether Patterson presented sufficient evidence TLW or Turtle Creek was the cause of the debris.

¶ 28. As the majority points out, Patterson and Sorrels testified in their depositions they did not have any evidence of how the debris had gotten onto the parkway or how long it had been there. Majority Opinion, at (¶ 12). The majority is correct that Patterson’s evidence can be circumstantial. “However, the circumstantial evidence must be such that it creates a legitimate inference that places it beyond conjecture.” Herrington v. Leaf River Forest Prods., 738 So.2d 774, 777 (¶ 8) (Miss.1999) (citing Hardy v. K Mart Corp., 669 So.2d 34, 38 (Miss.1996)). At most Patterson can show TLW was working on the west side of the parkway, with its work on the haul road coming not closer than a couple of hundred feet of the accident site. I agree with the trial judge that this is not sufficient evidence to reasonably infer TLW was the cause of the debris on the parkway.

¶ 29. Evidence that TLW was working “in the area” was not enough to establish duty. See Majority Opinion, at (¶ 11). In Higginbotham, 962 So.2d at 56 (¶ 23), this court rejected plaintiffs call to “place an affirmative duty upon [a construction company] simply because the company was working in the area of the [accident], and allegedly had notice of [the dangerous condition on the road].” (Emphasis added). The trial judge relied on Higginbotham to find TLW had no such duty toward Patterson. Because I see no error in this finding, I would affirm.

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

      . An accumulation of a mixture of dirt and gravel.

      . Other parties were sued but were dismissed by Patterson after the complaint was filed.

      . A kind of push broom.

      . TLW's work after the accident eventually connected the haul road on the west side of the parkway to the east side.


author: FAIR, J.,

text:
    Michael Eugene DAVIS a/k/a Michael E. Davis, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02097-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Nov. 20, 2012.
    Phillip Broadhead, Oxford, Leslie S. Lee, Jackson, John D. Watson, Southha-ven, attorneys for appellant.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Michael Eugene Davis was convicted of armed robbery as a habitual offender and sentenced to life in the Mississippi Department of Corrections. He appeals asserting that the trial court erred in admitting his involuntary confession. Finding no error, we affirm.

FACTS

¶ 2. Davis was arrested by Tennessee police after being involved in an automobile accident near Memphis. After his release from the hospital, the authorities interrogated Davis holding him for around fifteen hours in connection with other charges.

¶ 3. Detective Roger Hutchins of Desoto County arrived in Memphis and interrogated Davis for approximately twelve minutes. During this interview, Davis confessed to robbing the front desk clerk of a Ramada Inn in Horne Lake, Mississippi, with a toy gun. Davis admitted heavy prior drug abuse and indicated that his memory of recent events was unclear. At the suppression hearing, Davis asserted that he was intoxicated during the interrogation and had used heroin prior to his arrest.

¶ 4. Detective Hutchins asked Davis several questions that included facts about the robbery in Horne Lake. Davis claimed he remembered the incident and described specific details about the desk clerk’s appearance, the car he used, and how he went into the bathroom before robbing the clerk. Throughout the brief interview, Davis alternated between claiming he could not remember and recalling specific facts.

¶ 5. Prior to trial, Davis presented a motion in limine to suppress his confession as involuntary due to his voluntary drug use and recent head injury. The trial judge heard testimony from Detective Hutchins and Davis and ultimately denied the motion. Davis now appeals asserting the trial judge erred in admitting his confession.

STANDARD OF REVIEW

¶ 6. The trial court sits as the finder of fact when determining if a confession was intelligently, knowingly, and voluntarily given. Pannell v. State, 7 So.3d 277, 281 (¶ 8) (Miss.Ct.App.2008). We can reverse that determination only upon finding manifest error, that the trial court applied an incorrect legal standard, or that the determination is contrary to the overwhelming weight of evidence. Glasper v. State, 914 So.2d 708, 716-17 (¶ 21) (Miss. 2005).

ANALYSIS

¶ 7. If a statement is the product of the accused’s free and rational choice when viewed under the totality of the circumstances, it was given voluntarily. Marshall v. State, 812 So.2d 1068, 1072 (¶ 9) (Miss.Ct.App.2001) (quoting Greenlee v. State, 725 So.2d 816, 826 (¶ 26) (Miss. 1998)). It is the State’s burden to establish, beyond a reasonable doubt, a prima facie case that a statement was given voluntarily. Lott v. State, 844 So.2d 502, 504 (¶ 4) (Miss.App.2003) (citing Cox v. State, 586 So.2d 761, 763 (Miss.1991)). This can be proven though testimony of an officer or other witness. Id. The defendant must then rebut the State’s prima facie case with testimony of violence, threats, or offers of reward that induced the confession. Id.

¶ 8. Evidence of intoxication does not automatically render a confession inadmissible; it depends on the degree of intoxication. Kircher v. State, 758 So.2d 1017, 1026 (¶ 37) (Miss.1999) (citing Johnson v. State, 511 So.2d 1360, 1365 (Miss. 1987)). “The evidence must show that the defendant was so affected as to make his statement ... unreliable or involuntary.” United States v. Taylor, 508 F.2d 761, 763 (5th Cir.1975).

¶ 9. Ultimately, voluntariness is a question of credibility. Where there is conflicting evidence, this Court must affirm the trial court’s judgment as long as it applied the appropriate legal standards. Marshall, 812 So.2d at 1072 (¶ 8) (citing Crawford v. State, 716 So.2d 1028, 1039 (¶ 39) (Miss.1998), overruled on other grounds).

¶ 10. Here, the State made out a prima facie case of voluntariness through the testimony of Detective Hutchins. Davis failed to meet his burden of showing that the confession was involuntary. He presented no testimony of violence, threats, or offers of reward that induced his confession.

¶ 11. Initially, we observe that during his interview with Detective Hutchins, Davis had at least fifteen hours to sober up assuming he used heroin immediately prior to his arrest. Even so, his mental faculties seem to have been functioning well enough to wonder if he and Detective Hutchins had met a year or so prior in connection with another investigation. Evidence also showed that Davis remembered specific details from the robbery and described the appearance of the desk clerk. At the suppression hearing, Detective Hutchins testified that he believed Davis was being evasive during the interview, only giving certain pieces of information in an effort to control his exposure.

¶ 12. As the finder of fact, the trial court applied a totality-of-the-circumstances analysis and deemed Davis’s confession to be voluntary. This determination is supported by the evidence. Accordingly, we find no error in admitting the confession.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: RUSSELL, J.,

text:
    BANCORPSOUTH BANK, Appellant v. Shelby K. BRANTLEY, Jr., Robert Crumpton, Norma S. Bourdeaux, Langston Oxford Properties, L.P., Susan M. Bryan, John Albriton and Lynn Albriton, Appellees.
    No. 2011-CA-00475-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied Sept. 10, 2013.

      John J. Crow Jr., Water Valley, Daniel Myles Martin, Austin Garrett Gray, attorneys for appellant.
    G. Todd Burwell, Ridgeland, Dana E. Kelly, Shane F. Langston, Jackson, Jacqueline H. Ray, Ridgeland, Rebecca M. Langston, Jackson, attorneys for appel-lees.
    Before IRVING, P.J., BARNES and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. BancorpSouth Bank appeals the Lafayette County Chancery Court’s grant of summary judgment in favor of the appel-lees. On appeal, BancorpSouth argues the chancery court erred by (1) granting summary judgment when a genuine issue of material fact exists relating to its knowledge or lack thereof of the four unit owners’ conveyances, (2) shifting the burden of production to BancorpSouth on summary judgment, (3) allowing the appellees to raise the affirmative defenses of waiver and ratification over BancorpSouth’s objection, and (4) finding that the four unit owners’ motion for summary judgment applied to the guarantors when the guaranty clearly and unambiguously waived their right to assert the defenses raised. We affirm the chancery court’s grant of summary judgment as to the four unit owners and reverse and remand as to the guarantors.

FACTS AND PROCEDURAL HISTORY

¶2. In March 2001, Claiborne Frazier, Robert Crumpton, and Shelby Brantley Jr. formed an entity known as Van Burén Group LLC (Van Burén). Frazier served as the manager of Van Burén and acted on its behalf. That same year, Van Burén applied for a loan with BancorpSouth for the construction of a thirty-unit condominium project in Oxford, Mississippi. On August 20, 2001, BancorpSouth loan officer, Bobby Little, issued a Commitment Letter to Van Burén for a loan in the amount of $5,400,000. The closing and funding of the loan contained a condition precedent, requiring Van Burén to present evidence of the sale of eighteen units through contracts and the collection of earnest money equal to ten percent of the sales price. The condition also provided that if eighteen condo units were not pre-sold, then the amount of the letters of credit accepted would be the difference between eighteen and the number of units that were pre-sold.

¶ 3. On August 23, 2001, Bobby Coving-ton of Taylor, Covington, and Smith, P.A., acting as counsel for Van Burén, issued certification that nineteen condo units had been issued by Frazier under contract. This certification included contracts for unit 203 sold to John and Lynn Albriton and unit 102 sold to Shane Langston. Langston and the Albritons are appellees in this matter. On September 5, 2001, Van Burén executed a land Deed of Trust to BancorpSouth, conveying BancorpSouth a secured interest in the property on which the condominiums would be built. The land deed of trust contained a “due on sale” clause requiring proceeds of any sale to be paid directly to BancorpSouth. The deed was recorded in Lafayette County, Mississippi, on September 12, 2001.

¶ 4. Each individual member of Van Bu-rén, including Frazier, Brantley, and Crumpton, signed a guaranty on the $5,400,000 promissory note, agreeing to be held liable for the debt owed by Van Bu-rén. Under the guaranties, each member agreed to preemptively waive any and all defenses with the exception of the defense of discharge by payment in full. In November 2002, Bobby Little was transferred, and Ron Winford became the new loan officer for the Van Burén construction loan.

¶ 5. By November 2002, Frazier had conveyed more condo units under contract, including those sold to Susan Bryan and Norma Bourdeaux, also appellees in this matter. On August 23, 2003, Bancorp-South began receiving proceeds from the sales of twenty condo units. On May 19, 2004, units 305 and 306 sold to John Lee were released from BancorpSouth’s mortgage. BancorpSouth released from its mortgage an additional unit, 307, sold to Lee on June 23, 2004. Unit 210, sold to Tim Ford on October 9, 2004, was also released from BancorpSouth’s mortgage. BancorpSouth received no consideration for releasing from its mortgage the units sold to Ford and Lee, except $50,000 paid by Lee in exchange for a partial release for unit 307. The proceeds from the sales were to be credited to Van Buren’s debt. After paying $4,917,646, Van Burén defaulted on the loan.

¶ 6. On October 1, 2007, BancorpSouth began foreclosure proceedings against Van Burén. BancorpSouth allegedly discovered that proceeds generated from five condo units had not been remitted. These units included those sold to the appellees: the Albritons, the Bryans, Langston, and Bourdeaux. BancorpSouth filed an amended complaint on October 17, 2007. The appellees filed a motion for summary judgment on November 18, 2010, which was subsequently joined by Brantley and Crumpton on November 29, 2010.

¶ 7. A hearing on the motion was held on February 17, 2011. The chancery court granted summary judgment in favor of the appellees. BancorpSouth now appeals.

DISCUSSION

I. Whether the grant of summary judgment was proper.

A. Standard of Review

¶ 8. “The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c).” Evans v. Jackson Gocar-Cola Bottling Co., 771 So.2d 1006, 1008 (¶ 5) (Miss.Ct.App. 2000) (quoting Roebuck v. McDade, 760 So.2d 12, 14 (¶ 9) (Miss.Ct.App.1999)). “This Court conducts [a] de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Id. “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. “The burden of showing that no genuine issue of material fact exists lies with the moving party, and we give the benefit of every reasonable doubt to the party against whom summary judgment is sought.” Id.

B. Applying the Pongetti Credit Principle

¶ 9. Under Mississippi law, with regard to the effect that out-of-trust sales have on the remaining debt owed to a mortgagee/lienor on a piece of property, the general rule is as follows:

[Wjhere a mortgagor or other lienee has alienated a portion of the mortgaged premises, and the mortgagee or other lienor, having notice of such alienation, releases the mortgage or other lien as to the portion retained by the mortgagor or lienee, such mortgagee or lienor must deduct from the debt, before enforcing his lien against the property alienated, the value of the property released.

Pongetti v. Bankers Trust Sav. & Loan Ass’n, 368 So.2d 819, 823 (Miss.1979) (quoting 110 A.L.R. 67 (1937)).

¶ 10. Subsequent to the four unit owners’ condo purchases, BancorpSouth released from its mortgage a total of three condo units; two of which were sold to Lee for $399,000, and the other sold to Ford for $220,000. BancorpSouth released these three units from its lien for no consideration. Another unit sold to Lee for $300,000 was later released from Bancorp-South’s mortgage in exchange for $50,000 paid by Lee.

¶ 11. A review of the record shows that as of January 23, 2004, the Van Burén construction loan had an outstanding balance of $1,530,763.80. From this date up until March 3, 2008, BancorpSouth had received a total of $1,068,287.20 paid toward the outstanding balance of the loan. If we were to apply the credit principle of Pongetti to the present case, Bancorp-South would be required to take the value of the four units sold to Ford and Lee minus the $50,000 paid by Lee, which equals $869,000, and combine it with the proceeds paid against the debt, which would equal $1,937,287.20. BancorpSouth would then be required to deduct this value from the total outstanding balance of the loan, which, in this case, would fully extinguish the debt.

C. The Notice Requirement

¶ 12. BancorpSouth argues that in order for the Pongetti credit principle to apply, it must be shown that Bancorp-South had actual knowledge of Frazier’s conveyances to the four unit owners. According to BancorpSouth, the four unit owners were under a duty to put Bancorp-South on notice of their conveyances and inform BancorpSouth of their interests in the property. The four unit owners contend that under Pongetti, there is no requirement of actual notice, but if there was such a requirement, it is BancorpSouth’s notice of the units sold out of trust to Ford and Lee that is required, rather than notice of the four unit owners’ conveyances.

¶ 13. Even if we were to adopt BancorpSouth’s interpretation of actual notice under Pongetti, a review of the record shows that BancorpSouth did, in fact, have notice of the four unit owners’ convey-anees. In his deposition, Winford, loan officer for BancorpSouth, admits receiving memoranda from Frazier in July 2002, and again in November 2002, listing the condo units sold under the Van Burén construction loan. The lists contained the name of each unit purchaser, the unit number, and the purchase price of each unit. The Bryans, the Albritons, Langston, and Ford are all listed on both memoranda.

¶ 14. In his deposition, Winford also acknowledges BancorpSouth’s receipt of an appraisal from Van Burén, dated August 21, 2001, which lists the units conveyed to Langston and the Albritons as “sold,” in addition to the appraisal value and the purchase price of each unit. Certification from Taylor, Covington and Smith, P.A., on behalf of Van Burén, was issued to BancorpSouth listing the units, along with the name of each purchaser, and the amounts of deposits of earnest money for each unit. This certification included the units conveyed to the Albri-tons and Langston.

¶ 15. Perhaps the most confirmative piece of evidence that shows BancorpSouth had knowledge of the four unit owners’ conveyances is a memo dated April 8, 2004, which Winford admits he personally prepared for James Stringer, BancorpSouth’s credit administrator. The memo served as a follow-up from a meeting that took place on April 1, 2004, among Winford, Stringer, and Frazier. In the memo, Winford lists the outstanding balance on the Van Burén construction loan, which was $1,530,764, and notes the status of the loan as follows: “As of this memo, 25 of the 30 units have been sold and delivered. Two of the five remaining units are contracted and special changes/additions are being completed.”

¶ 16. This memo pre-dates Bancorp-South’s release of the units sold to Ford and Lee from its mortgage. A review of the record shows that as of the date of this memo, BancorpSouth had only issued partial releases for sixteen units canceling its lien, even though twenty-five units had already been sold and delivered. Six of those units without partial releases included those sold to Langston, Bourdeaux, the Bryans, the Albritons, and two units sold to Lee.

¶ 17. In viewing the evidence in the light most favorable to BancorpSouth, based on a review of the record, we find that BancorpSouth had actual knowledge of the conveyances to the four unit owners. BancorpSouth contends that because the four unit owners did not personally impart actual notice of their conveyances, the credit principle does not apply. However, we find that no such duty on the part of the four unit owners is required under Pongetti As a matter of law, the four unit owners have the right to receive a credit for the value of the property that Bancorp-South released to Ford and Lee paid against the outstanding debt of the Van Burén loan.

¶ 18. As shown above, the record is replete with evidence that BancorpSouth had knowledge of the four unit owners’ conveyances at the time it released the units sold to Ford and Lee from its mortgage. Accordingly, we find that no genuine issue of material fact exists with regard to BancorpSouth’s knowledge of the four unit owners’ conveyances. Therefore, the chancery court’s grant of the four unit owners’ motion for summary judgment was proper. This issue is without merit.

II. Whether the chancery court erred by shifting the burden of production to BancorpSouth on summary judgment.

¶ 19. BancorpSouth argues that the chancery court improperly shifted the burden to BancorpSouth to rebut the ap-pellees’s affirmative defenses including waiver, ratification, failure to mitigate, and unclean hands. BancorpSouth contends that the success of each of these affirmative defenses hinged on whether the appellees proved that BancorpSouth had actual knowledge of the condo sales to the four unit owners; and because the appellees failed to do so, the burden was improperly shifted to BancorpSouth to rebut.

¶20. “[0]nce a motion for summary judgment is filed the opposing party ‘must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial .... This burden of rebuttal arises, however, only after the moving party has satisfied its burden of proving that no genuine issue of material fact exists .... ” Campbell v. Cranford, 737 So.2d 1032, 1035 (¶ 9) (Miss.Ct.App.1999) (quoting Foster v. Noel, 715 So.2d 174, 180 (¶ 35) (Miss.1998)).

¶ 21. As discussed above, the record indicates that the appellees satisfied their burden of showing that no genuine issue of material fact existed as to whether Ban-corpSouth had knowledge of the four unit owners’ condo sales. Therefore, the chancery court properly shifted the burden to BancorpSouth to rebut the same. For these reasons, we find this issue is without merit.

III. Whether the chancery court erred by allowing the four unit owners to raise the affirmative defenses of waiver and ratification.

¶22. Next, BancorpSouth argues that the chancery court’s failure to dismiss the defenses of waiver and ratification from the four unit owners’ motion for summary judgment constitutes reversible error. We disagree. At the hearing, BancorpSouth objected to any testimony regarding the four unit owners’ assertions of waiver and ratification because the affirmative defenses were not raised in their initial answer. Langston stated that although the terms “waiver” and “ratification” were not specifically used, the four unit owners did initially raise estoppel, laches, and unclean hands as affirmative defenses, and asked that the court incorporate the former as affirmative defenses, as well. Langston subsequently made an ore tenus motion to amend his answer to included waiver and ratification if the court found that the defenses should have been raised specifically.

¶ 23. Although the chancery court granted the four unit owners’ motion for summary judgment, it never expressly ruled on the issues of waiver and ratification. The chancery court did not provide specific factual findings when it made its ruling. “[Wjhere the chancellor has made no specific findings, this Court will proceed on the assumption that he resolved all fact issues in favor of the appellee.” Weeks v. Thomas, 662 So.2d 581, 584 (Miss.1995) (citing Estate of Mason v. Fort, 616 So.2d 322, 329-30 (Miss.1993)). Further, in the absence of specific factual findings, we are to “assume that the [chancery] court made determinations of fact sufficient to support its judgment.” Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 367 (Miss. 1992) (citing Pace v. Owens, 511 So.2d 489, 492 (Miss.1987)).

¶ 24. Here, a ruling on the issues of waiver and ratification was not needed considering the fact that the central dispute was whether a genuine issue of material fact existed as to whether Bancorp-South had actual knowledge of the four unit owners’ condo sales at the time it released the units sold to Ford and Lee from its encumbrance. Although the chancery court gave no specific factual basis for its ruling, the record is filled with documentary evidence supporting its judgment. A review of the record shows that BancorpSouth possessed numerous memo-randa listing the condo sales to each of the four unit owners, along with the corresponding purchase prices. BancorpSouth was in no way prejudiced by the four unit owners’ assertion of waiver and ratification because these affirmative defenses have no bearing on the court’s determination that no genuine issue of material fact exists. Accordingly, we find this issue is without merit.

IV. Whether the chancery court erred in holding that the four unit owners’ motion for summary judgment applied to the guarantors.

¶ 25. BancorpSouth claims that because the guarantors waived their right to assert any and all defenses, they should not be allowed to step into the shoes of the four unit owners in their motion for summary judgment. In signing the guaranties, the guarantors assumed full responsibility for the debt of the Van Burén loan, and agreed to preemptively waive their right to assert any and all affirmative defenses except the defense of discharge by payment in full. The relevant portion of the contract reads:

The liability of Guarantor is primary, absolute, unconditional, continuing, complete and irrevocable, and will not be discharged, except by complete and final performance of the obligations and no act need occur to establish Guarantor’s liability hereunder, irrespective of, but not limited to:
(i) the validity or enforceability of the obligations or of any security interest, mortgage or ledge granted by Borrower or by any person(s) secondarily or otherwise liable for any of the obligations ... or any other device providing collateral security for payment of the obligations, including the right of setoff against any deposits or credits[.]

(Emphasis added).

¶ 26. As previously discussed, under Pongetti once the value of the property that BancorpSouth released to Ford and Lee is credited to the outstanding balance of the loan, the debt is fully extinguished. However, we find that based on the language of the guaranties, the credit principle of Pongetti applies to the four unit owners only; and the guarantors are not entitled to the same credit. Pursuant to Pongetti a mortgagee must, as a matter of law, “deduct from the debt, before enforcing his lien against the property alienated, the value of the property released.” Pongetti, 368 So.2d at 823 (emphasis added). Before BancorpSouth may enforce its lien against the four condo units, it must credit the value of the units sold to Ford and Lee to the debt. But the application of credit only extinguishes BancorpSouth’s right to enforce its lien against the four unit owners.

¶ 27. The guarantors cannot escape responsibility under Pongetti and are still liable under the terms of the agreement. We find that a genuine issue of material fact exists as to whether Bancorp-South received full payment of the amount owed based on the funds received from the units sold. Such a determination is necessary to resolve whether the bank has received full compensation or whether there is an unpaid debt for which the guarantors must pay. For these reasons, we find that the chancery court’s grant of summary judgment in favor of the guarantors was error. Accordingly, we reverse and remand this portion of the judgment.

CONCLUSION

¶ 28. For the reasons stated herein, we affirm the chancery court’s grant of the four unit owners’ motion for summary judgment and reverse and remand the case for further proceedings consistent with this opinion as to the guarantors.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE SPLIT EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.

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

      . The four unit owners were third-party purchasers of the condominium units in question. The funds from these units were not remitted to the mortgagee, BancorpSouth.

      . Shane Langston is listed as Langston Oxford Properties.

      . We refer to the Albritons, the Bryans, Lang-ston, and Bourdeaux collectively as “the four unit owners.”

      .We refer to Brantley and Crumpton collectively as "the guarantors.”

      . We discuss the grant of summary judgment as to the guarantors in issue four. In this case, the chancellor is the finder of fact, also. See M.R.C.P. 41.