source: Caselaw Access Project

author: KITCHENS, Justice, DICKINSON, Presiding Justice,

license: Public Domain

text:
    CITY OF JACKSON, Mississippi v. Lee B. LEWIS, Oda Mae Green, and Sonya Stephens, on Behalf of the Wrongful Death Beneficiaries of Margaret E. STEPHENS, Deceased.
    No. 2011-CT-00787-SCT.
    Supreme Court of Mississippi.
    June 5, 2014.

      Pieter John Teeuwissen, Lara E. Gill, attorneys for appellant.
    Bo Roland, Dennis C. Sweet, III, Dennis Charles Sweet, IV, Terris Catón Harris, for attorneys for appellee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. After observing LaMarcus Butler turn off the lights of his vehicle and make a u-turn in an apparent effort to avoid a police roadblock, Officer Gregory Jackson engaged the blue lights and siren of his patrol car and pursued Butler, at varying speeds, until Jackson’s superior officer instructed him by radio to desist. The fleeing Butler collided with a vehicle occupied by Margaret Stephens, Lee B. Lewis, and Oda Mae Green. Stephens died as a result of the crash, and Lewis and Green suffered severe injuries. Plaintiffs Lewis and Green, individually, and Sonya Stephens, on behalf of Margaret Stephens’s wrongful-death beneficiaries, filed suit in the Circuit Court of the First Judicial District of Hinds County against the City of Jackson, Mississippi. Following a bench trial in 2008, the trial court assessed 100% of the fault to the City and entered judgment in favor of the Plaintiffs. The Court of Appeals reversed and rendered the circuit court’s holding, finding that Officer Jackson had not acted in “reckless disregard for the safety and well being of persons not engaged in criminal conduct,” and therefore, governmental immunity shielded the City from liability. City of Jackson v. Lewis, — So.3d -, -, 2013 WL 2303391, at *2 (Miss.Ct.App. May 28, 2013).

¶ 2. Aggrieved, the plaintiffs sought review by this Court, asserting that the Court of Appeals: (1) misinterpreted the factors for determining reckless disregard by law enforcement personnel applied by this Court in City of Ellisville v. Richardson, 913 So.2d 973 (Miss.2005); (2) improperly weighed the evidence on appeal, made credibility determinations, and improperly rejected evidence that supports or reasonably tends to support the findings of the trial court; and (3) improperly substituted its judgment for the trial court’s credibility determination regarding expert testimony. We find dispositive the question of whether the Court of Appeals misinterpreted and misapplied the Richardson factors for determining reckless disregard by law enforcement officers. M.R.A.P. 17(h). Finding that the Court of Appeals erred, we reverse its judgment, and we reinstate and affirm the judgment of the Circuit Court of the First Judicial District of Hinds County.

FACTS

On August 21, 2001, at approximately 10:30 p.m., Officer Jackson was traveling east on Monument Street in Jackson, Mississippi, en route to a roadblock set up at the intersection of Monument and Palmyra Streets. Officer Jackson observed a vehicle that was traveling east on Monument turn off its lights, make a u-turn, proceed west on Monument, and ultimately turn on Capers Avenue. Unbeknownst to Officer Jackson, Butler, the driver, had stolen the vehicle. When Officer Jackson observed the vehicle make a right onto Capers, he turned on his blue lights and siren and followed the vehicle down Capers. According to Officer Jackson, Butler seemed to slow down about five to ten miles per hour for a moment on Capers, as if he were going to stop. However, Butler did not stop, turning instead onto Green Avenue and then onto Capitol and Longino Streets while being followed by Officer Jackson. The two cars continued west on Longino, which becomes Maple Street after Longino’s intersection with Fortification Street.

Officer Jackson testified that while on Maple Street, between the intersections of Fortifieation/Longino and Maple/Martin Luther King Jr. Drive, Butler “punched it.” Officer Jackson radioed Sergeant Jonathan Crawford, his supervisor, and informed him of his whereabouts and that he was pursuing Butler for violating a traffic ordinance. At that time, Sergeant Crawford told Officer Jackson to terminate the pursuit. Officer Jackson stated that he turned off his blue lights and siren and slowed down, but continued on Maple. Officer Jackson stated that the last time he saw Butler was when Butler’s taillights passed through the Maple/Martin Luther King intersection. He further testified that as he continued on Maple, he saw smoke and debris in the air and notified dispatch that there was possibly an accident. When Officer Jackson arrived at the intersection of Maple and Bailey Avenue, he notified dispatch that indeed an accident had occurred and that an ambulance was needed. Butler’s vehicle had collided with the Plaintiffs vehicle after Butler ran through the traffic light.

Lewis, — So.3d at-, 2013 WL 2303391, at *2-3.

STANDARD OF REVIEW

¶ 3. “A circuit court judge sitting without a jury is afforded the same deference as a chancellor.” City of Jackson v. Sandifer, 107 So.3d 978, 983 (Miss.2013) (citing City of Jackson v. Powell, 917 So.2d 59, 68 (Miss.2005)). This Court leaves undisturbed a circuit court’s findings following a bench trial unless the findings “are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sandifer, 107 So.3d at 983 (quoting Powell, 917 So.2d at 68). The circuit court’s findings “are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Law, 65 So.3d 821 (Miss. 2011) (quoting City of Ellisville v. Richardson, 913 So.2d 973, 977 (Miss.2005)). “Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond this Court’s power to disturb the findings of the trial judge if supported by substantial evidence.” Richardson, 913 So.2d at 979 (citing City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss.2003)).

DISCUSSION

¶ 4. The Mississippi Tort Claims Act (MTCA) shields the government from liability based on “any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....” Miss.Code Ann. § ll-46-9(l)(c) (Rev. 2012). “Reckless disregard,” according to this Court, denotes “more than mere negligence, but less than an intentional act.” Law, 65 So.3d at 826 (quoting Miss. Dep’t of Pub. Safety v. Dum, 861 So.2d 990, 994 (Miss.2003)). Further, this Court “find[s] reckless disregard when the ‘conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.’ ” Dum, 861 So.2d at 995 (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11 (Miss. 2000)).

¶ 5. In Brister, 838 So.2d at 280, this Court held that the standard articulated by the United States Court of Appeals for the District of Columbia “is instructive” in determining “whether a police chase constitutes reckless disregard.” The following six factors were considered: “(1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle.” Id. (citing District of Columbia v. Hawkins, 782 A.2d 293 (D.C.Ct.App.2001)). Justice McRae, concurring in result only in Johnson v. City of Cleveland, 846 So.2d 1031 (Miss.2003), included four additional factors: “(7) [wjhether the officer proceeded with sirens and blue lights; (8) [w]hether the officer had available alternatives which would led [sic] to the apprehension of the suspect besides pursuit; (9) [t]he existence of police policy which prohibits pursuit under the circumstances; and (10) [t]he rate of speed of the officer in comparison to the posted speed.” Richardson, 913 So.2d at 977, 978 (citing Johnson, 846 So.2d at 1037 (McRae, J., concurring in result only)). In Richardson, this Court held that “it is appropriate for trial courts to consider all ten factors, and to look to the totality of the circumstances when analyzing whether someone acted in reckless disregard.” Richardson, 913 So.2d at 978.

¶ 6. At the time of Officer Jackson’s pursuit of Butler, the Jackson Police Department had in place policies regarding initiating and terminating pursuits, listed in General Order 600-20. With regard to the initiation of pursuits, General Order 600-20(2)(b) required that, “[b]efore initiating a pursuit the risks to society must be weighed against the benefits of apprehending the suspect.” General Order 600-20(2)(d) further provided that, “[o]fficers will initiate or continue a pursuit, of a law violator in a motor vehicle, only when the pursuit will be executed with caution so as not to create extreme or unreasonable danger for either the officer or the public.” (Emphasis added.)

¶ 7. General Order 600-20(5)(d)(l) provided:

Pursuits may be initiated when the officer knows that a felony has been committed and the officer has probable cause to believe that the individual committed the felony and the suspect’s escape is more dangerous to the community than the risks posed by the pursuit and the suspect clearly exhibits an intent to avoid arrest by using a vehicle to flee.

General Order 600 — 20(5)(d)(2) provided: The major factors for consideration of initiating a pursuit and/or the termination of a pursuit include the following:

a) safety of the public and officers,
b) seriousness of the offense/violation and the danger the suspect poses to the community if not immediately apprehended,
c) opportunity for delayed arrest of the violator,
d) traffic density and conditions,
e) weather and road conditions,
f) presence of passengers,
g) presence of pedestrians,
h) degree of control the suspect has over his vehicle,
i) speed and duration of the pursuit.

General Order 600 — 20(5)(d)(3) provided that, “[officers and supervisors must be constantly reassessing the pursuit to determine if it should be terminated.” (Emphasis added.)

¶ 8. With regard to the termination of a pursuit, General Order 600-20(5)(e)(2) required termination “if the identification of the offender is known and is: a) not an immediate threat!,] b) not a violent felony suspect!,] c) a juvenile and poses no threat!,] d) a juvenile or adult and has committed only a misdemeanor offense.” (Emphasis in original.) General Order 600-20(5)(e)(3) continued: “A pursuit shall be terminated if the pursuit exposes the public or the officer to more danger than the violation or conditions justify.” Dennis Waller, who testified for the plaintiffs as an expert in the field of law enforcement, opined that Officer Jackson’s conduct constituted “a number of violations of that policy,” referring to General Order 600-20. The trial judge agreed, noting:

Mr. Waller opines that the pursuit in question should have never been commenced inasmuch as Officer Jackson never observed the commission of a felony nor had probable cause to believe that a felony had been committed. He further opines that the pursuit in question also should never have been commenced because Officer Jackson failed to weigh the basic interests of apprehending the suspect compared to the risks to society. According to Mr. Waller, it was these considerations which were analyzed by Sgt. Jonathan Crawford, Officer Jackson’s superior, which caused him to terminate the pursuit.

¶ 9. The findings of the trial court with regard to Waller’s testimony at trial are supported by the incident reports and trial testimony of Sergeant Chuck Lee of the Jackson Police Department Investigation Division, who investigated Officer Jackson’s pursuit of Butler. Sergeant Lee’s report stated that Officer Jackson’s conduct violated General Order 600-20(2)(b), (2)(d), and (5)(d). Lee wrote, “with the known facts as it relates to this pursuit, it is my belief and interpretation of the Jackson Police Department’s Pursuit Policy, that officer Jackson did not abide by this stated policy.” Lee’s supervisor, Lieutenant Greg King, agreed and wrote a memorandum concurring with Lee’s findings. At trial, Lee maintained that the pursuit policy had been violated. That said, Detective Ricky Purvis of the Jackson Police Department Internal Affairs Division wrote that he was not “able to find evidence to prove that Officer Jackson violated any of the department’s regulations as it relates to pursuits.”

¶ 10. The circuit judge found that “[t]he act of operating a vehicle [at night] without lights is a misdemeanor traffic violation,” and the Court of Appeals agreed: “[t]he factor examining the seriousness of the offense for which police are pursuing the suspect does not weigh in the City’s favor, as violating a traffic ordinance is hardly serious enough to trigger the initiation of a pursuit.” Lewis, — So.3d at-, 2013 WL 2303391, at ⅜6. The Court of Appeals concluded that “Officer Jackson undoubtedly violated JPD’s General Order by failing to weigh the seriousness of Butler’s offense against the risk of harm to the public. He was only aware of Butler committing a misdemeanor traffic violation at the time of the pursuit, not a felony.” Lewis, — So.3d at -, 2013 WL 2303391, at *5.

¶ 11. We agree with the trial court and the Court of Appeals that the Jackson Police Department had in place, at the time of the pursuit of Butler by Officer Jackson General Order 600-20, an official policy which prohibited continued pursuit under the circumstances. The Court of Appeals correctly noted that “the violation of a police policy is not dispositive of reckless disregard, but such violation is only one factor of ten to be considered.” Id. (citing City of Jackson v. Presley, 40 So.3d 520, 524 (Miss.2010)). We do not agree, however, that Officer Jackson’s initiation of pursuit violated General Order 600-20. But continuing pursuit, realizing that the suspect was unlikely to stop, constituted a violation of his department’s established policy. This Court “anchored” its decision in Brister “on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect’s escape is more dangerous to the community than the risk posed by the pursuit." Dum, 861 So.2d at 995 (citing Brister, 838 So.2d at 280) (emphasis added).

¶ 12. As with the “existence of a police policy which prohibits pursuit,” the trial court and the Court of Appeals agreed with regard to some of the Richardson factors. The circuit judge found that the pursuit “occurred at night where visibility was not as clear.” Officer Jackson signaled to the suspect with his blue lights during the pursuit, as noted by the trial judge. While the circuit court did not address the characteristics of the street in its Opinion and Order, Waller drove the route in preparation for trial and testified to “some variances of the road” beyond Fortification going east on Maple, and that the road “jogs to the left after a stop sign.”

¶ 13. The issue of the length-of-pursuit factor, however, is less clear. According to the trial court’s Opinion and Order, “[t]he investigation revealed that from the start of the pursuit until the accident, the distance was approximately 1.8 miles” and “the length of the pursuit in a measure of time was less than (4) minutes.” The parties dispute and the lower courts do not agree, however, whether Officer Jackson actually ended his pursuit at the time Sergeant Crawford, Officer Jackson’s immediate supervisor, instructed him to do so. The trial court concluded that “the pursuit continued even though the officer was ordered to terminate the pursuit.” The Court of Appeals disagreed that Officer Jackson had failed to terminate the pursuit: “he complied, turning off his blue lights and siren although he continued on Maple Street.” Lewis, — So.3d at-, 2013 WL 2303391, at *6. The Court of Appeals continued, “[tjhere is also no indication in the record that Officer Jackson was speeding or that there was a danger of harming someone,” and concluded “there was no deliberate disregard on Officer Jackson’s part.” Id. at -, 2013 WL 2303391, at *8.

¶ 14. Dennis Waller, accepted by the trial court as an expert in the field of law enforcement, stated that turning off the blue lights and siren is part of the termination procedure, but continued: “simply [to] turn your emergency equipment off and continue following the person at speeds greater than the speed limit or just continue following is not terminating because it doesn’t have the impact of affecting the perception of the driver you’re pursuing, and that’s who you are trying to get to slow down for the safety of the community.” Waller’s testimony that Officer Jackson failed to terminate the chase completely is consistent with this Court’s articulation of the applicable standard: “[t]he officer will either come to a complete stop in a safe location and await further instructions from the supervisor, or travel in the opposite direction of travel from the pursuit.” Law, 65 So.3d at 832 n. 11. Officer Jackson, as did the officer in Law, admitted at trial that he continued traveling in the direction of the pursuit. Id. He failed to take the sufficient steps required to communicate to the pursued suspect that the pursuit was at an end.

¶ 15. Also disputed was the speed at which Officer Jackson pursued Butler. The trial court found that “Officer Jackson pursued the vehicle driven by LaMarcus Butler for 1.8 miles at a speed well above the speed limit.” The Court of Appeals disputed the circuit court’s recitation of the facts, noting that “for approximately 1.2 miles of this distance, neither Butler nor Officer Jackson exceeded the posted speed limit.” Lewis, — So.3d-, 2013 WL 2303391, at *5.

¶ 16. Officer Jackson testified that, throughout his pursuit of Butler, he maintained speeds within the posted speed limits. But, according to Officer Jackson, “[a]s soon as [Butler] got to the Maple Street Apartments”, the driver of the pursued vehicle “punched it.” He continued, “[a]nd I believe at that time Sergeant Crawford asked me what my rate of speed was I believe. I’m not sure. And, as I was telling him, I guess the vehiele-the last I saw of the vehicle it was just crossing over [Martin Luther King, Jr., Drive].” Officer Jackson’s report stated that he continued to follow Butler’s vehicle beyond Martin Luther King, Jr., Drive at a speed of forty miles per hour. Jackson testified that Maple Street had a posted speed limit of thirty-five miles per hour. He estimated Butler’s speed to be greater than sixty miles per hour.

¶ 17. The trial testimony of Waller conflicts with Officer Jackson’s assertions that he maintained the speed limit, even in the last, fateful stretch of the pursuit (six tenths of a mile). Waller testified that the fact that Officer Jackson “saw flying debris and smoke at the intersection of Maple Street and Bailey” suggests that his speed would have to have been close to sixty miles per hour. Waller continued, “I don’t think that he would have been able to see flying debris if he had stopped or slowed down significantly.” Officer Jackson reported and testified, both in his interviews and at trial, that he knew an accident had occurred because he saw smoke and debris emanating from the Maple/Bailey intersection.

¶ 18. The Court of Appeals wrote, ‘Waller’s testimony that Officer Jackson pursued Butler for 1.8 miles at a speed well above the speed limit was simply a misunderstanding of the facts.” Lewis, — So.3d at-, 2013 WL 2303391, at *7. But Waller never testified specifically that Officer Jackson and Butler had exceeded the speed limit during the entire pursuit.

We agree that the trial court seemed erroneously to assume that the entire pursuit was high-speed, but this assumption was not based on anything that Waller had asserted. Waller agreed that the pursuit initially involved a relatively low speed; but when Butler and Officer Jackson reached Maple Street, both sped up to around sixty miles per hour. Waller testified that “60 miles per hour on Maple, it’s extremely reckless and probably homicidal.” Officer Jackson’s testimony that he saw flying debris provided an evidentiary foundation for Waller’s assertion that Officer Jackson was speeding closely behind Butler, and that Officer Jackson had not terminated pursuit of Butler at the time of the collision. It cannot be said that substantial evidence does not undergird the findings of the trial court.

¶ 19. As to the type-of-neighborhood factor, the trial court concluded that “[t]he pursuit continued through a part of a residential area which bordered a library, convenience stores, at least two (2) apartment complexes, two (2) public parks and (2) schools.” The Court of Appeals agreed. But the parties and the lower courts dispute the presence of vehicular or pedestrian traffic on the night in question. Waller testified that law enforcement officers usually set up roadblocks in areas “where there would be some moderate amount of traffic” and that “there [were] obvious reasons why the sergeant terminated the pursuit. And I [Waller] can only surmise that one of those would be his knowledge of that area and the pedestrian and vehicular traffic at that time of day.” The trial court articulated the same logic in its Opinion and Order, but the Court of Appeals disagreed. According to the Court of Appeals, “[t]here is nothing in the record that evidences the presence of pedestrian or vehicular traffic that night other than assumptions made by Plaintiffs’ expert, Dennis Waller-” Lewis, — So.3d at -, 2013 WL 2303391, at *6.

¶20. We find germane the knowledge of law enforcement authorities regarding, at a minimum, the potential for vehicular or pedestrian traffic in a particular area within their jurisdiction at a particular time of day. While it is true that no explicit fact testimony adduced at trial supports the assertion that traffic was heavy on the night in question, Sergeant Crawford testified that the presence of “stores, parks, schools, churches, houses, [and] residential areas” factors heavily into a decision whether or not to pursue. Crawford instructed Jackson to end pursuit: “I ordered it to be terminated due to the fact that I deemed it to be — would be possibly unsafe for the public.” (Emphasis added.) Further, Chuck Lee, a sergeant with the Jackson Police Department who investigated the incident, testified that the intersection where the collision occurred was a busy intersection. This testimony supports Waller’s expert opinion that Officer Jackson’s superior officer would not have terminated pursuit but for legitimate concerns regarding the potential for a high volume of traffic in the area.

¶ 21. The circuit judge did not mention in his Opinion and Order whether available alternatives to pursuit existed for Officer Jackson. But Jackson himself testified that, at one point during the pursuit, he was close enough to the suspect’s vehicle to see its license plate. He testified that, notwithstanding his ability to see it, he did not obtain the license plate information, nor did he convey that information to his dispatcher by radio. This Court in Brister found that the City of Jackson acted with reckless disregard, in part because the pursuing officers “[easily] could have ... written down the tag number.” Brister, 838 So.2d at 280.

¶ 22. The Court of Appeals noted that “it is unlikely that there were any available alternatives that would have led to Butler’s apprehension, as Officer Jackson did not know Butler’s identity at the time of the pursuit, which would have helped him locate Butler later.” Lewis, — So.3d at -, 2013 WL 2303391, at *7 (citing Law, 65 So.3d at 829-30 (“The Jackson Police Department’s Pursuit Policy specifically stated that a factor in favor of terminating a chase is whether the suspect’s identity is known and apprehension at a later time is feasible.”)). But Officer Jackson did not avail himself of a very ready means of potentially identifying the suspect, the tag number of the car he was driving. Totality of the Circumstances

¶ 23. The circuit court found that the totality of the circumstances preponderated in favor of the plaintiffs and that Officer Jackson’s conduct evinced reckless disregard for the public. The court concluded:

The investigation revealed that from the start of the pursuit until the accident, the distance was approximately 1.8 miles. Further, when Sgt. Crawford instructed Officer Jackson to stop the pursuit on Maple Street, Officer Jackson had pursued the vehicle for approximately 1.2 miles. The length of the pursuit in a measure of time was less than four (4) minutes. Officer Jackson testified that while pursuing Butler he ran at least three.(3) traffic lights, and two (2) stop signs. The pursuit continued through part of a residential area which bordered a library, convenience stores, at least two (2) apartment complexes, two (2) public parks and two (2) schools. Moreover, the pursuit continued even though the officer was ordered to terminate the pursuit.

The Court of Appeals disagreed with the trial court’s reasoning, finding instead that “[t]he record does not show an unreasonable risk involved that night, despite the neighborhood consisting of parks, schools, and various other places where people are likely to gather.” Lewis, — So.3d at -, 2013 WL 2303391, at *8.

¶ 24. But this Court recently has held that evidence supported a finding of reckless disregard where the officer had pursued a suspect whom the officer knew to be a drug user and a prostitute. Law, 65 So.3d at 823. The suspect’s vehicle struck the one in which the Laws were traveling, causing injury to both of its occupants. Id. There, the pursuing officer’s supervisor had instructed him to terminate pursuit if the suspect started running red lights. Id. at 831. The officer continued the pursuit, “knowing he had no way to make [the suspect] stop.” Id. Further, even though the officer did not chase the suspect to the point of impact, “he did not follow protocol for terminating the pursuit.” Id.

¶ 25. Indeed, the Court noted a number of mitigating circumstances in Law: “[the officer] eventually lost sight of [the suspect], eventually realized the dangerousness of the situation, decreased his speed, and did not pursue [the suspect] directly to the crash site.... ” Id. at 832. In the present case, Officer Jackson pursued Butler through stop lights and, despite the relatively slow pace of the pursuit, knew or should have known that Butler was not going to stop and that he, the pursuing officer, had no way to effectuate a stop. Further, as discussed in greater detail above, Officer Jackson did not follow established protocol for terminating the pursuit by subjectively signaling to Butler that pursuit had ceased.

¶ 26. Richardson involved a similar situation. There, an officer pursued a suspect for whom police had outstanding warrants. Richardson, 913 So.2d at 975. As in Law, the pursued suspect’s vehicle collided with the vehicle of a third party, causing injuries. Id. The Court refused to reverse the trial court’s finding of reckless disregard where “there was ample evidence to support violations of the City of Ellisville’s Pursuit of Motor Vehicles policy.” Id. at 979. The Court continued, “[t]he chase was not the result of a serious crime being committed at the moment. The two vehicles were exceeding the speed limit in a residential neighborhood, in the dark, with a low probability of apprehending the suspect.” Id. Thus, the Court found ample evidence supporting the trial court’s finding of reckless disregard. Id. at 982.

¶ 27. Here, Officer Jackson observed Butler violating a traffic ordinance, which was a misdemeanor offense, by turning off his car’s headlights and making a U-turn, ostensibly to avoid a police roadblock. With knowledge that the offending driver was traveling at night with headlights turned off, Officer Jackson pursued the vehicle for approximately 1.2 miles at a relatively moderate speed. Despite the initial speed of both vehicles, Officer Jackson testified that he ran three red traffic lights and two stop signs in pursuit of Butler’s car, knowing that the headlights on Butler’s car were not illuminated. Officer Jackson testified that, at one point, he could have availed himself of an opportunity to relay the tag number of Butler’s vehicle to dispatch, but chose not to do so.

¶ 28. Further, Officer Jackson violated various mandates of his department’s General Order 600-20 and failed to perform the requisite balancing of the gravity of the offenses the driver had committed versus the danger posed to the public by pursuing a fleeing vehicle. Most egregious was Officer Jackson’s wanton defiance of the order of his superior to terminate pursuit and his failure to comply with the standard articulated by this Court for communicating termination to the pursued party. Butler, for at least the final six tenths of a mile of the chase, according to Officer Jackson, “punched it,” rapidly accelerating on a city street to what appeared to Officer Jackson to be about sixty miles per hour. According to Waller, because Officer Jackson was in a position to see flying debris, he too was traveling at around sixty miles per hour and continued in pursuit of Butler at the time of the collision.

¶ 29. Based on the totality of the circumstances, Officer Jackson recklessly disregarded the safety of the public by pursuing Butler. We cannot say that the trial court’s finding was unsupported by substantial evidence.

CONCLUSION

¶ 30. Substantial evidence adduced at trial amply supports the trial court’s finding that the City of Jackson, through Officer Jackson, acted with reckless disregard for the safety of the public on August 21, 2001, resulting in the death of Stephens and injury to Lewis and Green. Therefore, the City of Jackson may not avail itself of governmental immunity under the Mississippi Tort Claims Act. We reverse the judgment of the Court of Appeals, and we reinstate and affirm the judgment of the Circuit Court of the First Judicial District of Hinds County.

¶ 31. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REINSTATED AND AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, and KING, JJ., CONCUR. DICKINSON, P.J., dissents with separate written opinion joined by PIERCE and COLEMAN, JJ.

DICKINSON, Presiding Justice,

dissenting:

¶ 32. The majority’s erosion of the Legislature’s public-policy decision to provide protection to police officers is improper, inappropriate, and unsupportable. The facts in this case do not come close to establishing that Officer Jackson acted with “reckless disregard of the safety and well-being” of the public, so I respectfully dissent.

¶ 33. We all agree that the Mississippi Tort Claims Act provides immunity to Officer Jackson unless he acted in “reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....” We have held unambiguously, in the context of the Mississippi Tort Claims Act, “willful and wanton are synonymous with reckless disregard ...,” and that “reckless must connote “wanton or willful,’ because immunity lies for negligence.” We have further held that “‘wanton’ and ‘reckless disregard’ are just a step below specific intent,” and that “ ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.”

¶ 34. Given the level of culpability our precedent requires for a finding of “reckless disregard,” I am prepared to say that — as a matter of law — Officer Jackson’s conduct did not amount to “reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....”

¶ 35. At around 10:30 at night, Officer Jackson saw the suspect turn off his headlights and take a turn to avoid a road block. He pursued the car through a residential area for a short distance — 1.2 miles — without exceeding the speed limit, and he used his blue lights and sirens. After Officer Jackson radioed in, Sergeant Jonathan Crawford instructed him to end the pursuit. Officer Jackson complied and turned off his blue lights and sirens. At this point, the parties dispute whether Officer Jackson continued the chase after shutting off his lights and sirens, but all parties agree that he continued to travel in the same direction as Butler. Office Jackson’s speed for the last six-tenths of a mile, also is in dispute. But, even if Officer Jackson did continue in Butler’s direction in excess of the speed limit for six-tenths of a mile, there is no evidence that his conduct was anything more than simple negligence. And, even if one argues that speeding in a residential area for six-tenths of a mile is grossly negligent, still, it cannot be said that this amounted to willful and wonton conduct or a reckless disregard for the safety of the public.

¶ 36. Neither Officer Jackson’s “continued” pursuit nor the resulting possibility that he violated a Jackson Police Department general order rises to the level of a reckless disregard for the safety of the public. The majority disagrees with the Jackson Police Department’s Internal Affairs Department, which found that Officer Jackson did not violate a Jackson Police Department policy by continuing in the direction of the suspect after shutting off his blue lights and sirens. But again, even if he did, the violation of this policy — under these circumstances — cannot be considered a reckless disregard for the public safety.

¶ 37. The majority also finds that Officer Jackson’s “failure to terminate pursuit, in spite of clear instructions from a superi- or officer to do so, constitutes reckless disregard, and exemplifies the wanton or wilful conduct....” I cannot agree. First, Officer Jackson did terminate his pursuit; no party contests that he turned off his blue lights and sirens, and he testified he also slowed down. Instead, the majority finds that, because Officer Jackson continued to travel in the direction of the suspect — after obeying orders to turn off his blue lights and sirens — he wantonly defied the order of his superior officer. And such a defiance amounts to a reckless disregard. Even if the facts are as the majority states, this conduct does not amount to an act that is “just a step below specific intent,” and it is not a willful, intentional, or knowing disregard for public safety, and thus cannot amount to reckless disregard.

¶38. Because Officer Jackson clearly did not act with a reckless disregard for public safety, I respectfully dissent.

PIERCE and COLEMAN, JJ., join this opinion.

      . Butler, whose death certificate appears in the record, died at age 19 on May 28, 2004, of two gunshot wounds to the back. Those wounds were not related to the present case.

      . The circuit court assessed the following damages: $100,000 for Lewis, $100,000 for Green, and $500,000 for Stephens's estate. Pursuant to the statute limiting governmental liability to a total of $500,000 for acts or omissions occurring on or after July 1, 2001, the circuit court reduced the award as follows: $71,428.57 for Lewis, $71,428.57 for Green, and $357,142.86 for Stephens’s estate. Miss.Code Ann. § 11-46-15 (Rev.2012).

      . Facts are taken verbatim from the opinion of the Court of Appeals.

      . The accident report cites 21:41 as the time of the collision, which translates to 9:41 p.m. So, Officer Jackson would have observed Butler’s vehicle and commenced pursuit some time before 9:41 p.m.

      . See Miss.Code Ann. § 63-7-7 (Rev.2013) ("It is a misdemeanor for any person to drive ... any vehicle ... which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter.... ”); Miss.Code Ann. § 63-7-11 (Rev.2013) ("Every vehicle upon a highway within this state during the period from sunset to sunrise and at any other time when there is not sufficient light to render clearly discernible shall be equipped with lighted front and rear lamps (emphasis added).

      . The Court of Appeals’ determination that Officer Jackson’s initiation of pursuit violated General Order 600-20 is overly broad. The mere fact that Officer Jackson "blue-lighted” the suspect after observing him turn off the car's headlights and make a u-turn cannot be construed as error on Officer Jackson’s part. The danger posed to the public by a person’s driving a vehicle after dark without headlights illuminated, clearly a law violation, necessitates pursuit by police. See Miss.Code Ann. §§ 63-7-7, -11 (Rev.2013). But here, when it became apparent that the suspect did not intend to stop, at that point Officer Jackson should have reassessed the propriety of continued pursuit as required by the police department's applicable policy.

      . According to Waller, this is the point at which Longino Street turns into Maple Street at Fortification Street.

      . In fact, at the time of Officer Jackson’s pursuit of Butler, the Jackson Police Department's policy, General Order 600-20(5)(c)(l)(d), (e), and (f) required officers initiating a pursuit to notify the Communications dispatcher a "complete description of suspect vehicle,” the vehicle’s "license plate information," and the "suspect vehicle occupant information, number, sex, and description. While Officer Jackson testified that he remained in communication with dispatch, he acknowledged that he did not transmit the tag number. Relation of this information could have led Officer Jackson to a realization that the vehicle Butler was driving happened to have been stolen. Knowledge that a felony had been committed might have made pursuit reasonable under General Order 600-20. But Jackson pursued the fleeing vehicle in the absence of such knowledge.

      . Our colleagues in the dissent would hold that Officer Jackson’s conduct did not rise to the level of culpability required under our precedent for a finding of "reckless disregard.” With respect, we disagree. We agree that reckless disregard requires wilful or wanton conduct, which this Court has defined as "knowingly and intentionally doing a thing or wrongful act,” as the dissent notes points out. City of Jackson v. Lipsey, 834 So.2d 687, 692 (Miss.2003) (citations omitted). But failure to terminate pursuit, in spite of clear instructions from a superior officer to do so, supports a finding of reckless disregard, and exemplifies the wanton or wilful conduct contemplated by this Court.

      . Miss.Code Ann. § 1 l-46-9(l)(c) (Rev. 2012).

      . Id.

      . Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss. 1999);

      . Id.

      . Id. (citing Evans v. Trader, 614 So.2d 955, 958 (Miss. 1993)).

      . City of Jackson v. Lipsey, 834 So.2d 687, 692 (Miss.2003) (citations omitted).

      . Id.

      . Miss.Code Ann. § ll-46-9(l)(c).

      . Whether he traveled at forty or sixty miles per hour when the posted speed limited was thirty-five is in question.

      . The trial court found that Officer Jackson’s pursuit lasted a total of 1.8 miles.

      . Turner, 735 So.2d at 230 (citations omitted).


author: COLEMAN, Justice, KITCHENS, Justice,

text:
    Frank Gideon WHITAKER, IV a/k/a Frank Gideon Whitaker a/k/a Frank Whitaker v. STATE of Mississippi.
    No. 2013-KA-00184-SCT.
    Supreme Court of Mississippi.
    July 17, 2014.
    Rehearing Denied Sept. 18, 2014.

      Mark W. Prewitt, Vicksburg, Pamela Netterville Grady, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, John R. Henry, Jr., attorneys for appellee.
   COLEMAN, Justice,

for the Court.

¶ 1. Frank Gideon Whitaker IV and Cynthia Ann Grantham were involved in a motor-vehicle accident in Warren County, Mississippi. The Warren County Circuit Court found Whitaker guilty of aggravated driving under the influence pursuant to Mississippi Code Section 63-11-30(5), sentenced him to twenty-five years and ordered Whitaker to pay Grantham $25,000. Whitaker raises two issues on appeal and, in both, contends a blood sample taken from Whitaker following the collision while he remained unconscious should not have been admitted into evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 21, 2012, at approximately 5:30 p.m., Whitaker, driving a white pick-up truck, and Grantham, driving a white sport-utility vehicle, collided on Oak Ridge Road in Warren County, Mississippi. Several witnesses, Burch Brown, Martin Daffron, and John Kirby Day, claim to have witnessed Whitaker’s truck traveling at an excessive rate of speed along Oak Ridge Road just moments before the accident occurred. Deputy Brandon Jones of the Warren County Sheriffs Department arrived to find medical personnel already attending to the two drivers, both of whom were unconscious. The drivers were transported to River Region Medical Center.

¶ 3. Witness Brown testified that he was putting out pine straw in his front yard when he saw Whitaker’s truck traveling in excess of one hundred miles per hour just seconds before he heard the crash. Martin Daffron was traveling along Oak Ridge Road when he spotted Whitaker’s truck running “too fast for that curve.” Daffron testified that he was slowing down from roughly forty-one or forty-two miles per hour to maneuver the curve when he saw Whitaker’s truck turn “sideways” and go airborne. Daffron further testified that it was his estimation that the truck was doing in excess of fifty miles per hour or more around the curve where the accident occurred. John Kirby Day testified that he also saw Whitaker’s truck enter the ditch, go airborne, and strike Grantham’s vehicle. He ran to Grantham and, upon seeing her injuries, believed her to be dead.

¶ 4. Sergeant Jason Bailess arrived and joined Deputy Jones at the scene. Sergeant Bailess testified that he smelled a strong odor of alcohol coming from Whitaker but was unable to obtain a breath sample or consent to a blood sample due to Whitaker’s unconscious state. Sergeant Bailess then filled out an affidavit for a search warrant, requesting a blood sample be taken from Whitaker, having suspected him of driving under the influence. Justice Court Judge Jeff Crevitt issued the search warrant requested by Sergeant Bailess.

¶ 5. Sergeant Bailess then drove to River Region Medical Center and had the nurse caring for Whitaker draw blood as requested by the search warrant. The attending nurse, James Davidson, drew the blood sample from Whitaker with the blood alcohol kit provided by Sergeant Bailess. Sergeant Bailess testified that he watched Nurse Davidson withdraw the blood after first preparing the area with Betadine solution. Sergeant Bailess then took the samples from Nurse Davidson and affixed labels to them and had Nurse Davidson sign that he had taken the blood sample.

¶ 6. Upon his return to the sheriffs office, Sergeant Bailess dropped the blood sample into the evidence box. Sergeant Bailess, at a hearing on a Motion to Suppress or Exclude Evidence, testified that the report management system used by the sheriffs department issued case number 603 to the report, to which the blood sample was attached. Sergeant Bailess further testified that he was the shift supervisor and that it was his duty to approve the reports. It was during his time as shift supervisor, sometime prior to 6:00 a.m. the next day, that he realized the report management system had issued case number 603 to the case. Sergeant Bailess stated that the correct case number issued to the accident was 607. According to Sergeant Bailess, the error occurred because the 911 operators assign the case numbers, and if other reports are filed prior to the officer returning to log the report, the computer system at the sheriffs office automatically generates the next sequential number.

¶ 7. Sergeant Bailess also testified that it is not uncommon for the 911 case numbers and the sheriffs office computer system to switch up case numbers because of the time at which various officers return to file the reports. In explaining why he changed the case number from 603 to 607, Sergeant Bailess further testified it is the shift supervisor’s job to ensure the correct case number is assigned to each report. The blood sample taken on the date of the accident, October 21, 2011, remained in the evidence locker until it was taken to the crime lab on December 7, 2011, by Samuel Winchester, another detective for the Warren County Sheriffs Department.

¶ 8. David Lockey, a forensic toxicologist for the Mississippi Crime Laboratory, testified as an expert for the State as to the method by which he tested the blood sample. Lockey testified that all test instruments were working properly and that the gas chromatograph used to test the blood revealed an ethyl alcohol concentration of 0.18. After holding the sample for at least six months, the Mississippi Crime Lab disposed of Whitaker’s blood sample, pursuant to its internal procedure.

¶ 9. On August 15, 2012, Whitaker filed a Motion to Suppress and to Compel Production of Blood Sample. On September 14, 2012, the circuit court heard the Motion to Suppress and Compel, and the district attorney informed the court that the crime lab had disposed of Whitaker’s blood sample at some time prior to the hearing. Whitaker also filed a Supplemental Motion to Suppress or Exclude Evidence. The circuit court eventually denied all of Whitaker’s challenges asserted in his Motion to Suppress or Exclude Evidence.

¶ 10. Following a bench trial, the trial court convicted Whitaker of aggravated driving under the influence under Mississippi Code Section 63-11-30(5) and sentenced him to twenty-five years. The trial court also ordered Whitaker to pay $25,000 in restitution to Grantham. Whitaker appealed and raises two main issues.

DISCUSSION

¶ 11. Whitaker raises two issues on appeal: (1) whether the trial court admitted reversible error by admitting blood-sample tests in violation of the Mississippi Implied Consent Act, and (2) whether the trial court abused its discretion when it admitted unreliable blood-sample evidence against Whitaker.

I. Whether the circuit court committed reversible error when it admitted blood-sample test results into evidence in violation of the statutory privileges afforded in the Mississippi Implied Consent Act.

¶ 12. Whitaker argues that the issue is a matter of statutory interpretation and should be reviewed de novo. However, Whitaker neglected to acknowledge that a search warrant was obtained prior to his blood being taken, articulating the issue as a matter of whether Mississippi Rules of Evidence 501 and 1103 violate constitutional protections afforded to defendants through the enactment of the Mississippi Implied Consent Act. See Miss.Code Ann. §§ 63-11-1 to 63-11-53 (Rev. 2013). Therefore, as an issue relating to the admissibility of evidence, the standard of review is abuse of discretion. Smith v. State, 986 So.2d 290, 295 (¶ 12) (Miss.2008).

¶ IB. Whitaker’s blood was taken pursuant to a search warrant, not Mississippi Code Section 68-11-7, as Whitaker claims. Section 68-11-7 provides that police may take the blood of any unconscious or dead person if reasonable grounds exist to believe they were drinking, however, the result of any testing of the blood sample “shall not be used in evidence against any such person in any court or before any regulatory body without the consent of the person so tested, or, if deceased, such person’s legal representative.” Miss. Code Ann. § 63-11-7 (Rev. 2013).

¶ 14. The Mississippi Implied Consent Act was enacted prior to the Mississippi Rules of Evidence. In 1989, following the enactment of the Mississippi Rules of Evidence, the Court held that the privilege contained in Mississippi Code Section 63-11-7 was judicially repealed by Mississippi Rules of Evidence 501 and 1103. White-hurst v. State, 540 So.2d 1319, 1324 (Miss. 1989); see also Deeds v. State, 27 So.3d 1135, 1141 (¶ 18) (Miss.2009) (“This Court has held that the Mississippi Rules of Evidence supercede statutory provisions which would render inadmissible evidence that otherwise would be admissible under the Rules of Evidence.”) Whitaker presents an interesting argument as to the role of the judiciary and Legislature, however, his blood was not taken pursuant to the Implied Consent Act. Therefore, Whitaker’s request to overrule Whitehurst is moot, as the Court has held that a “a case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.” Gartrell v. Gartrell, 936 So.2d 915, 916 (¶ 8) (Miss.2006). It is clear the Whitehurst Court’s interpretation of Mississippi Rules of Evidence 501 and 1103 would not be relevant to Whitaker, as his blood was not taken pursuant to the Mississippi Implied Consent Act.

¶ 15. Whitaker’s blood was taken pursuant to the search warrant issued by the justice court judge; therefore, the Court need not reach the constitutional challenges he raises to Whitehurst.

II. Whether the trial court abused its discretion in admitting the blood sample into evidence.

¶ 16. Again, the Court reviews a “trial court’s decision to admit or exclude evidence under an abuse of discretion standard of review.” Smith, 986 So.2d at 295 (¶ 12). Whitaker raises three sub-issues related to his claim that the trial court abused its discretion by admitting the blood evidence into court: (1) that the State failed to adhere to the appropriate chain of custody; (2) that the State failed to appropriately authenticate and identify the blood sample pursuant to Mississippi Rule of Evidence 901; and (3) that the State did not follow the procedure required under Mississippi Code Section 63-11-9 for the drawing of blood from an unconscious person.

A. Chain of Custody

¶ 17. Whitaker’s chain-of-custody argument is that Sergeant Bailess admitted that the blood was improperly labeled and he was forced to change the evidence label. To show an improper chain of custody, Whitaker bears the burden of showing “whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Gibson v. State, 503 So.2d 230, 234 (Miss.1987). Accordingly, the issue is whether the relabeling of the evidence by Sergeant Bailess constitutes a showing of possible interference or tampering. In Ellis v. State, Ellis argued that the nurse who drew his blood did not testify, therefore, it was possible the blood was mislabeled and substituted. Ellis v. State, 934 So.2d 1000, 1005 (¶6) (Miss.2006). The Court, stating “the presumption of regularity supports the official acts of public officers,” found that the officer who witnessed the blood being withdrawn could testify sufficiently to the chain of custody. Id. at 1005 (¶ 22-23).

¶ 18. After reviewing the trial-court transcript, it is evident that Sergeant Bailess provided adequate and sensible reasons in explaining why the blood sample carried two different evidence numbers, which stemmed from the assignment of one case number by the 911 operating system and the assignment of the other case number by the auto-generated computer system at the police department. Sergeant Bailess’s explanation is sufficient evidence of a chain of custody. The labeling mistake was noticed and corrected by Sergeant Bailess within the same shift. Furthermore, Sergeant Bailess testified that the sample was the only blood sample taken on the night of the accident, preventing any tampering or substitution with another blood sample. Whitaker has the burden of showing more than a mere possibility of substitution. Id. Therefore, the trial judge was within his discretion to determine the credibility of Sergeant Bailess, as the State provided sufficient support of the chain of custody.

B. Authentication and Identification

¶ 19. Whitaker’s next argument is that the State could not properly authenticate and identify the blood sample pursuant to Mississippi Rule of Evidence 901. “Rule of Evidence 901 provides that authentication is a condition precedent to admissibility and gives illustrations regarding how documents may be authenticated.” Freeman v. State, 121 So.3d 888, 898 (¶ 23) (Miss.2013). “Documents may be authenticated by ‘Testimony of Witness with Knowledge,’ which consists of ‘[tjesti-mony that a matter is what it is claimed to be.’ ” Id. (quoting Miss. R. Evid. 901(b)(1)). To satisfy the above standard, Whitaker must present some evidence supporting an argument that the State’s witnesses testifying to the chain of custody did not possess adequate knowledge to provide such testimony. Id,. Instead, Whitaker asserts mere legal conclusions without providing any facts supporting why he has met the applicable standards. The witnesses presented were Sergeant Bailess, Samuel Winchester, and David Lockey. Sergeant Bailess was the detective in charge of the evidence on the night of the accident. Samuel Winchester transferred the evidence to the crime lab. Once at the crime lab, David Lockey performed the blood test and was able to testify as to the accuracy of the results. Therefore, without more than mere conclusions, Whitaker’s argument that the State failed to properly authenticate and identify the evidence pursuant to Mississippi Rule of Evidence 901 is without merit.

¶ 20. Whitaker also mentions that the chain of custody cannot be authenticated properly because the Mississippi Crime Lab disposed of the blood after six months. Whitaker does not directly raise the issue on appeal, nor was it raised at trial. Instead, he merely argues the State cannot authenticate the blood sample, but, as mentioned, the State properly authenticated the blood sample with the testimony of the above-named witnesses. Moreover, the Court recently has held that the disposal of blood six months after testing requires a showing of “bad faith on the part of the police” to result in any due-process violation. Harness v. State, 58 So.3d 1, 4 (¶ 13) (Miss.2011) (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). Whitaker has not alleged that the police acted in bad faith. Therefore, since the State thoroughly identified the chain of custody and properly authenticated the blood sample, the issue is without merit.

C. Section 63-11-9

¶ 21. Finally, Whitaker argues that the State did not provide evidence that Nurse Davidson was qualified to draw his blood pursuant to Section 63-11-19. Like the first issue, the third issue can be dismissed because the Implied Consent Act was not the basis for obtaining the blood sample. Sergeant Bailess acquired a search warrant for the blood sample obtained by Nurse Davidson.

¶ 22. Whitaker further asserts that Nurse Davidson must have testified to establish the initial link in the custodial chain; however, the State does not have to produce every “handler of evidence.” Ellis, 934 So.2d at 1005 (¶ 21). Moreover, as in, Ellis, Sergeant Bailess was present to witness the blood being drawn. Therefore, he could testify sufficiently as to the procedure and the chain of custody from the time the blood was drawn through his placing it in the evidence locker. Thus, the issue is without merit.

CONCLUSION

¶ 23. Whitaker has failed to raise any issues of merit. His constitutional challenge to the Whitehurst Court’s interpretation of the Mississippi Rules of Evidence is moot, as his blood was not drawn pursuant to the Mississippi Implied Consent Act. Whitaker also has failed to satisfy his burden of showing that the evidence was tampered with or substituted, defeating his chain-of-custody argument. Finally, Whitaker failed to present any evidence supporting his claim that the blood sample was not properly authenticated. Accordingly, the judgment and sentence of the Warren County Circuit Court are affirmed.

¶ 24. CONVICTION OF AGGRAVATED DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN (10) YEARS SUSPENDED AND FIVE (5) YEARS POST-RELEASE SUPERVISION AND ORDERED TO PAY $25,000 IN RESTITUTION, $5,000 IN FINES, $104 IN COURT COSTS, AND $280.50 IN STATE ASSESSMENTS, AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE,

JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY DICKINSON, P.J., AND KING, J.

KITCHENS, Justice,

dissenting.

¶ 25. I find that affirmance of the judgment of the Warren County Circuit Court offends the Fourteenth Amendment of the United States Constitution and Article 3, Section 14, of the Mississippi Constitution. Failure of the State to ensure preservation of the blood sample used by the State to secure Whitaker’s conviction violated his fundamental right to due process of law. Respectfully, I dissent.

¶ 26. The circuit court heard arguments on Whitaker’s Motion to Suppress and to Compel Production of Blood Sample on September 14, 2012. On the morning of the hearing, though the Motion to Suppress and Compel Production of Blood Sample had been filed by Whitaker on August 15, 2012, the District Attorney of Warren County informed defense counsel that the blood sample was no longer available. The State expressed its understanding that the policy of the Mississippi Crime Laboratory was “to retain those items for six months, [and] after six months to destroy those items,” and that Whitaker’s blood sample had been destroyed pursuant to that policy. David Lockey, the State’s expert in forensic toxicology who had tested Whitaker’s blood sample, testified that “[a ]fter testing, the sample will be put ... in a storage box ... in our toxicology freezer ... for six months or longer, a minimum, of six months.” (Emphasis added.) No evidence in the record establishes precisely when the sample was destroyed, but its destruction occurred at some time prior to the motion hearing on September 14, 2012.

¶ 27. A deprivation of liberty implicates a person’s fundamental right to due process of law under the United States Constitution and the Mississippi Constitution. U.S. Const, amend. XIV; Miss. Const, art. 3, § 14. The United States Supreme Court has held that due process of law requires that the prosecution turn over to the accused all evidence “material either to guilt or to punishment” that is “favorable to an accused upon request.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, the State is under an obligation only to preserve evidence “that might be expected to play a significant role in the suspect’s defense,” meaning that “evidence must both [1] possess an exculpatory value that was apparent before the evidence was destroyed, and [2] be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombet-ta, 467 U.S. 479, 488-89,104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Further, a criminal defendant is required to “show bad faith on the part of the police” in order to establish a deprivation of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

¶28. Harness v. State, 58 So.3d 1, 3 (Miss.2011), involved a circumstance analogous to the present one. Harness was indicted for driving under the influence and causing a death pursuant to Mississippi Code Sections 63-11-30(1) and 63-11-30(5). Id. at 2. Harness filed both a motion for discovery and a motion to compel, seeking the blood sample which was to be used by the State as evidence against him for independent testing by an expert of the defendant’s choosing. Id. at 2-3. This Court held that Harness failed under the first prong of Trombetta,: “Harness has failed to show that the blood sample had exculpatory value before it was destroyed, and we find no denial of due process in this case.” Id. at 6.

¶ 29. I dissented in Harness, 58 So.3d at 7 (Kitchens, J., dissenting), and respectfully maintain today that the case was wrongly decided:

The preservation of evidence is especially important when the evidence in question is a blood sample taken from a person suspected of driving under the influence. In such cases, a defendant in Mississippi’s state courts has a statutory right independently to test the sample for blood alcohol content. Miss.Code Ann. § 63-11-13 (Rev. 2004). This statutory right is firmly rooted in due process concerns, to ensure the accused’s ability to mount a defense and thoroughly confront the evidence against him. As our case law demonstrates, Mississippi law affords a greater level of due process protection than the standards provided in Trombetta and its progeny.

Id. at 9. Moreover, this Court has held that “a respondent charged with the operation of a motor vehicle while under the influence of intoxicating liquor is entitled to a reasonable opportunity to attempt to procure the seasonable taking of a blood sample for test purposes.” Id. at 9 (quoting Scarborough v. State, 261 So.2d 475, 478 (Miss.1972)). As such, “the unreasonable denial of defendant’s request for a blood test pursuant to Mississippi Code Section 68-11-18 amounts to a denial of due process of law.” Harness, 58 So.3d at 9 (Kitchens, J., dissenting). My Harness dissent concluded that “the unreasonable denial of a defendant’s request for an independent blood test under the same statutory provision discussed in Scarborough also will amount to a denial of due process of law.” Id. at 9 (emphasis in original).

¶ 30. While the United States Supreme Court established a floor in Trombetta and Youngblood, Mississippi’s ceiling, established by statute and by decisions of this Court, imposes upon our prosecutors a vigorous duty to ensure that evidence sought, or likely to be sought, by an ae-cused for independent testing is not destroyed:

While these facts, taken together, may not demonstrate a specific intent to destroy the blood sample, the district attorney’s indifference to the defendant’s efforts to obtain independent testing, which is both a statutory and constitutional right, is tantamount to a willful disregard of the affirmative duty to preserve evidence that “might be expected to play a significant role in the suspect’s defense.”

Id. at 10 (citing Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987); Trombetta, 467 U.S. at 489, 104 S.Ct. 2528). As I additionally observed in my Harness dissent, the State’s “affirmative duty to prosecute responsibly” is undergirded by Mississippi Rule of Professional Conduct 3.8(d). Harness, 58 So.3d at 10 (Kitchens, J., dissenting). Rule 3.8(d) imposes a special duty on the prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.... ” Miss. R. Prof 1 Conduct 3.8(d); see also URCCC 9.04(A)(5), (6). The comment to Rule 3.8 explains that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided on the basis of sufficient evidence.” (Emphasis added.)

¶ 81. While I do not suggest that the State’s failure to ensure the preservation of Whitaker’s blood was intentional, I view the prosecutor’s inattention to that task in the same way that I expressed such thoughts in Harness:

[t]hough the prosecutor in this case may not have set out deliberately to deprive the accused of his right to independent testing, his error in failing to undertake steps to preserve the defendant’s right to such testing produced the same result as if he had purposely caused the evidence to be destroyed without the defendant’s being allowed to test it.

Harness, 58 So.3d at 10 (Kitchens, J., dissenting). If the State had notice of Whitaker’s intention independently to test his blood sample, then the State had an affirmative duty to ensure its preservation, so that an independent analysis could have been conducted by Whitaker. Here, it appears that Whitaker, like Harness, first filed a motion for discovery. Three months later, when it had become evident to the defense that the blood sample to be used against Whitaker at tidal was not forthcoming from the State, a motion to compel was filed. Not until the morning of trial, nearly one month after Whitaker had filed the motion to compel, did the district attorney inform defense counsel that the sample had been destroyed by the State Crime Laboratory.

¶ 32. The district attorney stated at the motion hearing that it was his understanding of the Crime Laboratory’s policy that samples were to be maintained for six months before destruction. The expert from the Crime Laboratory testified at trial that samples were to be maintained for at least six months following completion of analysis before destruction. Otherwise, the record is devoid of any documentation of such a Crime Laboratory policy. It is unclear from the record whether Whitaker and/or defense counsel were aware of this policy. In Harness, the laboratory report bore notice that “[a]ll samples submitted for toxicological examination will be routinely disposed of six months after analyses are completed.” Id. at 7 (emphasis added). Here, the laboratory report did not contain such a notice. The record reflects that the State’s examination of the sample was completed on December 19, 2011, five months before Whitaker filed his Motion for Discovery, in May 2012. Thus, the district attorney appears to have been on notice for at least a full month that destruction of the sample was imminent when Whitaker notified him of his intention independently to test the blood sample.

¶ 33. Unintentional or otherwise, the failure on the part of the district attorney to ensure that the Crime Laboratory maintained Whitaker’s blood sample for independent testing does not comport with our requirement that prosecuting attorneys function as “ministers of justice.” During the final days before the Crime Laboratory was scheduled to destroy the blood sample, the maintenance of the sample for the purpose of independent testing by Whitaker, accused of driving under the influence of intoxicating liquor, had the potential of making the difference between liberty and a lengthy incarceration. This Court ought to require more of its “ministers of justice.” Adversarial advocacy for the State, though legitimate, should travel hand-in-hand with fair play in such circumstances as these, where the rights of the accused must be guarded by all concerned. But in the absence of a potentially exculpatory, independent test of his blood, Whitaker was faced at trial with the State’s analysis, and only that, of a sample of dubious efficacy.

¶ 34. The majority highlights that Whitaker’s “blood was not taken pursuant to the Implied Consent Act.” I agree that Whitaker’s blood was not taken pursuant to the procedures prescribed in Mississippi Code Section 63-11-7, since the investigating officer chose to obtain a search warrant. But the affidavits for search warrant, States’ Exhibits 8 and 9, sworn by the peace officer seeking the blood sample and signed by a Warren County Justice Court judge, cited “63-11-30” as the statutory provision pursuant to which Whitaker was being investigated. The State indicted and prosecuted Whitaker under Mississippi Code Sections 63-11-30(1) and 63-11-30(5), and he was convicted under those sections. It cannot, therefore, be said that Whitaker’s blood was not taken pursuant to the Implied Consent Act, or, at the very least, with that body of law in mind. The document utilized by the investigating officer to present to the magistrate a showing of probable cause, the means by which Whitaker’s blood ultimately was obtained, explicitly referred to the very sections of the Implied Consent Act of which the officer believed Whitaker to be in violation.

¶ 35. Deprivation of liberty without full due process of law mandates reversal. I would remand, first, for a determination of precisely when Whitaker’s blood sample was destroyed by the Crime Laboratory. If the trial court were to determine that the sample was destroyed after Whitaker had filed his Motion for Discovery in May 2012, Whitaker would be entitled to a new trial. At that new trial, if the State’s blood analysis were deemed admissible by the trial court, I would require that the jury be given the negative inference instruction I recommended in Harness:

The Court instructs the jury that if you find from the evidence that the State has failed to preserve any physical evidence whose contents or quality are in question in this case, and which the defendant could have had tested or analyzed by a qualified expert of his choosing, but for the State’s having failed to cause that evidence to be preserved for independent, expert testing or analysis by the defense, then you may infer that such testing or analysis would have been favorable to the defendant and unfavorable to the State. However, if you choose to make the negative inference against the State, this would not necessarily result in the defendant’s acquittal. If other evidence on this issue has been presented to you which either establishes the fact or resolves the issue to which the missing evidence is relevant, then you must weigh that evidence along with all other evidence. If, after considering all of the evidence, including the negative inference, you unanimously believe that the defendant has been proved guilty, beyond a reasonable doubt, then your verdict shall be, “We, the jury, find the defendant guilty.”

Harness, 58 So.3d at 12 (Kitchens, J., dissenting).

¶ 36. For these reasons, I respectfully dissent.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

      . Whitaker’s counsel previously had filed, on May 7, 2012, a Motion for Discovery, requesting "complete disclosure and discovery” pursuant to Uniform Circuit and County Court Rule 9.04. Rule 9.04(A), subsections (5) and (6), require the prosecution to disclose to the defendant’s attorney "any physical evidence” and "any exculpatory material concerning the defendant” in the "possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution.” The defendant’s Motion to Compel followed on August 15, 2012.

      . Mississippi Code Section 63-11-13 (Rev. 2013) provides that:
      The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a test, approved by the state crime laboratory created pursuant to Section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine. The failure or inability to obtain an additional test by such arrested person shall not preclude the admissibility in evidence of the test taken at the direction of a law enforcement officer.
      As I noted in Harness, ‘'[ajlthough the final sentence provides that a violation of this right will not preclude the admission of the State's test results, we repeatedly have held that rules governing the admissibility of evidence are strictly within the province of the courts and are not a legislative matter.” Harness, 58 So.3d at 9 n. 21 (Kitchens, J., dissenting) (citing Deeds v. State, 27 So.3d 1135, 1141 (Miss.2009); Whitehurst v. State, 540 So.2d 1319, 1323 (Miss. 1989)).

      . That said, if the Crime Laboratory destroyed the evidence prior to the filing of Whitaker’s Motion for Discovery or his Motion to Compel, due process might have been satisfied, as the State would have had no notice of his intention independently to test the sample. If the blood sample here was destroyed after the filing of Whitaker's motions, then the State’s failure to ensure its preservation, having notice of Whitaker's desire independently to test it, amounted to a violation of his right to due process of law. Nevertheless, the date the Crime Laboratory destroyed the blood sample does not appear in the record, though it is highly germane to this analysis. In Harness, for instance, it was clear that Harness’s blood sample was destroyed one week after his motion to compel was filed and served on the district attorney and three months after his motion for discovery “notified the district attorney ... that he desired a blood sample for independent testing." Harness, 58 So.3d at 7, 10 (Kitchens, J., dissenting). My reversal of this case would depend on a determination by the trial court of the date on which Whitaker's blood sample was destroyed.

      . The Crime Laboratory may have broken with its own policy of maintaining samples for at least six months.

      . Indeed, the exigency of the situation was exacerbated by the fact that the blood sample, for six weeks between October 21, 2011, and December 7, 2011, was retained in the police evidence locker until it was transported to the Crime Laboratory for analysis. The State’s expert in forensic toxicology testified that "there is a slight possibility” that failure to refrigerate for such a period of time could degrade the blood sample if it was not "stored in a manner or drawn and stored in the manner recommended by the kit [used by the nurse to take and preserve the blood sample].” The anticoagulant and preservatives contained in the kit are, according to the expert, designed to prevent the blood from breaking down; but if the blood does break down, ”[t]here is a possibility of bacteria-produced ethanol within a container, within a sealed tube, under the right circumstances, such as heat and other factors.” An independent analysis of Whitaker’s blood sample might, had it been preserved, have demonstrated a problem with the State’s maintenance of the blood sample. With its destruction, any possibility of exculpation on the basis of the sample forever was lost.


author: RANDOLPH, Presiding Justice,

text:
    Jerry P. MIZE v. WESTBROOK CONSTRUCTION COMPANY OF OXFORD, LLC, Jimmy Alvis Lewis, Jr., Kay W. Lewis and Jimmie Waller.
    No. 2012-CT-00610-SCT.
    Supreme Court of Mississippi.
    Sept. 4, 2014.

      R. Bradley Best, Oxford, Elbert Earl Haley, Jr., Madison, Erik Gregory Faries, Flowood, attorneys for appellant.
    William Troy Sloan, Bela J. Chain, III, Oxford, attorneys for appellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. This case arises from a property-line dispute between neighboring landowners in Lafayette County, Mississippi. Jerry Mize filed suit to confirm title to property described in a recorded corrected warranty deed. Westbrook Construction Company of Oxford, LLC, Jimmy A. Lewis, Jr., Kay W. Lewis, and Jimmie Waller, hereinafter referred to as Defendants, answered the complaint, counterclaimed to quiet and confirm their titles, and sought damages for slander of their respective titles. The chancellor found for Defendants and awarded damages and attorneys’ fees on their slander-of-title claims. The Court of Appeals affirmed. In his petition for certiorari, Mize raises multiple issues. We granted certiorari to consider whether all the elements of a slander-of-title claim were met. Our review is limited to whether there was sufficient evidence to support a slander-of-title action.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mize purchased fifty-six acres in Lafayette County. Without dispute, the vast majority of this property lies north of County Road 206. However, in reliance upon what the prior landowner (Estelle Kiger) communicated to him prior to the conveyance, Mize was led to believe that a small portion of the tract lay to the south of the road. Defendants, owners of properties south of County Road 206, claimed that their properties extended to the center line of the road, as described in their deeds.

¶ 3. To resolve the issue, Mize commissioned W.L. Burle Engineering of Oxford to survey his property. Jim Cannatella performed the survey. Cannatella has a B.S. in civil engineering. He maintains licenses as a professional engineer and professional surveyor in multiple states, including Mississippi. He is affiliated with multiple professional surveying and engineering associations. He has more than twenty years of experience in this field. His survey opined that Mize’s property crossed County Road 206 and included a portion on the southern side of the road that was claimed by Defendants. Canna-tella prepared a property description based on his findings and provided this description to Mize’s attorney, who drafted a corrected deed for Mize that closed the property. Subsequently, Kiger executed the corrected deed, and Mize filed the deed.

¶4. Westbrook declined to recognize Cannatella’s survey and Mize’s corrected deed. Westbrook relied on its warranty deed that included a property description drawn from a survey conducted in 2004 by Robert Karl Sealy, who is also a professionally licensed surveyor with more than twenty years of experience. Sealy’s survey set the northern boundary of West-brook’s property as the center line of County Road 206.

¶ 5. Unable to resolve the boundary dispute, Mize filed an action in the Chancery Court of Lafayette County to quiet and confirm title to the property described in his Corrected Deed. Defendants answered and filed counterclaims. Their counterclaims sought to quiet and confirm their own titles and alleged that Mize had slandered their respective titles. After a two-day trial, the chancellor accepted Sealy’s survey and established the center line of County Road 206 as the boundary between the properties. The chancellor also found that, even if Mize’s property extended slightly south of the road, Defendants had gained title through adverse possession. Finally, the court ruled for Defendants on their slander-of-title claim, finding that Mize had acted with malice in pursuit of his claim. The court ordered Mize to pay damages, awarding $32,-530.05 to Westbrook as compensation for interest paid on the property since the filing of the suit, and attorneys’ fees in the amount of $5,687.50 to Waller and the Lewises.

STANDARD OF REVIEW

¶ 6. This Court will reverse a chancellor only if he or she commits manifest error. Ferrara v. Walters, 919 So.2d 876, 880 (Miss.2005). The chancellor’s decision must be upheld unless it is found to be contrary to the weight of evidence or is manifestly wrong. Id. We will accept findings made by the chancellor regarding questions of fact and credibility of witnesses, so long as the evidence in the record tends to reflect the chancellor’s findings. Dunn v. Dunn, 786 So.2d 1045, 1049 (Miss.2001). However, this Court may overrule the chancellor if the chancellor’s findings are clearly wrong or are reflective of an erroneous legal standard. Id.

DISCUSSION

I.

¶ 7. To succeed in an action for slander of title, a claimant must show that another has falsely and maliciously published statements that disparage or bring into question the claimant’s right of title to the property, thereby causing special damage to the claimant. Walley v. Hunt, 212 Miss. 294, 304, 54 So.2d 393, 396 (1951). The slander may consist of a writing, a printing, or words of mouth, but they will provide grounds for a cause of action only if the statements have been made falsely and maliciously. Id. Whatever the statement, however, in order for it to form the basis of a right of action, it must have been made not only falsely but maliciously. Id. (citations omitted).

¶ 8. Malice, however, may be inferred from one’s actions. Phelps v. ClinJcscales, 247 So.2d 819, 821 (Miss.1971). “The law determines malice by external standards; a process of drawing inferences by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.” Id. As such, the chancellor’s finding of malice should be given great deference and can be reversed only if it is clearly erroneous. Mason v. Southern Mortgage Co., 828 So.2d 735, 739 (Miss. 2002). Here, the chancellor found malice in Mize’s actions; however the record is silent as to whether Mize knowingly made a false publication.

A. The Corrected Deed

¶ 9. This Court has held that the mere filing of a corrected deed is not sufficient to show malicious intent. Wise v. Scott, 495 So.2d 16, 21 (Miss.1986). Wise involved a dispute of mineral rights between parties following a conveyance of a mineral deed. Id. at 20. After realizing that there had been a drafting error in the original deed that had a material effect on the parties’ property rights, the defendant sought to correct the error through a corrected deed. Id. at 21. The plaintiffs successfully sued the defendant for slander of title in chancery court. Id. On appeal, this Court reversed the chancery court, finding that malice cannot be shown by the mere filing of a corrected deed, if the party who filed the corrected deed had a bona fide belief of ownership. Id.

¶ 10. Mize testified that the prior owner, Kiger, had told him that the property extended slightly south of County Road 206. To confirm or refute this claim, Mize commissioned a survey of his property by Cannatella. Cannatella’s survey revealed that the property did extend south of County Road 206, and the property description under the original warranty deed did not close. Cannatella then prepared a written description of the property that closed. No evidence was presented, nor does the record reflect, that Mize and Can-natella engaged in a collusive or fraudulent effort in obtaining the survey or preparing the property description.

¶ 11. Next, Mize retained an attorney to draft a corrected deed using Cannatel-la’s description that closed and assisted Mize with the filing of the corrected warranty deed after the previous owners of his property, the Kigers, executed the corrected deed. Given Mrs. Kiger’s recollection of the property and the results of the survey, Mize was entitled to rely on the Kigers’ execution of the corrected warranty deed, absent any collusive or fraudulent behavior between Mize and the Kigers. Just as no such evidence exists that suggests Cannatella conducted a fraudulent survey, likewise, no evidence exists that Mize obtained the Kigers’ signatures through guise, chicanery, or any otherwise invidious method.

¶ 12. Finally, in reliance of Cannatella’s survey and Kiger’s prior representations and execution of a corrected deed, Mize filed the corrected deed with the assistance of his attorney. Here again, nothing in the record suggests that Mize’s attorney acted improperly. No evidence was presented that implies that Mize falsely or maliciously published the corrected deed. The filing of the corrected deed, which was based on an independent professional survey and the statements of the grantors of the property, without proof of falsity, guile, or trickery, does not satisfy the elements of false publication or malice. Absent both, no slander-of-title action can succeed.

B. The Filing of Suit

¶ IS. Communications published in due course of a judicial proceeding are absolutely privileged and will not sustain an action for slander of title. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 117 (Miss.1987) (citing Krebs v. McNeal, 222 Miss. 560, 76 So.2d 698 (Miss.1955)). For example, the filing of a Us pendens notice in the due course of a judicial proceeding will not give rise to slander of title. Dethlefs, 511 So.2d at 117. Dethlefs involved a dispute over the existence of an easement and whether filing suit to determine the existence of that easement constituted slander of title. Id. On appeal, this Court held that such a filing constitutes an effort to protect one’s title and invokes one’s right to have his or her case decided by the court. Id. Said the Court, “Since Dethlefs had a valid right to have her case decided, the filing of a lis pendens notice cannot be slander of title.” Id.

¶ 14. All citizens have the constitutional right to petition our courts to adjudicate honest disputes. When Defendants rejected the findings of the Canna-tella survey and the corrected deed executed by Kiger, Mize exercised his right to petition a court to confirm and quiet title to the disputed property. If an honest dispute arises as to the ownership of property, such action is akin to the same privilege accorded to the filing of a Us pendens notice. Like Dethlefs, Mize had a legal right to have his case decided, regardless of the claims of ownership by Westbrook or any of the other Defendants. See Sellars v. Grant, 196 F.2d 677, 680 (5th Cir.1952) (finding that parties in litigation are not required to “accept as true” their opponents’ “version of the facts of a case”). Mize’s claim was based on Cannatella’s survey, oral statements, and the executed corrected deed by Kiger. Without doubt, these competing claims created an valid dispute. However, Mize’s action in filing suit, standing alone, does not satisfy the false-publication or malice elements to support an action for slander of title. Mize had a right to pursue his bona fide belief of ownership. All concerned had a right to have the facts of the case examined by the court for a determination of ownership. Id. Thus, no slander-of-title action arose from the filing of the suit.

C. Continuation of the Suit

¶ 15. Malice requires a showing of evil intent or ill will toward another, either through conduct or statements, without just cause or excuse. Black’s Law Dictionary 1109 (4th ed. 1970). The chancellor focused on two events to find that Mize had acted with malice: 1) the continuation of the suit following Estelle Kiger’s testimony in her deposition that she never meant to sell any of the property owned by the Lewises or Waller and 2) the removal of a culvert on the south side of County Road 206 during the course of the litigation.

¶ 16. The chancellor interpreted Ki-ger’s deposition testimony as an unequivocal denial of her prior ownership of the property in dispute. Although she did not know the exact location of the property line, Kiger also testified that the formerly owned property extended south of County Road 206. Kiger based her testimony on what her father had told her when she was a girl. She testified that when her father first built the road as a private road, he built it entirely within their property lines. Kiger’s execution of the corrected deed served as an affirmation of this belief. Although the chancellor and Court of Appeals correctly found that Ki-ger never intended to convey to Mize any of the property owned by Waller or the Lewises, Kiger explicitly intended to convey to Mize all of the property that she believed she owned, including property south of County Road 206. The deposition simply confirmed that the property that she intended to convey was that which she thought belonged to her, and not property owned by Waller or the Lew-ises.

¶ 17. Kiger’s testimony was not an unequivocal denial of former ownership to the property in dispute. The chancellor’s characterization that Mize “blindly” pursued his claim is dubious given that Mize pursued the claim on the results of the survey, the corrected deed executed by Kiger, and no direct evidence to support a finding of malafides by Mize in continuing his suit. However, the chancellor’s finding of malice is fairly debatable and could support an inference of malice. Thus we defer to this finding.

¶ 18. The same deference is not afforded the chancellor in ruling that the removal of the culvert was a malicious act. This Court has held that a party who commits an act under reasonable belief of title will not be said to have acted maliciously when committing the act. Butler v. City of Eupora, 725 So.2d 158, 161 (Miss.1998). In Butler, a city maintenance crew installed a water line on property that was authorized by a digging permit from Mississippi Department of Transportation (MDOT), even though MDOT’s title had not officially vested at the time the installation commenced. Id. at 159. Butler, who was the vested owner at the time of installation, filed suit for slander of title, among other claims. Id. The chancellor denied recovery to Butler, and we affirmed. We found such damages were not appropriate for the plaintiffs claim of slander of title because the city acted with reasonable reliance on the authorized digging permit and not out of malice. Id. at 161.

¶ 19. Mize testified that the culvert had become rusted and clogged, causing the diversion of water across the road. To alleviate this problem, Mize removed the culvert based on his belief of ownership under the corrected deed and survey.

¶ 20. Whether we accept or reject the chancellor’s finding of malice does not end our inquiry. There remains no evidence of a false publication or a finding by the chancellor of false publication, and absent that element, a slander-of-title claim must fail.

II.

¶ 21. This Court will reverse a chancellor’s award of damages only if he commits manifest error. Mason, 828 So.2d at 789. A claimant who has a bona fide belief of ownership in disputed property will not be found liable for special damages in an action for slander of title. Berrien v. Mapp, 374 So.2d 794, 798 (Miss. 1979). Even if the party seeking damages can show that he or she endured special damages from the opposing party’s claim of title, such damages are inappropriate if the claimant asserts ownership in good faith. Id. Similarly, damages arising from the lost sale of disputed property will not be imposed on a party who, in good faith, seeks a determination of ownership of the disputed property. Dethlefs, 511 So.2d at 118.

¶ 22. Turning again to Dethlefs, this Court held that a claimant in a quiet-title action does not have to pay any actual or punitive damages to the opposing party for a lost sale of the property that was halted due to the action. Id. In making that conclusion, we relied on the same reasoning as to why Dethlefs was not liable for slander of title. Id. One who petitions the court with a bona fide belief of ownership has every right to have his or her case decided, therefore, he or she should not be liable to an opposing party for damages incurred from a lost potential sale of the disputed property due to the pending suit. Id.

¶ 23. Mize asserted his claim, pursued his action, and presented evidence to support a bona fide belief of ownership. Having already established that one finding of malice was dubious, no evidence was presented that Mize falsely published his claim, an essential element. A successful defense of Mize’s claim does not entitle Defendants to damages from Mize. As the chancellor committed manifest error in ordering Mize to pay damages to Defendants, we reverse in part.

CONCLUSION

¶ 24. No evidence of record supports a finding that all of the elements of a slander-of-title action were met. Consequently, we reverse the judgment against Mize for slander of title and the award of damages to Defendants as well as the judgment of the Court of Appeals affirming it. We do not otherwise disturb the findings and judgment of the Court of Appeals or chancery court. We remand the case to the Lafayette County Chancery Court for the entry of a judgment consistent with this opinion.

¶ 25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS REVERSED IN PART AND THE CASE IS REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Upon grant of certiorari, we may limit issues on review. Miss. R. App. P. 17(h).

      . The original deed contained a description that did not close.

      . In his Final Decree, the chancellor stated, "The conflict in surveys rendered by Karl Sealy in November of 2004 and by Jim Can-natella in October of 2007 is resolved in favor of the Sealy survey, due to the fact that Can-natella could not find, and did not use, the appropriate monuments and Sealy did.” The monument to which the judge referred was a cotton-picker spindle located at or near the northeastern corner of Mize’s property.

      .Even though Westbrook had owned the property only since 2005, the court ruled that its predecessors in title made use of the property for agricultural purposes in an open and notorious manner for the statutory period, thereby satisfying adverse possession.

      . This amount was calculated based on the amount of interest that Westbrook paid on its mortgage from the date of a scheduled sale of the property. The court determined that, but for Mize’s suit, Westbrook would have sold the property and used the proceeds to pay off the mortgage.

      . Said the chancellor in his Final Decree, "The claim of Plaintiff Jerry P. Mize to the lands South of Lafayette County Road No. 206 was made with malice, as defined and contemplated in Walley v. Hunt, 212 Miss. 294, 54 So.2d 393 (Miss.1951), and the later reported decisions relying thereon for authority, as evidenced by the removal of the culvert from the road ditch on the South side of Lafayette County Road No. 206 during the pendency of litigation, and the maintaining of this action after it should have been apparent that neither Estelle Kiger nor her father ever claimed any land South of Lafayette County Road No. 206 and intended for said road to be a public road."

      . Kiger’s testimony by deposition was submitted into evidence without objection.