author: JAMES, J., ISHEE, J.,

text:
    Rebecca CHANDLER, as Mother and Next Friend of “Dutch” Pearson Chandler, a Minor, Appellant v. MARY MAHONEY’S, INC., Appellee.
    No. 2012-CA-00745-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Thomas J. Lowe Jr., Brandon, T. Mark Sledge, attorneys for appellant.
    Edward C. Taylor, Stephanie Gee Beaver, Gulfport, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Rebecca Chandler, on behalf of her minor child, Pearson “Dutch” Chandler, filed suit against Mary Mahoney’s Inc., a restaurant located in Biloxi, Mississippi, alleging that Mary Mahoney’s breached its duty to keep its premises in a reasonably safe condition after Dutch sustained severe second- and third-degree burns from contact with a landscape light maintained on the premises. The Harrison County Circuit Court granted Mary Mahoney’s motion for summary judgment. Chandler appeals to this Court from that judgment. Upon review, we find that summary judgment was prematurely granted. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 18, 2009, Dutch, a minor child, accompanied his family to Mary Ma-honey’s. As they waited for their meal to be served, Chandler along with Dona Po-mian, Chandler’s mother, took Dutch and his sister to play in a courtyard located on the restaurant property. Dutch, who was three years old and his sister, who was two years old, left the sidewalk to play in a garden area located approximately eight to nine feet from the walkway. The garden area contained a sculpture lighted by a landscape light set on the ground at its base. Dutch lost his balance and fell, sustaining severe second- and third-degree burns to his left leg caused by contact with the landscape light.

¶ 3. On September 15, 2010, Chandler filed a premises-liability action as mother and next friend of Dutch in the Circuit Court of Harrison County, Mississippi. Chandler’s complaint alleged that Mary Mahoney’s was negligent in maintaining “super hot lighting” and in failing to warn of the presence of a dangerous condition.

¶ 4. Mary Mahoney’s moved for summary judgment arguing that there was no genuine issue of material fact in dispute as a matter of law because the condition that Chandler complained had caused the alleged injury, a landscape light set in a flower bed eight feet from the sidewalk, did not amount to a dangerous condition.

¶ 5. On March 2, 2012, a hearing on Mary Mahoney’s motion for summary judgment was held. At the hearing, the trial court excluded from its consideration Chandler’s previously filed expert report prepared by E.J. Lacoste, an “Architect-Planner,” because the report was unsworn. The trial court also excluded a sworn affidavit executed by Lacoste because it was not filed until the morning of the hearing and was therefore untimely. On April 5, 2012, the trial court entered an order granting summary judgment in favor of Mary Mahoney’s, finding that Chandler failed to establish in the record that a dangerous condition existed. From this order, Chandler appeals raising the following issues: did the trial court err in finding no genuine issue of material fact as to the presence of a dangerous condition and was expert testimony essential to prove that a'dangerous condition existed?

STANDARD OF REVIEW

¶ 6. “We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment.” Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 213 (¶ 7) (Miss.Ct.App.2012). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e) further provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

M.R.C.P. 56(e). In determining whether summary judgment was properly granted by a trial court, we view “the facts in the light most favorable to the nonmovant.” Parmenter, 99 So.3d at 213 (¶ 7). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Id.

DISCUSSION

¶ 7. Chandler claims the circuit court erred in granting summary judgment in favor of Mary Mahoney’s. She contends there was a material issue of fact regarding the existence of a dangerous condition on the premises that was created by Mary Mahoney’s. Namely, Chandler asserts that the presence of a landscape light capable of causing second- and third-degree burns constituted a dangerous condition.

¶ 8. In Mississippi, the owner of a business “owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions not readily apparent, which the owner or occupant knows of, or should know of, in the exercise of reasonable care.” Thompson v. Chick-Fil-A, Inc., 923 So.2d 1049, 1052 (¶ 10) (Miss.Ct.App.2006) (citing Robinson v. Ratliff, 757 So.2d 1098, 1101 (¶ 12) (Miss.Ct.App.2000)). However, “[b]usiness owners are not strictly liable for injuries occurring on the premises, nor are they insurers of their invitees’ safety.” McCullar v. Boyd Tunica, Inc., 50 So.3d 1009, 1012 (¶ 14) (Miss.Ct.App.2010) (citing Martin v. Rankin Circle Apartments, 941 So.2d 854, 864 (¶ 45) (Miss.Ct.App.2006)).

¶ 9. Therefore, in order to prevail on her claim, Chandler must show “(1) a negligent act by the defendant caused the plaintiffs injury; or, (2) the defendant had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant.” Stanley v. Boyd Tunica, Inc., 29 So.3d 95, 97 (¶ 9) (Miss.Ct.App.2010) (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465 (¶ 5) (Miss.Ct.App.2003)). Each requires a showing of a dangerous condition; thus, a property owner cannot be found liable for the plaintiffs injury where no dangerous condition exists. Id. at (¶ 10).

¶ 10. The basis of Mary Maho-ney’s motion for summary judgment was that the landscape light did not constitute a dangerous condition for the purposes of premises liability. Mary Mahoney’s asserted that “as a matter of law, the condition the Plaintiff complains caused the alleged injury, a landscape light in a flower bed almost eight (8) feet from the sidewalk, does not amount to a dangerous condition.”

¶ 11. In granting summary judgment on behalf of Mary Mahoney’s, the circuit judge found that there was no genuine issue of material fact. Particularly, the circuit court found:

There is no evidence in this record which establishes that the light in question was a dangerous or hazardous condition or which establishes any negligence on the part of Mary Maho-ney’s .... Neither the mother not the grandmother testified to anything which would establish or tend to establish that the light, its location, or its installation was dangerous or hazardous. Their testimony simply involved the fact that [Dutch] apparently fell, that his leg was burned and that they believe he was burned by falling on or against the light- [W]ithout [La-coste’s] report and [a]ffidavit, there is nothing in this record to indicate that the light was unduly hot, that it was improperly mounted, or that there was anything else wrong with the light or its placement.

¶ 12. After reviewing the record, we find that a genuine issue of material fact exists as to the presence of a dangerous condition. The trial court’s grant of summary judgment rested on the finding that Chandler failed to show that the landscape light that caused Dutch’s injury was a dangerous condition. It is undisputed that Dutch was an invitee playing in the vicinity of the landscape light; the landscape light was installed and maintained by Mary Ma-honey’s; Dutch fell on or near the landscape light and sustained severe second- and third-degree burns to his leg. Further, there is nothing in the record that suggests that the garden area was roped off or that invitees were warned not to enter the area where Dutch was injured. We find this evidence to be beyond mere speculation and that it creates a sufficient triable issue for the jury regarding whether the landscape light ¿mounted to a dangerous condition and whether Dutch’s injury was caused by the dangerous condition.

¶ 13. Further, we find that the facts in this case do not require the testimony of an expert witness. Lacoste’s report was unsworn and his affidavit was not filed until the day of the hearing. The Mississippi Supreme Court has held that “the only unsworn matters available to a party opposing the motion for summary judgment are undenied allegations in his pleadings and admissions secured under Rule 36.” Thomas v. Greenwood Leflore Hosp., 970 So.2d 273, 277 (¶ 19) (Miss.Ct.App.2007) (citing Magee v. Transcon. Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989)). Therefore, the trial court acted within its discretion in electing not to consider the unsworn report. The trial court also acted within its discretion when it chose not to consider the untimely filed affidavit: Mississippi Rule of Civil Procedure 56(c) “requires that affidavits be served by the opposing party prior to the day of the hearing. Under Mississippi Rule of Civil Procedure 6(d), affidavits in opposition to a motion must be served no later than one day before the hearing, unless the court allows them to be served at a later time.” Maxwell v. Baptist Mem’l Hosp.-DeSoto, Inc., 15 So.3d 427, 434 (¶ 18) (Miss.Ct.App.2008).

¶ 14. Although the expert material was properly excluded, we find that the facts in this case do not require the testimony of an expert witness. Expert testimony is “designed to provide ‘scientific, technical, or other specialized knowledge’ to assist the trier of fact to understand the evidence or determine a fact in issue.” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 464 (¶ 34) (Miss.2010) (quoting M.R.E. 702). The issue of whether a landscape light that burns hot enough to cause severe burning is a dangerous condition does not require such testimony.

¶ 15. The dissenting opinion asserts that Chandler does not have any evidence to link the burn to the landscape light or to show that the light was inherently dangerous. Further, the dissent points out that the landscape light was not located in an area designated for patron use. We have adequately addressed these concerns above, but we will briefly address them again here. Although the dissenting opinion correctly points out that no one saw Dutch fall onto the light, Chandler claims that the light caused the burn and that Dutch was playing in the immediate vicinity of the light when he fell and, as a result, received severe burns to his leg. This Court has often held that for the purposes of summary judgment, “the non-moving party ... must be given the benefit of every reasonable doubt.” McGuffie v. Herrington, 966 So.2d 1274, 1277 (¶ 6) (Miss.Ct.App.2007) (quoting Lamar v. Thomas Fowler Trucking Inc., 956 So.2d 878, 881 (¶ 8) (Miss.2007)). Considering all the facts and evidence as a whole, we find a triable issue for the jury regarding whether the landscape light amounted to a dangerous condition and whether Dutch’s injury was caused by the dangerous condition. At trial, Chandler will have to convince a jury that the light was the source of the burn, but that is not for us to say here. Furthermore, “[i]n situations where there is doubt as to whether a genuine issue of material fact exists, ‘the trial judge should err on the side of denying the motion and permitting full trial on the merits.’ ” Todd v. First Baptist Church of W. Point, 993 So.2d 827, 829 (¶ 9) (Miss.2008) (quoting Am. Legion Ladnier Post No. 42 Inc. v. City of Ocean Springs, 562 So.2d 103, 106 (Miss.1990)).

CONCLUSION

¶ 16. In order to survive summary judgment in a premises-liability case, a plaintiff must show that the defendant created an unreasonably dangerous condition or that the defendant had actual or constructive knowledge of a dangerous condition. Having found that Chandler has presented enough evidence to show that there are genuine issues of material fact regarding the liability of Mary Mahoney’s, we reverse and remand this case to the circuit court.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., GRIFFIS, P.J., AND ROBERTS, J., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J.; IRVING, P.J., AND FAIR, J., JOIN IN PART. MAXWELL, J., NOT PARTICIPATING.

ISHEE, J.,

dissenting:

¶ 18. With respect to the majority, I must dissent. We are presented with a case involving the trial court’s grant of summary judgment on a premises-liability issue. In this instance, the injured party is a minor child, Dutch, who, though under the supervision of both a parent, Chandler, and a grandparent, Pomian, left the sidewalk and patio area of a restaurant, Mary Mahoney’s, and was somehow burned in a flower bed. Chandler argues that Dutch was burned after falling onto a landscaping light located approximately eight feet from the sidewalk. Nonetheless, no one saw Dutch touch the light or fall into the light, and he was of such a young age as to be unable to identify what burned him. Chandler merely assumes the light was the cause of the burn after she and her family returned to the area to investigate several hours after the incident.

¶ 19. The majority finds that the grant of summary judgment was improper. I strongly disagree. Summary judgment is proper when “there is no genuine issue as to any material fact.” M.R.C.P. 56(c). The Mississippi Supreme Court has consistently held that “[mjere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment.” Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1356 (Miss.1990). Such is the case here.

¶20. Chandler simply does not have any evidence to link the burn to the landscape light or to show that the landscape light was inherently dangerous. No one can testify to seeing Dutch fall onto the light. The family did not even investigate the area in question until several hours after the incident. Moreover, there is nothing before us allowing us to make a determination that a landscape light is an inherently dangerous device. Furthermore, the light was not located in an area designated for patron use.

¶ 21. The area in question was located outside of the sidewalk and patio area with a raised brick border. There were no step stones, gravel paths, or other entryways or pathways ushering patrons into the area. Chandler admitted under oath that the area in question did not contain benches, chairs, children’s toys, or play equipment. The area simply, consisted of landscaping, grass, a landscaping light, and a garden sculpture. It is obvious that there were clear demarcations in the courtyard as to areas, such as the one in question, not intended for pedestrian traffic.

¶ 22. Additionally, it is not the responsibility of Mary Mahoney’s to monitor patrons, particularly minor children, who enter areas clearly not designated for their use. It was the responsibility of Chandler and Pomian to supervise Dutch as he was wandering through the courtyard and to insure that he was safely located in areas intended for him. Again, nothing in or around the area indicated that it was suitable for patrons.

¶ 23. Furthermore, the Chandlers have not provided any evidence that Mary Ma-honey’s condoned patrons entering the area in question. Conversely, Mary Maho-ney’s has consistently argued that the area is not intended for patron use. Moreover, there is no evidence that a patron had ever entered the area before this incident, much less that Mary Mahoney’s was aware that a patron had ever entered the area in question. Certainly there is nothing in the record before us to indicate a patron had been injured by the light previously. Likewise, there is no direct evidence in the record before us to indicate that Dutch was injured by the light at all.

¶ 24. It is my opinion that to reverse the grant of summary judgment in this case would create a slippery slope for future cases with regard to evidentiary standards, as well as the duty owed to a patron in similar circumstances. The evidence does not suggest that Mary Mahoney’s created a dangerous environment in the area with the installation of the landscape light or allowed or intended for patrons to enter the area. It was not the responsibility of Mary Mahoney’s to supervise the child on the premises at all, even less so in an area not designated for patrons. Mostly, I must reiterate that there is no direct evidence linking the burn to the light— only conjecture and assumption. In sum, it is my opinion that the Chandlers have failed to provide evidence sufficient to overcome summary judgment. As such, I would affirm the trial court’s ruling.

CARLTON, J., JOINS THIS OPINION. IRVING, P.J., AND FAIR, J., JOIN THIS OPINION IN PART.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Donald LOCKLEAR, Appellant v. Timothy G. SELLERS and Johnny M. Sellers, Appellees.
    No. 2012-CA-00676-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Carey R. Varnado, Hattiesburg, Brian Randolph Bledsoe, attorneys for appellant.
    Alben Norris Hopkins Jr., Mariano Javier Barvie, Gulfport, attorneys for appel-lees.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Brothers Tim and Johnny Sellers, joint owners of a parcel of land in rural Forrest County, brought suit against Donald Locklear, a neighboring landowner. The Sellerses alleged Locklear had constructed a road across their property, against their express direction. The Sell-erses’ request for admissions was deemed admitted by the chancery court after Locklear, who was not represented by counsel at the time, failed to respond. The admissions resolved liability, and a trial on damages resulted in awards of approximately $64,000 in compensatory damages, $126,000 in punitive damages, and $25,000 in attorney’s fees. Locklear appeals, and we affirm.

FACTS

¶ 2. The Sellerses inherited their property, 120 acres straddling Forrest and Perry Counties, which had once been part of a larger block of family land. Locklear purchased a parcel to the south that apparently was once also Sellers family land. The Sellerses’ aunt, Mary Sellers, who owned property to the east of the Sellers-es, sold Locklear an easement to build a road to access his property. Locklear’s gravel road traveled south down the western edge of the Sellers’s property until approximately 1,000 feet from Locklear’s property line, if it had continued due south. There, an existing trail “cut the corner” of the Sellerses’ property at approximately a thirty-degree angle. Lock-lear built his road over the trail, and some land adjoining it was cleared for the installation of utilities. The road spanned about 1,200 feet on the Sellerses’ property, and approximately 84,000 square feet was disturbed. Ultimately, Locklear subdivided his parcel and cashed out. Several homes were constructed on the former Locklear property, and the Locklear road was used to access them.

¶ 3. Locklear’s most relevant admissions were:

REQUEST NO. 6: Admit that [Lock-lear] trespassed on the [Sellerses’] property.
REQUEST NO. 7: Admit that [Lock-lear] was advised and specifically instructed to stay off the [Sellerses’] property, that the admonition was ignored[, and that] Locklear entered the [Sellers-es’] property anyway.
REQUEST NO. 11: Admit that the [Sellerses] suffered damages to the property as a result of [Locklear’s] trespass.
REQUEST NO. 12: Admit that [Lock-lear’s] trespass was intentional, malicious[,] and grossly negligent.
REQUEST NO. 13: Admit that the [Sellerses] are entitled to damages pursuant to Mississippi law for the trespass of [Locklear,] to include punitive damages.
REQUEST NO. 16: Admit that the [Sellerses] are entitled to have their property restored to its original condition if it can be.
REQUEST NO. 17: Admit that [the Sellerses] are entitled to attorney’s fees and all expenses associated with the filing and pursuit of this claim.

At the damages hearing, Tim Sellers testified that he had repeatedly refused Lock-lear’s overtures for a right of way over the Sellers property. He had once given Locklear oral permission to use the trail for personal travel to and from his lot, but Tim had repeatedly denied Locklear’s request to construct a road. While the road was under construction, Tim personally went to the site and instructed Locklear not to build the road on his property. Locklear said he would not, but did it anyway.

¶4. Locklear testified Tim Sellers had orally agreed to allow the road to be built on his property in exchange for the right to use it.

¶ 5. Bubba Catt testified as an expert in excavation and road building. He viewed the Sellers property and concluded that restoration would require busting up the roadbed, removing the fill and gravel, and replacing the topsoil and vegetation. Catt estimated the cost at nearly $64,000.

STANDARD OF REVIEW

¶ 6. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor’s factual findings, on the other hand, will not be disturbed unless he was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings and none are required under a “factor test” mandated by case law, we generally proceed on the assumption that he resolved fact issues in favor of the prevailing parties. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005).

¶ 7. With regard to Mississippi Rule of Civil Procedure 36 admissions: “A matter that is deemed admitted does not require further proof. Any admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” Young v. Smith, 67 So.3d 732, 742-43 (¶ 22) (Miss.2011) (citation omitted). “Rule 36 admissions, whether express or by default, are conclusive as to the matters admitted.... ” Id. at 743 (¶ 22) (citation omitted).

DISCUSSION

¶ 8. Locklear lists five issues, but he has briefed just three. We address only those issues supported by argument and citation to authority. M.R.A.P. 28(a)(6); In re Adoption of Minor Child, 931 So.2d 566, 578 (¶ 34) (Miss.2006).

1. Restoration Costs

¶ 9. Locklear contends the chancellor erred in using restoration cost as the measure of compensatory damages because, according to him, the road actually improved the value of the Sellers property. He points out that the general rule is that restoration costs will only be awarded where the cost of restoration is less than the diminution in value of the property. See, e.g., Harrison v. McMillan, 828 So.2d 756, 769 (¶ 43) (Miss.2002). Proof of the cost of restoration “is usually confined to the introduction of evidence to show a reduction, and not an increase, of damages above the diminution in value of the land resulting from the injury.” Id. (quoting Bynum v. Mandrel Indus., Inc., 241 So.2d 629, 634 (Miss.1970)).

¶ 10. The flaw in Locklear’s argument is that it was deemed admitted that the Sellerses were entitled to restoration damages. Admissions under Rule 36 are conclusive and final. Young, 67 So.3d at 742-43 (¶ 22).

¶ 11. Moreover, Locklear’s contention that the property value was increased is contradicted by his admission that it was damaged. In Bell v. First Columbus National Bank, 493 So.2d 964, 969-70 (Miss.1986), the Mississippi Supreme Court discussed at length the various ways to measure damage to real property. The court concluded:

Plaintiff can choose to prove either reasonable cost of replacement or repairs or diminution in value, and if he proves either of these measures with reasonable certainty, damages are- allowable, so long as the plaintiff will not be unjustly enriched and the defendant does not demonstrate that there is a more appropriate measure of damages.

Id. at 970. Locklear begs the question of whether the diminution in value exceeds the restoration cost; he presented no evidence of the before and after values of the property. Even if this issue were not disposed of by Locklear’s admissions, it is without merit because he has failed to show a better measure of damages.

2. Punitive Damages

¶ 12. Locklear next argues that punitive damages should not have been awarded. He admits that punitive damages may be assessed against a defendant for a wilful, grossly negligent, or wanton trespass. R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1013 (Miss.1988). But Locklear again attempts to contradict his own admissions by arguing his trespass was not intentional. That cannot be done. See Young, 67 So.3d at 742-43 (¶ 22).

¶ 13. Locklear’s argument also depends on the assumption that the chancellor had to believe his testimony over Tim Sellers’s. Credibility is a question for the chancellor and not the reviewing court. Trim v. Trim, 33 So.3d 471, 479 (¶ 20) (Miss.2010).

¶ 14. Locklear also contends there was no damage to the Sellers property, an argument we have also already rejected.

¶ 15. This issue is without merit.

3. Attorney’s Fees

¶ 16. Locklear correctly points out that attorney’s fees are only recoverable in limited circumstances. He cites City of Laurel v. Bush, 238 Miss. 718, 120 So.2d 149 (1960), for this proposition. However, Bush goes on to say: “The rule in this state is that, in the absence of statute, attorney’s fees are not recoverable,, unless the facts are of such gross or willful wrong as to justify the infliction of punitive damages.” Id. at 730, 120 So.2d at 155 (citation omitted). Since punitive damages were properly awarded, attorney’s fees were as well.

¶ 17. Locklear makes no other arguments against the award of attorney’s fees. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The damaged portion of the property is entirely in Forrest County.

      . The utilities were installed and later removed. The Sellerses also sued two utility company defendants, who settled and are not parties to this appeal.


author: IRVING, P.J.,

text:
    Chakakhan DAVIS, Appellant v. MISSISSIPPI BOARD OF CERTIFIED COURT REPORTERS, Appellee.
    No. 2013-CP-00180-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.

      Chakakhan Davis, appellant, pro se.
    James T. Metz, Alan M. Purdie, Grenada, attorneys for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On January 10, 2013, the Hinds County Circuit Court dismissed without prejudice a complaint filed by Chakakhan Davis against the Mississippi Board of Certified Court Reporters (Board), alleging defamation of character. Feeling aggrieved, Davis appeals and argues that the circuit court erred in dismissing her complaint.

¶ 2. Because we find that the circuit court erred in dismissing Davis’s complaint prior to the expiration of the service period, we reverse the circuit court’s judgment and remand this case to the circuit court with instructions to reinstate Davis’s complaint.

FACTS

¶ 3. On November 5, 2012, Davis filed a complaint for defamation of character against the Board. Davis’s complaint arose out of an incident with a certified court reporter. According to Davis, the court reporter “knowingly prepared and published untrue and harmful statements in a ... transcript])]” Further, Davis alleged that the Board “failed to protect [her] from a known ... unreasonable^] incompetente,] unsafe[,] and dangerous [c]ourt [Reporter [who] deliberately exposed [Davis] to contempt, ridicule, malice, hatred[,] and ill will by willfully ... carrying out [a] libelous and slanderous egregious act.”

¶ 4. On the same day that Davis filed her complaint, she personally served a copy of the complaint and a summons on the Board. On December 26, 2012, the Board, in response to Davis’s complaint, filed a motion to dismiss, citing Davis’s failure to serve the Attorney General of the State of Mississippi (Attorney General). The circuit court, finding that Davis failed to comply with Rule 4(d)(5) of the Mississippi Rules of Civil Procedure, dismissed Davis’s complaint against the Board without prejudice on January 7, 2013.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶6. Appellate courts review the grant of a motion to dismiss de novo. Copiah Cnty. Sch. Dist. v. Buckner, 61 So.3d 162, 166 (¶ 12) (Miss.2011). Rule 4(h) of the Mississippi Rules of Civil Procedure gives a plaintiff 120 days after filing the complaint to serve a copy of the complaint and a summons on the defendant. Additionally, Rule 4(d)(5) of the Mississippi Rules of Civil Procedure states:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:
Upon the State of Mississippi or any one of its departments, officers!,] or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.

¶ 7. Here, Davis filed her complaint against the Board on November 5, 2012. Mississippi Code Annotated section 9-13-101 (Rev.2002) established the Board as an institution under the jurisdiction of the judicial branch of state government. As such, Rule 4(d)(5) required Davis to serve a copy of the complaint and a copy of the summons on the Attorney General within 120 days of filing the complaint against the Board. The 120-day period would not have expired until April 22, 2013. Inexplicably, the circuit court dismissed Davis’s claim on January 10, 2013 — more than three months prior to the expiration of the 120-day time limit provided by Rule 4(h). There is no evidence that Davis knew, prior to receiving and responding to the Board’s motion, that she was required to serve process on the Attorney General. Additionally, there is no evidence that Davis would not have correctly served process on the Attorney General prior to the expiration of the 120-day time period. See E. Miss. State Hosp. v. Adams, 947 So.2d 887, 890 (¶ 9) (Miss.2007) (holding that service of process was insufficient because the plaintiffs made no subsequent effort to correctly serve the Attorney General after receiving notice that the Attorney General was the proper party for service of process). In fact, the record reveals that, even though it occurred after the circuit court dismissed her complaint, Davis attempted to correctly serve process on the Attorney General on January 25, 2013, which was still within the 120-day time period.

¶ 8. Because the time period for service had not expired by the time that the Board filed its motion to dismiss for insufficient service of process and because there was no evidence that Davis would not or could not properly serve the Attorney General before the time limit expired, the circuit court erred in dismissing Davis’s complaint for insufficient service of process. Accordingly, we reverse the circuit court’s dismissal and remand this case to the circuit court with instructions to reinstate Davis’s complaint.

¶ 9. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED WITH INSTRUCTIONS TO REINSTATE THE APPELLANT’S COMPLAINT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


author: ISHEE, J.,

text:
    Kenneth M. HINES a/k/a Kenneth Hines, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01183-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Christopher A. Collins, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2012, Kenneth M. Hines was convicted in the Neshoba County Circuit Court of statutory rape and sexual battery of a child. He was sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) on each count, with the sentences to run consecutively. Aggrieved, Hines appeals, arguing (1) the indictment did not give him sufficient notice of the crimes committed; (2) the indictment was defective due to a statute-of-limitations issue; (3) the evidence was insufficient to support the verdict; and (4) the State made prejudicial comments during its closing argument. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In 1997, Hines began dating Audrey Arnold, who had two children at the time. Arnold’s son, A.D., was born in 1994, and D.W., Arnold’s daughter, was born in 1996. Hines and Arnold later had a daughter together, Breanna, who was born in 2000.

¶ 3. A.D. and D.W. did not have fathers in their lives, and looked to Hines as a father figure soon after Hines and Arnold started dating. Hines lived with Arnold and the children until the couple split up in April 2001. Hines later moved in with his sister, Diane Stokes.

¶ 4. Hines did not visit any of the children between April 2001 and May 2002. In 2002, while Hines was living with Stokes, he began visiting with all three of the children. The record indicates that Hines continued visiting with the children from 2002 through 2004, but stopped seeing the children after 2004. He did not see them again until 2011. The record reflects that neither A.D. nor D.W. told Arnold that there were problems with Hines’s visits.

¶ 5. In 2010, Arnold took D.W. to a doctor’s appointment. Arnold asked D.W. if she had ever had sexual relations with a man. She warned D.W. not to lie, claiming the doctor would be able to discern whether or not she was telling the truth. D.W. testified that she then told her mother that when she was around six or seven years old, Hines raped her while she was at Stokes’s house during one of their visits. At trial, she testified that Hines was drunk and told her to go to the back bedroom belonging to Stokes. She stated that he locked the door and raped her despite her repeated requests that he stop. D.W. also stated that later that day, she was walking through Stokes’s house to go to the restroom and witnessed Hines “messing with” her brother on a twin bed in another bedroom. She stated that Hines told her repeatedly not to tell anyone, including Arnold.

¶ 6. Arnold immediately contacted the authorities. During the authorities’ investigation, A.D. admitted that Hines had assaulted him. A.D. testified that on the day in question, Hines took him into a back bedroom, told him to get on his hands and knees on the twin bed, pulled his pants down, and anally raped him. When asked why they had waited six years to come forward to their mother, both children indicated that they were embarrassed, frightened, and unsure how to tell Arnold what had happened.

¶ 7. Hines was indicted in May 2011 for statutory rape and sexual battery of a child stemming from the incidents occurring “on or about 2000-2004.” Neshoba County Sheriffs Department Investigator Kevin Baysinger testified that the investigation eventually revealed that the incidents occurred sometime around August 2003. While the indictment was never altered or amended, the circuit court granted the defense’s jury instructions D-8 and D-9, which narrowed the possible time frame of the crimes from May 2003 through August 2004.

¶ 8. After a trial on the merits in March 2012, the jury returned a guilty verdict on both counts. Hines’s counsel filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. The circuit court then sentenced Hines as a habitual offender to life in the custody of the MDOC on both counts, with the sentences to run consecutively.

DISCUSSION

I. Indictment

¶ 9. We address Hines’s first two assignments of error jointly because both issues relate to Hines’s indictment. Hines argues that the indictment was insufficient to provide him with proper notice, due to the four-year time span included therein. He also asserts that the applicable statute of limitations for one of the crimes charged would have precluded his being charged for conduct during the first two years of the time span included in the indictment, thereby making the indictment defective.

¶ 10. “The primary purpose of an indictment is to give the defendant fair notice of the crime charged. It must contain the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Faulkner v. State, 109 So.3d 142, 146 (¶ 13) (Miss.Ct.App.2013) (internal quotations and citations omitted). Hines claims he was not sufficiently notified of the charges against him because the four-year time span included in the indictment was too broad.

¶ 11. Nonetheless, Hines was granted two jury instructions which limited the time span for the commission of the crimes to between May 2003 and August 2004. This could arguably have served as a constructive amendment narrowing the time span in the indictment. The Mississippi Supreme Court has “specifically held ... that an accused may not complain of an instruction given at his request.” Caston v. State, 823 So.2d 473, 508 (¶ 121) (Miss.2002) (citation and quotation omitted). Hence, we consider the time span of May 2003 through August 2004 when reviewing whether Hines was on notice of the crimes charged. We find that the fifteen-month time span was not unreasonably large for Hines to be on notice as to the crimes charged. The record reflects that Hines did not have contact with A.D. or D.W. between 2001 and 2003, and again from 2004 until 2011. As such, the only time Hines would have been around the children was during the fifteen-month time span between May 2003 and August 2004. We do not find this time frame unreasonably large so as to prevent Hines from defending himself.

¶ 12. Hines also alleges that the original four-year time span rendered the indictment defective. Rule 7.06(5) of the Uniform Rules of Circuit and County Court requires than an “indictment ... include ... [t]he date, and if applicable, the time at which the offense was alleged to have been committed.” “However, in cases involving sexual abuse of a ehild[,] a specific date is not required so long as the defendant is ‘fully and fairly advised of the charge against him....'" Gordon v. State, 977 So.2d 420, 430-31 (¶ 30) (Miss.Ct.App.2008) (citation omitted). Therefore, the question before us is whether Hines was prejudiced in the preparation of his defense. See Caston v. State, 949 So.2d 852, 858 (¶ 14) (Miss.Ct.App.2007) (citation omitted).

¶ 13. We cannot see how Hines was prejudiced in his defense of the case. Although the indictment listed a four-year time span, Hines was only in contact with the children during the fifteen months noted in his two jury instructions. That alone narrowed the window of opportunity by more than half.

¶ 14. Hines argues that the charges alleged in the first two years of the indictment’s four-year window would have been barred by the statute of limitations as it pertained to the sexual-battery-of-a-child charge. Hines notes that from 2000 until 2002, the first two years of the indictment’s time span, Mississippi Code Annotated section 99-1-5 (Rev.1998) provided that there was no statute of limitations with regard to sexual battery of a child under the statute used to indict Hines— Mississippi Code Annotated section 97-3-95(l)(d) (Rev.2006) — which applies to sexual battery of a child under fourteen years of age by someone twenty-four months older than the child. Hines asserts that only Mississippi Code Annotated section 97-3-95(l)(c) (Rev.2006), applying to sexual battery of a child at least fourteen years of age but younger than sixteen years of age by someone thirty-six months older than the child, was granted a reprieve from a statute of limitations. Hence, Hines argues that the general two-year statute of limitations listed within section 99-1-5 barred his prosecution for any sexual battery of a child from 2000 through 2002, and, therefore, the indictment was defective on its face.

¶ 15. However, the historical commentary to section 99-1-5 notes that on May 16, 2002, the Legislature “ratified the correction of a typographical error ... [wherein] [t]he words ‘Section 97-3-95(e)’ were changed to ‘Section 97-3-95(l)(c) or (d)[.]’ ” (Emphasis added). Hence, the Legislature made it clear that it was always the intent of the statute to include both subsections (c) and (d) of the sexual-battery-of-a-child statute in negating any statute-of-limitations issues.

¶ 16. Regardless, neither Hines nor his counsel made an objection to the indictment on this ground prior to Hines’s appeal. Mississippi Code Annotated section 99-7-21 (Rev.2007) states:

All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.

As such, even if Hines had timely objected to the indictment, the circuit court’s solution would have been to amend the indictment to reflect a time period not in conflict with any alleged statute-of-limitations issues. This was essentially done by Hines’s counsel with the offer of jury instructions D-8 and D-9. Thus, although this issue is procedurally barred due to a lack of objection, the remedy would have been an amendment to the indictment. While an official amendment did not occur, Hines’s counsel was adequately able to prepare his defense on the basis that the crime could only have occurred during the time period in which Hines was in contact with the children via visitation — the fifteen-month time period that was presented to the jury in the jury instructions offered by the defense. These issues are without merit.

II. Weight and Sufficiency of the Evidence

¶ 17. Hines next asserts that the evidence was insufficient to support the verdicts or, alternatively, that the verdicts were not supported by the overwhelming weight of the evidence. The supreme court has stated that in considering the denial of a motion for a JNOV, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Additionally, “[wjhen reviewing a denial of a motion for a new trial, this Court ‘will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Vaughn v. State, 926 So.2d 269, 271 (¶ 4) (Miss.Ct.App.2006) (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 18. At trial, Arnold, D.W., A.D., and Investigator Baysinger testified on behalf of the State. The defense presented three witnesses: Diane Stokes; her son, Bradley Goodin; and her ex-husband, Kevin Drury. Stokes, Goodin, and Drury all testified that they knew nothing about the incidents in question. Stokes testified that neither A.D. nor D.W. ever visited her home while Hines was present. She stated that to her recollection, only Breanna visited them while Hines was living there. Drury testified that he was living in Stokes’s home during the time span in question. His testimony was mostly in keeping with Stokes’s, and he stated that while A.D. and D.W. may have visited Hines at Stokes’s house a few times, he did not ever remember them spending the night. Goodin, who was approximately six years old at the time of the incidents, testified that he did not remember A.D. and D.W. visiting the home either during the day or at night during the time span in question.

¶ 19. In essence, Hines’s defense centered on his assertion that A.D. and D.W. never visited him during the time span in question. However, the State countered this claim by presenting testimony from the victims themselves, as well as Arnold. A.D. and D.W. both testified in detail regarding the sexual abuse. Arnold testified regarding the children’s visitation with Hines.

¶20. We have consistently held that “the jury is the final arbiter of a witness’s credibility.” Collins v. State, 97 So.3d 1247, 1251 (¶ 14) (Miss.Ct.App.2012) (quoting Morgan v. State, 681 So.2d 82, 93 (Miss.1996)). It is evident that the jury found the testimony of the State’s witnesses to be more credible than that of the defense’s witnesses. As such, we cannot find that the evidence was insufficient to support the verdicts or that the overwhelming weight of the evidence was contrary to the verdicts. These issues are without merit.

III. Closing Argument

¶ 21. In his last assignment of error, Hines claims that he was prejudiced by the following remark made by the State during closing arguments: “But I want you to know that the defense[’s] purpose is to obtain a not-guilty verdict for his defendant. That’s his only purpose.” Hines’s counsel failed to make a contemporaneous objection to the statement when it was made. It is well settled that a contemporaneous objection must be made to an allegedly prejudicial remark during opening or closing arguments in order to preserve the issue for appeal. See Hawkins v. State, 90 So.3d 116, 121 (¶ 20) (Miss.Ct.App.2012). “Failure to object waives the issue on appeal, since ‘the trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect.’” Id. (quoting Spicer v. State, 921 So.2d 292, 309 (¶¶ 31-32) (Miss.2006)). Accordingly, this issue is without merit.

¶ 22. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SEXUAL BATTERY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE ON EACH COUNT, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . This Court declines to reveal the identity of minors in sexual-abuse cases. In the interest of the children’s privacy, their names have been substituted with initials.


text:
    Marcus BATES a/k/a Marcus S. Bates, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-02037-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      Marcus Bates, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On April 22, 2002, Marcus Bates pleaded guilty in the Madison County Circuit Court to two counts of automobile burglary. He was sentenced on each count to five years of imprisonment, with four years suspended, and five years to be served on probation, all within the custody of the Mississippi Department of Corrections (MDOC), and with the sentences to run concurrently. On June 13, 2012, Bates filed a motion for post-conviction relief (PCR), which was dismissed. Bates now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On October 22, 1998, Bates was indicted for two counts of automobile burglary. He later pleaded guilty to both counts on April 22, 2002. He was sentenced on each count to five years of imprisonment, with four years suspended, and five years to be served on probation, all within the custody of the MDOC, and with the sentences to run concurrently. On October 5, 2002, Bates was placed on supervised probation under the MDOC’s supervision.

¶ 3. In January 2003, Bates was arrested by the Canton Police Department for automobile burglary. Subsequently, the State filed a petition for revocation of Bates’s probation. The hearing was set for April 4, 2003. Bates did not appear. It was later realized that Bates had been arrested and detained by the Madison County Sheriffs Office for possession of cocaine on March 4, 2003. The State amended its petition for revocation to include the later arrest.

¶ 4. On July 24, 2004, Bates was convicted by a jury in the Madison County Circuit Court for possession of cocaine. He was sentenced, as a habitual offender, to eight years to be served in the custody of the MDOC. On July 19, 2004, an order of revocation was entered revoking Bates’s probation from his 2002 automobile-burglary convictions.

¶ 5. On July 13, 2012, Bates filed a PCR motion seeking to vacate and set aside his sentences for his convictions of automobile burglary. He asserted that he did not enter his pleas voluntarily and knowingly, and he was denied due process and effective assistance of counsel. The motion was dismissed on December 14, 2012, as time-barred. Aggrieved, Bates appeals, arguing: (1) he was denied effective assistance of counsel; (2) he did not enter his guilty pleas voluntarily and intelligently; (3) he was denied due process when the circuit court judge failed to recuse himself; (4) there is newly discovered evidence requiring the vacation of his guilty pleas; (5) the circuit court imposed an illegal sentence.

DISCUSSION

¶ 6. A trial court’s dismissal of a PCR motion will not be disturbed unless the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Questions of law are reviewed de novo. Id.

¶ 7. “Under [Mississippi Code Annotated] section 99-39-5(2) [ (Supp. 2013) ], a movant has three years to file a PCR motion, and failure to file a PCR motion within the three years is a procedural bar.” Brandon v. State, 108 So.3d 999, 1004 (¶ 12) (Miss.Ct.App.2013). Bates filed a PCR motion on July 13, 2012, challenging his 2002 guilty pleas for automobile burglary. The three-year statute of limitations expired on April 22, 2005. On its face, it appears that Bates’s PCR motion is time-barred.

¶ 8. Section 99-39-5(2)(a)-(b) provides three exceptions to the general three-year statute of limitations. To be exempt, a movant must show one of the following: (1) an intervening decision of the United States Supreme Court or Mississippi Supreme Court; (2) new evidence, not reasonably discoverable at trial; or (3) his sentence has expired or his parole, probation, or conditional release has been unlawfully revoked. Miss.Code. Ann. § 99-39-5(2)(a)-(b). However, the movant carries the burden of proving that one of the exceptions apply. Brandon, 108 So.3d at 1004 n. 3.

¶ 9. Bates’s only argument regarding an exception to the statutory time-bar is that there is newly discovered evidence in his case. Bates contends that he was not aware at the time he entered his guilty pleas of the fact that Judge William Chapman III was the same person who signed his 1998 indictment for automobile burglary. He argues that, had he known that information at the time, he would not have entered his guilty pleas. However, the record reflects that, prior to the entry of his guilty pleas, Bates waived any conflict he had with Judge Chapman. Further, even if he was not aware, this was evidence that could have been readily discovered at the time he pleaded guilty. Accordingly, Bates’s PCR motion is not subject to an exception and is barred by the three-year statute of limitations. Thus, we affirm the circuit court’s judgment.

¶10. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


author: CARLTON, J.,

text:
    Dillon WILLIAMS a/k/a Dillon D. Williams a/k/a Dillon Dewayne Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00199-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      Dillon Williams, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE, and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Dillon Williams appeals the Marshall County Circuit Court’s dismissal of his second motion for post-conviction relief (PCR) as being successive-writ barred. Williams raises the following issues: (1) whether his video confession and guilty pleas were coerced and involuntary; (2) whether his attorney provided ineffective assistance of counsel; (3) whether there was a lack of evidence against him; and (4) whether his sentence was illegal. Williams filed his first PCR petition in August 2012, and he filed his second and successive petition in January 2013. Finding no error in the circuit court’s dismissal of Williams’s petition as a successive writ, we affirm.

FACTS

¶ 2. A Marshall County grand jury indicted Williams for Count I, burglary of a dwelling (home invasion); Count II, burglary of a dwelling with enhanced punishment; and Count III, aggravated assault with enhanced punishment. On November 10, 2010, Williams signed a plea petition in which he pled guilty to Counts II and III. Count I was retired to the files.

¶ 3. The dwelling house that Williams pled guilty to burglarizing in Count II belonged to Pasquealeen Crum, a ninety-one-year-old woman assaulted during the home invasion. During Williams’s sentencing hearing, Williams acknowledged that he had entered an open plea of guilty to two charges and that he had given investigators with the Marshall County Sheriffs Department a video confession on the day that law enforcement questioned him. Crum and one of her daughters also testified at the hearing and described the injuries that Crum sustained during the burglary, which included a fractured shoulder and permanent nerve damage to Crum’s face from a fractured eye socket and jaw.

¶ 4. Because Crum’s advanced age satisfied the statutory requirements for enhanced punishment for aggravated assault of an individual over sixty-five, the punishment for Williams’s aggravated assault was enhanced pursuant to Mississippi Code Annotated sections 97 — 3—7(2)(a) (Rev.2006), 99-19-351 (Rev.2007), and 99-19-357 (Rev.2007). On December 16, 2010, the Marshall County Circuit Court sentenced Williams to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) for the burglary of a dwelling. The circuit court sentenced Williams to serve an enhanced punishment of forty years for aggravated assault, which was ordered to run consecutively to the burglary sentence.

¶ 5. The circuit court dismissed Williams’s first PCR motion on August 24, 2012, finding that “it plainly appears from the face of the motions, exhibits, and prior proceedings that the defendant is not entitled to any relief.” Williams subsequently filed a second PCR motion, which the circuit court dismissed on January 10, 2013, finding that the motion was barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp. 2013).

¶ 6. Williams appeals the dismissal of his second PCR motion, seeking to withdraw his guilty pleas. He asserts the following: (1) that his video confession and guilty pleas were coerced and involuntary due to the Marshall County Sheriff Department’s use of false promises to obtain the confession; (2) that his attorney rendered ineffective assistance of counsel by failing to investigate the case more thoroughly; (3) that there was a lack of evidence against him regarding the conviction for aggravated assault pursuant to section 97-3-7(2)(a); and (4) that his enhanced sentence of forty years for aggravated assault was illegal because the sentence exceeded the punishment specified in Mississippi Code Annotated section 97-3-7(2) (Supp.2009).

STANDARD OF REVIEW

¶ 7. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss.Ct.App.2011). The issue, of whether Williams’s PCR motion is procedurally barred as a successive writ is a question of law and is therefore reviewed de novo.

¶ 8. Under the Uniform Post-Conviction Collateral Relief Act (UP-CCRA), a motion that is filed after entry of a final judgment and that asserts the same issues is procedurally barred as a successive writ. See Williams v. State, 110 So.3d 840, 843 (¶ 13) (Miss.Ct.App.2013) (citation .omitted). To proceed the movant must demonstrate by a preponderance of the evidence that his claims are not barred as successive writs. Id. Statutory exceptions exist to the UPCCRA’s procedural bars, but the movant bears the burden of showing that he has met one of the exceptions. Id. at (¶ 15). In addition, while errors that affect fundamental constitutional rights are excepted from the UPCCRA’s procedural bars, bare assertions regarding such violations are insufficient to overcome the procedural bars. Id.

DISCUSSION

I. Involuntary Guilty Pleas and Video Confession

¶ 9. Williams first argues that his guilty pleas and video confession were involuntary and coerced. Specifically, he asserts that the Marshall County Sheriff Department’s investigator “coer[c]ed and produced an illegal confession ... with the false promise that [Williams] could go home” if he confessed. Williams also asserts that investigators interrogated him for countless hours and left him in an isolated cell with no water, toilet, or toiletries.

¶ 10. When making a determination as to whether a plea is “voluntary and intelligent,” this Court looks at whether “the defendant knows the elements of the charge against him, understands the charge’s' relation to him, what effect the plea will have, and what sentence the plea may bring.” Willis v. State, 66 So.3d 740, 743 (¶ 9) (Miss.Ct.App.2011) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)).

¶ 11. Williams’s argument that his guilty pleas and video confession were coerced and involuntary is contradicted by his sworn guilty-plea petition and his sworn testimony during his sentencing hearing. On November 10, 2010, Williams signed a plea petition under oath in which he pled guilty to Counts II and III in the indictment against him, burglary of a dwelling with enhanced punishment and aggravated assault with enhanced punishment, respectively. The plea petition declared that Williams’s attorney had advised him of both the nature of the charges against him and the possible defenses to those charges. Williams’s petition further stated, “I understand by pleading guilty I am admitting that I did commit the crime charged in the indictment and that I am waiving all the rights set forth [in this] petition.” The petition also acknowledged in pertinent part the following:

I declare that no officer or agent of any branch of government nor any other person has made ... any promises or inducements of any kind to me or within my knowledge to anyone else that I will receive a lighter sentence, probation, early release^ or] any other form of leniency if I plead “guilty.” I have not been beaten, threatened, mentally or physically forced[,] intimidated[,] or coerced in any manner to plead guilty to the crime charged against me. I offer my plea of “guilty” freely and voluntarily and of my own accord and with full understanding of all matters set forth in the indictment herein and in this [petition, and this plea is with the advice and consent of my lawyer.

In addition to his plea petition, Williams testified under oath during his sentencing at the circuit court hearing that he had entered an open plea of guilty to both burglary of a dwelling with enhanced punishment and aggravated assault with enhanced punishment and that he had spoken to investigators from the Marshall County Sheriffs Department and had given them a video confession. Although Williams’s plea petition “was not an oral statement in open court, ... it was a sworn document presumptively prepared with an appreciation of its fateful consequences.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003). Similarly to statements made in open court, the plea petition “may be used to discredit post-plea allegations.” Id.

¶ 12. On appeal, Williams now offers only his unsubstantiated allegations as evidence that his guilty pleas and video confession were not voluntary and intelligent. However, as acknowledged, when he signed his sworn plea petition, and in his plea colloquy before the circuit court, Williams explicitly acknowledged that he made his guilty pleas voluntarily. In light of the admissions made both in his plea petition and during his sentencing-hearing testimony, Williams’s bare allegations raised now on appeal are insufficient to prove that his guilty pleas and video confession were coerced and involuntary. See Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990) (discussing the requirement of Mississippi Code Annotated section 99-39-9(l)(e) (Supp.2013) that the defendant provide evidence in his PCR motion to show “how or by whom his facts will be proven” and finding that the defendant’s bare alie-gations failed to meet the pleading requirement). Accordingly, this issue lacks merit.

II. Ineffective Assistance of Counsel

¶ 13. Williams next argues that his counsel rendered ineffective assistance by failing to sufficiently investigate the facts of the case, including Williams’s allegations that personnel from the sheriffs department lacked probable cause to interrogate him and used false promises to obtain his confession. Williams also faults his counsel for not probing further into the elderly victim Crum’s statements regarding the burglary and her description of the perpetrators.

¶ 14., To succeed on a claim for ineffective assistance of counsel, Williams must prove two elements: (1) his attorney’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams bears the burden of proof for both prongs of the test. Leatherwood v. State, 473 So.2d 964, 968-69 (Miss.1985). Furthermore, a strong presumption exists that “counsel’s conduct is within the wide range of reasonable professional conduct” and that “decisions made are strategic.” Id. at 969.

¶ 15. We find that Williams fails to make the necessary showing for either prong of his ineffective-assistanee-of-coun-sel claim. Williams bears the responsibility for ensuring that the record is sufficient for this Court to review his issues. Sanghi v. Sanghi, 759 So.2d 1250, 1252 (¶ 8) (Miss.Ct.App.2000). However, he relies solely on the assertions in his brief and affidavit, unsubstantiated by anything else in the record, to support his claim for ineffective assistance of counsel, and Mississippi Supreme Court precedent holds that this showing is insufficient to prevail on an ineffective-assistance-of-counsel claim. See Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (“This Court has implicitly recognized in the [PCR] context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.”). Moreover, the evidentiary issues Williams raises in asserting ineffective assistance of counsel were waived by him upon entering his guilty plea. See Brooks, 573 So.2d at 1352 (concurring with the circuit judge’s statement that “ ‘the issues raised by the defendant were waived upon his plea of guilty with the exception of the claim of ineffective counsel and the defendant has come nowhere near raising that issue as required by .... Strickland and its progeny’ ”). We therefore find that this argument lacks merit.

III. Lack of Evidence

¶,16. Regarding his third assignment of error, Williams claims that there was a lack of evidence against him as to the conviction for aggravated assault pursuant to section 97-3-7(2)(a). Section 97-3-7(2)(a) specifies that “[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” Williams’s indictment for aggravated assault tracks the language of the statute in stating that Williams “did unlawfully, willfully and feloniously, purposely and knowingly cause serious bodily injury to ... Crum, by violently striking and punching ... Crum .... ”

¶ 17. Williams argues, however, that no weapon was mentioned in the attack on Crum, that she was allegedly only struck with an open palm or fist, and that there were “no additional blows or strikes to support deadly intent[ ] or the inflicting of serious bodily harm.” He further asserts that the evidence showed that Crum sustained no serious injury and, at most, he is only guilty of simple assault. However, the investigative report of the assault, which Williams attached to his brief, contradicts Williams’s assertions.

¶ 18. The investigative report noted that Crum had been hit repeatedly in the face, grabbed by the neck and forced into her laundry room, and then hit again all over her body and head. The report further noted that Crum had “an extreme amount of blood pouring from the back of [her] head” and “fresh bruises on the left side of her face.” Crum and her daughter also testified to Crum’s injuries during Williams’s sentencing hearing and stated that Crum sustained not only permanent nerve damage in her face but also a fractured shoulder, eye socket, and jaw.

¶ 19. As discussed earlier, Williams not only signed a sworn plea petition stating that he pled guilty to aggravated assault, but he also acknowledged his guilt in his open plea of guilty and his video confession during his senteneing-hearing testimony. Williams’s claim of lack of a weapon addresses sufficiency of the evidence under his mistaken belief that a weapon was required for the charge against him of aggravated assault. However, the law only requires means likely to produce serious bodily injury, and precedent reflects that a weapon is not necessary to satisfy this requirement. See Bright v. State, 986 So.2d 1042, 1049-50 (¶¶ 29-30) (Miss.Ct.App.2008) (discussing prior case law where the defendants inflicted injury by hitting and/or kicking the victims to support decision to uphold an aggravated-assault conviction where the defendant punched the victim in the face and kicked him). Additionally, as acknowledged under the discussion of the prior assignment of error, Williams’s guilty plea waived such evidentiary issues, including sufficiency of evidence. See Brooks, 573 So.2d at 1352-53 (ruling that the defendant waived any non-jurisdictional errors in the indictment when he entered a voluntary plea of guilty). We therefore find this issue is without merit.

IV. Illegal Sentence

¶ 20. Williams’s final assignment of error states that his enhanced sentence of forty years constituted an illegal sentence because the sentence exceeded the punishment set forth in section 97-3-7(2) of “a fine of not more than Five Thousand Dollars ($5,000.00) or ... imprisonment for not more than thirty (30) years, or both,” for aggravated assault upon someone sixty-five years of age or older. While Williams is correct that his sentence of forty years exceeds the maximum length of thirty years set forth in section 97-3-7(2) for the offense of aggravated assault upon a person sixty-five years or older, neither his indictment nor his sentencing order refer to this section of the statute. Instead, both the indictment and the sentencing order reference section 97-3-7(2)(a) for aggravated assault and sections 99-19-351 and 99-19-357 for enhanced penalties for crimes committed against elderly persons, and his sentence fails to exceed the maximum punishment set forth in these statutory sections.

¶ 21. The first statute referenced in Williams’s indictment and sentencing order, section 97-3-7(2)(a), provides that a person convicted of aggravated assault “shall be punished by imprisonment ... in the Penitentiary for not more than twenty (20) years.” The two remaining relevant statutes, sections 99-19-351 and 99-19-357, further provide that the punishment for a felony that is a crime of violence against a victim aged sixty-five years or older may be enhanced and that the enhanced punishment may include “a term of imprisonment of up to twice that authorized by law for the offense committed .... ” In this case Williams’s aggravated-assault charge carried with it a maximum sentence of twenty years pursuant to section 97-3-7(2)(a). However, as set forth in sections 99-19-351 and 99-19-357, the authorized twenty-year sentence for aggravated assault was eligible for enhancement, and therefore, Williams’s forty-year sentence for aggravated assault against Crum was not illegal and falls within the sentencing guidelines authorized by the Legislature. Because the term of imprisonment that Williams received is provided for by statutory law, we find this issue is without merit.

CONCLUSION

¶ 22. Based upon the foregoing, we find that Williams’s arguments lack merit and fail to meet an exception to the successive-writ bar, and we affirm the circuit court’s dismissal of Williams’s PCR motion.

¶ 23. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . See also Miss.Code Ann § 99-39-23(6) (“[A]ny order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.”).


author: JAMES, J.,

text:
    Emma BELL, Appellant v. The MISSISSIPPI DEPARTMENT OF HUMAN SERVICES and Dynetha Thornton in her Official Capacity as Director of the Leflore County Department of Human Services, Appellees.
    No. 2012-CA-01164-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      James Kevin Littleton III, attorney for appellant.
    Lonnie D. Bailey, Greenwood, attorney for appellees.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Emma Bell appeals the order of the Leflore County Circuit Court granting summary judgment in favor of the Mississippi Department of Human Services (DHS) and Dynetha Thornton, in her official capacity as the director of the Leflore County DHS. Bell raises the following assignments of error: (1) the trial court erred in granting the appellees’ motion for summary judgment; (2) the trial court erred in denying Bell’s motion to stay the appellees’ motion for summary judgment until such time as discovery could be conducted; and (3) the trial court erred in granting the appellees’ motion to deem discovery responses timely served. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Bell was employed at the Leflore County DHS as a special investigator for the DHS Division of Program Integrity. On August 31, 2010, at some time after 5:00 p.m., Bell left her office to retrieve a document from her car. Bell went through the interior set of doors that lead to the lobby of the DHS Division of Child Support Enforcement. She attempted to open the exterior set of doors leading to the outside of the building, and discovered the doors were locked. Bell then attempted to open the interior doors again, but discovered they too were locked. All employees in the Child Support Enforcement division had left work for the day.

¶ 8. Realizing she was trapped inside the lobby, Bell began to bang on the interior doors for help. According to Bell, Thornton saw her through a crack in the double doors, and refused to let her inside. After several minutes had passed, Bell set off the fire alarm in the lobby in attempt to get an employee’s attention. Finally, DHS employee Daisy Holt found Bell trapped inside the lobby and let her out. Bell contends that before Holt unlocked the doors, Thornton said to Holt, “I am not going to deal with Emma Bell, you can let her in.”

¶ 4. Bell submitted a grievance form to her supervisor about the incident. DHS Investigator Jeff Hample was appointed to conduct an investigation of the incident. On August 25, 2011, Bell filed a notice of claim with DHS. Four days later, Bell filed a complaint against Thornton in her individual capacity, alleging that Thornton falsely imprisoned her. Bell sought to recover monetary damages for intentional and/or negligent infliction of emotional distress, medical expenses, and loss of enjoyment of life. On November 29, 2011, Bell filed a complaint against DHS and Thornton, in her official capacity as director of the Leflore County DHS. In the complaint, Bell alleged that Thornton falsely imprisoned her by refusing to open the doors after learning that Bell was trapped inside the lobby. Bell also alleged that DHS was negligent in failing to terminate Thornton following incidents that occurred prior to August 31, 2011. The prior incidents referenced by Bell were unrelated to Bell’s false-imprisonment claim.

¶ 5. On January 4, 2012, the trial court entered an agreed order to consolidate the cases. On January 6, 2012, the appellees filed a motion for summary judgment. In the motion, the appellees argued that, as a state employee, Thornton was immune from personal liability under the Mississippi Tort Claims Act (MTCA) because, at all relevant times, she was acting within the course and scope of her employment. The appellees also argued that DHS was immune under several provisions of the MTCA. Before the cases were consolidated, Bell had noticed three depositions, which were set to take place on January 17, 2012. The depositions were for three DHS employees, including Holt. On the same day that they filed their motion for summary-judgment, the appellees filed a motion for a protective order, seeking to continue the depositions until after the immunity issues in the summary judgment motion were decided. The trial court granted the motion for a protective order, ruling that Bell may proceed with deposing the fact witnesses only after the questions of law were resolved.

¶ 6. On January 26, 2012, Bell filed a motion to stay the appellees’ motion for summary-judgment until such time as discovery could be conducted. In her motion, Bell argued that the protective order prevented her from presenting all evidence to be considered at the summary judgment hearing. Specifically, Bell argued that the depositions of the three DHS employees would have shown that Thornton’s actions were in “reckless disregard for [Bell’s] safety.” Bell also argued that her requests for admissions should be deemed admitted because Thornton failed to submit her discovery responses by January 25, 2012.

¶ 7. Also, on January 26, 2012, the appel-lees filed their discovery responses and objections. Thornton also filed a motion to deem the discovery responses timely served. The trial court denied Bell’s motion to stay the appellees’ motion for summary judgment, and granted Thornton’s motion to deem the discovery responses timely served. Following a hearing on March 12, 2012, the trial court granted summary judgment in favor of the appel-lees, finding the appellees were immune from suit under several provisions of the MTCA. Bell now appeals.

ANALYSIS

I. Summary Judgment

¶ 8. In her first assignment of error, Bell insists that the trial court’s grant of summary judgment in favor of the appellees was improper. We review a trial court’s grant or denial of a motion for summary judgment de novo. Stuckey v. The Provident Bank, 912 So.2d 859, 864 (¶ 8) (Miss.2005) (citing Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss.2000)). The evidence must be viewed “in the light most favorable to the party against whom the motion has been made.” Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 71 (¶ 5) (Miss.2012) (quoting Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009)). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

a. Thornton

¶ 9. Bell argues the issue of whether Thornton’s refusal to unlock the doors and let Bell out of the lobby constitutes false imprisonment is a factual issue suitable for trial. Bell contends that, as director of the Leflore County DHS, Thornton had a ministerial duty to open the doors for anyone who was locked in that area, because Thornton was the only employee who had pass-code access to every area of the building. The trial court ruled that Thornton was immune from personal liability under the MTCA, which provides that “no [government] employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.” Miss.Code Ann. § 11-46-7(2) (Rev.2012). As noted by the trial court, all parties agreed that Thornton was acting within the course and scope of her employment at all times relevant to Bell’s complaint. Thus, we find no error in the trial court’s ruling as to the personal liability of Thornton.

¶ 10. The trial court further determined that Thornton was entitled to discretionary immunity under the MTCA. The MTCA affords immunity to governmental entities and their employees against tort claims arising from discretionary acts or omissions. Miss.Code Ann. § ll-46-9(l)(d) (Rev.2012). “A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government ... employee.” Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (¶ 19) (Miss.2012) (citing Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924-25 (¶ 17) (Miss.2006)). Conversely, a ministerial duty “is positively imposed by law and [is] required to be performed at a specific time and place, removing an [employee’s] ... choice or judgment.” Id. (citing Covington Cnty. Sch. Dist. v. Magee, 29 So.3d 1, 5 (¶ 8) (Miss.2010)).

¶ 11. A two-part “public-policy function” test is used to determine whether an act is discretionary, and is therefore accorded governmental immunity. Pratt, 97 So.3d at 72 (¶ 8) (citing Montgomery, 80 So.3d at 795 (¶ 17)). We must first “ascertain whether the activity in question involved an element of choice or judgment.” Id. “If so, [we] also must decide whether that choice or judgment involved social, economic, or political-policy considerations.” Id.

¶ 12. We find no error in the trial court’s finding of discretionary immunity. Although Bell contends that it was Thornton’s duty to unlock the interior set of doors to allow people to enter the building, we find that duty involved an element of Thornton’s individual choice and judgement. As noted by the trial court, Bell failed to point to any rule or regulation that would have required Thornton to unlock the doors for persons seeking access to the building at a specified time and place. Because there were no laws or regulations that imposed specific directives as to the time, place, and manner Thornton was required to carry out her duty of providing access to the building, such duty was not ministerial. Thus, the first prong of the “public-policy function” test is satisfied.

¶ 13. As for the second prong of the test, we must determine if Thornton’s judgment or choice of whether to unlock the doors of the building is grounded in policy considerations. The record shows that Thornton was in charge of “overseeing the premises and security of the building.” Thus, Thornton was charged with taking precaution when unlocking the doors and allowing access to the building in order to ensure the safety of the employees and all other persons inside the building. We find this activity falls squarely within the considerations of public policy, which satisfies the second prong. Therefore, the trial court was correct in finding that Thornton was entitled to discretionary immunity.

b. DHS

¶ 14. Bell claims that DHS was negligent in failing to terminate Thornton following incidents that occurred prior to August 31, 2010, that are unrelated to the incident subject to the present appeal. The trial court found that DHS was immune from liability for this claim because the decision of whether to retain Thornton as an employee was entirely discretionary. Miss.Code Ann. § 11—46—9(l)(d). Also, under the MTCA, governmental entities are afforded immunity for acts arising out of the exercise of discretion in the hiring of personnel. Miss.Code Ann. § 11-46-9(l)(g) (Rev.2012). Accordingly, we find no error in the trial court’s findings of immunity regarding DHS.

¶ 15. For the reasons addressed above, we find that the trial court’s grant of summary judgment in favor of the appellees based on immunity afforded by the MTCA was proper.

II. Motion to Stay Motion for Summary Judgment

¶ 16. Next, Bell argues the trial court erred in denying her motion to stay the appellees’ motion for summary judgment until discovery could be conducted. Discovery-related matters are reviewed under an abuse-of-discretion standard. Blossom v. Blossom, 66 So.3d 124, 126 (¶ 9) (Miss.2011). Thus, we “will not disturb discovery orders unless there has been an abuse of discretion.” Id. (quoting Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1209 (¶ 57) (Miss.2003)).

¶ 17. One week before the summary-judgment hearing was scheduled to take place, Bell filed notices to depose three fact witnesses, all of whom were DHS employees. According to Bell, the depositions would serve to show that Thornton’s actions were grossly negligent and evinced “reckless disregard for [Bell’s] safety.” The appellees subsequently filed a motion for a protective order, seeking to continue the depositions until after the immunity issues, which were the basis of their summary-judgment motion, were resolved.

¶ 18. During the January 11, 2012 hearing on the appellees’ motion for a protective order, the trial court asked Bell’s attorney if there was any evidence relevant to the immunity defenses raised in the summary-judgment motion Bell sought from the witnesses. Bell’s attorney stated the following:

Well, your Honor, by determining these facts from these witnesses about prior incidents that have occurred puts and shows that they have notice and that their failure to terminate [Thornton] was reckless. This was reckless. This was a reckless disregard for everyone who enters that building at the Leflore County Department of Human Services[.]

Bell’s attorney went on to describe the prior incidents in further detail, but • offered no evidence regarding the immunity issues, which was the subject of the summary-judgment motion. After hearing arguments from both sides, the trial court granted the appellees’ motion for a protective order. The trial court ruled that the immunity issues were purely questions of law, and once those issues were resolved, then the parties may proceed with the depositions, if necessary. On January 12, 2012, the trial court entered a protective order continuing the depositions of the three DHS employees until after the immunity issues were decided.

¶ 19. On January 26, 2012, Bell filed a motion to stay the appellees’ motion for summary judgment until such time as discovery could be conducted. Bell argued the protective order prevented her from presenting all evidence to be considered at the summary-judgment hearing. Bell claimed that she was prevented from engaging in discovery due to the protective order, as well as the appellees’ failure to timely respond to her requests for admissions and interrogatories. The trial court denied the motion, reiterating it was best to address the legal issues before proceeding with full-on discovery that was ancillary to the questions of immunity.

¶20. Our review of the record shows that the evidence Bell sought to present was irrelevant to the immunity issues in the summary-judgment motion. The evidence sought by Bell tended to show whether or not Thornton was aware that Bell was locked inside the lobby, and whether Thornton’s refusal to unlock the doors constituted false imprisonment or amounted to a “reckless disregard for [Bell’s] safety.” None of these issues are pertinent to whether the appellees are entitled to immunity as a matter of law under the MTCA. Bell had not offered any evidence to dispute the appellees’ qualification of immunity, nor had she offered any evidence to show how the appellees may have waived immunity under the MTCA. In fact, as previously discussed, Bell submitted that “at all relevant times, Thornton was acting within the course and scope of her employment duties,” which absolves Thornton from personal liability under section 11-46-7(2).

¶ 21. Issues of governmental immunity “should be resolved at the earliest possible stage of litigation.” Hinds Cnty. v. Perkins, 64 So.3d 982, 986 (¶ 11) (Miss.2011) (quoting Mitchell v. City of Greenville, 846 So.2d 1028, 1029 (¶ 8) (Miss.2003)). Here, the trial court found it best to resolve the immunity issues prior to delving further into the litigation process. Once the court found that DHS and Thornton were exempt from liability under the MTCA, there was no need to proceed with deposing the DHS employees.

¶ 22. For these reasons, we find no error in the trial court’s denial of Bell’s motion to stay the appellees’ motion for summary judgment.

III. Motion to Deem Discovery Responses Timely Served

¶ 23. In Bell’s motion to stay the appellees’ motion for summary judgment, she argued her requests for admissions to Thornton should be deemed admitted because Thornton failed to respond within thirty days, as required under Mississippi Rule of Civil Procedure 36. Thornton served her discovery responses and filed a motion to deem responses timely served on January 26, 2012. The relevant portion of Rule 36 states:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matterf]

M.R.C.P. 36(a).

¶ 24. Mississippi Rule of Civil Procedure 6(e) allows an additional three days for admission requests served through the mail. Bell mailed her first set of discovery requests to Thornton on December 23, 2011. Therefore, the end of the thirty-day period was January 22, 2012. The record shows that January 22, 2012 was a Sunday. Under Rule 6(a), if the end of a prescribed time period falls on a Sunday, the period continues until the following day, provided the following day is not a legal holiday, in which event the period will continue until the day thereafter. Thus, the prescribed due date for Thornton’s discovery responses was Monday, January 23, 2012. During a hearing, Thornton’s counsel explained that he added three additional days to this date because Bell served her admission requests via mail, which made January 26, 2012, the deadline for Thornton’s responses.

¶ 25. Bell disputed that the three-day addition resulted in the deadline falling on January 26. Rather, she posited that the additional three days effected a January 25 due date. However, it seems that Bell failed to take into account that the end of the thirty-day period fell on a Sunday, which extended the period to the following day, Monday, January 23. Finding Bell had not shown any prejudice from the purported one-day delay, the trial court granted Thornton’s motion to deem discovery responses timely served. The trial court has “great discretion with regard to whether it will take certain matters as admitted.” Triangle Const. Co., Inc. v. Foshee Const. Co., Inc., 976 So.2d 978, 980 (¶ 2) (Miss.Ct.App.2008) (citing Earwood v. Reeves, 798 So.2d 508, 514 (¶ 19) (Miss.2001)). We find no abuse of discretion, as the record shows that Thornton’s discovery responses were filed by the proper deadline. This issue is without merit.

CONCLUSION

¶ 26. The trial court was correct in granting summary judgment pursuant to the MTCA. Given the appellees’ immunity-based summary-judgment motion, we find no error in the trial court’s decision to continue the depositions of the DHS employees until after the immunity issues were settled. We also find no abuse of discretion in the trial court’s rulings on the pretrial motions discussed above. For these reasons, we affirm the trial court’s grant of summary judgment in favor of the appellees.

¶ 27. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . We refer to DHS and Thornton collectively as “appellees.''

      . The record shows that all DHS employees have access codes that only open the doors to their section of the building. Bell’s access code only worked in the Eligibility Assistance section of the building. All doors in the Child Support Enforcement division are locked everyday at 5:00 p.m.

      . The record shows a discrepancy between the parties’ calculations of the due date for Thornton’s discovery responses. Bell contends that the due date was January 25, 2012, and Thornton contends that her responses were due on January 26, 2012.

      . The timeliness of the appellees’ discovery responses, an independent issue on appeal, is discussed in further detail below.